-Report by Asma Khan
The Honourable Apex Court in the case of Amit Singh Vs. Ravindra Nath Pandey & Ors. Etc., upheld the decision of both the single and division bench of the Allahabad High Court and held that the list of seniority prepared in 2005 has no stance and must be quashed.
FACTS
The appellant and the respondents both were appointed to the post of Assistant Consolidation Officers (hereinafter referred to as the ACOs) in the year 1997-1998 respectively. The appellants were appointed as direct recruits on 18th August 1997 whereas the respondents were promoted on 16th December 1997. The promoters were promoted to the post of ACOs whereas the direct recruits were directly appointed to the post of ACOs through the Uttar Pradesh Subordinate Services Selection Commission and were given seniority over the promoters because of the seniority list of 29th July 2005. The promoters filed a petition before a single judge in the High Court of Allahabad claiming that they should be given seniority over the direct recruits as per Rule 8(3) of the U.P. Government Servants Seniority Rules, 1991. The learned judge observed that seniority should be given based on the 1991 rules and quashed the 29th July 2005 list which gave seniority to direct recruits and held that promotions should be given superiority over direct recruits. The direct recruits then appealed to the Division Bench of the High Court of Allahabad, Lucknow and the division bench on 4th September 2014 upheld the order of the single judge but also held that the State must apply the rota system in case the direct recruits or the promoters are appointed in the same year.
The appellant, that is, the direct recruits appealed to the apex court.
APPELLANT’S CONTENTION
The learned counsel for the appellant contended that when the direct recruits were appointed to the post of ACOs, the promotees had not even entered the Cadre and so the 2005 list of seniority was right in placing direct recruits above the promotees and the 1991 rules had an overriding effect and so cannot be applied here. He also contended that the Division Bench of Allahabad High Court was not right in applying the rota system for the recruitment of the same year. He also contended that the promoters would be promoted retrospectively if the decision of the bench of the High Court is taken into consideration. He referred to the case Uttaranchal Forest Rangers’ Assn. (Direct recruit ) and Ors. V. State of UP and Ors.
RESPONDENT’S CONTENTION
The respondent contended that the order of the single bench and the division bench should not be interfered with because both the direct recruits and the promotions were recruited in the same year.
JUDGEMENT
As per Rule 8(1) of the 1991 Rules, if recruitments are made in the same year for promotions and direct recruits then seniority would depend upon the date of order of substantive appointment and it shall be in the order in which their names are arranged. Further, if appointments are made by direct recruitment and promotion on the result of any one selection, then seniority will be in a cyclic order, that is, the promoter will be Senior. Therefore, if the ratio is 1:1 then the first post will go to a promoter and the second to a direct recruiter.
New rules were issued on 25th March 1992 and they had an overriding effect on the existing rules and orders. Rule 3 (m) of the 1992 rules laid down “Year of recruitment” shall amount to “12 months starting from 1st day of July”. Further, rule 5 provided that 33% of posts would be filled by promotions and 66% by direct recruits.
A combined list shall be prepared as per Rule 18 and rule 19 (2) states that when both appointments are made in the same year then it shall be made from both sources and it is mandatory to prepare a combined list. As per Rule 19(3), names must be arranged in cyclic order if appointments are made by both direct recruitment and promotion.
The court further observed that 1992 rules shall have supersession over other rules and orders. The court relied on the case of Pawan Pratap Singh and others V. Relevant Singh and Ors. As per this case, the date on which the selection procedure starts or the advertisement of the post is issued is the date of selection and if this process is not followed then it would be inconsistent with both articles. 14 and 16 of the Constitution of India. The apex court in this case held that seniority cannot be determined as per the date of vacancy and cannot be given retrospectively because it would affect those employees who were already appointed.
As per the 1992 rules, the year of recruitment in the present case is from 1st July 1997 to 30th June 1998. On 15th September 2003, a combined seniority list was prepared based on 1992 rules but the list of 25th July 2005 changed it. The Court observed that the list of 25th July was in contravention of rules 18 and 19 of 1992 rules because the 2005 list provided seniority to direct recruits over the promotees and as per the rules if appointments are made both by direct recruitment and by promotion then a combined shall be prepared and selections must be made from both the sources.
The court further pointed out the case of Uttaranchal Forest Rangers Assn. which was relied upon by the appellants and observed that in this case the promoters were appointed in 1991 and the direct recruits were appointed in 1990 and so 1992 rules did not apply here.