MANOHAR LAL JAT & ORS. ETC. versus THE STATE OF RAJASTHAN & ORS. ETC.
[2020] 11 S.C.R. 948, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
MANOHAR LAL JAT & ORS. ETC.
v.
THE STATE OF RAJASTHAN & ORS. ETC.
(Civil Appeal No(s). 3832-3833 of 2020)
NOVEMBER 26, 2020
[INDIRA BANERJEE AND S. RAVINDRA BHAT, JJ.]
Rajasthan Commercial Taxes Subordinate Services (General
Branch) Rules, 1975: r.27 – Seniority – Creation of post of Tax
Assistant – Proposal to fill 80% by direct recruitment and 20% from
amongst direct promotees – Advertisement issued on 25.01.2011
for recruitment of direct recruits – On 24.05.2011, advertisement
issued for filling up of 20% quota for direct promotees – Result of
written examination held for direct promotees  announced on
14.06.2011 and promotion letters issued on 23.06.2011 –
Provisional results for the test held for direct recruits declared on
16.05.2011 – Appointment orders of the direct recruits issued on
04.07.2011 after the police verification and medical test – In the
seniority list published on 04.06.2013, those appointed as direct
promotees in the 20% quota were shown as senior to the direct
recruits – Direct recruits challenged the seniority list – Held:
Advertisements (for filling up the entire cadre, in both the quotas or
streams of recruitment) were issued one after the other – This was
the first selection and recruitment to a newly created cadre – Delay
occurred on account of administrative exigencies (and also the
completion of procedure, such as verification of antecedents), thus,
the seniority of the promotees given on the basis of their dates of
appointment, was justified
by r.27 – Service Law – Inter se seniority.
Dismissing the appeals, the Court
HELD: 1.  A reading of the entire rule (Rule 27 [1] and the
two provisos) showed that (a) before the amendment of 2002,
the seniority of personnel appointed to the “lowest categories of
posts” in any department was to be determined as from the date
of appointment; however, for promotees, it was to be from the
date of selection; (b) after the amendment of 2002, seniority has
948
[2020] 11 S.C.R. 948
to be fixed (by reason of Rule 27 (1)) as on the date of appointment
to the post or service; (c) however, in the case of pre-state
integration of state (of Rajasthan) or pre-integration of services,
seniority could be “modified or altered by the Appointing Authority
on an ad hoc basis”- this clearly was meant to be a “sunset” clause,
i.e. operative for a limited period; (d) the second proviso,- which
is the one pressed into service by the DRs, states that seniority
of those selected earlier will be determined over those selected
latter. [Para 29][961-G-H; 962-A-C]
2.  The principal mandate of the rule is that seniority is
determined on the basis of date of appointment (“shall be fixed
from the date of their appointment”). Proviso (2) lists out two rules.
The first is that those selected and appointed through a prior
selection would rank senior to those selected and appointed
through a later selection process. The High Court, in this case,
was of the opinion that this rule (i.e., proviso) applied to selections
from the same source, i.e., where two sets of direct recruits were
appointed, those selected through a previous recruitment
process, would rank senior to those recruited through a later
recruitment process. This interpretation is, in this court’s opinion,
salutary. There may be various reasons why the ultimate
appointment of one batch of recruits may be delayed: challenges
to some part of the recruitment process (such as shortlisting,
calling of candidates for
interviews, etc.), during which period, a
subsequent recruitment may be undertaken. To forestall any
apprehensions as to which of the appointees would be senior,
and if those from the earlier process are appointed later, the
proviso clarifies that candidates from the earlier process would
rank senior, despite the main rule speaking of a date of
appointment based seniority. The same logic would apply to
departmental promotees, as well, if two batches of promotees
are appointed through selection. The second limb of the second
proviso clarifies that when merit-based, or seniority-based
promotions are resorted to, the applicable norm would be
seniority in the feeder cadre, to forestall any debate about the
rule of merit (in the selection) being the guiding principle.  [Para
30][962-C-G]
MANOHAR LAL JAT v.
THE STATE OF RAJASTHAN
A
B
C
D
E
F
G
H
950
SUPREME COURT REPORTS
[2020] 11 S.C.R.
3.  Keeping in mind that the advertisements (for filling the
entire cadre, in both the quotas or streams of recruitment) were
issued one after the other, and more importantly, that this was
the first selection and recruitment to a newly created cadre, the
delay which occurred on account of administrative exigencies (and
also the completion of the procedure, such as verification of
antecedents) the seniority of the promotees given on the basis
of their dates of appointment, is justified by Rule 27 in this case.
The impugned judgment is not erroneous; it does not call for
interference. [Para 32][964-G-H; 965-A-B]
Prem Kumar Verma v. Union of India (1998) 5 SCC
457 : [1998] 2 SCR 763 – relied on.
Gajendra Singh & Ors. v. State of Rajasthan & Ors.
CWP No. 4630 of  2017 ; S. Sundaram Pillai and others
v. V. R. Pattabiraman and Other (1985) 1 SCC 591 :
[1985] 2 SCR 643 ; J.K. Industries Ltd. and & Ors v.
Chief inspector of Factories and Boilers & Ors (1996)
6 SCC 665 : [1996] 6 Suppl. SCR 798 ; Casio India
Pvt. Ltd. v. State of Haryana (2016) 6 SCC 209 ;
Rohitash Kumar v. Om Prakash Sharma and Ors. (2013)
11 SCC 451: [2012] 13 SCR 47 – referred to.
Case Law Reference
[1985] 2 SCR 643
referred to
Para 17
[1996] 6 Suppl. SCR 798
referred to
Para 17
[2012] 13 SCR 47  
referred to
Para 22
[1998] 2 SCR 763 
relied on
Para 22
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3832-
3833 of 2020.
From the Judgment and Order dated
23.04.2018 of the High Court
of Judicature for Rajasthan Bench at Jaipur in D.B. Special Appeal Writ
No.1053 of 2017 and D.B. Special Appeal Writ No. 1250 of 2017]
With
Civil Appeal No. 3834 of 2020.
Ms. Aishwarya Bhati, S.K. Keshote, Dr. Manish Singhvi, R.
Venktramani, Sr. Advs., Ms. Oorjasvi Goswami, Ms. Chitrangda R.,
Nithin Chaudhary P., Ms. Kirti K., Celeste Agarwal, Gp. Capt. Karan
A
B
C
D
E
F
G
H
951
Singh Bhati, Prashant Bhushan, Devesh Kumar Agnihotri, Rishi Matoliya,
Vivek Gupta, Shailja Nanda Mishra, Arpit Prakash, D.K. Devesh, Milind
Kumar, Irshad Ahmad, Devvrat, Abhijit Banerjee, Ms. Swati Setia, Yash
Raj Bundela, Praveen Vignesh, Rajeev Maheshwaranand Roy, Gunjan
Kumar, P. Srinivasan, Advs. for the appearing parties.
The Judgment of the Court was delivered by
S. RAVINDRA BHAT, J. 1. Leave granted.
With consent of all the counsel for parties, the appeals were heard
finally and judgement was reserved on 24th January 2020. These appeals
challenge the common judgement of the Rajasthan High Court1. The
Division Bench of the High Court by the impugned judgement set aside
an order made by the learned single judge of that court and held that the
present Appellants (hereafter referred to as “direct recruits” or “DRs”)
were not entitled to claim seniority over and above the respondents,
hereafter called “departmental promotes” or “DPs”). The DRs had
approached the High Court in the first instance, claiming that the seniority
list, showing the DPs in earlier positions, was untenable; the single judge
allowed that petition. The Division Bench has, however, allowed the
appellants to question the eligibility of DPs to be recruited.
2. The relevant facts are that on 01.09.2009, the Finance
Department of the Government of Rajasthan granted approval for creation
of 531 posts of Tax Assistants. This newly created post was augmented
by further 23 posts, which
were added to the cadre; the final tally of
such newly created posts of Tax Assistants became 554. Amendments
to the Rajasthan Commercial Taxes Subordinate Services General
Branch Rules, 1975, made with effect from 01.12.2010, prescribed the
manner of filling of posts of Tax Assistants. Schedule-I of the Amendment
Rules defined the manner of filling of the posts in the following terms:
“100% by direct recruitment:
(a)
80% by the appointing authority in accordance with
Schedule III
(b)
20% by selection from amongst ministerial staff of the
commercial taxes department that by way of departmental
examination in accordance Schedule II”
3. On 4th October 2010, a Departmental Selection Committee
was constituted for recruitment of both categories and proceedings were
1 Sitting at its Jaipur Bench, in DB Special Appeal Writ Number 1053/2017 and DB
Special Appeal Writ No. 1250/2017
MANOHAR LAL JAT v. THE STATE OF RAJASTHAN
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
952
SUPREME COURT REPORTS
[2020] 11 S.C.R.
initiated soon filling all the for 554 posts of Tax Assistants. In accordance
with the rules, it was proposed to fill the 80% quota of direct recruits to
the extent of 443 vacancies and 111 from amongst DPs. Accordingly, on
25.01.2011 and advertisement was issued for recruitment of DRs. The
written examination, stipulated under the rules was conducted for
recruitment of DR’s; thereafter a typing test was conducted on
15.05.2011. 356 candidates participated in this typing test. On 16.05.2011,
provisional results were declared for the test held for DRs. Thereafter
letters were apparently written by the Commissioner, Department of
Commercial Taxes enclosing a list of successful candidates, to the police
authorities for due verification of their character and antecedents. On
24.05.2011, the department advertised for filling up of the 20% quota for
DPs. Earlier the proposal was to hold the written examination for the
DPs on 24.06.2011; however, it was held earlier on 11.06.2011 and
12.06.2011. The results of these tests for the DPs were announced on
14.06.2011 and the department issued promotion letters on 23.06.2011.
On 24.06.2011 the appellants were issued with letters for police
verification and medical test. By this time however the DPs had already
been promoted, and had taken charge of their posts. The appointment
orders of the DRs were issued subsequently; on 04-07-2011.
4. On 5th June, 2013, the Commercial Taxes
Department of the
State of Rajasthan published a seniority list in which those appointed as
DPs, in the 20% quota were shown as senior to the DR/the appellants.
Apparently, some of the DRs – including the appellants objected to this
placement and sought for correction of the seniority list2. Another
provisional/tentative seniority list was issued on 15-05-2014, in which
the position was no different inasmuch as the DPs were shown above
the DRs. The appellants again objected; nevertheless on 18-09-2015 the
Department substantially confirmed their previous positions in the final
list published by it.
5. The Direct Recruits (DRs) filed one set of Writ Petitions3
contending that the seniority lists were contrary to law.  Yet another
seniority list was issued by the Department on 30.05.2016 in which the
previous position of the DPs was left undisturbed.  This became the
2 The third appellant, Ankur Kumar Bansal objected through a representation dated
27.06.2013, in effect stating that the placement of DPs above the DRs was unjustified
and contrary to the rules.
3 Manohar Lal Jat & Ors. vs. State of Rajasthan &Ors.
A
B
C
D
E
F
G
H
953
subject matter of challenge before another proceeding4.  Though the
two writ proceedings had challenged the seniority position allotted to the
DRs except the few DPs and official respondents, no others were
impleaded.  The prominent grounds of attack in the writ petition, were
that the recruitments of the DRs and DPs took place simultaneously and
that the departmental candidates were mala fide issued with appointment
letters earlier, for no reason except to ensure that their dates of entry
into the cadre of tax inspectors were earlier, in order to favour their
further career progression.
6. A learned Single Judge of the High Court by Judgment dated
25.05.2017 considered Rule 27 of the concerned Rules (hereafter called
the “Seniority Rules”)5.
7. The Single Judge took particular notice of Rule 27(2) which
stated that those who undergo recruitment process in an earlier selection
will be placed at senior positions to those who undergo recruitment in a
selection by a later process.  The Single Judge concluded as follows:
“16. A glance of Rule 2 (1) would reveal that the advertisement
dated 25th January, 2011, was issued with reference to the
vacancies of the year 2010-2011. Obviously, the
advertisement dated 24th May, 2011, would be a recruitment
process with reference to the vacancies of the subsequent year
2011-2012.  The respondents are curiously silent on this aspect
in their counter affidavits as well as during the arguments.
17. A conjoint reading of
Rule 2(1) and 27 of the Rules of
1975, would leave no room of any doubt that the persons
selected and appointed as a result of a selection process,
which is not subject matter to review and revision, shall rank
senior to the persons who are selected and appointed as a
result of subsequent selection.  Thus, the phrase ‘subsequent
selection’ under Rule 27 read with Section 2(1) leads to logical
conclusion that the petitioners are employees who were
appointed in a previous selection and the private respondents
(departmental employees), are the persons who were accorded
appointment in a ‘subsequent selection’.  Hence, those
departmental candidates cannot be allowed to march over
4 Gajendra Singh & Ors. vs. State of Rajasthan &Ors. CWP Np. 4630 of 2017
5 Rajasthan Commercial Taxes Subordinate Services (General Branch) Rules, 1975
MANOHAR LAL JAT v. THE STATE OF RAJASTHAN
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
954
SUPREME COURT REPORTS
[2020] 11 S.C.R.
and above in the seniority to the petitioners, who are the
successful selected candidates of a previous selection
process.”
8. The DRs aggrieved by the Judgment of the learned Single Judge
preferred appeals to the Division Bench Special Appeal Writ No. 1053
of 2017 and Special Appeal Writ No. 1250 of 2017.
9. Since all the Departmental Promotees (DPs) were not
represented before the Single Judge, many of them preferred third party
appeals. The Division Bench by its impugned Judgment allowed these
appeals by DPs after noticing that Rule 27 which had been relied upon
by the Single Judge had been amended.  The Division Bench took note
of the fact that after amendment with the amendment provisos have
been added.
10. The Court held that the main provision of the Rule 27 was
amended on 10.10.2002 which added a second proviso and that the
proviso would operate when two selections are for one and the same
category.  The relevant observations of the Division Bench are as follows:
“In our opinion, there is conflict between the main provision
of rule 27 and second proviso.  If proviso is applied taking
into consideration the earlier and subsequent selection
followed by appointment then, in a given case, where a
selection was started earlier to subsequent but the appointment
is given first to those selected pursuant to subsequent
selection, the relevance of the date of appointment gets
nullified.  It is because of appointment of
the candidates
pursuant to the subsequent selection prior to the appointment
of the candidates out of earlier selection.  They would not get
seniority despite earlier appointment and, thereby,
significance to the date of appointment given in Rule 27 would
be violated.  The proviso cannot nullify the main provision
and, in those circumstances, consideration of two provisions
has to be made.  The proviso would operate when two
selections are for one and the same category.”
11. According to the Division Bench thus the two categories DPs
and DRs were different and it was not open to the DRs especially after
a long lapse of time, to question the placement in the seniority list of the
DPs. However, since the DRs/Original Writ Petitioners had argued before
A
B
C
D
E
F
G
H
955
the Division Bench about the ineligibility of DPs (or some of them) to
participate in the selection –(which was held in 2011) that issue was
kept open.
Arguments of parties
12. Mrs. Aishwarya Bhati, learned Senior Counsel and Mr. Prashant
Bhushan appearing on behalf of the appellants argued that the Division
Bench ignored the fact that recruitments in this case were conducted
with two different advertisements for the same post, the appellants who
were from open category against 80% quota were selected earlier and
the other set of departmental employees were recruited later. In terms,
the DR, answered the description of having been selected earlier, and
having participated in an earlier recruitment process.  On the other hand,
the DPS responded to a different advertisement issued later, and
underwent a separate selection process.  Plainly, having regard to the
express terms of the rule, i.e. Rule 27, the seniority of the direct recruits
(i.e. the appellants and others like them) had to be determined at posts
earlier than or senior to the DPs who were selected later.
13. It was argued that the mere incidence of issuance of earlier
appointment letters could not have resulted in an undue and unfair
advantage to the DPs as to deprive the DRs of earlier slots of the common
seniority lists. Elaborating on this aspect, learned counsel relied upon the
observations of the Single Judge and stated that selection or recruitment
for the DR quota were advertised on
25.01.2011; the test was conducted
on 17.04.2011 and on 16.05.2011 the select list for the DR category was
published. However, the Commercial Taxes Department deliberately
withheld issuing appointment letters and released another advertisement
to fill up the DP 20% quota of the ministerial employees who were
working in the same department. The departmental examination for the
DP quota was conducted on two successive dates i.e. 11.06.2011 and
12.06.2011. The learned counsel highlighted that this was despite the
fact that the departmental test was originally scheduled later. Having
proceeded to schedule the test earlier the state proceeded with unusual
speed and published the results of the DP category candidates for the
20% quota on 14.06.2011 and hastily issued appointment letters on
23.06.2011.  It was only thereafter that the appointment letters of DR
category candidates (for the 80% open quota) were issued.  It was
submitted that these circumstances ipso facto established malice against
MANOHAR LAL JAT v. THE STATE OF RAJASTHAN
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
956
SUPREME COURT REPORTS
[2020] 11 S.C.R.
DRs and advertisement on the part of the State and its officers, to grant
undue and unfair advantage to the DP category of candidates.
14. Learned counsel highlighted that the representation/letter by
the General Secretary of the Departmental Employees Association had
pressurised the Commercial Tax Department to recruit DPs earlier and
relied upon a letter dated 19.05.2011.  The conduct and action of the
State in speeding up the process of selection of the DP quota to the utter
disadvantage of the DR recruits, was thus established from the record.
The department in fact given unprecedented priority, to select candidates
for the 20% departmental quota.
15. Learned counsel also argued that the explanation given by the
State for the delay that occurred in issuing appointment letters to the DR
quota candidates (which was that sometime was taken in police
verification and medical check up) has to be considered in the light of
these established facts.  The learned counsel emphasised that it was
only after the appointment letters were issued to the DP candidates in
the 20% category on 24.06.2011 that a mere 10 days later, i.e. 14.07.2011,
appointment letters were issued to the DR candidates.
16. It was lastly argued that the Division Bench while ignoring the
facts of the case, interpreted the rules (Rules 27 of the Rajasthan
Commercial Taxes Subordinate Service (General Branch) Rules, 1975
(in short, the Rules of 1975)
incorrectly. The original Rule 27 which was
amended by notification dated 10.10.2002, which reckoned the seniority
from the date of appointment. However, the proviso (2) of the Rules 27
was retained, which clearly stipulates “that the persons selected and
appointed as a result of selection, which is not subjected to review
and revision, shall rank senior to the persons who are selected and
appointed as a result of subsequent selection. Seniority inter-se of
persons selected on the basis of seniority-cum-merit and on the basis
of merit in the same selection shall be same as in the next below
grade”.
17. It is argued that pertinently the intent of the rule, in retaining
the proviso (2) of the said rule, was to avoid ambiguity in reckoning
seniority, in the cases wherein the selection for the same post i.e. “Tax
Assistants’ is done through two different sources, wherein the date of
advertisements and selection processes are different. The proviso carves
out an exception to the main provision, and the function of the proviso is
to limit the main part of the provision and carve out something which but
A
B
C
D
E
F
G
H
957
for the proviso would have been within the operative part. This Court in
various judgments such as S. Sundaram Pillai and others Vs.  V. R.
Pattabiraman and Others6; J.K. Industries Ltd. and & Ors Chief
inspector of Factories and Boilers & Ors7, held “proviso is an
exception to the main part of the section; but it is recognized that in
exceptional cases a proviso may be substantive provision itself.”
18. It is urged that the amended rule 27, only speaks about the
seniority on the basis of date of appointment; however, the proviso (2)
clarifies the rule for reckoning seniority when there are two
advertisements for the same post, filled through different categories
(sources) of candidates. Therefore, the main rule will only apply when
the recruitment is through the same advertisement. It cannot be applied
in a case where another advertisement is issued for the same post after
the release of the results of the first advertisement and appointment
order is given in the later case. This process of arbitrary recruitment will
always deprive of the candidates in their order of seniority in their whole
service tenure which is against the principles of Article 14.
19. Dr. Manish Singhvi, the learned Additional Advocate General,
appearing on behalf of the State of Rajasthan and Mr. R. Venkatramani,
learned Senior Counsel appearing on behalf of the contesting respondents,
i.e. the Departmental Promotee (DP) candidates, made their submissions.
It was argued on behalf
of the State respondents that the permission for
creation of 531 posts was given on 01.09.2009 and later 23 posts were
added.  The recruitments in question resorted to in 2011, through the two
advertisements issued (one for the 80% quota of DRs and other to fill up
20% quota of DPs) was the first recruitment drive to fill up these newly
created posts which had hitherto not existed.   It was urged on behalf of
the State that these circumstances of the case are to be kept in mind
from an important perspective i.e. the first attempt of the State to fill up
a large number of posts after they were encadred and were lying unfilled
for nearly two years.  Learned counsel submitted that no doubt
advertisements to fill up the DR vacancies were issued prior in point of
time i.e. in January 201, however in response to this advertisement for
the 80% vacancies (i.e. 443 vacancies) no less than 15,352 applications
were received; these has to be screened to determine eligibility of the
candidates; thereafter the written examination was conducted on
17.04.2011. A typing test was also conducted on 15.05.2011 for 356
6 (1985) 1 SCC 591
7 1996) 6  SCC 665
MANOHAR LAL JAT v. THE STATE OF RAJASTHAN
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
958
SUPREME COURT REPORTS
[2020] 11 S.C.R.
candidates.  A provisional result was declared on 16.05.2011.  The learned
Additional Advocate General emphasized that the police verification and
medical examination processes took a little while for such a large number
of candidates and was eventually completed on 01.07.2011.
20. It was urged that two months period for completing this process
cannot be considered unreasonable for any stretch of imagination – since
Rajasthan is the largest State geographically and has about 35 districts.
The advertisement for departmental candidates was in the meanwhile
issued on 24.05.2011. For filling 111 vacancies, 232 applications were
received, written test was held on two dates i.e. 11th and 12th June,
2011.  The DPs were not required to undergo any typing test nor require
police verification and medical examination since they were working
with the Government for a considerable period of time. The process for
final appointment thus was relatively easy.  In these circumstances their
results were compiled and published on 14.06.2011 but having regard to
the simplified and shortened nature of the selection process they were
appointed on 24.06.2011.
21. The learned Additional Advocate General and Senior Counsel
for the contesting respondents submitted that the Division Bench correctly
concluded that the underlying idea behind Rule 27 and the principle of
seniority indicated by it which is that those selected earlier would rank
earlier to those selected later, would apply in the case of recruits in the
same category.  Thus, for instance, if within the DR quota there are two
sets of selections, the Rule enunciated in Rule 27, squarely applied,
however that principle would be inapplicable where the recruits are
appointed from different categories such as promotees and direct recruits.
In such cases the main part of the Rule i.e. seniority based upon the
entry into the cadre would squarely applied.
22. Learned senior counsel highlighted that the consistent view of
this Court in several decisions has been to confine the proviso within the
field of its operation and not allow it to supplant the main or enacted
portion contained in the provision of which the proviso relates to. It is
thus urged that the proviso cannot be interpreted as nullifying the
enactment or taking away something conferred by the main section or
provision. Learned counsel relied upon certain decisions in this regard8.
The learned AAG emphasized that the facts on record show that the
8 Casio India Pvt. Ltd. v. State of Haryana (2016) 6 SCC 209 & Rohitash Kumar v. Om
Prakash Sharma and Ors. (2013) 11 SCC 451.
A
B
C
D
E
F
G
H
959
entire cadre was created for the first time by the single notification dated
01.12.2010. The recruitment to the two categories occurred as a first
time measure. That advertisements were issued on different dates –
one for direct recruits (DRs) and the other for direct promotees (DPs)
did not make them separate recruitment processes. They were
contemporaneous in that the State intended the selected candidates to
man the same post. Thus, it could not be argued that appointments made
in the 80% quota for DR candidates was for a previous year (having
regard to the definition of “Year” under the recruitment rules9.
23. It was highlighted in this regard that the decision to conduct
the recruitment and selection process was a composite one – though
advertisements were issued on separate dates. If one kept this in mind,
it was clear that the entire recruitment process was a composite one.
Given that the 80% quota earmarked for DRs was available to candidates
with different eligibility criteria, of necessity, a separate advertisement
was issued. Similarly, having regard to the fact that the 20% departmental
promotion quota could be filled only by those working within the
Commercial Tax Department (and which could not be filled by DRs), a
different kind of advertisement with relevant eligibility conditions was
issued. This did not mean that separate selection processes were held;
since the department had vacancies in a new post for the first time,
recruitment had
to be considered common.
Relevant rules:
24. Rule 27 of the Rajasthan Commercial Taxes Subordinate
Services (General Branch) Rules, 1975 was taken note of by the learned
Single Judge. The relevant extract of that Rule is reproduced below:
“27. Seniority “Seniority of persons appointed to the lowest
post of the Service or lowest categories of posts in each of
the Group/Sections of the Service, as the case may be, shall
be determined from the date but in respect of persons
appointed by promotion to other higher posts in the Service
9 Rule 2 reads as follows:
“
Definition – 2.In these rules, unless the context otherwise requires:
(a)…………..
(b)………………
xxxxxx
xxxxxx
xxxxxx
(l) Year “means financial year”.
MANOHAR LAL JAT v. THE STATE OF RAJASTHAN
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
960
SUPREME COURT REPORTS
[2020] 11 S.C.R.
or other higher categories of posts in each of the Groups/
Sections in the Service, as the case may be, shall be determined
from the date of their regular selection to such posts.
Provided
(1)
That the seniority inter-se of the persons appointed to
the Service before the commencement of the rules, and/
or in process of integration of the Services of the pre-
reorganisation of States of Rajasthan or the Services of
the new State of Rajasthan established by the State Re-
organisation Act, 1956, shall be determined, modified
or altered by the Appointing Authority on an ad hoc basis;
(2)
That the persons selected and appointed as a result of a
selection, which is not subject to review and revision,
shall rank senior to the persons who are selected and
appointed as a result of subsequent selection. Seniority
inter se of persons selected on the basis of seniority-
cum-merit and on the basis of merit in the same selection
shall be the same as in the next below grade;”
25. With effect from 10.10.2002, the main provision of Rule 27
was amended even while maintaining the two provisos below it. This
was referred to by the Division Bench in its impugned judgment. The
amendment to the Rule is extracted below:
“AMENDMENT: In the column of the Schedule attached
herewith, following words shall be substituted in place of every
Service Rule Col. No.4 with regard to substantial provisions
(except their provisions) which means:-
‘Seniority in respect of persons appointed on the posts
included in the cadre of service shall be as per the provisions
of these rules and shall be fixed from the date of their
appointment. Those appointed on ad hoc or urgent temporary
basis, they shall not be considered after their regular
selection.”
26. The following provisos to the above main provision (i.e. Rule
27 [1]) were left intact:
A
B
C
D
E
F
G
H
961
“Provided that
(1)
That the seniority inter-se of the persons appointed to
the Service before the commencement of the rules, and/
or in process of integration of the Services of the pre-
reorganisation of States of Rajasthan or the Services of
the new State of Rajasthan established by the State Re-
organisation Act, 1956, shall be determined, modified
or altered by the Appointing Authority on an ad hoc basis;
(2)
That the persons selected and appointed as a result of a
selection, which is not subject to review and revision,
shall rank senior to the persons who are selected and
appointed as a result of subsequent selection. Seniority
inter se of persons selected on the basis of seniority-
cum-merit and on the basis of merit in the same selection
shall be the same as in the next below grade;”
27. Thus, the main provision was amended as to clearly provide
that seniority in the cadre would be fixed from the dates of appointment
of the employees, or officers, to the cadre.
28. The question to be decided here is having regard to the fact
that the DPs were concededly appointed prior to the DRs, where the
latter, as is argued by them appointed on the basis of merit “in the same
selection”10 The DRs argument is that their appointment, later than the
DPs is the result of manipulation by the department (or, rather some
officers in the department) who wished to favor the DPs; and that since
their selections began before that of the DPs, the second proviso is
attracted, for determination of inter se seniority. They also argue that
the selection- in terms of the rules, “subsequent selection” necessarily
refers to a chronologically later event; in the present case, the recruitment
of the DRs began with the advertisement in January, 2011 (and thus, in
the earlier financial year, having regard to Rule 2 (l)) whereas the selection
process for DPs began in May, 2011.
29. On a plain reading of the entire rule (Rule 27 [1] and the two
provisos) what is evident is that (a) before the amendment of 2002,
seniority of personnel appointed to the “lowest categories of posts” in
any department was to be determined as from the date of appointment;
10 Second proviso to Rule 27 (1)
MANOHAR LAL JAT v. THE STATE OF RAJASTHAN
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
962
SUPREME COURT REPORTS
[2020] 11 S.C.R.
11 (1998) 5 SCC 457
however, for promotees, it was to be from the date of selection; (b)
after the amendment of 2002, seniority has to be fixed (by reason of
Rule 27 (1)) as on the date of appointment to the post or service; (c)
however, in the case of pre-state integration of state (of Rajasthan) or
pre-integration of services, seniority could be “modified or altered by
the Appointing Authority on an ad hoc basis”- this clearly was meant
to be a “sunset” clause, i.e. operative for a limited period; (d) the second
proviso,- which is the one pressed into service by the DRs, states that
seniority of those selected earlier will be determined over those selected
latter.
30. Plainly, the principal mandate of the rule is that seniority is
determined on the basis of date of appointment (“shall be fixed from
the date of their appointment”). Proviso (2) lists out two rules. The
first is that those selected and appointed through a prior selection would
rank senior to those selected and appointed through a later selection
process. The High Court, in this case, was of the opinion that this rule
(i.e. proviso) applied to selections from the same source, i.e. where
two sets of direct recruits were appointed, those selected through a
previous recruitment process, would rank senior to those recruited through
a later recruitment process. This interpretation is, in this court’s opinion,
salutary. There may be various reasons why the
ultimate appointment of
one batch of recruits may be delayed: challenges to some part of the
recruitment process (such as shortlisting, calling of candidates for
interviews etc.), during which period, a subsequent recruitment may be
undertaken. To forestall any apprehensions as to which of the appointees
would be senior, and if those from the earlier process are appointed
later, the proviso clarifies that candidates from the earlier process would
rank senior, despite the main rule speaking of a date of appointment
based seniority. The same logic would apply to departmental promotees,
as well, if two batches of promotees are appointed, through selection.
The second limb of the second proviso clarifies that when merit based,
or seniority based promotions are resorted to, the applicable norm would
be seniority in the feeder cadre, to forestall any debate about the rule of
merit (in the selection) being the guiding principle.
31. In Prem Kumar Verma v. Union of India11 this court had to
consider Rule 303 of the Railway Establishment Manual, which was
A
B
C
D
E
F
G
H
963
phrased like Rule 27 in the present case. The extract of the relevant
discussion is as follows:
“4. In view of the rival submissions at the Bar the first question
that would arise for consideration is which Rule would govern
the inter se seniority. It is undisputed that vacancies arose
prior to July 1989 and advertisement for the said post had
been issued earlier to July 1989 and finally the Railway
Recruitment Board concluded its selection process and
selected 29 candidates on 11-7-1989. Therefore, the relevant
Rules, as existed then, would govern the inter se seniority.
The next question that arises for consideration is which is the
relevant Rule that was in force in July 1989. From the materials
produced before us it appears that para 303 of the Manual,
as it stood in July 1989 is to the following effect:
“303. The seniority of candidates recruited through the
Railway Service Commission or by any other recruiting
authority should be determined as under:
(a) Candidates who are sent for initial training to training
schools will rank in seniority in the relevant grade in the
order of merit obtained at the examination held at the end
of the training period before being posted against working
posts.
(b) Candidates who do not have to undergo any training,
the seniority should be determined on the basis of the merit
order assigned by the Railway Service Commission or other
recruiting authority.”
Later on sometime in the year 1990 Rule 303(a) was amended
by
inserting the following expression:
“Those who joined the subsequent course for any reasons
whatsoever and those who passed the examination in the
subsequent chance will rank junior to those who had
passed the examination in earlier courses.”
The aforesaid Rule stood further amended in 1993 which reads
thus:
“In case however persons belonging to the same RRB panel
are sent for initial training in batches due to administrative
MANOHAR LAL JAT v. THE STATE OF RAJASTHAN
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
964
SUPREME COURT REPORTS
[2020] 11 S.C.R.
reasons and not because of reasons attributable to the
candidates, the inter se seniority will be regulated
batchwise provided persons higher up in the panel of RRB
not sent for training in the appropriate batch (as per
seniority) due to administrative reasons shall be clubbed
along with the candidates who took the training in the
appropriate batch for the purpose of regularising the inter
se seniority provided such persons pass the examination
at the end of the training in the first attempt.”
5. In view of our conclusion that the posts fell vacant prior to
July 1989 and the process of selection was completed and
the Recruitment Board selected the candidates on 11-7-1989
the amendment that was introduced on 5-5-1990 and the
further amendment of 1993 will have no application and it is
the unamended Rule 303(a), as it stood on 11-7-1989, that
would govern the case of inter se seniority. The analysis of
the provisions of para 303 indicates that where candidates
are required to undergo some training after being selected
through Railway Service Commission or any other recruiting
authority, their seniority is determined on the basis of their
respective merit in the examination held at the end of the
training period and where candidates do not have to undergo
any training, the seniority is determined on the basis of the
merit assigned by the Railway Service Commission or other
recruiting authority. In the present case the
candidates had
to undergo training and in fact they had undergone training
in batches, as already stated. In that view of the matter their
seniority had rightly been determined by the Railway authority
on the basis of their respective merit obtained in the
examination held at the end of the training period. The
Tribunal committed error by altering the said seniority on the
basis of a rule which was not in existence on the date the
vacancy arose and, on the date, when the selection was
completed.”
32. Keeping in mind that the advertisements (for filling the entire
cadre, in both the quotas or streams of recruitment) were issued one
after the other, and more importantly, that this was the first selection and
recruitment to a newly created cadre, the delay which occurred on

A
B
C
D
E
F
G
H
965
MANOHAR LAL JAT v. THE STATE OF RAJASTHAN
[S. RAVINDRA BHAT, J.]
Devika Gujral
Appeals dismissed
account of administrative exigencies (and also the completion of
procedure, such as verification of antecedents) the seniority of the
promotees given on the basis of their dates of appointment, is justified by
Rule 27 in this case. The impugned judgment, in the opinion of this court,
is not erroneous; it does not call for interference.
33. In view of the above discussion, the appeals are dismissed,
without order on costs.