Uttar Pradesh Police Radio Service Rules, 1979 – rr. 17, 22 – 50% vacancies for the post of Assistant Radio Officers to be filled through direct recruitment and 50% by promotion from the feeder cadre (Radio Inspectors)– Appointments from both the streams were made on different dates– Combined selection list, quashed by High Court for being in violation of r.17 and r.22 – Fresh selection list was prepared, challenged by appellants-candidates from the feeder cadre – List sustained by High Court – Held: Manner in which appointment orders were issued was found to be in breach of the provisions of r.17 in the first judgment –However, neither the first judgment nor the impugned judgment stipulated in what manner the dates of birth into the cadre for individual candidates from the two streams were be determined – Since main reasoning of the High Court for deciding the matter was that selection from both streams was made from a common recruitment process,the dates of appointment orders of both the streamsought to be treated from a particular date and 30th January 1996 being the date on which the appointment letters of the promotee candidates were issued, would be such date – Thus, the seniority of the candidates including the appellants be determined treating the entry into the cadre of both sets of candidates (promotees and direct recruits) on 30th January 1996 and the seniority position be recast on that basis – On the question of intra-stream seniority, r.22 shall be followed – Impugned judgment modified – U.P Government Servant Seniority Rules, 1991– Constitution of India – Art. 142– Service Law.
Disposing of the appeal, the Court
HELD: 1.1 The argument of the appellant that birth in the cadre first would automatically accord the seniority over and above those who are appointed at a later date is agreed with. This principle, however, is to apply in absence of any contrary provision in the applicable service rule. In the present case this aspect has been addressed by the Division Bench in the judgment delivered on 12th September 2012. The opinion of the High Court in this judgment was that since there was a common requisition, the appointments should have been made only after preparing the combined select list and seniority ought to have been determined in accordance with Rule 22. This part of the judgment has remained unaltered. Admitted position is that a review petition in relation to this judgment was filed but the review judgment did not upset this finding of the Division Bench. In the decision under appeal, the Division Bench has relied on these two paragraphs of the earlier judgment and come to its finding. Thus, so far as the appellants and other parties to this appeal are concerned, the said finding has attained finality and this question cannot be reopened in an appeal arising out of a subsequent proceeding on near identical factual background. The High Court, in the earlier judgment found that compliance of Rule 17 was not made in preparing the seniority list of 1999. The subsequent selection list was made in terms of decision of the High Court delivered on 12th September 2012. The general principle of service jurisprudence that seniority is required to be computed from the date of actual entry into a particular cadre cannot operate in a case where there is an undisturbed judicial finding that appointments were made on different dates in breach of the applicable Rules. Moreover, selection list per se does not determine seniority as the said list is only to contain names of persons who are to be part of a particular cadre. In the 1979 Rules also, selection list is to be prepared as per Rule 17 whereas seniority is to be determined in terms of Rule 22. What the authorities have done in finalising the 2013 selection list is that positioning of incumbents in this list have been made on the basis of their seniority. Thus, it has become a combined selection and seniority list.[Paras 11 and 13][220-F-H; 221-A-B] State of Uttar Pradesh v. Ashok Kumar Srivastava &Anr. (2014) 14 SCC 720 : [2013] 11 SCR 846 – referred to.
1.2 The selection list stipulated how the vacancy positions shall be filled but for determination of seniority, the dates of appointment were to be treated as dates of birth in the cadre. In relation to the two streams of entry, after they entered the cadre, their seniority were to be decided on the basis of such dates of entry. In the present proceeding, the manner in which appointment orders were issued was found to be in breach of the provisions of Rule 17 in the first judgment. But neither the first judgment nor the judgment under appeal stipulated in what manner the dates of birth into the cadre for individual candidates from the two streams were be determined. Matter not remanded for that purpose, considering that the present dispute is continuing for about three decades. But since the main reasoning of the High Court for deciding the matter was that selection from both streams was made from a common recruitment process, the dates of appointment orders of both the streams ought to be treated from a particular date and 30th January 1996, being the date on which the appointment letters of the promotee candidates were issued, would be such date. The seniority of the candidates including the appellants should be determined treating the entry into the cadre of both sets of candidates (i.e.promotees and direct recruits) on 30th January 1996 and the seniority position should be recast on that basis. On the question of intra-stream seniority, the provision of Rule 22 shall be followed. In the recast list, however, the position for the posts left vacant on death of dead or superannuated officers shall be treated as fresh vacancies and filled up through fresh selection process. The judgment under appeal stands modified. [Paras 15 and 17-19][222-F-H; 223-BC]
K. Meghachandra Singh & Ors. v. Ningam Siro & Ors. (2020) 5 SCC 689 : [2019] 16 SCR 651; B. S. Murthy & Ors. v. A. Ravinder Singh & Ors. 2022 SCC Online SC 317 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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