Amarjeet Singh & Ors vs Devi Ratan & Ors

2. The facts and circumstances giving rise to these appeals are that the appellants and respondents in these cases were appointed as Excise Inspectors under the provisions of U.P. Excise Service (Class-II) Rules, 2 1970 (hereinafter called as "the Rules 1970"). The parties became eligible for consideration for promotion to the post of Superintendent of Excise under the said Rules, 1970. The criteria of promotion for the post of Superintendent of Excise and for higher post of Assistant Excise Commissioner (hereinafter called "AEC") had been "merit" under the provisions of U.P. Assistant Excise Commissioners Service Rules, 1992 (hereinafter called as `the Rules 1992'). The said rules stood amended w.e.f. 10.10.1994 and the criteria for promotion was changed from `merit' to `seniority subject to rejection of unfit." The Appellant Amarjeet Singh alongwith some other Excise Inspectors filed writ petition No. 1113(SB) of 1994 before the Allahabad High Court challenging the selection process for promotion under Rules 1992. The High Court vide judgment and order dated 1.2.1995 held that the vacancies which had come into existence prior to 10.10.1994 i.e. the date of amendment, be filled up as per the unamended Rules i.e. on the basis of "merit" and not on the basis of "seniority subject to rejection of unfit."

3. Being aggrieved, the State of U.P. preferred the Special Leave Petition before this Court and this Court vide Order dated 30.10.1995 passed an interim Order permitting the State Authorities to make promotions as per 3 1994 amendment Rules but it was subject to the result of the petition as this Court made it clear that if petition was dismissed, the respondents would be reverted to the lower post from which they would be promoted.

4. In view of the said interim order of this Court, 61 Excise Inspectors stood promoted, subject to the final outcome of the Special Leave Petition. This Court dismissed the said Special Leave Petition vide Order dated 19.8.1999 in limine. However, the State Authorities for the reasons best known to them, did not revert the promoted officers and they continued to hold the higher posts. The Departmental Promotional Committee (hereinafter called the DPC) meant for filling up the 42 vacancies, which came into existance prior to 10.10.1994, met on 19.12.1998. After scanning the service records and determining the inter se merit of the candidates, the Committee came to the conclusion that only 30 candidates were suitable for promotion to the posts of AEC and they were to be promoted as per the availability of yearwise vacancies. The respondents, herein, were found unsuitable for promotion in the said selection process.

5. After completing the aforesaid exercise, 12 vacancies for the post of AEC remained unfilled. Therefore, the 12 vacancies were carried forward 4 to enable the State Authorities to fill up the same under the amended Rules on a different criteria i.e. "Seniority subject to rejection of unfit". Thus twelve officers/respondents were promoted under the amended rules by the another DPC held on 22.1.1999. The State Government issued the Order dated 15.5.1999 reverting all Excise Inspectors promoted on 6.12.1995 under the interim order of this Court and gave notional promotions with retrospective effect to appellants as well as all the reverted officers/respondents. As a consequence, a seniority list dated 12.7.2000, was issued, wherein the appellants were placed over and above the respondents. Being aggrieved, the respondents approached the High Court challenging the said seniority list dated 12.7.2000.

13. The High Court has decided the earlier writ petition observing that vacancies which occurred prior to the date of amendment of the Rules, i.e., 13.10.1994, had to be filled up as per the unamended Rules. The State Government filed a Special Leave Petition, challenging the said order. This Court on 30.10.1995 passed the following order :

In order to give the said respondents a second chance, the State Government carried forward the remaining 12 vacancies and directed to fill up the same under the amended Rules, and for that purpose another DPC was convened on 22.1.1999 and they were promoted on the basis of different criterion. 2 Promotions were made with retrospective effect determining the yearwise vacancies. Appellants had been given promotion notionally against the vacancies, occurred in the recruitment year 1995 while the respondents were promoted notionally against the vacancies of the recruitment years 1996 and 1997. Thus, the High Court committed an error while recording the finding of fact that both set of officers had been promoted notionally from one and the same date. Admittedly, promotions were not made with effect from one and the same date. Appellants and respondents were promoted against the vacancies which had occurred in different recruitment years under different Rules and on different criterion. Thus, the respondents would rank below the appellants in seniority.

In view of the above, the respondents had been promoted and allowed to continue. This Court, ultimately dismissed the said petition vide Order dated 19.8.1998 by the following order :

21. In view of the above, the appellants are entitled for the relief purely on equitable grounds without going into any other legal issue and appeals deserve to be allowed and the seniority list quashed by the High Court has to be restored.

25. Challenging the consequential order without challenging the basic order is not permissible. (vide Chithranja Menon & Ors. Vs. A. Balakrishnan & Ors., AIR 1977 SC 1720).

These appeals are squarely covered by the aforesaid judgments. We are of the considered opinion that in absence of challenge to the promotion of the appellants, relief of quashing the consequential seniority list could not have been granted.

29. Sum up:

Therefore, there could be no justification to hold that their inter se seniority in the feeding cadre would be relevant for determining the seniority of AECs. More so, had the interim order not been passed by this Court, the appellants could have been promoted under the unamended rules much earlier. Thus, they are entitled for equitable relief, as the effect of the interim order of this Court was required to be neutralised. The appellants had been promoted with an earlier date, thus, are bound to be senior than respondents who had been promoted with respect from a later date. No employee can claim seniority prior to the date of his birth in the cadre. 2

30. In view of the above, appeals succeed and are allowed. The impugned judgment and order dated 11.4.2002 is set aside. The Seniority List dated 12.7.2000 is directed to prevail and fresh Seniority List of 26.7.2002 is hereby quashed. No orders as to cost.

Before parting with these cases, we would record our appreciation to the services rendered by Shri Gaurav Agrawal, Amicus Curiae. SLP(C) No. 9615 of 2002 :