Supreme Court of India

Uttaranchal Forest Rangers' ... vs State Of U.P. And Ors on 25 September, 2006

Equivalent citations: 2006 AIR SCW 5337, 2006 (10) SCC 346, 2007 (1) ALL LJ 1, (2007) 50 ALLINDCAS 129 (SC), MANU/SC/4157/2006, (2006) 4 LAB LN 630, (2006) 4 SCT 487, (2007) 1 SERVLR 99, (2006) 7 SUPREME 469, (2006) 9 SCALE 577, (2006) 4 ESC 502, (2007) 2 SERVLJ 133

Author:
Ar. Lakshmanan

Bench:
Ar. Lakshmanan
,
Tarun Chatterjee

CASE NO.:
Appeal (civil) 4249 of 2006

PETITIONER:
Uttaranchal Forest Rangers' Asson.(Direct Recruit) & Ors

RESPONDENT:
State of U.P. and Ors

DATE OF JUDGMENT: 25/09/2006

BENCH:
Dr. AR. Lakshmanan & Tarun Chatterjee

JUDGMENT:

J U D G M E N T
(Arising out of SLP (C) No. 7375/2005)
WITH
Civil Appeal No.4250 of 2006
(Arising out of SLP(C) No. 1860/2006)

Dr. AR. Lakshmanan, J.

Delay condoned.

Leave granted.

These appeals were filed against the final judgment and
order dated 12.4.2004 passed by the High Court of Judicature
at Allahabad, Lucknow Bench, Lucknow in Writ Petition No.
366(S/B) of 2002 whereby the High Court allowed the writ
petition filed by Shri C.B. Chhimwal, respondent No.5 herein
in S.L.P.(c) No. 7375 of 2005 and against the final judgment
and order dated 26.11.2001 in W.P.(C) No. 610(S/B) of 1996
whereby the High Court allowed the writ petition filed by Shri
Suresh Chandra Sharma and Shri Vijay Kumar Mishra,
respondent Nos. 5 & 6 herein in S.L.P.(c) No. 1860/2006.
The appellants in these matters are direct recruits to the
post of Forest Rangers in the State of U.P, now Uttaranchal.
The respondents are the State of U.P, State of Uttarnchal and
Ors.

The brief facts are as follows:

In the state of U.P, during the period 1969-1979, there
was no direct appointment to the post of Forest Rangers. The
Government kept promoting Deputy Forest Rangers on ad hoc
basis to the post of Forest Rangers if any vacancy arose.
On 30.11.1989, by a Government Resolution, 124
persons who were promoted on ad hoc basis to the post of
Forest Rangers were regularized in 1972 -1979. However, as of
30.11.1989, there were not enough vacancies in the promotee
quota to accommodate all the regularized Forest Rangers.

Hence, some of the regularized 124 Forest Rangers were
pushed down and accommodated in 1990 and 1991. By the
year 1991, all the 124 regularised Forest Rangers were
accommodated. In 1991, there was only one vacancy in the
promotee quota.

Later in 1989-1990, the members of the appellants
Association were appointed in the year 1990 as Forest Rangers
on the basis of competitive exam held by the U.P. Public
Service Commission in 1989. They were substantively
appointed on the post of Forest Rangers by direct recruitment
on various dates in 1990 e.g. the President of the Appellants
Association was appointed on 01.03.1990. Appellant No.3 was
appointed on 01.11.1990. The appointments were within the
direct recruitment quota.

On 30.01.1991, without realizing that there was no
vacancy in the promotee quota of Forest Rangers the State of
U.P. sent a requisition to the Public Service Commission to
recommend 410 persons for promotion to the post of Deputy
Forest Rangers. This mistake has been admitted by the State
of U.P. in their counter affidavit before the High Court as also
in this Court.

On 06.07.1991, the State PSC vide its letter dated
06.07.1991 sent the names of Forest Rangers as if there were
vacancies from the period 1979 to 1989 in the promotee
quota. The UPPSC allotted the officers on the basis of the
selection year. Needless to mention there is no provision in the
Service Rules for allocation on the basis of year of selection. In
any event, there were no vacancies and, therefore, the basis of
this recommendation was incorrect.

On the basis of this recommendation on 17.07.1991, 356
Deputy Forest Rangers were promoted to the post of Forest
Rangers 'from the date of taking charge'. They were not given
any back-dated promotion. The respondents have not
challenged their promotion order which promoted them w.e.f.
the day they took charge.

On 31.05.1996, when the State of U.P. was preparing the
seniority list of Forest Rangers, it went strictly by the Seniority
Rules. Since the appellants were substantively appointed
within their quota in the year 1990, they were placed senior to
the respondents. However, as of 17.07.1991, since there was
only one vacancy in the promotee quota of Forest Rangers, the
respondents herein were notionally pushed down for the
purposes of the seniority alone and were adjusted till 1996.
Needless to mention the respondents get all the benefits of a
Forest Ranger though there was no vacancy when they were
promoted, except seniority. Since, there was no direct
recruitment after 1990; the respondents do not suffer at all.
In July 1996, two of the Promotee Forest Rangers
namely, Shri Suresh Chandra Sharma and Shri Vijay Kumar
Mishra figuring at Sl. Nos. 286 and 277 in the promotion order
of 17.07.1991 challenged the seniority list dated 31.05.1996
by way of a Writ Petition No.610 of 1996 in the High Court of
Allahabad, claiming seniority.

The State of Uttaranchal came into being on 8th of
November, 2000.

On 30.04.2001, the respondent Suresh Chandra Sharma
opted for the State of Uttaranchal and started working in the
State of Uttaranchal w.e.f. 30.04.2001. However, he did not
implead the state of Uttaranchal or the present appellants as a
party to the writ petition.

In 20.07.2001, the pending Writ petition was allowed by
the High Court and the High Court directed that the seniority
list on challenge be corrected by showing the promotees as
senior to the direct recruits by an order dated 26.11.2001.
On 12.06.2002, the new State of Uttaranchal notified in
its own seniority list of Forest Rangers in which the appellants
were shown as seniors to the promotees.

Another promotee Shri C.B. Chhimwal respondent no.5
filed a writ petition challenging the seniority list in the High
Court of Allahabad. The High Court by an order dated
12.04.2004 allowed Chhimwal's claim following its previous
order in the case of Suresh Chandra Sharma.
The appellants were unaware of the said order of the
Allahabad High Court at Lucknow. It was only when the said
order was produced before the officers of the State of
Uttaranchal, by respondent no.5, the appellants came to know
about the order which was passed by the High Court without
making them a party.

Following the Chhimwal case, 44 others moved the
Allahabad High Court challenging the said seniority list. The
High Court of Allahabad disposed off all the writ petitions and
allowed the claim of all the writ petitioners and ordered
retrospective application of the order.

By an order dated 18.01.2005, the State of U.P. issued
an amended promotion order by which 45 persons have been
granted retrospective seniority, some from 01.01.1979 i.e.
from a period of 12 years prior to their actual date of
promotion, even though, admittedly, there was no vacancy in
the promotee quota, the effect of this order would be in the
state of Uttaranchal as well.

The appellants thereafter approached this Court on
20.02.2005 seeking a stay on the application of the order of
the High Court of Allahabad. This Court ordered stay of the
operation of the order of the High Court on 04.04.2005.
The issue now before us is whether the seniority list
published in 1996 is to be interfered with due to the order of
the High Court of Allahabad dated 12.11.2001.
We heard Mr. Jaideep Gupta, learned senior counsel
appearing for the appellants and Mr. N.N. Goswami, learned
senior counsel, Dr. R.G. Padia, learned senior counsel, Mr.
A.S. Rawat, learned Additional Advocate General and Mr.
Gaurav Agrawal, learned counsel for the respondents.
Mr. Jaideep Gupta, learned senior counsel appearing for
the appellants submitted that:

? That there were no vacancies in the promotee quota
prior to 1991 and hence the High Court should not
have directed the State to grant retrospective
promotion and seniority.

? That the vacancies arose in the promotee quota of
Forest Rangers for the first time in 1987-88.
However, against the said vacancies, 124 Forest
Rangers, who had been promoted to the post of
Forest Rangers on an ad hoc basis between 1973-77
were regularized and adjusted on 30th November,
1989. Therefore, 124 vacancies arising between
1987 and 1990 in the promotee quota had been
filled up on a regular basis by the order dated
30.11.1989. Therefore, it is only in the year 1991
that a clear vacancy arose in the promotee quota.

As a result of this, even the persons who are
promoted in1991 could not be given seniority from
1991, but had to be pushed down and received their
seniority on different dates between 1991 and 1996
as and when the vacancy arose. Further it was
submitted that, if the High Court orders are given
effect to, then 356 Deputy Forest Rangers would
become entitled to promotion ahead of the direct
recruits far in excess of the quota.

? That no retrospective promotion or seniority can be
granted from a date when an employee has not even
been borne in the cadre so as to be adversely
appointed validly in the meantime, as decided by
this court in the case of
K.C. Joshi vs. Union of
India
, 1992 Suppl (1) SCC 227.

? That the Seniority Rules of 1991 were not taken into
consideration by the High Court. Rule 8 of the
Seniority Rules, states that,
"Section 8  Where appointments 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."
The above stated Rules have overriding effect and hence
seniority has to be consistent with the Rules
? That the High Court has proceeded on the basis
that vacancies arose in 1987-88 and therefore, the
promotion should be given retrospective effect. It
was submitted that the date on which vacancies
arises cannot, without more, be made a basis of
giving retrospective promotion and seniority. Also
the High Court did not give deserved amount of
importance to the recommendations of the Public
Service Commission and the Rules laid down under
the Public Service Commission (Procedure) Rules,
1970.

? That even if the High Court was of the opinion that
the seniority and promotion should be reworked,
the same should have referred back to the Public
Service Commission to ascertain who would be the
relevant person(s) entitled to promotion. More
crucially, in the second impugned order dated
12.04.2004, 45 persons were directed to be
promoted without taking into consideration their
relative position in the list prepared by the Public
Service Commission. By not referring the matter to
the PSC, incorrect persons were chosen by the High
Court for the purpose of promotion.

? Concluding his submissions, the learned senior
counsel submitted that the seniority list under
challenge in the second writ petition was the
seniority list of the Uttaranchal State Government of
2002. Such challenge could not have been made
before the Lucknow Bench of the Allahabad High
Court. He further submitted that none of the direct
recruits, who would be directly affected by an order,
were made parties to the writ petition. Therefore,
the High Court did not have the benefit of
competing arguments in the matter. Even though
the Principal Secretary of the State of Uttaranchal
was made a party, and that the said party was
never served.

Learned senior counsel, Dr. Padiya, appearing for respondent
Nos. 1 & 2 submitted as under:

? That in the State of U.P. promotion from the post of Dy.
Forest Ranger to the post of Forest Ranger was held up
between 1976-77 to 1987-88 on regular basis. 124
Dy.Forest Rangers were promoted to the post of Forest
Ranger in the years 1973,1974,1975,1976,1977 & 1979
on ad hoc basis beyond the prescribed limit for
promotion.

? That these ad hoc Forest Rangers were regularised in the
year 30.11.1988 and a requisition was sent for regular
promotion to the post of Forest Range Officer through
Public Service Commission, U.P., Allahabad vide letter
no.E-1851/1-2-4 dated 30.01.1991 for 410 vacancies.
The Forest Department issued the promotion order vide
F.O. No.E-23/2-2-4 dated 17.07.1991 for 356 posts and
subsequently for 3 posts again.

? That all the promotion orders were made prospective to
the date of joining. It was further submitted that
promoted Range Officers were given their due seniority
under quota fixed for promotion, as is evident from para-
2 of Order No.E-3211/10 72, dated 08.06.1995. It was
further submitted that when the said seniority list dated
08.06.1995 was under preparation a mistake was
discovered that there was no vacancy of Rangers in
promotion quota and that there was no direct
recruitment of Forest Rangers from 1969-70 to 1976-77
and these vacancies were utilized in favour of promotees
thus adjusting the promotees against the vacancies of
quota of Direct Recruit, in excess of the quota available
for promotees under Rules. While preparing the final
seniority list in question the promotees occupying
vacancies in excess of their quota has been pushed down
and the year wise vacancies of Direct Recruits have been
carried forward and upon the availability of Direct
Recruit they have been placed en bloc in the vacancies
available in the quota for Direct Recruits.

? That U.P. Govt. Servant Seniority Rules 1991 was in force
when the promotion order of above 359 Dy. Forest
Ranger to the post of Forest Ranger was passed on
17.07.1991. The rule 8(3) proviso allows vacancies of
back years to be counted in the promotion but
specifically does not permit any promotion from back
year. Consequently the order dated 17.07.1991 was from
the prospective date of joining.

? That an inadvertent error, oversight, made in the year
1991 came into the notice of department on 03.12.1994
and the same was referred to the State Govt. for
directions. The State Govt. gave guidelines vide letter no.
715/14-3-95-700 (236)/94 dated 11.09.1995 to give
promotees the benefit for seniority after following the
respective quota for promotion strictly.
? That accordingly a final seniority list was published in
1995 and it was updated in 1996 by deleting the name of
retired/promoted persons only. The original seniority list
was published in 1995 and it was maintained in other
respects as it is.

? That the appointing authority of the petitioner in the Writ
petition is PCCF, U.P., Lucknow who was served with the
judgment dated 26.11.2001 which found it fit to comply
with the judgment as it was passed with the respect to
petitioners of the writ petition. Only the judgment was
complied with vide E-120/2-2-4(1) dated 30.01.2002 by
the PCCF, U.P., Lucknow.

? That after the compliance of the judgment a set of new
writ petitions and some pending writ petition were
clubbed by the High Court, Lucknow under Case No.366
(SB) 2002 and was decided on 12.04.2004 on the same
line.

? That a set of contempt petition was moved by the
petitioners of the above bunch case specifically Contempt
Petition No 1617 (C) of 2004 C.B. Chhimwal Vs. Smt.
Surjit Kaur Sandhu & Ors. And Contempt Petition No.
1897 (C) of 2004 Chandra Shekhar Kargeti Vs.
K.Prasad and the date of personal appearance of officials
was fixed. Under these circumstances Principal chief
Conservator of Forest, U.P. Lucknow passed F.O. No. E-
114/2-2-4 dated 18.01.2005 and judgment dated
12.04.2004 was complied with under pressure of Court
order; giving notional promotions to the appellants.
Thereafter, a report was produced before the High Court
in Contempt Case No. 1617/C/2004 C.B. Chhimwal vs.
Smt. Surjit Kaur Sandhu by an affidavit dated
19.01.2005. The High Court was not satisfied with the
compliance and passed further direction on 28.02.2005
in the aforesaid contempt petition. The operative part of
the order dated 28.02.2005 is reproduced below:-

"The apprehension genuinely appears to be
sustainable as the consequential benefit may be kept
confined to the seniority alone. It is also not
understood as to why the phrase, 'notional promotion'
has been used by Chief Conservator Officer in his
order of January 18, 2005 in the circumstances of
there being uncertainty on both the counts, the
Principal Chief Conservator of Forests is directed to
issue a corrigendum of the aforesaid order giving
details of the benefit that would be extended to the
petitioner in compliance of the judgment referred to
above."

"Accordingly, he is directed to file his
supplementary counter affidavit and a copy of the
modified order within fifteen days, list on 21.04.2005
for orders. In case the uncertainty still remains, the
court would consider the petitioners request for
presence of the Principal Chief Conservator Officer
before this Court."

? That Dy. Rangers who were promoted to the post of
Range Officers vide F.O. No.E-23/2-2-4 dated 17.07.1991
cannot be promoted with retrospective effect from a date
when they were not borne in the cadre. Although in
compliance of the judgment and order passed by the
High Court on 12.04.2004 the respondent no.6 along
with other 44 Dy. Rangers has been notionally promoted
with effect from 01.07.1987. A copy of the above
promotion order was produced before the High Court in
Contempt Case No. 1617/C/2004 C.B. Chhimwal vs.
Smt. Surjit Kaur Sandhu and Another. But the Court
was not satisfied with the above compliance made by the
department and on 28.02.2005 passed the above orders
as mentioned above.

? That the High Court granted the benefit of seniority to
respondent No.5 and other similarly situated persons
through connected writ petition with effect from
retrospective year 1979 to 1988 as the case may be,
while their actual promotions have been done in the year
1991 to the post of Forest Rangers. It is further stated
that service rules do not provide any time bound period
for such promotion.

? That the Commission might have selected the
respondent No.5 along with other similarly situated
persons against the vacancy of a particular year but
fixation of seniority has to be made in accordance with
the statutory provision of U.P. Govt. Servant Seniority
Rules 1991 framed under proviso to Art 309 of the
Constitution which strictly prohibits giving back year
seniority.

? That no direct recruitment between the year 1969-70 to
1976-77, the then existing vacancies of Forest Rangers
were filled up by promotees of the department. As the
vacancies belonging to the direct recruit was occupied by
promotees between this period, the required number of
post of promotees exceeded. Out of certain oversight the
number of vacancies shown as year wise vacancies sent
to the Public Service Commission against the vacancies
of earlier years was wrongly indicated. At a later date at
the time of preparation of seniority list this inadvertent
mistake was noticed at the time of preparation of list on
08.06.1995 and immediately exercise was carried out to
check the inadvertent mistake/oversight. The excess
number of promotees against the Forest Rangers was
later adjusted and carried forward as per provisions. As
per the above facts it is crystal clear that there was no
vacancy existing for the promotees after the year 1973-74
till 1986-87. In the year 1987-88, 9 vacancies were
available after a long gap. Similarly, the vacancies
available during the year 1988-89, 1989-90 and 1990-91
are 31, 54 & 84 respectively. It was out of these
vacancies, the adjustment of 124 Forest Rangers
regularized on 30.11.1989 were adjusted. The name of
respondent no. 5 namely C.B. Chhimwal is much below
and therefore he was not included in the above list.
? That in view of the facts and circumstances stated above
and as per provisions of Law the respondent no.5 along
with other similarly situated 353 persons are not entitled
for back date seniority as well as consequential benefit as
they have not actually worked on the post of Range
Officer, therefore this Court may very kindly be pleased
to quash the judgment and order dated 12.04.2004
passed by the High Court of Allahabad, Lucknow Bench,
Lucknow in Writ Petition 366/SB/2002.

Learned AAG, (State of Uttaranchal) appeared for the state of
Uttaranchal, and submitted as under:-

? Rule 8(1) of the Uttar Pradesh Government Servant
Seniority Rules, 1991 provides conferment of
seniority to an employee from a pervious date
provided that the date of such conferment along
with substantive appointment is mentioned in the
order of substantive appointment. Similar
provision also exists in the Uttaranchal
Government Servant Seniority Rules, 2002. Hence
it is clear that a person can be promoted with
retrospective effect. It is also obvious that a person
cannot be borne in a cadre till he is promoted to
that cadre.

? A vacancy to any source of appointment can be
ascertained only when that source of appointment
has a well defined share of posts in ratio with other
sources of appointment. In the present case, as per
Rule 5(a) of Uttaranchal Subordinate Services
Rules, 1951, it is quite clear that there is no
fixed/well defined quota for the promoted source of
appointment. Hence, allocation of year-wise
vacancies against promotion quota is not possible.
Consequently, the question raised by the appellant
that the seniority is reckoned from the date when
appointment was done to the post in substantive
capacity or from the date when the vacancy accrued
for the post in the cadre is irrelevant.

? Though the State of Uttaranchal came into
existence on 9.11.2000 but the final
allotment/distribution of Forest Rangers' between
Uttar Pradesh and Uttaranchal was done in
February, 2004 with effect from 9.11.2004 by the
Government of India under
Section 73(1)
of U.P.
Reorganisation Act, 2000 till the stage of this final
allotment, any dispute pertaining to their seniority
was obviously the matter of jurisdiction of the State
of Uttar Pradesh.

? Rule 8(3) of the Rules is not applicable in this case
because the appointments were not made by both
the direct and promoted sources of recruitment as a
result of one selection. Moreover, definite quota is
not prescribed for the two sources of appointment.
? As per Rule 8 of the Seniority Rules, there is a
provision that if the appointment order specifies a
particular back date with effect from which a
person is substantively appointed, that date will be
deemed to be the date of order of substantive
appointment and in other cases, it will mean the
date of issuance of the order. This implies that
there is a provision of vacancies of being carried
over. Moreover, it is also in the interest of natural
justice that employees are promoted from the date
they become eligible and the vacancy exits.
Otherwise, it would result in denying promotion to
them for no fault of theirs and only because of not
holding selection procedure on time for which they
cannot be held responsible. As far as Rule 8(3) is
concerned, it applies to one selection made both for
promotion and direct recruitment, which is not the
case under consideration.

Mr. N.N. Goswami, learned senior Counsel appearing for
respondent no.5, Chhimwal, largely adopted the arguments of
the state counsel. It was submitted that, this is a simple case
of promotion of permanent Deputy Rangers against the
vacancies as and when it occurred and the respondent was
entitled for promotion. The High Court has correctly decided
the issue in question in W.P No. 610 (S/B) of 1996, which the
petitioners have accepted and did not prefer a petition for
Special Leave to appeal then, and the same issue cannot be
agitated after four years and after compliance has already
been done. The present petition against impugned order was
not decided on merit but was decided on the basis of parity.
The learned counsel submitted further that, the present case
squarely is covered by the judgment of this court in the case of

P.N. Premachandran v. State of Kerala & Ors
(2004) 1
SCC 245, where it was held that,
".we do not find any irregularity in the matter of grant to
promote the respondents with effect from 1964 onwards.
in view, of the administrative lapse, the Departmental
Promotion Committee did not hold a sitting from 1964 to
1980. The respondents cannot suffer owing to such
administrative lapse on the part of the State of Kerala for no
fault on their, part. It is also not disputed, that in ordinary
course they were entitled to be promoted to the post of
Assistant Director, in the event, a Departmental Promotion
Committee had been constituted in due time. In that view of
the matter, it must be held that the State of Kerala took a
conscious decision to the effect that those who have been
acting in a higher post for a long time although on a
temporary basis, but were qualified at the time when they
were so promoted and found to be eligible by the
Departmental Promotion Committee at a later date, should
be promoted with retrospective effect. Such exercise of power
on the part of the State is not unknown in service
jurisprudence. Even assuming that such a power did not
exist in Rule 31 of the Rules the same can be traced to Rule
39 of the Rules, as noted hereinbefore."

He further relied on
A. Janardhana v. Union of India
, (1983)
3 SCC 601, where it was held as under:

"But avoiding any humanitarian approach to the problem,
we shall strictly go by the relevant rules and precedents and
the impact of the Rules on the members of the service and
determine whether the impugned seniority lists is valid or
not. But, having done that we do propose to examine and
expose an extremely undesirable, unjust and inequitable
situation emerging in service jurisprudence from the
precedents namely, that a person already rendering service
as a promotee has to go down below a person who comes
into service decades after the promotee enters the service
and who may be a schoolian, if not in embryo, when the
promotee on being promoted on account of the exigencies of
service as required by the Government started rendering
service. A time has come to recast, service jurisprudence on
more just and equitable foundation by examining all
precedents on the subject to retrieve this situation."

We heard all the parties in detail and we have also perused
through all the materials on record before us. We feel that, the
appellants herein have a case and their arguments merit
favourable consideration.

We feel that the impugned judgment dated 26.11.2001 of
the High Court has correctly appreciated that vacancies arose
in the year 1987-88, but have failed to appreciate that these
vacancies were filled by regularizing 124 persons who were
carrying on as Forest Rangers on an ad hoc basis. We also are
of the view that, if the orders of the High Court are to be given
effect to, then 356 Deputy Forest Rangers would become
entitled to promotion in excess of the quota. It is well settled
that promotion in excess of quota makes an employee an
ad hoc employee and seniority cannot be given to such
employees on the basis of ad hoc promotion. This was
observed by this court in a series of cases.
In the case of

Keshav Chandra Joshi & Ors v. Union of India & Ors
,
1992 Supp.1 SCC 272, this Court observed that,
"It is notorious that confirmation of an employee in a
substantive post would take place long years after the
retirement. An employee is entitled to be considered for
promotion on regular basis to a higher post if he/she is an
approved probationer in the substantive lower post. An
officer appointed by promotion in accordance with Rules and
within quota and on declaration of probation is entitled to
reckon his seniority from the date of promotion and the
entire length of service, though initially temporary, shall be
counted for seniority. Ad-hoc or fortuitous appointments on
a temporary or stop gap basis cannot be taken into account
for the purpose of seniority, even if the appointee was
subsequently qualified to hold the post on a regular basis. To
give benefit of such service would be contrary to equality
enshrined in
Article 14
read with
Article 16(1)
of the
Constitution as unequals would be treated as equals. When
promotion is out side the quota, the seniority would be
reckoned from the date of the vacancy within the quota,
rendering the previous service fortuitous. The previous
promotion would be regular only from the date of the
vacancy within the quota and seniority shall be counted from
that date and not from the date of his earlier promotion or
sub-sequent confirmation. In order to do justice to the
promotees it would not be proper to do injustice to the direct
recruits. The rule of quota being a statutory one it must be
strictly implemented and it is impermissible for the
authorities concerned to deviate from the rule due to
administrative exigencies or expediency. The result of
pushing down the promotees appointed in excess of the
quota may work out hardship but it is unavoidable and any
construction otherwise would be illegal, nullifying the force
of statutory rules and would offend
Articles 14
and
16(1).

Therefore, the rules must be carefully applied in such a
manner as not to violate the rules or equality assured under

Article 14
of the Constitution. This Court interpreted that
equity is an integral part of
Article 14.
So every attempt
would be made to minimise, as far as possible, inequity,
Disparity is inherent in the system of working out integration
of the employees drawn from different sources, who have
legitimate aspiration to reach higher echelons of service. A
feeling of hardship to one, or heart burning to either would
be avoided. At the same time equality is accorded to all the
employees."

In
Sanjay Kumar Sinha & Ors v. State of Bihar &
Ors
, (2004) 10 SCC 734, this court observed that,
"6. In our view the first point regarding alleged non-
availability of posts of ACFs for appointment of promotees at
the relevant time is sufficient to decide this appeal. On the
question of availability of posts the case of the appellants is
that posts were not available and in the absence of the posts
no appointments could be made. Still the respondents had
gone ahead with the appointments of the promotees. Such
appointments are mere fortuitous and cannot confer the
benefit of seniority from the date of appointment. The first
document relied upon in support of this contention is a letter
dated 23rd September, 1985 from the Chief Conservator,
Forests and Environment Department, Government of Bihar,
Patna. The letter directly deals with the question of
promotion of Forest Range Officer (FRO) to the post of
Assistant Conservator of Forests (ACF). The letter notes that
under Rule 3 of the Bihar Forest Service Rules, at least 50%
of the total existing vacancies have to be filled by promotion.
It goes on to add: "Presently there are 125 officers in the
cadre in the Bihar Forest Service, out of which 105 have
been promoted from the post of Range Officer and rest are
appointed by way of direct recruitment." According to this
letter as per the cadre strength of the posts of ACF in Bihar
State Forest Service, the promoted officers constituted 84%.
The Chief Conservator of Forests expressed his view in the
said letter that filling such large number of posts by way of
promotions affects the quality of service. The Chief
Conservator of Forests also notes that the State Service
Commission had already issued advertisement for filling 40
posts of ACFs by direct recruitment. He has opined that in
these circumstances it would not be proper to fill up the
posts of ACF by promotion. This letter highlights the
imbalance already existing in the service qua the posts of
ACF so far as appointments of direct recruitment and
promotees are concerned."

"12. It is clear from the admissions made on behalf of the
respondents by way of affidavits filed in judicial proceedings
that sanctioned number of posts were not available in the
year 1987 when the respondents were promoted as ACFs,
rather the promotions were made against non-existing posts.
Can such promotions confer any right on the officers
concerned particularly over and above the other duly
appointed officers in the service like the appellants? In this
connection we have to note that Rule 35 of the Bihar Forest
Service Rules provides that seniority of officers appointed to
the service is to be determined with reference to the date of
their substantive appointment. In order to become a member
of the service the person concerned has to satisfy at least
two conditions - first, appointment must be in substantive
capacity and (2) the appointment has to be to the post in the
service according to the Rules and within the quota to a
substantive vacancy."

Further in the case of
D.Ganesh Rao Patnaik & Ors v.
State of Jharkhand & Ors
, (2005) 8 SCC 454, this court
opined that,
". that the appointment of the contesting respondents was
not only contrary to Rules but was fortuitous in nature and
they can get no advantage of such fortuitous appointment
until a substantive vacancy was available in their quota,
which in fact became available much later some time in the
year 1993-94, which is long after the appointment of the
appellants.

What is a fortuitous appointment has been
explained in a Constitution Bench decision of this Court in

Rudra Kumar Sain v. Union of India
(2000) 8 SCC 25. After
observing that the Rules in question did not define the terms
'ad hoc', 'stopgap' and 'fortuitous', which are in frequent use
in service jurisprudence, the Court referred to several
dictionaries. The meaning given to the expression 'fortuitous'
in Stroud's Judicial Dictionary is 'accident or fortuitous
casualty'. This should obviously connote that if an
appointment is made accidentally, because of a particular
emergent situation, such appointment obviously would not
continue for a reasonably long period. In Black's Law
Dictionary the expression 'fortuitous' means 'occurring by
chance', 'a fortuitous event may be highly unfortunate'. It
thus indicates that it occurs only by chance or accident,
which could not have been reasonably foreseen. In Oxford
dictionary the meaning given to the word 'fortuitous' is -
happening by accident or chance rather than design. In our
opinion it will not be proper to hold that the promotion of the
contesting respondents was fortuitous as contended by
learned counsel for the appellants. It cannot be said that the
contesting respondents were promoted by accident or by
chance. Their promotion order was passed as there were
vacancies to the posts of Additional District and Sessions
Judges, though in the quota or direct recruits, but as no
recruitment from the said channel had been made for a long
time and sufficient number of candidates were not available,
the vacancies were filled in by giving promotion to members
of Bihar Civil Service (Judicial Branch). If promotion orders
had not been passed and the posts had not been filled in, the
judicial work in the districts would have suffered. However, it
is clear that having regard to the various orders passed on
the judicial side by the Patna High Court and the legal
position being well settled that the temporary posts have also
to be counted for determining the one-third quota of direct
recruits, the promotion given to the contesting respondents
was not in accordance with law. Instead of taking the harsh
step of rescinding their order of promotion the Patna High
Court, on the administrative side, took the decision to treat
them promoted against subsequent quota of promotees.
Therefore, the contesting respondents can under no
circumstances claim seniority over the appellants and the
view to the contrary taken by the Jharkhand High Court on
29th August, 2002 on administrative side and also in the
judgment and order dated 1st April, 2003, which is the
subject-matter of challenge in the present appeal, is wholly
erroneous in law."

We also observe that, the High Court has granted
seniority without even reference to Seniority Rules of 8, and in
particular the proviso thereto, has not been taken into
consideration. The said rules have overriding effect and hence
seniority has to be consistent with the Rules. By virtue of Rule
8, Seniority can be given only from 'the date of substantive
appointment'. In this case, the promotees were appointed on
17.07.1991 and therefore cannot be given seniority over the
appellants who were substantively appointed prior in point of
time i.e. in 1990. It is specifically indicated in proviso to Rule 8
that, "Where appointments 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 seniority of the year in which their appointments are made."
These rules were in force in 1991 when the Deputy
Forest Rangers were promoted to the post of Forest Rangers
on 17.07.1991. Also it is well settled that seniority has to be
decided on the basis of Rules in force on the date of
appointment. It was observed by this court in the case of

State of Karnataka & Ors v. C. Lalitha
, (2006) 2 SCC 747,
that,
"Service jurisprudence evolved by this Court from time to
time postulates that all persons similarly situated should be
treated similarly. Only because one person has approached
the court that would not mean that persons similarly
situated should be treated differently. It is furthermore well-
settled that the question of seniority should be governed by
the rules. It may be true that this Court took notice of the
subsequent events, namely, that in the meantime she had
also been promoted as Assistant Commissioner which was a
Category I Post but the direction to create a supernumerary
post to adjust her must be held to have been issued only
with a view to accommodate her therein as otherwise she
might have been reverted and not for the purpose of
conferring a benefit to which she was not otherwise entitled
to."

It was also observed in the case of
Union of India v.
S.S.Uppal & Anr.
, (1996) 2 SCC 168 that,
"12. We are of the view that the question of seniority of
Uppal, the respondent No. 1, has to be determined by the
rules in force on the date of his appointment to IAS. The
fixation of seniority in the IAS follows appointment to the
service. The Year of Allotment in the IAS will have to be
determined according to the provisions of seniority rules
which are in force at the time of his appointment. The date of
occurrence of vacancy has really no relevance for the
purpose of fixation of seniority in the IAS. The fixation of
seniority is done only after an officer is appointed to IAS. The
Central Government is competent to amend the seniority
rules from time to time keeping in view the exigencies of
administration."

Thus we feel that the High Court order granting
promotees seniority from 1987-88 suffers from infirmity and is
liable to be set aside.

We are also of the view that no retrospective promotion or
seniority can be granted from a date when an employee has
not even been borne in the cadre so as to be adversely
appointed validly in the meantime, as decided by this court in
the case of
K.C. Joshi & others vs. Union of India
, 1992
Suppl (1) SCC 272 held that when promotion is outside the
quota, seniority would be reckoned from the date of the
vacancy within the quota rendering the previous service
fortuitous. The previous promotion would be regular only
from the date of the vacancy within the quota and seniority
shall be counted from that date and not from the date of his
earlier promotion or subsequent confirmation. In order to do
justice to the promotees, it would not be proper to do injustice
to the direct recruits. The rule of quota being a statutory one,
it must be strictly implemented and it is impermissible for the
authorities concerned to deviate from the rule due to
administrative exigencies or expediency. The result of pushing
down the promotees appointed in excess of the quota may
work out hardship, but it is unavoidable and any construction
otherwise would be illegal, nullifying the force of statutory
rules and would offend
Articles 14
and
16(1)
of the
Constitution.

This Court has consistently held that no retrospective
promotion can be granted nor any seniority can be given on
retrospective basis from a date when an employee has not
even borne in the cadre particularly when this would adversely
affect the direct recruits who have been appointed validly in
the meantime.
In,
State of Bihar & Ors v. Akhouri
Sachidananda Nath & Ors
, 1991 Suppl. (1) SCC 334, this
court observed that,
"12. In the instant case, the promotee respondents 6 to 23
were not born in the cadre of Assistant Engineer in the Bihar
Engineering Service, Class II at the time when the
respondents 1 to 5 were directly recruited to the post of
Assistant Engineer and as such they cannot be given
seniority in the service of Assistant Engineers over the
respondents 1 to 5. It is well settled that no person can be
promoted with retrospective effect from a date when he was
not born in the cadre so as to adversely affect others. It is
well settled by several decisions of this Court that amongst
members of the same grade seniority is reckoned from the
date of their initial entry into the service. In other words,
seniority inter-se amongst the Assistant Engineers in Bihar
Engineering Service, Class II will be considered from the date
of the length of service rendered as Assistant Engineers. This
being the position in law the respondents 6 to 23 can not be
made senior to the respondents 1 to 5 by the impugned
Government orders as they entered into the said Service by
promotion after the respondents 1 to 5 were directly
recruited in the quota of direct recruits. The judgment of the
High Court quashing the impugned Government orders
made in annexures, 8, 9 and 10 is unexceptionable."

This court in Vinodanand Yadav & Ors v. State of Bihar &
Ors, 1994 Suppl. (2) SCC 44, held:

"On an issue regarding the interse seniority among the direct
recruits and promotees the Court applying the ratio of
State
of Bihar v. Akhouri Sachindranath
held that the
appellants who were direct recruits shall be considered
senior over the promotees not borne on the cadre when the
direct recruits were appointed in service. Hence the
gradation list drawn under which promotees where given
seniority over direct recruits could not be sustained and was
thereby set aside".

The High Court, in the impugned judgment dated
26.11.2001 has proceeded on the basis that vacancies arose in
1987-88 and, therefore, should be given retrospective effect.
The said submission, in our opinion, has no force and import.
In our view, the date on which vacancies arose cannot without
more be made a basis of giving retrospective promotion and
seniority.
In
Jagdish Ch. Patnaik & Ors v. State of Orissa
& Ors
, 1998(4) SCC 456, this Court observed:

32. The next question for consideration is whether the year
in which the vacancy accrues can have any relevance for the
purpose of determining the seniority irrespective of the fact
when the persons are recruited? Mr. Banerjee's contention
on this score is that since the appellant was recruited to the
cadre of Assistant Engineer in respect of the vacancies that
arose in the year 1978 though in fact the letter of
appointment was issued only in March 1980, he should be
treated to be a recruit of the year 1978 and as such would be
senior to the promotees of the years 1979 and 1980 and
would be junior to the promotees of the year 1978. According
to the learned Counsel since the process of recruitment
takes a fairly long period as the Public Service Commission
invites application, interviews and finally selects them
whereupon the Government takes the final decison, it would
be illogical to ignore the year in which the vacancy arose and
against which the recruitment has been made. There is no
dispute that there will be some time lag between the year
when the vacancy accrues and the year when the final
recruitment is made for complying with the procedure
prescribed but that would not give a handle to the Court to
include something which is not there in the Rules of
Seniority under Rule 26. Under Rule 26 the year in which
vacancy arose and against which vacancy the recruitment
has been made is not at all to be looked into for
determination of the inter se seniority between direct recruits
and the promotees. It merely states that during the calendar
year direct recruits to the cadre of Assistant Engineer would
be junior to the promotee recruits to the said cadre. It is not
possible for the Court to import something which is not there
in Rule 26 and thereby legislate a new Rule of Seniority. We
are, therefore, not in a position to agree with the submission
of Mr. Banerjee, the learned senior counsel appearing for the
appellants on this score.

In the instant case, the High Court has relied upon the
letter of the Public Service Commission dated 06.07.1991 to
come to the conclusion that the PSC recommended the
appointments to be given to the promotees from the date on
which the vacancy arose. Even apart from the fact that it has
now been conclusively established that the vacancy position
indicated to the PSC was not correct, there is nothing in the
said letter of the PSC which would lead to the conclusion that
it had recommended that appointment should date back to the
date of vacancies. All that the letter indicates is that the
Commission had considered the fitness and suitability of the
candidates year by year taking into consideration the
vacancies that had allegedly arisen in the concerned year.
This is only an exercise for the purpose of arriving at the name
of the employees to be recommended which had nothing to do
with the date on which the appointment was to be given. The
reliance placed by the High Court on the U.P. promotion by
selection in consultation with the Public Service Commission
(Procedure) Rules, 1970 and, in particular, Rules 13 and 21
also does not mandate that the appointment has to be made
on the date on which the vacancy arose. It confirms that while
selecting the persons the Government has to send requisition
year-wise and the PSC to make its recommendation year-wise.
Again this does not lead to a conclusion as to the date on
which appointment should take effect.

An alternative argument was made by Mr. Gupta to the
effect that even if the High Court was of the opinion that the
seniority and promotion should be re-worked the same should
have referred back to the PSC to ascertain who would be the
relevant persons entitled to promotion. The High Court did
not accept that PSC's recommendation in its entirety since in
its view vacancies only arose in 1987-88 and not in 1979-80
as indicated by the PSC.

Likewise, in the second impugned order dated
12.04.2004, 45 persons were directed to be promoted without
taking into consideration their relative position in the list
prepared by the PSC. By not referring the matter to the PSC,
incorrect persons were chosen by the High Court for the
purpose of promotion. This submission was, however, made
by learned senior counsel without prejudice to the submission
that the entire basis for directing retrospective promotion and
seniority was erroneous and there were no vacancies at all.
The second impugned order dated 12.04.2004 is further
vitiated for the following reasons:-

a) Forum: The seniority list under challenge in the
second writ petition was the seniority list of the Uttaranchal
State Government of 2002 and such challenge could not have
been made before the Lucknow Bench of the Allahabad High
Court.

b) Parties: None of the direct recruits who would be
directly affected by order cannot were made parties to the writ
petition. Therefore the High Court did not have the benefit of
competing arguments in the matter. Even though, the
Principal Secretary of the State of Uttaranchal was made a
party, the said party was never served. The only respondent
which was heard was the State of U.P. which had no stake in
the matter at all since all of the writ petitioners before the
Lucknow Bench of the Allahabad High Court where employees
of the State of Uttaranchal on the relevant date. It is,
therefore, evident that the relevant material was not placed
before the Allahabad High Court for the purpose of deciding
the writ petition. Accordingly, the permission had to be taken
from this Court by the present appellants to prefer the SLPs.

We, therefore, have no hesitation in setting aside the final
judgment and order dated 12.04.2004 passed by the High
Court of Judicature at Allahabad, Lucknow Bench in Writ
Petition No. 366 SB of 2002 whereby the High Court allowed
the writ petition filed by C.B. Chhimwal and allow the Civil
Appeal No. of 2006 arising out of SLP (C) No. 7375 of
2005.

Likewise, we allow the Civil Appeal No. of 2006
arising out of SLP (C) No. 1860 of 2006 and set aside the
impugned judgment and order dated 26.11.2001 passed in
Writ Petition No. 610(S/B) of 1996 by the High Court of
Allahabad at Lucknow Bench.

However, we are making it clear that this judgment of
ours will not adversely affect the benefits of the order which
have been enjoyed by any of the promotees who have retired
from service. The division of seniority list, however, has
serious and lasting consequences insofar as the appellants are
concerned which of crucial importance as far as the
promotional prospects of the appellants are concerned.
We, therefore, direct the State of Uttaranchal through its
Principal Secretary (Forest) Dehradun, Uttaranchal to revise
the seniority list of direct recruits in line with the observations
and conclusions made in this judgment by us within 2 months
from the date of receipt of this judgment. No costs.