Pawan Pratap Singh & Ors vs Reevan Singh & Ors

6. On November 25, 1989, a notification was issued by the Governor of Uttar Pradesh clarifying that the vacancies already referred to the UPPSC shall be filled on the recommendation of the UPPSC alone.

7. Pursuant to the advertisement (No. A-5/E-4/87-88) dated December 26, 1987, the UPPSC conducted the preliminary examinations on September 24, 1989.

8. On October 27, 1990, the Selection Commission advertised and notified that for filling 60 posts of Deputy Jailor, a competitive examination, `U.P. Karapal (Deputy Jailor) Examination, 1990' shall be held. The examination was held on due date and after holding oral interview, the Selection Commission sent a select list to the State Government in 1991 for issuance of appointment letters.

9. On November 23, 1991, the State Government issued appointment letters to the candidates selected by the Selection Commission. The present appellants in Civil Appeal No. 9906 of 2003 and Civil Appeal No. 9908 of 2003 were amongst those who were appointed by the State Government pursuant to the selection made by the Selection Commission.

10. In 1991, the UPPSC also conducted the main examination for filling up different posts of Group `C' including the posts of direct recruitment of Deputy Jailor. The result thereof was declared on July 27, 1993. The UPPSC, then, sent the select list to the State Government. The State Government issued appointment letters to the selected candidates on April 26, 1994. The private first respondent was one of them.

(ii) where appointment from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees;

12. On August 29, 1995, a tentative seniority list of Deputy Jailors was notified by the Inspector General (Prisons) - the appointing authority - and objections were called for from the concerned officers. In that list, the candidates appointed in 1991 were shown senior to the candidates appointed in 1994. The litigation between the two groups started with this list. The tentative seniority list dated August 29, 1995 came to be challenged before Allahabad 9 High Court in three writ petitions; one by Bholanath Mishra (Writ Petition No. 26560 of 1996), the other by Samar Bahadur Singh (Writ Petition No. 13138/2000) and the third by the first respondent herein Reevan Singh (Writ Petition No. 22919/2001). The writ petition filed by Samar Bahadur Singh was dismissed by the High Court on the ground of availability of alternative remedy before the State Service Tribunal. The writ petition filed by the first respondent herein was allowed on December 2, 2002 and the High Court directed the State of Uttar Pradesh and the Director General (Prisons), Lucknow to treat the appointees of 1994 senior to 1991 appointees. The contention raised by the writ petitioner (first respondent herein) before the High Court was that in view of the second proviso to rule 5 of 1991 Rules, the Deputy Jailors who were selected in the selection which commenced in 1987 must be treated senior to those selected pursuant to the selection that commenced in 1990. The Division Bench agreed with this contention and held as follows:

In the main judgment, the facts of the case are taken note of in detail but it would be useful to briefly recapitulate them here. Before November 25, 1989, the statutory agency to make the selection for appointment to the post of Deputy Jailer was the Uttar Pradesh Public Service Commission (hereinafter "UPPSC"). On December 26, 1987 the UPPSC issued an advertisement for filling up a large number of vacancies in different posts, including 144 vacancies in the post of Deputy Jailers. It held the main examination of the candidates applying in response to the advertisement in 1991 and finally declared the result on July 27, 1993. On the basis of the list received from the UPPSC, the State Government issued appointment letters to the selected candidates (one of them being respondent no. 1) on April, 26 1994. In short, the selection process started by the UPPSC was completed and materialized in appointments of the selected candidates in seven years. In the meanwhile, it seems, the State Legislature, having regard to the long 3 delays in the completion of selection by the UPPSC, decided to lighten its burden by taking away from it the recruitments on all group `C' posts in the State. The State Legislature, accordingly, passed the Uttar Pradesh Subordinate Services Selection (Commission), Act, 1988 to establish a Subordinate Services Selection Commission for direct recruitment to all group `C' posts in the State. The Act came into force with effect from February 15, 1988. After coming into force of this Act, a notification had to be issued by the Governor on November 25, 1989, clarifying that the vacancies for which requisition had earlier been made to the UPPSC would be filled up on the recommendation of the UPPSC alone and that is how the UPPSC continued to have seisin over the vacancies advertised by it on December 26, 1987. The newly formed Selection Commission issued an advertisement on October 27, 1990, for filling up 60 posts of Deputy Jailer. It completed the selection process and sent the select list to the State Government in 1991 and on that basis the appellants were appointed vide appointment letter dated November 23, 1991 issued by the State Government. At this stage, it is important to note that in terms of the advertisement issued by the Selection Commission on October 27, 1990, there was nothing to prevent those (including respondent no.1) who might have applied in response to the earlier advertisement by the UPPSC to also apply for the 60 vacancies under the later advertisement by the Selection 3 Commission. When this aspect of the matter was pointed out, it was stated on behalf of the respondents that by the time the later advertisement by the Selection Commission was issued on October 27, 1990 some of the applicants before the UPPSC had become overage and were no longer eligible to apply. There are no details available as to how many of the 144 candidates appointed from the select list of the UPPSC had become overage by the time the advertisement of the Selection Commission came on October 27, 1990; even in the case of respondent no. 1 it is not stated clearly and definitely that he was unable to apply in response to the advertisement of October 27, 1990, issued by the Selection Commission because by that time he had become over age. Be that as it may, this aspect of the matter is only incidental and it is recalled simply to point out that it is not open to the respondents to contend that the position in which they are placed is the result of circumstances over which they had no control and to make an appeal in the name of equity.

32. In view of the above, it is not necessary to deal with the objection raised by the appellants about maintainability of writ petition filed by contesting private respondent directly before the High Court bypassing the remedy before the State Service Tribunal. 2

33. For the foregoing reasons, these appeals are allowed; the judgment and order dated December 2, 2002 passed by the Allahabad High Court is set aside. The seniority of the two groups of direct recruits to the posts of Deputy Jailor, one appointed through the selection made by the Uttar Pradesh Subordinate Services Selection Commission in 1991 and the other by Uttar Pradesh Public Service Commission in 1994 shall be now determined as indicated above, if not determined in the manner stated above, so far. The parties shall bear their own costs.

In my brother's judgment, rule 5 is discarded in preference to rule 8 of the 1991 Rules because the post of Deputy Jailer is open to two modes of recruitment, one direct and the other by promotion from amongst the permanent Assistant Jailers (vide rule 5 of the 1980 Rules). It is pointed out that rule 5 of the 1991 Rules begins by expressly stating, "Where according to the service rules appointments are to be made only by the direct recruitment...." On the other hand rule 8 begins by saying, "Where according to the service rules appointments are made both by promotion and by direct recruitment...." And under rule 8, seniority is to be determined on the basis of the date of the order of the substantive appointment. Applying the date of substantive appointment as the basis to determine seniority the appellants would indeed rank senior to respondent no.1.

Now, in case the seniority between the appellants and the first respondent is to be determined outside the 1991 Rules, one has to go to the basic principles for determination of seniority. One cardinal principle for determination of seniority is that unless provided for in the rules, seniority can not relate back to a period prior to the date of the incumbent's birth in the service/cadre.

In conclusion I would say that in the facts of this case the issue of seniority between the appellants and respondent no. 1 must be decided on the basis of the aforesaid principle and there is no need to refer to rule 8 of the 1991 Rules. By this way I also hold that respondent no.1 cannot claim seniority over the appellants and the appellants would rank senior to respondent no.1.

In the result, the appeals are allowed. The judgment of the High Court is set aside and the writ petition filed by respondent no. 1 in the High Court is directed to be dismissed.

There shall be no order as to costs.

.............................J. (Aftab Alam) New Delhi;

February 10, 2011.

In view of the two separate judgments (which are concurrent in nature) pronounced by us in these appeals today, the appeals are allowed. There shall be no order as to costs.

February 10, 2011 4