Charan Singh Hembram And vs State Of Odisha And Others …. Opposite … on 3 June, 2025

June 11, 2025

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Orissa High Court

Charan Singh Hembram And vs State Of Odisha And Others …. Opposite … on 3 June, 2025

1. All the above 10 (ten) writ petitions are involving the
same issue of inter-se seniority in the ministerial cadre of
Assistant Section Officer (in short, “ASO”) in Odisha Secretariat
Service. These writ petitions can be broadly divided into two
categories. First category consisting of 7 (seven) writ petitions,
i.e. W.P.(C) Nos.24191, 24192, 24193, 24194, 26739 and 36496
of 2020 involve the dispute of inter-se seniority among two
batch of direct recruits, and Second category comprising 3(three)
writ petitions, i.e. W.P.(C) Nos.17311, 29089 and 36444 of 2020
involve dispute of inter-se seniority between the promotees and
inductee appointees versus direct recruits.

2. To deal with the first category, the facts described
succinctly are that, two advertisements to fill up the posts of
ASO were issued in the year 2012-13 and the year 2015-16.
Advertisement No.08 dated 6.10.2012 was issued by the Odisha
Public Service Commission (in short, ‘OPSC’) inviting
applications to fill up 811 vacancies for the post of ASO through
direct recruitment. Since some dispute arose relating to number
of reserved posts leading to filing of judicial proceedings, a
corrigendum was issued on 21.8.2014 modifying category-wise
vacancies and extending the last date of application with
stipulation that the candidates, who had already applied, are not

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required to reapply. Subsequently on 14.05.2015, Advertisement
No.06 of 2015-16 was issued by the OPSC to conduct a
recruitment drive for ST category candidates for 140 vacancies
in total and all the posts were reserved for Scheduled Tribe
candidates only.

The recruitment process pursuant to Advertisement No.08,
dated 6.10.2012 could not be completed due to some
unavoidable reasons including filing of judicial proceedings and
in the meantime, the recruitment process in respect of
Advertisement No.06, dated 14.5.2014 was completed with
recommendation of 139 candidates by the OPSC on 22.12.2015.
Amongst said recommendees, 136 candidates were issued with
appointment order vide Home Department Order No.3148/OSS
dated 27.1.2016. Subsequently on 10.9.2016, the OPSC sent the
list of 810 select candidates in respect of the vacancies in
Advertisement No.08 of 2012-13. Amongst those
recommendees, 787 candidates were issued with appointment
order on 5.10.2016 vide Home Department Order
No.35258/OSS.

3. It is to be mentioned here that prior to 30.9.2008 “Junior
Assistant” was the entry level post in the ministerial service
cadre in Odisha State Secretariat in terms of the Odisha
Secretariat Service (Method of Recruitment and Conditions of
Service of Junior Assistants of Departments of Odisha
Secretariat) Rules, 1951 (in short, ‘1951 Rules’). On 30.9.2008,

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the positions of “Junior Assistant” and “Senior Assistant” in
Odisha Secretariat Service was merged into one base level cadre
and re-designated as Assistant Section Officer (ASO). On
6.4.2010, the Odisha Secretariat Service (Method of Recruitment
and Conditions of Service of Assistant Section Officers) Rules,
2010 (in short, “2010 Rules”) came into force repealing the
earlier 1951 Rules. Again, the Odisha Secretariat Service
(Method of Recruitment and Conditions of Service) Rules, 2016
(in short, “2016 Rules”) came into force on 11.1.2017
superseding 2010 Rules.

On 12.4.2018, the tentative Gradation List of ASOs as on
1.1.2018 was published inviting objections and consequent
thereto, the final Gradation List of ASOs as on 1.1.2018 was
published on 11.6.2020 vide Letter No.20286/OSS of Home
Department. Said final Gradation List dated 11.6.2020 is the
subject matter of challenge in all the writ petitions with regard to
placement of different candidates inter-se.

4. The Petitioners in 7(seven) writ petitions (hereinabove
stated as first category) are the candidates appointed on
27.1.2016 (on 18.5.2016 for one more candidate) selected
pursuant to Advertisement No.06, dated 14.5.2016. It is their
submission that, they being appointed prior to those direct
recruits of ASOs selected pursuant to Advertisement No.08 of
2012-13, they should be placed above in the Gradation List in
terms of their seniority in service. Their further case is that, their

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appointment being made under 2010 Rules, their seniority in
service must be counted in terms of the provisions of 2010
Rules. Therefore, the placement of those direct recruits selected
pursuant to Advertisement No.08 of 2012-13 and appointed on
5.10.2016 (on 9.11.2016, 13.12.2016 and 26.12.2016 in respect
of 12 more candidates) above the candidates appointed earlier is
completely illegal and against the prevalent provisions of 2010
Rules. Similar is the case of the promotes/inductees in other
three writ petitions (hereinabove stated as second category) that,
they being appointed much prior to the appointment of those
direct recruits selected pursuant to the Advertisement No.08 of
2012-13 and 06 of 2015-16, they should be placed in higher
position than those candidates.

5. The facts being complicated in nature are sorted
chronologically below for better appreciation.

 On 30.9.2008 the erstwhile posts of Junior Assistant and
Senior Assistant in Odisha Secretariat Service were
merged into one base level cadre and re-designated as
“ASO”.

 The Odisha Secretariat Service (Method of Recruitment
and Conditions of Service of Assistant Section Officers)
Rules, 2010 came into force on 07.04.2010 repealing
earlier 1951 Rules.

 Requisitions for regular recruitment to 811 vacant posts of
ASO was sent by the Home Department vide Letter

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No.41522/CC dated 26.9.2011 and Letter No.42011/CC
dated 30.9.2011 to OPSC.

 The OPSC issued Advertisement No.08 of 2012-13 on
6.10.2012 inviting applications for direct recruitment to
811 vacant posts of ASOs.

 The Odisha Administrative Tribunal (OAT) issued a
direction on 18.10.2012 in OA No.1417/2012 (Amar
Chhatoi vs. State) not to exceed reserved category
vacancies more than 50% in respect of Advertisement
No.08 of 2012-13.

 The Home Department vide Letter No.13883/CC dated
6.4.2013 communicated revised category-wise vacancy of
posts in respect of Advertisement No.08 of 2012-13.
Further in another Letter No.13884/CC dated 6.4.2013 (on
the same date) requested the OPSC to conduct another
recruitment drive for Scheduled Tribe category
candidates.

 The OAT in order dated 12.12.2013 while disposing of
OA No.1417/2012 (Amar Chhatoi vs. State), quashed
Notification dated 7.2.2009 of Odisha Government
regarding the Odisha Reservation of Posts and Services
Act, 2008 and directed the State and OPSC to modify
Advertisement No.08 of 2012-13 to ensure total
reservation for ST, SC and SEBC categories not
exceeding 50% in total.

 The Government of Odisha issued Resolution bearing
No.17025 on 24.5.2014 mentioning the reservation of

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posts and services in favour of SEBC to the extent of
11.25%.

 Pursuant to the request of Government in Home
Department, the OPSC issued a corrigendum on 21.8.2014
modifying the category-wise vacancy for the posts of ASO
in respect of Advertisement No.08 of 2012-13 while
keeping all other conditions unaltered, but extending the
last date of application with stipulation that the candidates
already applied need not re-apply.

 The OPSC issued Advertisement No.06 of 2015-16 on
14.5.2015 to conduct recruitment drive for ST category of
candidates only against 140 vacancies of ASO posts in
total.

 The OPSC recommended the names of 139 ST candidates
on 22.12.2015 selected pursuant to Advertisement No.06
of 2015-16.

 The Home Department issued appointment order in
respect of 136 ST candidates on 27.1.2016 and in respect
of another ST candidate subsequently.

 The OPSC recommended the names of 810 candidates on
10.9.2016 in respect of Advertisement No.08 of 2012-13.
 The State Government in Home Department issued
appointment orders in respect of 787 candidates on
5.10.2015 selected pursuant to Advertisement No.08 of
2012-13 and further, issued three other appointment orders
dated 9.11.2016, 13.12.2016 and 26.12.2016 in respect of
one candidate, 10 candidates and one candidate

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respectively selected pursuant to the Advertisement No.08
of 2012-13.

 The Odisha Secretariat Service (Method of Recruitment
and Conditions of Service) Rules, 2016 came into force on
11.1.2017 superseding the Odisha Secretariat Service
(Method of Recruitment and Conditions of Service of
Assistant Section Officers) Rules, 2010 saving in respect
of things done or omitted to be done before such
supersession.

 The tentative Gradation List of ASOs as on 1.1.2018 was
published on 12.4.2018 inviting objections.
 The final Gradation List of ASOs as on 1.1.2018 was
published on 11.6.2020.

6. In the conspectus of facts narrated above, the dispute
relating inter se seniority in the cadre of ASO arose. Let us see
first the provisions of 2010 Rules and 2017 Rules governing
inter-se seniority among the employees in the cadre of ASO. The
relevant provisions of both 2010 Rules and 2016 Rules are re-
produced below.

2010 Rules
The 6th April 2010
No.15678-CC-G-03/10/CC.–In exercise of the
powers conferred by the proviso to Article 309 of the
Constitution of India, the Governor of Orissa is pleased to
make the following rules regulating the method of recruitment
and conditions of service of the persons appointed to the cadre
of Assistant Section Officer in the Departments of
Government, namely : —

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PART – I
PRELIMINARY

1.Short title and commencement

(1) These rules may be called the Orissa Secretariat Service
(Method of Recruitment and Conditions of Service of Assistant
Section Officers) Rules, 2010.

(2) They shall come into force on the date of their publication
in the Orissa Gazettee.

xxx xxx xxx

3.Constitution of Service

The service shall consist of the cadre of Assistant Section
Officers in the Departments of Government.

                                       xxx             xxx                            xxx

                                                            PART - II
                                                     METHOD OF RECRUITMENT

                                       5. Methods of recruitment

Subject to other provisions made in these rules recruitment to
the cadre shall be made by following methods, namely :–

(a) by means of competitive examination to be held once in a
year by the commission.

(b) by induction from among Senior Grade Typists, Senior
Grade Diarists, Recorders and Senior Data Entry
Operators of the Departments of Government by way of
Promotion/Selection and

(c) by induction from among Group ‘D’ employees working
in Departments of Government by way of Limited
Departmental Examination.

xxx xxx xxx

PART-IV
PROMOTION

12. Promotion of Group ‘C’ employees

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10% of vacancies arising in a year subject to a maximum of 10
posts in the cadre of Assistant Section Officer in the
Departments of Government shall be filled up by
promotion/selection of Senior Grade Typist, Senior Grade
Diarist, Recorders and Senior Data Entry Operators of the
Departments of Government, provided they have rendered at
least 10 years of continuous service inclusive of at least 3 years
service in the respective rank and possess Bachelor’s Degree in
any discipline with adequate knowledge in Computer
Application.

xxx xxx xxx

PART-V
LIMITED DEPARTMENT EXAMINATION

15. Limited Departmental Examination

(1) 5% of the vacancies arising in a year subject to a
maximum of five posts in the cadre of Assistant Section
Officer in the Departments of Government in a particular year
shall be filled up from among the Group ‘D’ employees
working in different Departments of Government by way of
Limited Departmental Examination.

(2) No Group ‘D’ employee shall be eligible for
consideration for selection unless he has given willingness to
that effect in writing and has put in at least 10 (ten) years of
continuous service, possessed a Bachelor Degree in any
discipline and has adequate knowledge in computer
application.

(3) A Limited Departmental examination shall be conducted
on the subjects specified in the Schedule by the committee
constituted under rule 13.

(4) The minimum qualifying marks in each subject shall be
33%.

(5) The committee shall prepare a common list of successful
candidates equal to the number of vacancies in order to merit.

xxx xxx xxx

17. Inter-se seniority

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(1) The inter-se seniority of the officers appointed to the
service in a particular year shall be in the order in which their
names appear in the select list.

(2) Those appointed by promotion/selection under clause(b)
of rule-5 shall en-bloc be senior to those appointed by limited
departmental examination under clause (c) of rule-5, who shall
in turn en-bloc be senior to those appointed by direct
recruitment under clause (a) of rule-5.

xxx xxx xxx

19. Other conditions of service

The conditions of service in regard to matters not covered by
these rules shall be the same as are or as may from time to time
be prescribed by the Government.

                                       xxx             xxx                            xxx

                                       21. Repeal and Savings

(1) The Odisha Ministerial Service (Method of Recruitment
and Conditions of Service of Junior Assistants in the Offices of
Departments of Secretariat) Rules, 1951, regulations,
instructions or orders in force immediately before the
commencement of these rules in respect of matters relating to
the service and covered by these rules are hereby repealed:

Provided that any order or appointment made, action taken or
things done under the rules, regulations, instructions or orders
so repealed shall be deemed to have been made, taken or done
under these rules.

2016 Rules
The 9th January, 2017

No.1009-HOME-OSS-RULES-0001/2016/HD.–In
exercise of the powers conferred by the proviso to Article 309
of the Constitution of India and in supersession of the Odisha
Secretariat Service (Method of Recruitment and Conditions of
Service of Assistant Section Officers) Rules, 2010, the Odisha
Secretariat Service (Junior) Rules, 1981, the Odisha Secretariat
Service (Group-B) Rules, 1986 and he Odisha Secretariat

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Service Rules, 1980 except as respect of things done or
omitted to be done before such supersession, the Governor of
Odisha hereby makes the following rules regulating the
method of recruitment and conditions of service of the persons
appointed to the Odisha Secretariat Service, namely : —

PART – I
GENERAL

1. Short title and commencement

(1) These rules may be called the Odisha Secretariat Service
(Method of Recruitment and Conditions of Service) Rules,
2016.

(2) They shall come into force on the date of their publication
in the Odisha Gazettee.

xxx xxx xxx

3. Constitution of the Service:-The Service shall consist of the
following posts, namely:–

(a) Assistant Section Officer, Group-B;

(b) Section Officer, Group-B;

(c) Desk Officer, Group-B;

(d) Under Secretary, Group-A (Junior Branch);

(e) Deputy Secretary, Group-A (Senior Branch);

(f) Joint Secretary (Suppertime Scale) and

(g) Additional Secretary (Superior Administrative Grade).

PART – II
METHOD OF RECRUITMENT

4. Method of recruitment:-Subject to other provisions made in
these rules, recruitment to different grades in the service shall
be made by the following methods, namely:-

(a) in respect of the post of Assistant Section Officer in
Group-B as specified in clause(a) of rule 3 –

(i) by means of competitive examination to be held at
least once in a year by the Commission in accordance with
rule 6:

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(ii) by selection from among the Senior Grade
Typists, Senior Grade Diarists, Recorders and Senior Data
Entry Operators of the Departments of Government and

(b) in respect of the other posts by way of promotion in
accordance with these rules.

                                       xxx              xxx                             xxx

                                                                    PART-IV
                                                                  PROMOTION

11. Criteria for Selection-(1) 10% of vacancies arising in a
year subject to a maximum of 10 posts of Assistant Section
Officer in the Departments of Government shall be filled up by
selection of eligible and willing Senior Grade Typist, Senior
Grade Diarist, Recorders and Senior Data Entry Operators of
the Departments of Government mentioned under clause (a)(ii)
of rule 4, provided they have rendered at least 10 years of
continuous service inclusive of at least 3 years service in the
respective rank, are not above 45 years of age and possess
Bachelor’s Degree in any discipline with adequate knowledge
in Computer Application as specified in the schedule.

(2) The willing candidates shall undergo a test in Computer
Application as per the syllabus specified in the Schedule.

xxx xxx xxx

PART-V
OTHER CONDITIONS OF SERVICE

17. Inter-se Seniority:-

(1) The inter-se seniority of the Assistant Section Officers of
the service in respect of a particular recruitment year shall be
in the following manner, namely:-

(i) the promote officers shall be ranked inter-se in the
order in which their names appear in the select list.

(ii) the direct Recruit officers shall be ranked inter-se
in the order in which their names appear in the merit list
prepared by the Commission.

(iii) the officers appointed by selection under sub-

clause(ii) of clause (a) of rule-4 shall en-bloc be senior to those

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appointed by direct recruitment under sub-clause (i) of clause

(a) of rule-4.

(2) The inter-se seniority of the officers in grades other than
the Assistant Section Officer in the service shall be in the order
in which their names appear in the approved select list formed
under rule 16.

18. Appointment to the Posts in the Service:–(1)
Appointment to the posts in the service by direct recruitment
shall be made in the order in which the names of the persons
appear in the merit list furnished by the Commission.

(2) Appointment to the posts in the service by promotion
shall be made in accordance with the rules framed and
procedure outlined by the Government from time to time.

xxx xxx xxx

21. Other Conditions of Service:- The conditions of service
in regard to matters not covered by these rules shall be the
same as are or as may from time to time be prescribed by the
Government.”

7. It is the contention of Petitioners, appointed pursuant to
the selection in respect of Advertisement No.06 of 2015-16, that
the Rules prevailing, i.e. 2010 Rules, on the date of their
appointment has to be counted for determining their seniority in
service. They further rely on the principles propounded with
regard to inter-se seniority in the case of K. Meghachandra
Singh and others vs. Ningam Siro and others, 2020 (5) SCC

689. Similar contentions are also advanced by the promotee-
Petitioners to place their seniority above the direct recruits in the
Gradation List. Conversely, it is submitted on behalf of the direct
recruits selected pursuant to the Advertisement No.08 of 2012-
13 that, the provisions in 2010 Rules as well as 2017 Rules speak
in their favour to determine their seniority above the promotes
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and direct recruits selected pursuant to Advertisement No.06 of
2015-16.

8. Before delving into the factual aspects vis-à-vis the rival
contentions of the parties, it is required to see the principles
propounded in different judgements of Apex court governing
inter-se seniority among the employees in the same cadre.

9. In Mervyn Coutindo and others vs. Collector of Customs,
Bombay and others, 1966 SCC OnLine SC 13, it is held by the
Supreme Court as follows:-

“3. We shall first consider the question of Appraisers. As far
back as 1936, an order was passed by the Board which laid
down that recruitment to the Customs Appraisers’ Service
would be from two sources i.e. 50 per cent by promotion, 25
per cent directly from experts and 25 per cent by means of a
competitive examination or selection by the Public Service
Commission. It was also said in the said order that those
percentages would be the maximum and the Collectors of
Customs would not be bound to recruit up to the maximum
particularly in the case of recruitment by promotion. In actual
practice however this order has been acted upon as if it
provides 50 per cent for promotees and 50 per cent for direct
recruits, whether they are experts or come by competitive
examination or selection by the Public Service Commission. In
1940, the Government of India issued a circular for the
determination of relative seniority of candidates appointed by
direct recruitment and by promotion. In that circular it was
stated that “where in a department two permanent or quasi
permanent vacancies occur, even simultaneously, and the first
vacancy is in accordance with the rotation meant for a direct
recruit, the direct recruit will rank in seniority above the
promotee even though he joined his post after the promotee
had been promoted and confirmed”. Reliance has been placed
on behalf of the Union on this circular in the matter of fixation
of seniority between direct recruits and promotees in a cadre in
which rotational system prevails. The petitioners however rely
in reply on a circular issued in June 1949. That circular dealt
with the seniority of displaced government servants who had

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been absorbed temporarily in service under the Central
Government. The occasion for that circular was the division of
India, and the creation of Pakistan resulting in displacement of
a large number of public servants from the area which went to
Pakistan. That circular provided for a change in the system due
to displaced government servants having in most cases lost all
their property and having to migrate in difficult circumstances.
It was therefore thought fit to give some weightage in the
matter of seniority to such persons on compassionate grounds.
It was therefore decided that the seniority of persons appointed
on permanent or quasi permanent basis before January 1, 1944
should not be disturbed, but thereafter displaced persons
should be given consideration and their seniority counted on
the basis of length of service in the particular grade as well as
service in an equivalent grade. “Service in an equivalent
grade” was defined as service on a rate of pay higher than the
minimum of the time scale of the grade concerned. The
principle of this circular was also applied to ex-government
servants of Burma appointed under the Central Government
and employees of the former Part B States taken over by the
Centre as a result of federal financial integration. Naturally as
this change could not be applied only to displaced persons etc.
it was applied to the existing government servants of the
Government of India also from January 1, 1944. But there is
nothing in the circular to show that the seniority of the existing
government servants inter se was to be disturbed on the basis
of this circular. The real purpose of this circular appears to be
to fix seniority for displaced persons etc. in accordance with it
and for that purpose it applied the same principle to the
existing central government servants from January 1, 1944.

4. It appears that by 1959, the circular of 1949 for
absorption of displaced government servants etc., had worked
itself out, therefore, on December 12, 1959, the Government of
India issued another circular containing general principles for
determining seniority of various categories of persons
employed in central services. By this circular, the circular of
1949 and certain other circulars issued to deal with special
types of recruitment like war service candidates were
cancelled, and thereafter seniority was to be determined by the
circular of 1959, which states that instructions contained in the
said circulars had achieved their object and there was no longer
any reason to apply those instructions in preference to the
normal principles for determining seniority in future. For the
future certain general principles were laid down for fixing the
seniority in the circular of 1959. These principles were not to
apply retrospectively but were given effect to from the date of

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their issue, subject to certain reservations with which we are
not concerned.

xxx xxx xxx

7. This brings us back to the circular of 1959, and the main
question in that connection is the meaning to be assigned to the
words “seniority determined accordingly”, in the explanation
to principle 6 relating to relative seniority of direct recruits and
promotees. As we read these words, their plain meaning is that
seniority as between direct recruits and promotees should be
determined in accordance with the roster, which has also been
specified, namely, one promotee followed by one direct recruit
and so on. Where therefore recruitment to a cadre is from two
sources, namely, direct recruits and promotees and rotational
system is in force, seniority has to be fixed as provided in the
explanation by alternately fixing a promotee and a direct
recruit in the seniority list. We do not see any violation of the
principle of equality of opportunity enshrined in Article 16(1)
by following the rotational system of fixing seniority in a cadre
half of which consists of direct recruits and the other half of
promotees, and the rotational system by itself working in this
way cannot be said to deny equality of opportunity in
government service. The anomalies which have been referred
to in the petition arise not on account of there being anything
opposed to equality of opportunity in government service by
the use of the rotational system; they arise out of the fortuitous
circumstance that in this particular service of Appraisers, for
one reason or another, direct recruitment has fallen short of the
quota fixed for it. It is merely because of this fortuitous
circumstance that anomalies to which reference has been made
in the petition have arisen. There is no doubt that if direct
recruitment had kept pace with the quota fixed therefor there
would have been no anomalies in fixing the seniority list. The
question therefore narrows down to this : Can it be said that
there is denial of equality of opportunity which arises out of
this fortuitous circumstance and which is not a vice inherent in
the rotational system? We are not prepared to say that the
rotational system of fixing seniority itself offends equality of
opportunity in government service. Any anomalies which may
have resulted on account of insufficient recruitment of direct
recruits in the past cannot in our opinion be a ground for
striking down the rotational system, which, as we have said,
does not itself amount to denial of equality of opportunity in
the matter of employment in government service. It is
regrettable that some anomalies have appeared because of

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insufficient recruitment of direct recruits in the past in this
particular service. But that in our opinion can be no reason for
striking down the seniority list prepared in 1963 which is
undoubtedly in strict accordance with the rotational system
based on the fixed quotas for recruitment of direct recruits and
promotees. The order of the Board of 1963 on the basis of
which the impugned seniority list of Appraisers has been
prepared clearly lays down that “the principle of determination
of seniority of the direct recruits and the promotees inter se in
the prescribed ratio of 1 : 1 should be worked out”. This order
is in accordance with the circular of 1959 and as we have said
already, there is no inherent vice in the principle of fixing
seniority by rotation in a case where a service is composed in
fixed proportion of direct recruits and promotees. Nor do we
think that this system is on a par with the carry-forward Rule
which was struck down by this Court in T. Devadasan v.
Union of India1 and on which strong reliance is placed on
behalf of the petitioners. In the case of the carry forward Rule
certain quota is fixed annually for a certain class of persons
and it is carried forward from year to year. This is very
different from a case where a service is divided into two parts
and there are two sources of recruitment, one of promotion and
the other by direct recruitment. In such a case, the whole cadre
of a particular service is divided into two parts and there is no
question of carrying anything forward from year to year in the
matter of annual intake. The basis on which the carry-forward
Rule was struck down by this Court does not therefore apply to
a case where the whole cadre of a service is divided in certain
fixed proportions between promotees and direct recruits. The
petitioners therefore can get no assistance from Devdasan’s
case. The petition must therefore fail so far as seniority of
Appraisers is concerned.

8. This brings us to the question of Principal Appraisers. We
are of opinion that the petitioners have a legitimate grievance
in this respect. The source of recruitment of Principal
Appraisers is one, namely, from the grade of Appraisers. There
is therefore no question of any quota being reserved from two
sources in their cases. The rotational system cannot therefore
apply when there is only one source of recruitment and not two
sources of recruitment. In a case therefore where there is only
one source of recruitment, the normal Rule will apply, namely,
that a person promoted to a higher grade gets his seniority in
that grade according to the date of promotion subject always to
his being found fit and being confirmed in the higher grade
after the period of probation is over. In such a case it is
continuous appointment in the higher grade which determines

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seniority for the source of recruitment is one. There is no
question in such a case of reflecting in the higher grade the
seniority of the grade from which promotion is made to the
higher grade. Insofar therefore as the respondent is doing what
it calls restoration of seniority of direct recruits in Appraisers’
grade when they are promoted to the Principal Appraisers’
grade, it is clearly denying equality of opportunity to
Appraisers which is the only source of recruitment to the
Principal Appraisers’ grade. There is only one source from
which the Principal Appraisers are drawn, namely, Appraisers,
the promotion being by selection and five years’ experience as
Appraiser is the minimum qualification. Subject to the above
all Appraisers selected for the post of Principal Appraisers
must be treated equally. That means they will rank in seniority
from the date of their continuous acting in the Principal
Appraisers’ grade subject of course to the right of the
Government to revert any of them who have not been found fit
during the period of probation. But if they are found fit after
the period of probation they rank in seniority from the date
they have acted continuously as Principal Appraisers whether
they are promotees or direct recruits. The present method by
which the respondent puts a direct recruit from the grade of
Appraiser, though he is promoted later, above a promotee who
is promoted to the grade of Principal Appraiser on an earlier
date clearly denies equality of opportunity where the grade of
Principal Appraiser has only one source of recruitment,
namely, from the grade of Appraisers. In such a case the
seniority in the grade of Principal Appraisers must be
determined according to the date of continuous appointment in
that grade irrespective of whether the person promoted to that
grade from the Appraisers’ grade is a direct recruit or a
promotee. This will as we have already said be subject to the
Government’s right to revert any one promoted as a Principal
Appraiser if he is not found fit for the post during the period of
probation. The petition therefore will have to be allowed with
respect to the method by which seniority is fixed in the grade
of Principal Appraisers. That method denies equality of
opportunity of employment to the Appraisers who are the only
source of recruitment to the grade of Principal Appraisers.
What the impugned method seeks to do is to introduce a kind
of reservation in respect of the two categories of Appraisers
from which the promotions are made, and that cannot be done
when the source of promotion is one.”

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10. In Direct Recruit Class II Engineering Officers’
Association vs. State of Maharashtra and others, (1990) 2 SCC
715, it is held as follows:-

“47. To sum up, we hold that:

(A) Once an incumbent is appointed to a post according to
rule, his seniority has to be counted from the date of his
appointment and not according to the date of his confirmation.

The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and
made as a stop-gap arrangement, the officiation in such post
cannot be taken into account for considering the seniority.”

11. In Jagadish Ch. Patnaik and others vs. State of Orissa and
others, (1998) 4 SCC 456, it is held as follows:-

“2.This appeal is directed against the order dated 25-10-1994
of the Orissa Administrative Tribunal in Miscellaneous
Petition No. 3229 of 1992, arising out of Original Application
No. 73 of 1989. The appellants are graduates in civil
engineering and had been recruited as Assistant Engineers in
the Irrigation Wing in the Irrigation and Power Department in
the State of Orissa after being duly selected by Orissa Public
Service Commission in accordance with Orissa Service of
Engineers Rule, 1941 (hereinafter referred to as “the Rules”).
The respondents are promotees to the post of Assistant
Engineers from amongst the Junior Engineers and Sub-
Assistant Engineers. OA No. 78 of 1979 had been filed by the
direct recruited Assistant Engineers claiming inter alia that the
appointments of such direct recruits having been made against
vacancies of the year 1978 they should be treated as appointees
of the year 1978 and consequently their seniority should be
determined on that basis under the promotee Assistant
Engineers of that year notwithstanding the fact that they were
factually appointed as Assistant Engineers in the year 1980.
The Tribunal allowed the said application by order dated 29-6-
1992. It may be stated that the promotee Assistant Engineers of
the years 1979 and 1980 had not been arrayed as party to the
said proceedings. As the order of the Tribunal dated 29-6-1992
adversely affected the seniority of the promotee Assistant
Engineers who had been promoted in the years 1979 and 1980
they filed a miscellaneous petition which was registered as
Miscellaneous Petition No. 3229 of 1992 for reviewing the

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order dated 29-6-1992. They also filed a direct petition before
the Tribunal which was registered as OA No. 2325 of 1992.
The Tribunal disposed of both the original application as well
as the miscellaneous petition by the impugned judgment and
came to hold that the original application would not be
maintainable since the question of inter se seniority has been
decided in OA No. 73 of 1989 by order dated 29-6-1992. It,
however, came to the conclusion that the review of the said
order is maintainable particularly when the affected persons
had not been arrayed as parties to the earlier decision.
Thereafter by interpreting the rule of seniority, particularly
Rule 26 of the Rules, it came to hold that the direct recruits
cannot be held to be recruits of the year 1978 and on the other
hand, must be held to be recruits of the year 1980 when the
State Government by notification appointed those direct
recruits as Assistant Engineers in March 1980. It further came
to hold that such direct recruits, therefore, cannot be held to be
senior to the promotees of the year 1979 and will be juniors to
promotees of the year 1980. The aforesaid order of the
Tribunal reviewing the earlier order dated 29-6-1992 is the
subject-matter of challenge in this appeal. The promotees
whose Original Application No. 2325 of 1992 was dismissed
as not maintainable also filed a special leave petition by way of
abundant caution and that special leave petition was also taken
on board and was heard along with the present appeal.

3. The brief facts culminating in the impugned order of the
Tribunal may be stated as hereunder:

That in the year 1978 forty vacancies were available in the
post of Assistant Engineer in the Irrigation Wing of the
Irrigation Department of the State of Orissa out of which 10
posts were to be filled up by direct recruitment in accordance
with Rule 7 of the Rules. Orissa Public Service Commission
issued an advertisement inviting applications from the
candidates eligible for appointments to the service in the year
1979 and after completing the process of selection prepared a
list of selected candidates in accordance with Rule 13 of the
Rules and submitted the same to the State Government
sometime in November 1979. The State Government finally
made the final selection in accordance with Rule 15 and
required the selected candidates to undergo medical
examination and issued letters of appointment in March 1980.
Thereafter the appointees joined as Assistant Engineers. The
respondents who are Junior Engineers had been promoted as
Assistant Engineers in accordance with Rules on different
dates in 1979 and 1980, namely, 27-8-1979, 27-11-1979, 4-2-

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1980, 4-11-1980 and 27-12-1980. Jagdish Patnaik, Appellant
1, who was a direct recruit to the post of Assistant Engineer
filed Original Application No. 78 of 1989 in the State
Administrative Tribunal seeking the relief that he should be
given the seniority in the rank of Assistant Engineer below the
promoted Assistant Engineers in the year 1978 since he has
been recruited to the said post against a vacancy which has
arisen for the year 1978 and for the delay caused by the
department he should not be made to suffer. The Tribunal was
persuaded to accept the said contention raised on behalf of Shri
Patnaik and it came to hold that since he has been selected
against a vacancy of the year 1978 his seniority in the cadre of
Assistant Engineer should be determined treating him to be a
recruit of the year 1978 notwithstanding the fact that he was
appointed as an Assistant Engineer by notification dated 29-3-
1980. The Tribunal, therefore directed the State Government to
fix the seniority of the said Shri Patnaik below the promoted
Assistant Engineers of the year 1978. It may be stated at this
stage that under Rule 26 of the Rules which deals with the inter
se seniority of the Assistant Engineers as between direct
recruits and promotees, the promoted officers recruited during
the year would be considered senior to the officers directly
recruited during the year. Since the implementation of the
aforesaid direction of the Tribunal adversely affected the
seniority of the promotee Assistant Engineers who had been
promoted during the year 1979-80 they approached the
Tribunal both by filing an application for review and by filing
an original application, as already stated, and the Tribunal
disposed of the same by the impugned order.

xxx xxx xxx

6. Mr Raju Ramachandran, learned counsel appearing for some
of the interveners who are direct recruits, supported the
submissions made by Mr Banerjee, learned Senior Counsel and
contended that there is a distinction between the expressions
“recruitment” and “appointment” in service jurisprudence. The
expression “recruitment” signifies a stage prior to the issuance
of an actual appointment order, therefore, when the seniority
rule contained in Rule 26 uses the expression “direct
recruitment” there is no justification to construe that it is the
actual year of appointment that would govern the seniority and
in this view of the matter the impugned order of the Tribunal is
erroneous in law. According to Mr Ramachandran, learned
Senior Counsel the expression “direct recruitment” in Rule 26
of the Rules refers to the commencement of the process of
recruitment which is fixed and ascertainable and not the date of

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actual appointment which for several reasons can be
indefinitely delayed in a given case and there is no justification
for construing Rule 26 in that manner.

xxx xxx xxx

8. Mr P.N. Mishra, learned counsel appearing for the State of
Orissa, supported the submissions made by Mr Sanghi and
contended that the actual year during which the appointment is
made to the cadre of Assistant Engineer, be it on promotion or
be it on the basis of direct recruitment is the governing factor
for determination of inter se seniority as is apparent from the
language used in Rule 26 of the Rules. Mr Mishra, learned
counsel further contended that under the scheme of the Rule, it
is the State Government who has the final power of selection
both for an appointment under direct recruitment as well as
appointment under promotion and until that power is exercised
no person can claim to have been recruited to the service and
that being the position the year in which the vacancies arose
and against which the recruitment made is irrelevant for the
purpose of determining the seniority. Mr Mishra, learned
counsel further submitted that Rule 5 which deals with
recruitment to service is also indicative of the fact that a person
can be said to be recruited only on being appointed to the rank
of Assistant Engineer and therefore it is not possible to
construe that for the purpose of determining the seniority any
date anterior to the said appointment can at all be a germane
consideration. Mr Mishra, learned counsel also submitted that
the word “year” having been defined to mean a calendar year
under Rule 3(f) of the Rules and Rule 26 being categorical to
the effect that among the officers recruited by promotion and
by direct recruitment during the same calendar year the
promoted officers would be considered senior to the direct
recruited officers, it is only logical to hold that when they are
appointed to the post of Assistant Engineer which would be
taken into account for the purpose of seniority and not
otherwise.

xxx xxx xxx

24. Rule 26 with which we are really concerned in the present
case is the rule of seniority. It would be appropriate to extract
the said Rule 26 in extenso:

“26. Seniority.–(1) When officers are recruited by
promotion and by direct recruitment during the same
year, the promoted officers shall be considered senior

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to the officers directly recruited irrespective of their
dates of joining the appointment.

(2) Between the two groups of promoted officers,
those promoted from the rank of Sub-Assistant
Engineers shall en bloc be senior to those promoted
from the rank of Junior Engineers.

(3) Subject to provision of sub-rules (1) and (2)
seniority of officers shall be determined in accordance
with the order in which their names appear in the lists
prepared by the Commission.”

The very scheme of recruitment under the Rules, as indicated
above, unequivocally indicates that in the case of direct
recruits the final authority lies with the State Government who
issues appointment orders from amongst the persons found
eligible by the Public Service Commission and further who
have been found medically fit by the Medical Board. Even
such an appointee is also required to undergo probation for two
years and thereafter he can be confirmed in the service. Under
Rule 26, which is the Rule for determining inter se seniority
between promotees and direct recruits when the expression
used is “officers are recruited by promotion and by direct
recruitment” necessarily it means that when they are appointed
as Assistant Engineers by the State Government. To import
something else into the Rule will neither be in the interest of
justice nor is it necessary in any manner and it would
tantamount to legislation by the Court. It is a well-known
principle of construction of a statute that when the language
used in the statute is unambiguous and on a plain grammatical
meaning being given to the words in the statute, the end result
is neither arbitrary, irrational or contrary to the object of the
statute, then it is the duty of the court to give effect to the
words used in the statute as the words declare the intention of
the law-making authority best. In that view of the matter we do
not see any justification to go into the question of quota meant
for direct recruits and promotees nor is it necessary to find out
as to the year in which the vacancy arose against which the
recruitment is made. On an analysis of the scheme of the
Rules, as narrated earlier, we are of the considered opinion that
the expression “recruited” would mean appointed and the
expression “during the same year” in Rule 26 would mean
during the calendar year and, therefore, direct recruits recruited
during the calendar year would be junior to the promotee
recruits recruited during the said calendar year.

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x xx xxx xxx

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 decision, 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.”

12. In M. Subba Reddy and others vs. A.P. State Road
Transport Corporation and others, (2004) 6 SCC 729, it is held
as follows:-

“38. As regards Point 3, the Division Bench in Suraj
Parkash [(2000) 7 SCC 561 : 2000 SCC (L&S) 977] took into
consideration a large number of earlier decisions of this Court
and held that services of ad hoc/stopgap service of promotees

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can be regularised. The Court noticing the decisions relating to
the employees governed by the Service Regulations framed by
the State of Andhra Pradesh (which are in pari materia with the
rules in question) in no uncertain terms held that services of an
employee can be regularised with retrospective effect. This
Court while arriving at the said conclusion also relied upon a
large number of decisions arising from other States which also
support the legal principle that the regularisation of the
promotees with retrospective effect is permissible in law. It
was categorically held: (SCC p. 598, para 79)

“Service of the promotees which is regularised
with retrospective effect from the date of vacancies
within the quota counts for seniority.”

13. In Pawan Pratap Singh and others vs. Reevan Singh and
others, (2011) 3 SCC 267, it is held as follows:-

“1. In this group of three appeals, by special leave, the
question presented for consideration before this Court relates
to determination of seniority between two groups of direct
recruits to the posts of Deputy Jailor (Group C post), one
appointed in 1991 through the selection made by the Uttar
Pradesh Subordinate Services Selection Commission (for short
“the Selection Commission”) and the other in 1994 by the
Uttar Pradesh Public Service Commission (for short “U.P.
PSC”).

xxx xxx xxx

5. On 26-12-1987, U.P. PSC published an advertisement (No.
A-5/E-4/87-88) for holding the Combined Lower Subordinate
Services Examination, 1987. It was mentioned in the
advertisement that the number of vacancies to be filled on the
result of the examination is expected to be approximately 600
which included the vacancies in the cadre of Deputy Jailor.
There is dispute of fact about actual number of vacancies in the
cadre of Deputy Jailor notified by U.P. PSC in the above
advertisement but the stand of the first respondent that 114
vacancies of Deputy Jailors were notified may be assumed as a
fact for the purpose of these appeals.

xxx xxx xxx

14. On 29-8-1995, a tentative seniority list of Deputy Jailors
was notified by the Inspector General (Prisons), the appointing

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authority, and objections were called for from the officers
concerned. In that list, the candidates appointed in 1991 were
shown senior to the candidates appointed in 1994. The
litigation between the two groups started with this list. The
tentative seniority list dated 29-8-1995 came to be challenged
before the Allahabad High Court in three writ petitions; one by
Bholanath Mishra (Writ Petition No. 26560 of 1996), the other
by Samar Bahadur Singh (Writ Petition No. 13138 of 2000)
and the third by the first respondent herein Reevan Singh (Writ
Petition No. 22919 of 2001). The writ petition filed by Samar
Bahadur Singh was dismissed by the High Court on the ground
of availability of alternative remedy before the State Service
Tribunal. The writ petition filed by the first respondent herein
was allowed on 2-12-2002 and the High Court directed the
State of Uttar Pradesh and the Director General (Prisons),
Lucknow to treat the appointees of 1994 senior to the 1991
appointees.

15. The contention raised by the writ petitioner (the first
respondent herein) before the High Court was that in view of
the second proviso to Rule 5 of the 1991 Rules, the Deputy
Jailors who were selected in the selection which commenced in
1987 must be treated senior to those selected pursuant to the
selection that commenced in 1990. The Division Bench agreed
with this contention and held as follows:

“… In our opinion the correct interpretation of the
proviso to Rule 5 of the U.P. Government Servants
Seniority Rules, 1991 is that persons like the
petitioner who were selected in the selection
process which commenced in 1987 should be
treated as senior to there (sic) selected in selection
process which commenced in 1990.”

xxx xxx xxx

33. Rule 4(h) defines “substantive appointment” as an
appointment, not being an ad hoc appointment, on a post in the
cadre of service, made after selection in accordance with the
service rules relating to that service. It, thus, becomes
abundantly clear that for determination of inter se seniority
between the two rival groups (the 1991 and the 1994
appointees by direct recruitment) what is relevant is the date of
the order of their substantive appointment and since the
substantive appointment of the 1991 appointees is much prior
in point of time, they must rank senior to the 1994 appointees.

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xxx xxx xxx

37. In Ram Janam Singh v. State of U.P. [(1994) 2 SCC 622 :
1994 SCC (L&S) 716 : (1994) 27 ATC 166] this Court
reiterated that the date of entry into a service is the safest rule
to follow while determining the inter se seniority between one
officer or the other or between one group of officers and the
other recruited from different sources. It was observed that this
is consistent with the requirement of Articles 14 and 16 of the
Constitution. It was, however, observed that if the
circumstances so require, a group of persons can be treated a
class separate from the rest for any preferential or beneficial
treatment while fixing their seniority, but, normally such
classification should be by statutory rule or rules framed under
Article 309.

38. A two-Judge Bench of this Court in Jagdish Ch.
Patnaik [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] while
construing the word “recruited” occurring in the Orissa Service
of Engineers Rules, 1941, held that a direct recruit is recruited
when formal appointment order is issued and not when
recruitment process is initiated. This is what this Court said:
(SCC p. 469, para 34)

“34. The only other contention which requires
consideration is the one raised by Mr Raju
Ramachandran, learned Senior Counsel appearing
for the intervenors, to the effect that the
expressions ‘recruitment’ and ‘appointment’ have
two different concepts in the service jurisprudence
and, therefore, when Rule 26 uses the expression
‘recruited’ it must be a stage earlier to the issuance
of appointment letter and logically should mean
when the selection process started and that appears
to be the intendment of the rule-makers in Rule 26.
We are, however, not persuaded to accept this
contention since under the scheme of rules a person
can be said to be recruited into service only on
being appointed to the rank of Assistant Engineer,
as would appear from Rule 5 and Rule 6. Then
again in case of direct recruits though the process
of recruitment starts when the Public Service
Commission invites applications under Rule 10 but
until and unless the Government makes the final
selection under Rule 15 and issues appropriate
orders after the selected candidates are examined
by the Medical Board, it cannot be said that a

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person has been recruited to the service. That being
the position it is difficult for us to hold that in the
seniority rule the expression ‘recruited’ should be
interpreted to mean when the selection process
really started. That apart the said expression
‘recruited’ applies not only to the direct recruits but
also to the promotees. In case of direct recruits the
process of recruitment starts with the invitation of
application by the Commission and in case of
promotees it starts with the nomination made by
the Chief Engineer under Rule 16. But both in the
case of direct recruits as well as in the case of
promotees the final selection vests with the State
Government under Rules 15 and 18 respectively
and until such final selection is made and
appropriate orders passed thereon no person can be
said to have been recruited to the service. In this
view of the matter the only appropriate and logical
construction that can be made of Rule 26 is the
date of the order under which the persons are
appointed to the post of Assistant Engineer, is the
crucial date for determination of seniority under
the said Rule.”

xxx xxx xxx

40. In Ajit Kumar Rath [(1999) 9 SCC 596 : 2000 SCC (L&S)
192] this Court followed Jagdish Ch. Patnaik [(1998) 4 SCC
456 : 1998 SCC (L&S) 1156] and did not accept the contention
that those who were appointed against the vacancies of the
earlier years although, appointed later in point of time, must
rank senior to the appointees of the vacancies of the
subsequent years though appointed in prior point of time.

41. This Court emphasised in Uttaranchal Forest Rangers’
Assn. [(2006) 10 SCC 346 : (2007) 1 SCC (L&S) 116] that no
retrospective promotion can be granted nor can any seniority
be given on retrospective basis from a date when an employee
has not even been borne in the cadre. In this regard, the Court
relied upon the earlier decisions of this Court in State of
Bihar v. Akhouri Sachindra Nath [1991 Supp (1) SCC 334 :
1991 SCC (L&S) 1070 : (1991) 16 ATC 936] and Jagdish Ch.
Patnaik [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] .

42. In Dinesh Kumar Sharma [(2007) 1 SCC 683 : (2007) 1
SCC (L&S) 594] this Court was concerned with the U.P.
Agriculture Group B Service Rules, 1995 and the 1991 Rules.

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With reference to Rule 8 of the 1991 Rules, this Court held
that seniority cannot be reckoned from the date of occurrence
of the vacancy and should be reckoned only from the date of
substantive appointment to the vacant post under the Rules and
not retrospectively from the date of occurrence of vacancy.

xxx xxx xxx

45. From the above, the legal position with regard to
determination of seniority in service can be summarised as
follows:

(i) The effective date of selection has to be
understood in the context of the service rules under
which the appointment is made. It may mean the
date on which the process of selection starts with
the issuance of advertisement or the factum of
preparation of the select list, as the case may be.

(ii) Inter se seniority in a particular service has to
be determined as per the service rules. The date of
entry in a particular service or the date of
substantive appointment is the safest criterion for
fixing seniority inter se between one officer or the
other or between one group of officers and the
other recruited from different sources. Any
departure therefrom in the statutory rules,
executive instructions or otherwise must be
consistent with the requirements of Articles 14 and
16 of the Constitution.

(iii) Ordinarily, notional seniority may not be
granted from the backdate and if it is done, it must
be based on objective considerations and on a valid
classification and must be traceable to the statutory
rules.

(iv) The seniority cannot be reckoned from the date
of occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by
the relevant service rules. It is so because seniority
cannot be given on retrospective basis when an
employee has not even been borne in the cadre and
by doing so it may adversely affect the employees
who have been appointed validly in the meantime.”

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14. In Union of India and others vs. N.R. Parmar and others,
(2012) 13 SCC 340, it is held as follows:-

“1. The present controversy is a dispute of inter se seniority
between Income Tax Inspectors of the Income Tax
Department. The direct recruits and promotees are pitted on
opposite sides.

xxx xxx xxx

22. During the course of hearing, the learned counsel for the
rival parties agreed, that the seniority dispute between the
promotee and direct recruit Income Tax Inspectors of the
Income Tax Department was liable to be determined on the
basis of Office Memoranda dated 7-2-1986 and 3-7-1986, read
with the clarificatory office memoranda and office notes. It is
important to notice, before embarking upon the claim of the
rival parties, that none of the parties have assailed the vires of
the Office Memoranda dated 7-2-1986 and 3-7-1986 (or for
that matter, the clarificatory office memoranda/office notes). It
is therefore apparent, that the dispute between the rival parties
is nothing but, the true and correct interpretation of the Office
Memoranda dated 7-2-1986 and 3-7-1986, read with
clarificatory office memoranda and office notes. It is therefore,
that the matter in hand is being examined in the light of the
aforesaid office memoranda.

xxx xxx xxx

24. The aforesaid prescription of the manner of determining
inter se seniority between the direct recruits and promotees,
determined through the OM dated 22-12-1959, was modified
by an Office Memorandum dated 7-2-1986, issued by the
Government of India, Department of Personnel and Training
(hereinafter referred to as “the OM dated 7-2-1986”). The
modification introduced through the OM dated 7-2-1986 was
to redress a situation wherein, vacancies of one of the sources
were kept (or remained) unfilled during the process of
selection, and the unfilled vacancies, had to be filled up
through “later” examinations or selections. For the
determination of seniority, in the contingency wherein the
process of recruitment resulted in filling the vacancies
earmarked for the two sources of recruitment, the manner of
determining inter se seniority between promotees and direct
recruits, expressed in the OM dated 22-12-1959 remained
unaltered. But where the vacancies could not be filled up, and

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unfilled vacancies had to be filled up “later” through a
subsequent process of selection, the manner of determining
inter se seniority between promotees and direct recruits, was
modified.

xxx xxx xxx

28.3. The unfilled direct recruitment quota vacancies for a
recruitment year, would be carried forward to the
corresponding direct recruitment vacancies of the next year
(and to subsequent years, where necessary) and vice versa. In
this behalf, it is necessary to understand two distinct phrases
used in the OM dated 3-7-1986. Firstly, the phrase “in that
year” which connotes the recruitment year for which specific
vacancies are earmarked. And secondly, the phrase “in the
subsequent year”, which connotes carried-forward vacancies,
filled in addition to, vacancies earmarked for a subsequent
recruitment year.

xxx xxx xxx

34.2. The words “initiation of action for recruitment”, and the
words “initiation of recruitment process”, were explained to
mean, the date of sending the requisition to the recruiting
authority.

xxx xxx xxx

43. We shall now endeavour to examine the effect of OM
dated 3-3-2008 on the subject of inter se seniority between
direct recruits and promotees:

43.1. Would the OM dated 3-3-2008 supersede the earlier OMs
dated 7-2-1986 and/or 3-7-1986?

43.2. And, would the OMs dated 7-2-1986 and 3-7-1986
negate the OM dated 3-3-2008, to the extent that the same is
repugnant to the earlier OMs (dated 7-2-1986 and 3-7-1986)?

xxx xxx xxx

50. The seniority rule applied in Jagdish Ch. Patnaik
case [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] has been
extracted in para 24 of the said judgment. The seniority rule in
question, inter alia expressed, that seniority would be
determined with reference to the date of recruitment. In Suraj
Parkash Gupta case [(2000) 7 SCC 561 : 2000 SCC (L&S)

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977] , the relevant seniority rule was extracted in para 53
which provided, that seniority would be determined with
reference to the date of first appointment. The rule itself
expressed that the words “date of first appointment” would
mean the date of first substantive appointment against a clear
vacancy. In Pawan Pratap Singh case [(2011) 3 SCC 267 :

(2011) 1 SCC (L&S) 481] the question which arose for
consideration, related to determination of inter se seniority
between two sets of direct recruits. The first set comprised of
vacancies advertised in 1987 which came to be filled up in
1994, and the second set comprised of vacancies of the year
1990 which came to be filled up in the year 1991. The
controversy in Pawan Pratap Singh case [(2011) 3 SCC 267:

(2011) 1 SCC (L&S) 481] was conspicuously different from
the controversy in hand. In view of the fact that the seniority
rules, as also the factual matrix in the cases relied upon was
substantially at variance with the relevant OMs dated 7-2-1986
and 3-7-1986 (which are the subject of interpretation insofar as
the present case is concerned), as also the facts of the cases in
hand, it is apparent, that the judgments relied upon by the
learned counsel are inapplicable to determine the present
controversy.

xxx xxx xxx

52. Having interpreted the effect of the OMs dated 7-2-1986
and 3-7-1986 (in paras 25 to 29 hereinabove), we are satisfied,
that not only the requisition but also the advertisement for
direct recruitment was issued by SSC in the recruitment year in
which direct recruit vacancies had arisen. The said factual
position, as confirmed by the rival parties, is common in all
matters being collectively disposed of. In all these cases the
advertised vacancies were filled up in the original/first
examination/selection conducted for the same. None of the
direct recruit Income Tax Inspectors herein can be stated to be
occupying carried-forward vacancies, or vacancies which came
to be filled up by a “later” examination/selection process. The
facts only reveal that the examination and the selection process
of direct recruits could not be completed within the recruitment
year itself. For this, the modification/amendment in the manner
of determining the inter se seniority between the direct recruits
and promotees, carried out through the OM dated 7-2-1986,
and the compilation of the instructions pertaining to seniority
in the OM dated 3-7-1986, leave no room for any doubt, that
the “rotation of quotas” principle would be fully applicable to
the direct recruits in the present controversy. The direct

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recruits herein will therefore have to be interspaced with
promotees of the same recruitment year.”

15. In P. Sudhakar Rao and others vs. U. Govinda Rao and
others, (2013) 8 SCC 693, it is held as follows:-

“3. It appears to us that this question ought not to be answered
in the narrow confines in which it is framed, nor should it be
answered on the basis of the limited submission noted in the
reference order relating to

“the validity of the rule by which retrospective
seniority benefit was given to the Junior Engineers
by GOMs No. 54 Irrigation (Service IV-2) dated
15-2-1983”. (U. Govinda Rao case [(2007) 12 SCC
148 : (2008) 2 SCC (L&S) 467] , SCC p. 150, para

2)

The question has larger implications and we propose to answer
it keeping the broad canvas in mind. We also propose, in this
light, to answer the question on merits of these appeals,
namely, whether, on appointment as a Junior Engineer,
weightage of service given to a Supervisor can be taken into
account for fixing his seniority as a Junior Engineer, thereby
effectively refixing the seniority with retrospective effect.

xxx xxx xxx

44. As far as the impact of the retrospective operation of the
executive instructions or statutory rules on the seniority of
employees is concerned (including the Junior Engineers before
us), this issue is now settled by a few recent decisions of this
Court. There is no doubt that retrospective operation can be
given to statutory rules such as the Andhra Pradesh
Engineering Service Rules. But, the retroactivity must still
meet the test of Article 14 and Article 16 of the Constitution
and must not adversely trench upon the entitlement of seniority
of others.

45. Without intending to multiply precedents on this subject,
reference may be made to a decision rendered by this Court
more than two decades ago. In State of Bihar v. Akhouri
Sachindra Nath [1991 Supp (1) SCC 334 : 1991 SCC (L&S)
1070 : (1991) 16 ATC 936] it was held that retrospective

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seniority cannot be given to an employee from a date when he
was not even borne in the cadre. So also, seniority cannot be
given with retrospective effect so as to adversely affect others.

Seniority amongst members of the same grade must be counted
from the date of their initial entry into the grade. It was held:

(SCC pp. 342-43, para 12)

“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 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 Respondents 1 to 5. It
is well settled that no person can be promoted with
retrospective effect from a date when he was not
borne 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
Respondents 6 to 23 cannot be made senior to
Respondents 1 to 5 by the impugned government
orders as they entered into the said service by
promotion after 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.”

xxx xxx xxx

47. However, the mere existence of a vacancy is not enough to
enable an employee to claim seniority. The date of actual
appointment in accordance with the required procedure
becomes important in such a case. This was so held in State of
Uttaranchal v. Dinesh Kumar Sharma [(2007) 1 SCC 683 :

(2007) 1 SCC (L&S) 594] (followed in Nani Sha v. State of
Arunachal Pradesh [(2007) 15 SCC 406 : (2010) 1 SCC (L&S)
719] , SCC p. 414, para 15) wherein it was said: (SCC pp. 691-

92, para 34)

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“34. Another issue that deserves 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. Here the respondent’s
contention is that since the vacancy arose in 1995-
1996 he should be given promotion and seniority
from that year and not from 1999, when his actual
appointment letter was issued by the appellant.
This cannot be allowed as no retrospective effect
can be given to the order of appointment order
under the Rules nor is such contention reasonable
to normal parlance. This was the view taken by this
Court in Jagdish Ch. Patnaik v. State of
Orissa [(1998) 4 SCC 456 : 1998 SCC (L&S)
1156] .”

48. More recently, and finally, in Pawan Pratap
Singh v. Reevan Singh [(2011) 3 SCC 267 : (2011) 1 SCC
(L&S) 481] all relevant precedents on the subject were
considered, including the Constitution Bench decision
in Direct Recruit Class II Engg. Officers’ Assn. v. State of
Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 :

(1990) 13 ATC 348] and the legal position summarised (by
Lodha, J.) as follows: (Reevan Singh case [(2011) 3 SCC 267 :

(2011) 1 SCC (L&S) 481] , SCC pp. 281-82, para 45)

“(i) The effective date of selection has to be
understood in the context of the service rules under
which the appointment is made. It may mean the
date on which the process of selection starts with
the issuance of advertisement or the factum of
preparation of the select list, as the case may be.

(ii) Inter se seniority in a particular service has to
be determined as per the service rules. The date of
entry in a particular service or the date of
substantive appointment is the safest criterion for
fixing seniority inter se between one officer or the
other or between one group of officers and the
other recruited from different sources. Any
departure therefrom in the statutory rules,
executive instructions or otherwise must be
consistent with the requirements of Articles 14 and
16 of the Constitution.

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(iii) Ordinarily, notional seniority may not be
granted from the backdate and if it is done, it must
be based on objective considerations and on a valid
classification and must be traceable to the statutory
rules.

(iv) The seniority cannot be reckoned from the date
of occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by
the relevant service rules. It is so because seniority
cannot be given on retrospective basis when an
employee has not even been borne in the cadre and
by doing so it may adversely affect the employees
who have been appointed validly in the meantime.”

49. In a separate but concurring opinion, Aftab Alam, J.
reiterated the position but referred to some more precedents on
the subject. It was then said: (Reevan Singh case [(2011) 3
SCC 267 : (2011) 1 SCC (L&S) 481] , SCC p. 286, para 63)

“63. To the decisions referred to on this point in
the main judgment I may add just one more
in Suraj Parkash Gupta v. State of J&K [(2000) 7
SCC 561 : 2000 SCC (L&S) 977] . The decision
relates to a dispute of seniority between direct
recruits and promotees but in that case the Court
considered the question of antedating the date of
recruitment on the ground that the vacancy against
which the appointment was made had arisen long
ago. In SCC para 18 of the decision the Court
framed one of the points arising for consideration
in the case as follows: (SCC p. 578)

’18. … (4) Whether the direct recruits could
claim a retrospective date of recruitment from the
date on which the post in direct recruitment was
available, even though the direct recruit was not
appointed by that date and was appointed long
thereafter?’

This Court answered the question in the following terms:

(Suraj Parkash Gupta case [(2000) 7 SCC 561 : 2000 SCC
(L&S) 977] , SCC p. 599, paras 80-81)

‘Point 4

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Direct recruits cannot claim appointment from the date of
vacancy in quota before their selection

80. We have next to refer to one other contention raised by the
respondent direct recruits. They claimed that the direct
recruitment appointment can be antedated from the date of
occurrence of a vacancy in the direct recruitment quota, even if
on that date the said person was not directly recruited. It was
submitted that if the promotees occupied the quota belonging
to direct recruits they had to be pushed down, whenever direct
recruitment was made. Once they were so pushed down, even
if the direct recruit came later, he should be put in the direct
recruit slot from the date on which such a slot was available
under the direct recruitment quota.

81. This contention, in our view, cannot be accepted. The
reason as to why this argument is wrong is that in service
jurisprudence, a direct recruit can claim seniority only from the
date of his regular appointment. He cannot claim seniority
from a date when he was not borne in the service. This
principle is well settled. In N.K. Chauhan v. State of
Gujarat [(1977) 1 SCC 308 : 1977 SCC (L&S) 127] , Krishna
Iyer, J. stated: (SCC p. 325, para 32)

Later direct recruit cannot claim deemed dates of
appointment for seniority with effect from the time
when direct recruitment vacancy arose. Seniority
will depend upon length of service.

Again, in A. Janardhana v. Union of India [(1983) 3 SCC 601
: 1983 SCC (L&S) 467] it was held that a later direct recruit
cannot claim seniority from a date before his birth in the
service or when he was in school or college. Similarly it was
pointed out in A.N. Pathak v. Ministry of Defence [1987 Supp
SCC 763 : 1988 SCC (L&S) 370 : (1988) 6 ATC 626] that
slots cannot be kept reserved for direct recruits for
retrospective appointments.'”

50. The facts of the appeals before us show that at least some
of the Supervisors were given retrospective seniority on the
date when they were not even eligible for appointment as
Junior Engineers. The precedents referred to above show that
this is impermissible. In addition as pointed out by the High
Court, there is no indication of the vacancy position, that is,
whether the Supervisors could be adjusted in the grade of
Junior Engineers from the date on which they were given

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notional retrospective seniority. There is also no indication
whether the quota of vacancies for Supervisors was adhered to
as on the date on which they were given notional retrospective
seniority. The case law suggests that this is an important factor
to be considered. Finally, it is quite clear that the grant of
retrospective seniority to the Supervisors has adversely
impacted on the promotion chances of the Junior Engineers by
bringing them down in seniority. This too is impermissible.

51. From the various decisions referred to and from the facts of
the case, it is clear that to pass the scrutiny of Article 14 of the
Constitution, the seniority of the Supervisors should be
reckoned only from the date on which they satisfied all the real
and objective procedural requirements of the Andhra Pradesh
Engineering Service Rules and the law laid down by this
Court. This has not happened in the present appeals creating a
situation of unreasonableness and unfairness.”

16. In Bhupendra Nath Hazarika and others vs. State of Assam
and others, (2013) 2 SCC 516, it is held as follows:-

“5. The facts, as further uncurtained, are that the determination
of seniority came to the notice of the recruits of the regular
batch at the time of their confirmation of service in the year
1999. Being dissatisfied with the action of the authorities, they
immediately submitted a representation. When the
representation was pending consideration, a provisional
gradation list showing the inter se seniority as on 31-12-1992
was published on 12-3-1999. In the said provisional gradation
list, the recruits of the special batch were shown as senior to
the recruits of the regular batch. As warranted, the recruits
belonging to the regular batch filed their objections to the
fixation of seniority on 24-9-1999, but without publishing the
final gradation list, Respondent 3, namely, the Secretary in the
Department of Home, promoted 14 officers belonging to the
special batch and 16 officers belonging to the regular batch to
the Senior Scale of APS (Grade II). In the promotional order,
the officers belonging to the regular batch were shown below
the officers belonging to the special batch. Because of the
aforesaid situation, the direct recruits invoked the jurisdiction
of the Tribunal for the apposite determination of seniority
claiming to be senior to Respondents 6 to 24.

xxx xxx xxx

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55. The aforesaid authorities clearly lay down the principle that
when there is violation of the recruitment rules, the recruitment
is unsustainable. Whether any active part is played by a
selectee or not has nothing to do with the appointment made in
contravention of the rules. In the case at hand, the special batch
recruits have encroached into the quota of the direct recruits.
The whole selection process is in violation of the rules and,
therefore, we are inclined to concur with the opinion expressed
by the learned Single Judge that the selection was made dehors
the rules. The Division Bench was not justified in stating that
the selection could not be said to be dehors the rules. However,
we accept the conclusion of the Tribunal as well as the High
Court that as there had been long delay in challenging the
selection of the special batch recruits and some of them have
already retired, it would not be apposite to annul their
appointments.

xxx xxx xxx

57. The two facets which emerge from the scanning of the
aforesaid Rule are that the seniority of a member of the service
is to be determined on the basis of the date of appointment to
the service and the seniority has to follow a particular order as
has been stipulated therein. The other significant aspect is that
power has been conferred on the Governor to consider the
previous service of an incumbent and fix a deemed date of
appointment for the purpose of seniority by adopting a specific
method. As far as the first part is concerned, the Tribunal as
well as the High Court have not accepted the stipulation that in
the present case the seniority should be determined on the basis
of the date of appointment as the same has been made in
flagrant violation of the rules and we have already concurred
with the same. As far as the computation of the previous
service is concerned, the learned Single Judge as well as the
Division Bench, after adequate ratiocination, have expressed
the view that the appointments had been made in contravention
of the rules, the question of conferment of the benefit under the
second proviso to Rule 18(1) did not arise. In our considered
view, the said conclusion is absolutely defensible for the
simon-pure reason that when the infrastructure is founded on
total illegal edifice, the endeavour to put forth a claim for
counting the previous service to build a pyramid is bound to
founder.

xxx xxx xxx

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59. As has been observed by the learned Single Judge which
has been accepted by the Division Bench, there was no
decision to relax the rules in favour of the special batch
recruits. That apart, whenever there has to be relaxation about
the operation of any of the rules, regard has to be given to the
test of causation of undue hardship in any particular case. That
apart, the authority is required to record satisfaction while
dispensing or relaxing the requirements of any rule to such an
extent and subject to such conditions as he may consider
necessary for dealing with the case in a just and equitable
manner. The language of the Rule really casts a number of
conditions. It provides guidance. It cannot be exercised in an
arbitrary manner so as to dispense with the procedure of
selection in entirety in respect of a particular class, for it has to
be strictly construed and there has to be apposite foundation
for exercise of such power. It is to be borne in mind that if a
particular rule empowers the authority to throw all the rules
overboard in all possibility, it may not withstand close scrutiny
of Article 14 of the Constitution. Be that it may, no decision
was taken to relax the rules and, the concept of deemed
relaxation is not attracted and, therefore, the relief claimed by
the special batch recruits has no legs to stand upon.

60. From the aforesaid analysis, there can be no scintilla of
doubt that the selection of the special batch recruits was totally
dehors the Rules; that there was a maladroit effort to go for a
special drive when there was no need for the same by the State
which is supposed to be a model employer; that neither the
concept of relaxation nor the conception of benefit of Rule 18
would be attracted for grant on conferring any privilege to the
special batch recruits; that their seniority has to be pushed
down and, hence, the directions given by the Tribunal and the
High Court in that regard are absolutely flawless; and that
regard being had to the delayed challenge and long rendering
of service in the posts and further promotions having been
effected, it would be inapposite to quash their appointments.”

17. In Ganga Vishan Gujrati and others vs. State of Rajasthan
and others, (2019) 16 SCC 28, it is held as follows:-

“45. A consistent line of precedent of this Court follows the
principle that retrospective seniority cannot be granted to an
employee from a date when the employee was not borne on a
cadre. Seniority amongst members of the same grade has to be

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counted from the date of initial entry into the grade. This
principle emerges from the decision of the Constitution Bench
of this Court in Direct Recruit Class II Engg. Officers’
Assn. v. State of Maharashtra [Direct Recruit Class II Engg.
Officers’ Assn. v. State of Maharashtra, (1990) 2 SCC 715 :

1990 SCC (L&S) 339] . The principle was reiterated by this
Court in State of Bihar v. Akhouri Sachindra Nath [State of
Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 :
1991 SCC (L&S) 1070] and State of Uttaranchal v. Dinesh
Kumar Sharma [State of Uttaranchal v. Dinesh Kumar
Sharma, (2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594] .
In Pawan Pratap Singh v. Reevan Singh [Pawan Pratap
Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC
(L&S) 481] , this Court revisited the precedents on the subject
and observed : (SCC pp. 281-82, para 45)

“45. … (i) The effective date of selection has to be
understood in the context of the Service Rules
under which the appointment is made. It may mean
the date on which the process of selection starts
with the issuance of advertisement or the factum of
preparation of the select list, as the case may be.

(ii) Inter se seniority in a particular service has to
be determined as per the Service Rules. The date of
entry in a particular service or the date of
substantive appointment is the safest criterion for
fixing seniority inter se between one officer or the
other or between one group of officers and the
other recruited from different sources. Any
departure therefrom in the statutory rules,
executive instructions or otherwise must be
consistent with the requirements of Articles 14 and
16 of the Constitution.

(iv) The seniority cannot be reckoned from the date
of occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by
the relevant Service Rules. It is so because
seniority cannot be given on retrospective basis

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when an employee has not even been borne in the
cadre and by doing so it may adversely affect the
employees who have been appointed validly in the
meantime.”

This view has been re-affirmed by a Bench of three Judges of
this Court in P. Sudhakar Rao v. U. Govinda Rao [P. Sudhakar
Rao v. U. Govinda Rao, (2013) 8 SCC 693 : (2014) 1 SCC
(L&S) 690]”.

18. In K. Meghachandra Singh and others vs. Ningam Siro and
others, (2020) 5 SCC 689, it is held as follows:-

“28. Before proceeding to deal with the contention of the
appellants’ counsel vis-à-vis the judgment in N.R.
Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 :

(2013) 3 SCC (L&S) 711] , it is necessary to observe that the
law is fairly well settled in a series of cases, that a person is
disentitled to claim seniority from a date he was not borne in
service. For example, in Jagdish Ch. Patnaik [Jagdish Ch.

Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC
(L&S) 1156] the Court considered the question whether the
year in which the vacancy accrues can have any bearing for the
purpose of determining the seniority irrespective of the fact
when the person is actually recruited. The Court observed that
there could be time-lag between the year when the vacancy
accrues and the year when the final recruitment is made.
Referring to the word “recruited” occurring in the Orissa
Service of Engineers Rules, 1941 the Supreme Court held
in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa,
(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] that person cannot
be said to have been recruited to the service only on the basis
of initiation of process of recruitment but he is borne in the
post only when, formal appointment order is issued.

xxx xxx xxx

30. We may also benefit by referring to the judgment in State
of U.P. v. Ashok Kumar Srivastava [State of U.P. v. Ashok
Kumar Srivastava, (2014) 14 SCC 720 : (2015) 3 SCC (L&S)
536] . This judgment is significant since this is rendered after
the N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13
SCC 340 : (2013) 3 SCC (L&S) 711] decision. Here the Court
approved the ratio in Pawan Pratap Singh v. Reevan

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Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC
267 : (2011) 1 SCC (L&S) 481] , and concurred with the view
that seniority should not be reckoned retrospectively unless it
is so expressly provided by the relevant Service Rules. The
Supreme Court held that seniority cannot be given to an
employee who is yet to be borne in the cadre and by doing so it
may adversely affect the employees who have been appointed
validly in the meantime. The law so declared in Ashok Kumar
Srivastava [State of U.P. v. Ashok Kumar Srivastava, (2014)
14 SCC 720 : (2015) 3 SCC (L&S) 536] being the one
appealing to us, is profitably extracted as follows : (SCC p.
730, para 24)

“24. The learned Senior Counsel for the appellants
has drawn inspiration from the recent authority
in Pawan Pratap Singh v. Reevan Singh [Pawan
Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 :

(2011) 1 SCC (L&S) 481] where the Court after
referring to earlier authorities in the field has culled
out certain principles out of which the following
being the relevant are produced below : (SCC pp.

281-82, para 45)

’45. (ii) Inter se seniority in a particular service has
to be determined as per the service rules. The date
of entry in a particular service or the date of
substantive appointment is the safest criterion for
fixing seniority inter se between one officer or the
other or between one group of officers and the
other recruited from different sources. Any
departure therefrom in the statutory rules,
executive instructions or otherwise must be
consistent with the requirements of Articles 14 and
16 of the Constitution.

xxx xxx xxx

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Xxx xxx xxx

32. As can be seen from the above, the MPS Rules, 1965 never
provided that seniority should be counted from the date of
vacancy. For those covered by the MPS Rules, 1965 the
seniority for them will be reckoned only from the date of
appointment and not from the stage when requisition for
appointment was given.

xxx xxx xxx

34. The judgment in N.R. Parmar [Union of India v. N.R.
Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] is
now to be considered in some detail as this is heavily relied on
by the appellants’ counsel. At the outset, it must however be
cleared that the cited case had nothing to do with the MPS
Rules, 1965 and that litigation related to the Income Tax
Inspectors who were claiming benefits of various Central
Government OMs (dated 22-12-1959, 7-2-1986, 3-7-1986 and
3-3-2008). The judgment was rendered in respect of the
Central Government employees having their own Service
Rules. The applicable Rules for the litigants in the present case
however provide that the seniority in the service shall be
determined by the order in which appointments are made to the
service. Therefore, the memorandums concerned referred to
in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13
SCC 340 : (2013) 3 SCC (L&S) 711] which deal with general
principles for determination of seniority of persons in the
Central Government service, should not according to us, have
any overriding effect for the police officers serving in the State
of Manipur.

35. After the judgment in N.R. Parmar [Union of India v. N.R.
Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] was
delivered, the Union of India issued the Office Memorandum
on 4-3-2014 defining the recruitment year to be the year of
initiating the recruitment process against the vacancy year and
that the rotation of quota, would continue to operate for
determination of inter se seniority between direct recruits and
promotees. This Memo was not made applicable to the State of
Manipur till the issuance of the OM dated 21-12-2017,
adopting the OM dated 4-3-2014 prospectively with effect
from 1-1-2018. Significantly, the said OM specifically
provided that ” … appointments/promotions made before the
issue of this OM will not be covered by this OM. The seniority
already fixed as per existing rules followed earlier in the State
prior to the issue of this OM may not be reopened.” It was also

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specifically stated therein that “this OM will come into effect
from 1-1-2018 with the publication in the Gazette….”

36. From the above, it is not only apparent that the above OM
was only to be given prospective effect from 1-1-2018 but it
contains an express acknowledgment that this was not the
position prior to the issuance of the OM and that a different
rule was followed earlier in the State. The conclusion is,
therefore, inevitable that at least prior to 1-1-2018, direct
recruits cannot claim that their seniority should be reckoned
from the date of initiation of recruitment proceedings and not
from the date of actual appointment.

37. When we carefully read the judgment in N.R.
Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 :

(2013) 3 SCC (L&S) 711] , it appears to us that the referred
OMs (dated 7-2-1986 and 3-7-1986) were not properly
construed in the judgment. Contrary to the eventual finding,
the said two OMs had made it clear that seniority of the direct
recruits be declared only from the date of appointment and not
from the date of initiation of recruitment process. But
surprisingly, the judgment while referring to the illustration
given in the OM in fact overlooks the effect of the said
illustration. According to us, the illustration extracted in N.R.
Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 :

(2013) 3 SCC (L&S) 711] itself, makes it clear that the
vacancies which were intended for direct recruitment in a
particular year (1986) which were filled in the next year (1987)
could be taken into consideration only in the subsequent year’s
seniority list but not in the seniority list of 1986. In fact, this
was indicated in the two OMs dated 7-2-1986 and 3-7-1986
and that is why the Government issued the subsequent OM on
3-3-2008 by way of clarification of the two earlier OMs.

38. At this stage, we must also emphasise that the Court
in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13
SCC 340 : (2013) 3 SCC (L&S) 711] need not have observed
that the selected candidate cannot be blamed for administrative
delay and the gap between initiation of process and
appointment. Such observation is fallacious inasmuch as none
can be identified as being a selected candidate on the date
when the process of recruitment had commenced. On that day,
a body of persons aspiring to be appointed to the vacancy
intended for direct recruits was not in existence. The persons
who might respond to an advertisement cannot have any
service-related rights, not to talk of right to have their seniority
counted from the date of the advertisement. In other words,

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only on completion of the process, the applicant morphs into a
selected candidate and, therefore, unnecessary observation was
made in N.R. Parmar [Union of India v. N.R. Parmar, (2012)
13 SCC 340 : (2013) 3 SCC (L&S) 711] to the effect that the
selected candidate cannot be blamed for the administrative
delay. In the same context, we may usefully refer to the ratio
in Shankarsan Dash v. Union of India [Shankarsan
Dash v. Union of India, (1991) 3 SCC 47 : 1991 SCC (L&S)
800] , where it was held that even upon empanelment, an
appointee does not acquire any right.

39. The judgment in N.R. Parmar [Union of India v. N.R.
Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711]
relating to the Central Government employees cannot in our
opinion, automatically apply to the Manipur State Police
Officers, governed by the MPS Rules, 1965. We also feel
that N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13
SCC 340 : (2013) 3 SCC (L&S) 711] had incorrectly
distinguished the long-standing seniority determination
principles propounded in, inter alia, Jagdish Ch.
Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC
456 : 1998 SCC (L&S) 1156] , Suraj Parkash Gupta v. State of
J&K [Suraj Parkash Gupta v. State of J&K, (2000) 7 SCC 561
: 2000 SCC (L&S) 977] and Pawan Pratap Singh v. Reevan
Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC
267 : (2011) 1 SCC (L&S) 481] . These three judgments and
several others with like enunciation on the law for
determination of seniority makes it abundantly clear that under
service jurisprudence, seniority cannot be claimed from a date
when the incumbent is yet to be borne in the cadre. In our
considered opinion, the law on the issue is correctly declared
in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa,
(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] and consequently
we disapprove the norms on assessment of inter se seniority,
suggested in N.R. Parmar [Union of India v. N.R. Parmar,
(2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] . Accordingly,
the decision in N.R. Parmar [Union of India v. N.R. Parmar,
(2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] is overruled.
However, it is made clear that this decision will not affect the
inter se seniority already based on N.R. Parmar [Union of
India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC
(L&S) 711] and the same is protected. This decision will apply
prospectively except where seniority is to be fixed under the
relevant rules from the date of vacancy/the date of
advertisement.”

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19. In State of Bihar and others vs. Arbind Jee, 2021 SCC
OnLine SC 821, it is held as follows:-

“7. The issue to be answered here is whether the respondent is
entitled to claim seniority in service from a retrospective date
i.e. 20.11.1985 as was ordered by the High Court or whether
he is entitled for seniority from the date he entered service.

xxx xxx xxx

10. As earlier noted, the respondent entered service only on
10.2.1996 and yet under the impugned judgment, the High
Court directed counting of his seniority from 20.11.1985 when
he was not borne in service. The jurisprudence in the field of
service law would advise us that retrospective seniority cannot
be claimed from a date when an employee is not even borne in
service. It is also necessary to bear in mind that retrospective
seniority unless directed by court or expressly provided by the
applicable Rules, should not be allowed, as in so doing, others
who had earlier entered service, will be impacted.

xxx xxx xxx

12. The principles enunciated in Shitla Prasad Shukla (supra)
are applicable to the case at hand. The compassionate
appointment of the respondent is not being questioned here but
importantly he is claiming seniority benefit for 10 years
without working for a single day during that period. In other
words, precedence is being claimed over other regular
employees who have entered service between 1985 to 1996. In
this situation, the seniority balance cannot be tilted against
those who entered service much before the respondent.
Seniority benefit can accrue only after a person joins service
and to say that benefits can be earned retrospectively would be
erroneous. Such view was expressed in many cases and most
recently in Ganga Vishan Gujrati v. State of Rajasthan, (2019)
16 SCC 28, Justice Dr. D.Y. Chandrachud speaking for the
Court opined as under:-

“45. A consistent line of precedent of this Court
follows the principle that retrospective seniority
cannot be granted to an employee from a date
when the employee was not borne on a cadre.
Seniority amongst members of the same grade has
to be counted from the date of initial entry into the
grade. This principle emerges from the decision of

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the Constitution Bench of this Court in Direct
Recruit Class II Engineering Officers’ Association
v. State of Maharashtra, (1990) 2 SCC 715. The
principle was reiterated by this Court in State of
Bihar v. Akhouri Sachindra Nath, 1991 Supp (1)
SCC 334 and State of Uttaranchal v. Dinesh
Kumar Sharma, (2007) 1 SCC 683.”

20. In Ajay Kumar Shukla vs. Arvind Rai, (2022) 12 SCC 579,
it is held as follows:-

“19.2. As the challenge was to the decision-making process in
making the seniority list contrary to the 1991 Seniority Rules
and the 2009 Rules, it was submitted that it was not necessary
to implead all the affected Engineers. In fact 18 of such
affected Engineers were already impleaded in the writ petition
and therefore, for all the affected Junior Engineers, their
interests were already represented.

xxx xxx xxx

45. The other ground taken by the High Court for non-suiting
the appellants were that they had not impleaded all the affected
Junior Engineers. For the said proposition, the Division Bench
[Rajesh Kumar Singh v. Rajeev Nain Upadhyay, 2019 SCC
OnLine All 4782] of the High Court has placed reliance upon
the judgment of this Court in Ranjan Kumar v. State of
Bihar [Ranjan Kumar v. State of Bihar, (2014) 16 SCC 187 :

(2015) 2 SCC (L&S) 532] . The above case was in respect of
selection and appointment on the ground that the same had
been made only on the basis of interview without holding any
written test. The High Court had quashed [Vinay
Kumar v. State of Bihar, 2003 SCC OnLine Pat 960] such
selection and appointments even of those appointees who were
not even parties to the petition. It was in these circumstances
that this Court held that the appointments of non-parties could
not be quashed. Facts of the said case are clearly
distinguishable.

46. The Division Bench of the High Court also relied upon
another judgment of this Court in Prabodh Verma v. State of
U.P. [Prabodh Verma v. State of U.P., (1984) 4 SCC 251 :

1984 SCC (L&S) 704] This case again related to challenge to
appointments and in the said case there was no impleadment
even in the representative capacity. In such circumstances, this
Court said that the petition was liable to be dismissed for non-

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joinder of necessary parties. In fact, this judgment helps the
appellants. Para 50 thereof is reproduced below : (SCC pp.
288-89)

“50. … (1) A High Court ought not to hear and
dispose of a writ petition under Article 226 of the
Constitution without the persons who would be
vitally affected by its judgment being before it as
the respondents or at least some of them being
before it as the respondents in a representative
capacity if their number is too large to join them as
the respondents individually, and, if the petitioners
refuse to so join them, the High Court ought to
dismiss the petition for non-joinder of necessary
parties.”

(emphasis supplied)

47. The third case relied upon by the Division Bench for the
above proposition, namely, State of Uttaranchal v. Madan
Mohan Joshi [State of Uttaranchal v. Madan Mohan Joshi,
(2008) 6 SCC 797 : (2008) 2 SCC (L&S) 197] was again a
case where none of the affected parties were impleaded not
even in the representative capacity. In such circumstances, this
Court remanded the matter to the High Court leaving it open to
the original petitioners therein to move an appropriate
application for impleading some of the affected teachers in
their representative capacity.

48. The fourth case relied upon by the Division Bench on the
above proposition is Indu Shekhar Singh v. State of U.P. [Indu
Shekhar Singh v. State of U.P., (2006) 8 SCC 129 : 2006 SCC
(L&S) 1916] In this case also, the affected parties were not
impleaded and this Court relied upon the judgment of this
Court in Prabodh Verma [Prabodh Verma v. State of U.P.,
(1984) 4 SCC 251 : 1984 SCC (L&S) 704] .

49. In Tridip Kumar Dingal v. State of W.B. [Tridip Kumar
Dingal v. State of W.B., (2009) 1 SCC 768 : (2009) 2 SCC
(L&S) 119] , C.K. Thakker, J., held that the case falls within
the ambit of non-joinder of necessary parties as none of the 66
candidates against whom the complaint was made, were made
parties. It further held that some of the respondents should
have been arrayed in representative capacity. Para 41 is
reproduced below : (SCC p. 780)

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“41. Regarding protection granted to 66 candidates,
from the record it is clear that their names were
sponsored by the employment exchange and they
were selected and appointed in 1998-1999. The
candidates who were unable to get themselves
selected and who raised a grievance and made a
complaint before the Tribunal by filing
applications ought to have joined them (selected
candidates) as the respondents in the original
application, which was not done. In any case, some
of them ought to have been arrayed as the
respondents in a “representative capacity”. That
was also not done. The Tribunal was, therefore,
wholly right in holding that in absence of selected
and appointed candidates and without affording
opportunity of hearing to them, their selection
could not be set aside.”

                                                                             (emphasis supplied)

                                       xxx              xxx                    xxx

51. The present case is a case of preparation of seniority list
and that too in a situation where the appellants (original writ
petitioners) did not even know the marks obtained by them or
their proficiency in the examination conducted by the
Commission. The challenge was on the ground that the Rules
on the preparation of seniority list had not been followed.
There were 18 private respondents arrayed to the writ petition.
The original petitioners could not have known who all would
be affected. They had thus broadly impleaded 18 of such
Junior Engineers who could be adversely affected. In matters
relating to service jurisprudence, time and again it has been
held that it is not essential to implead each and every one who
could be affected but if a section of such affected employees is
impleaded then the interest of all is represented and protected.
In view of the above, it is well settled that impleadment of a
few of the affected employees would be sufficient compliance
of the principle of joinder of parties and they could defend the
interest of all affected persons in their representative capacity.
Non-joining of all the parties cannot be held to be fatal.

52. The Division Bench has also dealt with an issue which
according to us was totally irrelevant and alien to the
adjudication of the present appeals. In para 45 of the judgment
[Rajesh Kumar Singh v. Rajeev Nain Upadhyay, 2019 SCC
OnLine All 4782] of the Division Bench there is a reference to
an issue where a party takes calculated chances of participating

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in selection/appointment process and later turns around after
being unsuccessful would be hit by doctrine of estoppel. For
the said proposition, the Division Bench made detailed
discussions in paras 46, 47, 48 and 49 of the judgment [Rajesh
Kumar Singh v. Rajeev Nain Upadhyay, 2019 SCC OnLine All
4782] and relied upon a number of case laws. In our
considered view, this issue was not at all relevant. The said
issue does not arise in the present case. The appellants/original
writ petitioners had never challenged the selection process.
The challenge was only to preparation of the seniority list. As
such, this discussion by the Division Bench is totally
irrelevant.”

21. In Hariharan and others vs. Harsh Vardhan Singh Rao
and others, (2022) SCC OnLine SC 1717, it is held as follows:-

“3. Few factual details will have to be noted. The dispute is a
typical dispute between promotees and direct appointees over
inter-se-seniority. Here, the dispute is about the posts of
Inspectors in the Income Tax Department in the State of
Gujarat. On 7th February 1986 and 3rd July 1986, Office
Memoranda (for short, ‘OM’) were issued by the Ministry of
Personnel, Public Grievances and Pension. Both the OMs
record that the principle of rotation of quota will be followed
for determining the inter-se-seniority of promotees and direct
recruits. It is mentioned therein that when direct recruits are
not available, the promotees would be bunched together at the
bottom of the seniority list below the last position up to which
it is possible to determine seniority on the basis of rotation of
quota with reference to the actual number of direct recruits
who become available. It is provided therein that the unfilled
direct recruitment quota vacancies would be carried forward
and added to the corresponding direct recruitment vacancies of
the next year. It is also provided that these additional direct
recruits selected against the carried forward vacancies of the
previous year, should be placed en bloc below the last
promotee or direct recruit, as the case may be, in the seniority
list based on the rotation of quota for that year. Prior to these
two OMs, there was an OM dated 22nd November 1959, which
provided for fixing the seniority of direct recruits and
promotees based on the rotation of quota.

xxx xxx xxx

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Date: 03-Jun-2025 15:45:15

19. We have carefully considered the submissions. The first
issue which arises for consideration is whether the decision of
this Court in K. Meghachandra’s case2 is per incuriam or in
the alternative, whether it requires reconsideration being in
conflict with the decision of the Constitution Bench in the case
of Mervyn Coutindo3 and the decision of a Bench of three
Hon’ble Judges in the case of M. Subba Reddy v. A.P. State
Road Transport Corporation6. The next issue will be assuming
that the decision of this Court in N.R. Parmar’s case1 stands
overruled, in view of its prospective overruling, whether the
inter-se-seniority of the direct recruits and the promotees in the
facts of this case could be determined as per the decision
in N.R. Parmar’s case1. This is in the context of the fact that
the seniority was fixed after the decision in the case of N.R.
Parmar1 and before 19th November 2019 i.e. when the decision
in K. Meghachandra’s case2 was rendered. The third issue to
be decided is whether the recruitment year is a financial year
or a calendar year. Lastly, a factual issue will have to be
decided whether, in the facts of this case, the process of
recruitment of direct recruits commenced in the very
recruitment year in which the vacancies arose.

20. In the facts of the case, there is no dispute that as far as the
posts of Income Tax Inspectors are concerned, the principle of
rota and quota or rotation of quota will apply. The posts of
Income Tax Inspectors are being filled in by direct recruits and
promotees in the proportion already fixed. Therefore, a roster
will apply where the points will be for direct recruits and
promotees as per the proportion fixed. Before we go into
various legal issues, which we have flagged above, it will be
appropriate if we discuss the factual issues first. For the
decision on the factual issues, it is necessary to decide whether
the recruitment/requisition/vacancy year is the same as the
financial year. The appellants have tried to contend that a
recruitment year will be a calendar year. We must note here
that no such case has been made out in the Civil Appeal arising
out of Special Leave Petition (C) No. 16161 of 2018. In the
synopsis on pages F and G, the appellants themselves have
referred to the financial year while referring to the vacancies
available in a particular year. The appellants made a
representation dated 25th November 2016 in which they
described the recruitment years as the financial years i.e 2009-
2010 and 2010-2011. The letter dated 3rd August 2016
addressed by the Directorate of Income Tax, New Delhi to the
Principal Chief Commissioner of Income Tax, Ahmedabad
treats a recruitment year as a financial year. In fact, it

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incorporates a clarification issued by ITGOA which in turn,
refers to the recruitment year on the footing that it is a financial
year. The appellants have annexed as ‘Annexure P-12’ to reply
affidavit in I.A. No. 161060 of 2019, a clarification dated
7th November 2014 issued by the CBDT to All Principal Chief
Commissioners of Income Tax, which refers to vacancy years
as financial years right from 1986-1987 till 2013-2014. Along
with the letter dated 3rd August 2010, the Office of the Chief
Commissioner of Income Tax forwarded to the CBDT, the
details of the confirmed vacancies in the post of Income Tax
Inspectors as on 31st March 2011 in the prescribed proforma.
In the prescribed proforma, under the column ‘year’ (year of
vacancies), financial years 2009-2010 and 2011-2012 have
been mentioned. 35 vacancies of Income Tax Inspectors have
been shown against the year 2009-2010. In the counter
affidavit of private respondents, reliance has been placed on
the OM dated 8th May 2017 issued by the DoPT. Paragraph 5
of the said OM specifically records that in partial modification
of the OMs issued on 10th April 1989, 16th June 2000 and
20th May 2014, the vacancy year may be shifted to a calendar
year from the year 2018, wherever the vacancy year based on
financial year was being followed. The documents on record
clearly show that as far as the posts of Income Tax Inspectors
are concerned, the vacancy or recruitment year was always
reckoned as the financial year.

xx … …xx .. .. ..

28. With the greatest respect to the Hon’ble Bench which dealt
with K.Meghachandra’s case2, we find that the attention of the
Bench was not invited to the binding decision of the
Coordinate Bench in the case of M. Subba Reddy6. This
decision was rendered by a Bench of three Hon’ble Judges.
This Court in the case of M. Subba Reddy6 dealt with the issue
of the fitment of the promotees to the posts of Assistant Traffic
Manager and Assistant Mechanical Engineer in the integrated
seniority list. The majority judgment refers to the relevant
Service Regulations which provide that seniority is reckonable
from the date of appointment to service or grade. Paragraphs 6
and 7 of the said decision read thus:

xxx xxx xxx

30. The argument made before us is that the decision in the
case of K. Meghachandra will have to be ignored on the
ground that it is per incuriam as the attention of the Bench
which decided the case was not invited to the binding decisions
of the Constitution Bench in the case of Mervyn Coutindo and
a Coordinate Bench in the case of M. Subba Reddy. Prima
facie, we find substance in the argument that the attention of

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the Bench which decided the case of K. Meghachandra was not
invited to the aforesaid binding precedents. Therefore, we are
of the view that the appropriate course of action will be to refer
the question to a larger Bench. We are dealing with a case
where the ‘rotation of quota’ or rota and quota system is being
followed. If the promotees are recruited in the relevant
recruitment year, but the process of recruitment of the direct
recruits which commenced in the same recruitment year could
not be completed in the same year, the direct recruits appointed
subsequently will have to be interspaced between the
promotees of the same recruitment year. In such a case, it
cannot be said that direct recruits were not available during the
recruitment year. Their appointment could not be made during
the same year, though the process of appointment commenced
in the same year. But, if the process of recruitment of the direct
recruits is completed in the same recruitment year but an
adequate number of candidates could not be selected, the
shortfall should be carried forward to the next recruitment
year. In such cases, the candidates who are selected against
shortfall vacancies will have to be bunched below the
promotees of the earlier years. Unless such a procedure is
followed, the rotation of quota system will be defeated.

31. Coming to the facts of the case, though process of
recruitment of direct recruits to the post of Income Tax
Inspectors commenced in the recruitment year 2009-10, the
same could not be completed in the same recruitment year.
This is not a case where an adequate number of direct recruits
could not be recruited even though the recruitment was done in
the recruitment year itself. In this case, those who were eligible
for direct recruitment were deprived of the opportunity as the
process of recruitment could not be completed during the same
recruitment year 2009-10 due to no fault on their part. The
documents annexed to the counter affidavit show that the
segregation of vacancies for 2009-10 and 2010-11 has been
properly made.

32. In any event, the decision in the case of K. Meghachandra
has a prospective operation. The seniority list of 7th September
2016 was made in terms of the decision in the case of N.
R. Parmar1. Hence, the same could not have been altered on
13th February 2018 when the said decision was in force.

33. Thus, our conclusion can be summarised as under:

i. The decision in the case of K. Meghachandra requires
reconsideration by a larger Bench in view of the fact that the

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binding decision of a Constitution Bench in the case of
Mervyn Coutindo and another binding decision of a
Coordinate Bench in the case of M. Subba Reddy were not
placed for consideration before the Bench which decided the
case of K. Meghachandra ;

ii. Even assuming that the case of K. Meghachandra was
correctly decided, paragraph 39 of the decision shows that
the decision in the case of N.R. Parmar has been
prospectively overruled by observing that the decision will
not affect the inter-se-seniority already fixed on the basis of
the case of N.R. Parmar and the same was protected. It is also
held that the decision will apply prospectively except where
seniority is to be fixed under the relevant Rules from the
date of vacancy / the date of advertisement. In this case, as on
the date when the case of N.R. Parmar was decided, there
was no rule which required that the inter-se-seniority of
direct recruits and promotees to the post of Income Tax
Inspectors should be fixed from the date on which a person is
born in the cadre. In the facts of the case, the seniority list
was correctly published on 7th September 2016 in terms of
the decision in the case of N.R. Parmar by interspacing those
direct recruits who were eligible in the recruitment year
2009-10 and were appointed against the vacancies of the said
year with 53 promotees who were promoted vide DPC dated
29th June 2009. The seniority list was later on modified on
13th February 2018 without giving an opportunity of being
heard to the affected direct recruits.

34. At this stage, we may note here the factual aspects stated in
the affidavit dated 12th October 2022 filed by Shri Anurag
Chandra, Deputy Commissioner of Income Tax in the Office
of the Principal Chief Commissioner of Income Tax, Gujarat.

The affidavit refers to the interim order dated 13th July 2018 in
the Civil Appeal arising out of S.L.P. (C) No.16161 of 2018,
by which status quo as of that date with respect to the posts
held, was ordered to be maintained. The affidavit notes that as
a result of the interim order, the promotion to the cadre of
Income Tax Officers from the cadre of Income Tax Inspectors
could not take place. As a result, 33.33% of posts in the cadre
of Income Tax Officers are vacant as the same cannot be filled
in. As noted earlier, the decision in the case of
K.Meghachandra applies prospectively i.e. from 19th
November 2019. Prima facie, the seniority fixed based on the
decision in the case of N.R. Parmar has to be given effect.
Therefore, while we are recommending a reference to a larger
Bench, interim relief will have to be vacated and seniority will
have to be fixed on the basis of the impugned judgment,

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subject to the final outcome of the appeal or the decision of the
larger Bench, as the case may be.

35. Hence, we pass the following order:

i. We are of the considered view that the following questions
need to be decided by a larger Bench of five Hon’ble Judges:

a. Whether the decision in the case of K.
Meghachandra can be said to be a binding precedent
in the light of the law laid down by the Constitution
Bench in the case of Mervyn Coutindo3 and the
law laid down by a Coordinate Bench in the case of
M. Subba Reddy?

b. In absence of specific statutory rules to the
contrary, when the ‘rotation of quota’ rule is
applicable, whether the seniority of direct recruits
who were recruited in the recruitment process which
commenced in the relevant recruitment year but
ended thereafter, can be fixed by following ‘rotation
of quota’ by interspacing them with the direct recruits
of the same recruitment year who were promoted
earlier during the same year?

ii. We direct the Registry to place this petition before Hon’ble
the Chief Justice of India for appropriate orders.
iii. The interim relief granted on 13th July 2018 stands vacated.
Effect shall be given to the impugned judgment subject to the
final outcome of this appeal or reference, as the case may be.
We also clarify that the seniority of promotees and direct
recruits who may be appointed hereafter will be subject to the
final outcome of the decision of this appeal or the decision in
reference, as the case may be. Accordingly, concerned persons
shall be informed in writing by the Income Tax Department.”

22. In Amit Singh vs. Ravindra Nath Pandey and others, (2022)
20 SCC 559, it is held as follows:-

“19. It will also be relevant to note that, in the 1991 Rules, the
term recruitment/selection year is not defined.

xxx xxx xxx

27. This Court in Pawan Pratap Singh case [Pawan Pratap
Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC
(L&S) 481] held that the effective date of selection has to be
understood in the context of the service rules under which the

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appointment is made. It may mean the date on which the
process of selection starts with the issuance of advertisement
or the factum of preparation of the select list, as the case may
be. This Court further held that the inter se seniority in a
particular service has to be determined as per the service rules.

It held that the date of entry in a particular service or the date
of substantive appointment is the safest criterion for fixing
seniority inter se between one officer or the other or between
one group of officers and the other recruited from different
sources. It further held that any departure therefrom in the
statutory rules, executive instructions or otherwise must be
consistent with the requirements of Articles 14 and 16 of the
Constitution of India. It further held that the seniority cannot
be reckoned from the date of occurrence of the vacancy and
cannot be given retrospectively unless it is so expressly
provided by the relevant service rules. It held that the seniority
cannot be given on retrospective basis when an employee has
not even been borne in the cadre and by doing so it may
adversely affect the employees who have been appointed
validly in the meantime.

28. A Bench of three learned Judges of this Court in P.
Sudhakar Rao v. U. Govinda Rao [P. Sudhakar Rao v. U.
Govinda Rao, (2013) 8 SCC 693 : (2014) 1 SCC (L&S) 690]
has approved the law as laid down by this Court in Pawan
Pratap Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3
SCC 267 : (2011) 1 SCC (L&S) 481]”

23. In Bihar State Electricity Board and others vs. Dharamdeo
Das, AIR 2024 SC 4609, it is held as follows:-

“23. The view that seniority can neither be reckoned from the
date when a vacancy arises, nor can it be granted
retrospectively unless the service rules specifically provide for
such a situation, is fortified by the decision of this Court in
K.K. Vadera (supra) which has emphasised in no uncertain
terms the settled position in law that promotion to a post
should only be granted from the date of the promotion and not
from the date on which a vacancy may have arisen. In Ganga
Vishan Gujarati vs State of Rajasthan, this Court had reiterated
the principle that retrospective seniority cannot be granted to
an employee from the date when she was not even borne on the
cadre. This principle has been built upon by a line of
precedents starting with the decision of the Constitution Bench

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of this Court in Direct Recruit Class II Engg. Officers’ Assn. v.
State of Maharashtra, followed in Akhouri Sachindra Nath
(supra), Dinesh Kumar Sharma (supra) and several other
cases.”

24. As seen from the aforesaid rulings, the picture still leaves
with some grey spots particularly when the decision in K.
Meghachandra Singh and others (supra) has been referred to a
larger Bench in Hariharan and others (supra). However it is
found settled, without further quarrel, that in the matters of inter-
se seniority the provisions of concerned service rules are to be
looked into first. What is there in the service rule fixing seniority
inter-se the employees in the cadre has to be followed
scrupulously. In this regard, looking to the relevant rule for the
cases at hand, there are two sets of rules, one 2010 Rules and the
other, 2016 Rules superseding 2010 Rules. It is also the
submission of the State in Home Department that the impugned
Gradation List dated 11.6.2020 has been prepared in terms of the
provisions contained in 2016 Rules. It is the specific stand of
State-Opposite Parties, common in all the cases, that by conjoint
reading of Rule 2(1)(m), Rule 6(2) and Rule 17 of 2016 Rules as
well as the principles decided by the apex Court in the case of
N.R. Parmar and others (supra), the inter-se seniority have been
determined with reference to the recruitment years 2011 and
2015. But the thing does not stand as simple as answered by the
State-Opposite Parties.

25. It is the accepted principle that for determining inter-se
seniority in the cadre, the relevant provisions of the concerned

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service rule will hold the field. In the instance case, as stated
earlier, 2010 Rules came into force w.e.f. 07.04.2010 and
continued to govern the field till 10.01.2017. 2016 Rules was
brought in supersession of 2010 Rules w.e.f. 11.01.2017. All the
parties were appointed prior to coming into force of 2016 Rules.
Here the specific case of all the Petitioners is that, their service
seniority is governed under the provisions of 2016 Rules that
was in force on the date of their appointments and they further
contend that, the cadre Rule came into force after their
appointments cannot be made applicable to determine their
service seniority retrospectively. So it becomes imperative to
answer the applicability of respective rules at the first instance.

26. Seniority in service has to be reckoned from the date of first
appointment. An employee gains his seniority by the length of
service he renders. Therefore, the Rule prevailing on the date of
initial appointment of an employee is relevant to count his
seniority in service and not that the Rule that come in force from
a prospective date than the initial appointment date because by
gaining every date in service an employee stocks each date of
seniority in his favour to reckon for. Undoubtedly in the present
cases, every party has already gained service seniority by the
date of coming into force of 2016 Rules on 11.1.2017. So the
action of State-Opposite Parties to count the service seniority of
the parties as on 1.1.2018 in terms of the provisions of 2016
Rules that was in force on 1.1.2018, by ignoring the provisions
of 2010 Rules which was prevalent on the date of initial

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appointment of each party, is completely on faulty side. So in my
humble opinion, the relevant rules applicable to determine
service seniority of each ASO appointed prior to 11.1.2017 and
after 7.4.2010 has to be reckoned in terms of the provisions
contained in 2010 Rules.

27. Next is to see the relevant provisions under 2010 Rules
relating to inter-se seniority of ASOs. Rule 17 of 2010 Rules, as
quoted above, prescribes that the inter-se seniority of the officers
appointed to the service in a particular year shall be in the order
in which their names appear in the select list, and those
appointed by promotion/selection under clause (b) of rule-5 shall
be en-bloc senior to those appointed by limited departmental
examination under clause (c) of rule-5, who shall in turn en-bloc
be senior to those appointed by direct recruitment under clause

(a) of rule-5. Here the relevant words are ‘appointed to service in
a particular year’ and “year” means a calendar year (as per the
definition in Section 2(1)(j)). The difference in the meaning of
word ‘recruitment’ and ‘appointment’ has been explained in
Prafulla Kumar Swain vs. Prakash Chandra Misra and others,
(1993) Suppl 3 SCC 181, as recruitment is not the actual
appointment. It is held as follows:-

“28. At this stage, we will proceed to decide as to the meaning and
effect of the words “recruitment” and “appointment”. The term
“recruitment” connotes and clearly signifies enlistments,
acceptance, selection or approval for appointment. Certainly, this is
not actual appointment or posting in service. In contradistinction

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the word “appointment” means an actual act of posting a person to
a particular office.

29. Recruitment is just an initial process. That may lead to eventual
appointment in the service. But, that cannot tantamount to an
appointment. No doubt, Rule 5 talks of recruitment to Class II
service. We consider these are two sources of recruitment.
Nowhere in the Recruitment Rules of 1959 it is specified that the
services of a direct recruit under the Government shall be reckoned
from the date of selection in the competitive examination. On the
contrary, Regulation 12(c) is very clear that the period of training is
not to be reckoned as Government service. It is admitted before us
that after the successful completion of training when the
appointment order is issued the direct recruits are put on probation.
Similar is in the case of the promotes. Both of them undergo
probation. Therefore, in the light of these provisions it is not
possible for us to accept the contention advanced on behalf of the
direct recruits that their seniority must be reckoned from the date of
their recruitment.”

Further, in In K. Narayanan and others vs. State of Karnataka
and others, 1994 Supp (1) SCC 44, it is stated that :-

“6. Article 309 of the Constitution empowers the appropriate
Legislature to frame rules to regulate recruitment to public services
and the post. ‘Recruitment’ according to the dictionary means
‘enlist’. It is a comprehensive term and includes any method
provided for inducting a person in public service. Appointment,
selections, promotion, deputation are all well-known methods of
recruitment. Even appointment by transfer is not unknown. But any
rule framed is subject to other provisions of the Constitution.
Therefore it has to be tested on rule of equality. .. …. xx .. xx.”

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So all the Petitioners in second category of cases, i.e. W.P.(C)
Nos.17311, 29089 and 36444 of 2020, who were appointed by
promotion/induction in terms of clause (b)(c) of rule-5 shall be
treated en-bloc senior to those appointed by direct recruitment.
Therefore, the case of those Petitioners in second category is as
simple as it is in Rule 17 to treat them senior over the direct
recruits for being they (promotees/inductees) were appointed
earlier to the direct recruits. As such, the Petitioners in three writ
petitions, i.e. W.P.(C) No. 17311, 29089 and 36444 of 2020 are
treated senior to the direct recruits appointed subsequently to
their appointments and their seniority in the Gradation List are
required to be modified accordingly.

28. So far as the dispute of inter-se seniority between the
Petitioners in other seven writ petitions inter-se with those other
direct recruits are concerned, the provisions of Rule 17 are not as
much clear as in respect of promotees/inductees vis-à-vis direct
recruits. Here is the case of inter-se seniority between two
batches of direct recruits. It is stated by the State in their reply
that the appointees selected pursuant to the Advertisement No.6
of 2015-16 are Special Drive recruits and the appointees selected
pursuant to the Advertisement No.08 of 2012-13 are General
Recruits. It is of course for the reason that, Advertisement No.6
of 2015-16 was meant for recruitment of ST category candidates
only, whereas the Advertisement No.08 of 2012-13 was meant
for all categories of candidates, i.e. both un-reserved and

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reserved categories. But it is never stated in the reply of the State
that the vacancies notified for the Advertisement No.6 of 2015-
16 are all such vacancies fall after the vacancies notified for the
Advertisement No.08 of 2012-13. However, I am not the said
aspect of date of vacancies. What is mentioned in Rule 17 of
2010 Rules is that, ‘appointed to the service in a particular year’
where “year” means a calendar year. The provisions of Rule 17
of 2010 Rules is restated here that inter-se seniority of the
officers appointed to the service in a particular year shall be in
the order in which their names appear in the select list. Of course
here are two select lists prevailing for two sets of direct recruits.
Here is a case where two select lists are there and the question is
which select list is to be treated first in order ? The answer would
be, in my humble opinion, the select list first came into
existence. In other words, the select list which was acted first has
to be reckoned first in order and in the instant case it is the select
list dated 22.12.2015 of the OPSC pursuant to which the
appointment orders dated 27.1.2016 was issued first. The select
list pursuant to the Advertisement No.08 of 2012-13 is dated
10.9.2016 based on which the appointment orders dated
5.10.2016 was issued.

29. It is true that, the principles in K. Meghachandra Singh and
others (supra) has not been unsettled in Hariharan and others
(supra) despite the matter is referred for adjudication to a larger
Bench. Nonetheless, the question is of two sets of employees in
the same cadre when appointed in the same calendar year, their

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merit has to be ascertained in order of their appointments made
in the same year. So the conclusion is whoever saw the light of
day earlier came into existence early than the other who came
later and accordingly, the persons appointed earlier are treated as
senior to those appointed later. The submissions of private
Opposite Parties to stretch the meaning of the word ‘year’ as a
‘recruitment year’ other than the meaning defined in Section
2(1)(j) of the Rules is not found acceptable. So the seniority of
the persons appointed to the cadre earlier on 27.1.2016 and
18.5.2016 are treated to be senior to the persons appointed
subsequently in the same year. Thus the impugned Gradation
List dated 11.6.2020, which is the subject matter of challenge in
all the writ petitions, needs to be revised accordingly.

30. In terms of the observations stated above, all the writ
petitions are thus allowed and the seniority of all such Petitioners
are to be re-fixed in the Gradation List above the private
Opposite Parties in the order that the Promotees/Inductees be
placed en-bloc senior to the direct recruits of the particular year
and among the direct recruits, the Petitioners appointed on
27.1.2016 and 18.5.2016 are to be placed above the persons
appointed subsequently.

(B.P. Routray)
Judge

B.K. Barik/Secretary

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Author: B.P. Routray

Bench: B.P. Routray

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