Allahabad High Court

Ali Safdar Anhsari And Others vs State Of U.P. Through The ... on 27 September, 2023

Bench: Irshad Ali





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


     Neutral Citation No. - 2023:AHC-LKO:62754 
 
Court No. - 5								Reserved 	      
 
										     AFR
 
Case :- WRIT - A No. - 2986 of 2010					
 

 
Petitioner :- Ali Safdar Anhsari And Others
 
Respondent :- State Of U.P. Through The Principal Secy.Administration Lko.
 
Counsel for Petitioner :- G.C.Verma,Amol Kumar,Anupam Mehrotra,Bhoopal Singh
 
Counsel for Respondent :- C.S.C.,Aakarsh Sood,Amit Bose,Ashok Shukla,Manjive Shukla,Mohd. Shujauddin Waris,Niranjan Singh,Prashant Singh Gaur,Prem Chandra,Ramesh Pandey,Surya Mani Singh,Upendra Nath Misra
 
			-:: A N D ::-
 
Case :- WRIT - A No. - 2001249 of 2014
 

 
Petitioner :- Mohd. Tanveer Haider And 3 Ors.
 
Respondent :- State Of U.P. Through Prin. Secy. Administration Deptt. Lko.
 
Counsel for Petitioner :- Amit Bose,Aakash Sood,Abhishek Bose,Mohd. Shujauddin Waris
 
Counsel for Respondent :- C.S.C.,Anupam Mehrotra,Upendra Nath Mishra
 
				-:: A N D ::-
 
Case :- WRIT - A No. - 10278 of 2016
 

 
Petitioner :- Bhashkar Singh And 6 Ors.
 
Respondent :- State Of U.P. Thru Prin.Secy.Administration Civil Sectt.Andors
 
Counsel for Petitioner :- Girish Chandra Verma,Anupam Mehrotra
 
Counsel for Respondent :- C.S.C.,Akarsh Sood,Mohd. Shujauddin Waris,Upendra Nath Mishra
 
			-:: A N D ::-
 
Case :- WRIT - A No. - 1517 of 2004
 

 
Petitioner :- Habib Ahmad And 5 Ors.
 
Respondent :- State Of U.P.Thorugh Prin. Secy. Sectt. Administration Dept
 
Counsel for Petitioner :- Sameer Kalia,Abhisek Bose,Amit Bose,Anupam Mehrotra,Girish Chandra Verma
 
Counsel for Respondent :- C.S.C,H G S Parihar,Pankaj K.Singh,Sanjay Bhasin,Upendra Nath Mishra
 

 
Hon'ble Irshad Ali,J.

1. 1. Heard Shri Anupam Mehrotra, learned counsel for the petitioners, Shri Upendra Nath Misra, learned Senior Advocate assisted by Sri Neel Kamal Mishra, learned counsel for the respondent-State, Shri R.K. Upadhyaya, learned counsel for respondent no.3, Shri Shujauddin Waris, learned counsel for respondent nos.4 and 10 and Shri Surya Mani Singh, learned counsel for respondent nos.8 and 11.

2. This bunch of writ petitions is being decided by means of a common judgment and order treating Writ-A No.2986 of 2010 to be leading writ petition and the judgment and order passed therein, shall be equally applicable to all the connected writ petitions.

3. By means of the present writ petition, the petitioner has prayed for the following reliefs:

"(i) issue a writ order or direction in the nature of Certiorari for quashing the impugned order dated 23.4.2010 along with seniority list against the attached with impugned order.

(ii) issue a writ order or direction in the nature of Mandamus commanding the opposite parties to restore back seniority list dated 29.12.2005 by placing the opposite party no.4 to 11 below from the petitioners.

(iii) issue a writ order or direction of mandamus commanding the opposite party no.1 and 2 not to take any action for promotion to the opposite parties nos.4 to 11 according to the impugned seniority list on the next higher post.

(iv) issue a writ order or direction in the nature and manner which deemed just and proper in the circumstances of the case.

(v) Allow the writ petition with costs."

4. Factual matrix of the case is that in the year 1995, 82 posts of the Assistant Accountants were notified by the opposite party no.3 against which the selection was held and finalized for appointments of the Assistant and also finalized for appointment of the Assistant Accountant in Secretariat U.P., Lucknow.

The opposite party no.3 notified the result of the 82 vacancies in which the opposite party nos.4 to 11 were not selected as they were in waiting list. The opposite party no.3, in the select list of 75, selected candidates on 6.12.1997; selected again for 4 candidates on 6.8.1998; and for 3 candidates on 28.10.1999.

The appointment letters were issued to the petitioners for the appointment on the posts in question between 26 February, 2000 upto March, 2000 and they have submitted their joining as per dates mentioned in the impugned seniority list.

After joining of the petitioners and other persons as per selection held by the opposite party no.3 the final seniority list of the cadre of the Assistant Accountants was issued on 20.9.2001 in which the names of the opposite party nos.4 to 11 are not find place as they were in waiting list.

One Sri Ghan Shyam Singh along with 2 others filed Writ Petition No.7775 of 2001 before this Hon'ble Court at Allahabad by making prayers that certain posts yet has not been filled up and some selected candidates did not turn up or after joining they have resigned. This Hon'ble Court directed for sending the requisition for calling the names for filling the unfilled vacancy, vide judgment and order dated 17.5.2001.

In compliance of the aforesaid judgment, the State Government asked for the names of the persons who were in waiting list and accordingly, the opposite party no.3 sent the name of the 23 persons for appointment against unfilled vacancies through letter dated 24.7.2001.

The opposite party no.2 issued the appointment letters to the opposite party nos.4 to 11 on 27.9.2001 and on other dates and they have submitted their joining in the Department as Assistant Accountants upto 31.10.2001 as per dates mentioned in the impugned seniority list.

Before giving the appointments to the opposite party nos.4 to 11, Special Appeal No.507/ 2000 was filed by the opposite parties against the judgment and order dated 14.5.2001, therefore, the opposite party no.1 issued the appointment letters to the opposite party nos.4 to 11 for appointing to the opposite party nos.4 to 11 as mentioned and their appointments will be subject to final decision of special appeal.

Petitioner nos.9 and 10 along with others 41 persons promoted from the post of Assistant Accountant to the post of Accountant even before joining of the opposite party nos.4 to 11 in the cadre vide order dated 11.9.2001 according to the seniority prepared by the opposite party no.1.

After joining of the opposite party nos.4 to 11, they have moved their applications for including their names in the seniority list of Assistant Accountants. The opposite party no.1 issued a letter to the opposite party no.3 for fixing the merit of the persons likewise the opposite party nos.4 to 11 along with main list. The opposite party no.3 illegally issued the merit list by including their names of persons who were in waiting list and on that basis the opposite party no.1 again issued the tentative seniority list for placing the opposite party nos.4 to 11 above the petitioners. Thereafter, the petitioners filed their objections but the opposite party no.2 finalized the seniority list on 11.3.2004 in which the opposite party nos.4 to 11 who were not in any cadre, were placed above the petitioners.

Feeling aggrieved by the said seniority list, some of the petitioners filed Writ Petition No.1517/2004 (SS) before this Court which is pending, however, during pendency of the writ petition, the good sense was prevail to the opposite party nos.1 and 2 that they themselves after taking advise from Law Department again issued the tentative seniority list in view of the law laid down by the Hon'ble Supreme Court for amending the seniority list dated 11.3.2004. The tentative seniority list was again issued on 16.12.2004 in which the opposite party nos.4 to 11 were placed below petitioners on their right place, as they have joined in the cadre/ service in October, 2001. The final seniority list was issued correctly on 29.12.2005.

Against the seniority list dated 29.12.2005, the opposite parties namely Rama Shankar Tiwari and Mohd. Tanveer Haidar filed Writ Petition No.114 of 2006 (SS) before this Court without impleading the affected persons, wherein some of the petitioners put in appearance through their counsel and the petitioners were impleaded as opposite parties; then this Hon'ble Court has been pleased to pass an order on 15.1.2006 by granting time for filing the counter affidavit and the promotion, if any on higher post, shall be subject to final decision of the writ petition.

Even after finalization of the final seniority list the opposite party no.1 was not taking any action for promotion on the next higher post then the some of the petitioners filed the writ petition for their promotion as per Rules, 1993. This Hon'ble Court directed for considering the promotion of Assistant Accountant according to the Rules, 1993 against the vacancies which were occurred before the amendment of the Rules, if any, on 24.8.2006 in the Writ Petition No.4531/2006.

In pursuance of the seniority list dated 29.12.2005 as well as direction issued by this Court, the opposite party no.1 considered the case of the petitioners for promotion on the post of Accountants vide order dated 23.2.2007. The petitioners were promoted on the next higher post which is post of Accountants and since then, the petitioner are working on the promotion post.

Two opposite parties namely Surendra Kumar Pandey and Amit Chaudhary filed Writ Petition No.1179 of 2007 against the seniority list dated 29.12.2005 in the year 2007 when the promotion of the petitioners were under consideration. This Hon'ble Court was pleased to pass an interim order by directing therein that result of D.P.C. will not be declared, however, the learned counsel for the opposite party no.1 has produced the judgment passed in Writ Petition No.34043/2001 in which the question of seniority from the appointee of main list and appointee of the waiting list at later stage was raised, this Hon'ble Court finding that there is no good ground for interference in the matter, hence the interim order granted earlier vide order dated 22.2.2007 was kept in abeyance.

In the order dated 22.2.2007 it was noted and observed that the seniority list prepared by the opposite parties was challenged in Writ Petition No.34043/2001 was finalized, the contention was that similar case was finally decided and the question of seniority of Panchayatee Raj was under consideration in the judgment and order dated 9.12.2005, however, the question was the same, therefore correction application was moved by the State in Writ Petition No.1179 of 2007 against the order dated 22.2.2007. The special appeal was filed by the petitioner of the said writ petition, the same was also decided by the Division Bench by relegating the matter before the Hon'ble Court where the writ petition is pending.

During pendency of Writ Petition No.1179 of 2007 as well as Writ Petition No.114 of 2006 against the seniority list dated 29.12.2005, the opposite party no.1 moved application before this Hon'ble Court for granting leave for preparation of the seniority list according to law after canceling the seniority list dated 29.12.2005 which was allowed by this Hon'ble Court on 6.5.2009 as mentioned in the impugned order itself.

It appears that the opposite party nos.4 to 11 have succeeded to peruse the opposite party no.1 to take decision in their favour even against the final verdict of this Hon'ble Court affirmed by the Hon'ble Supreme Court, accordingly the Principal Secretary Panchaytee Raj has prepared the seniority list of the employees in compliance of the same by placing the selectees of the main list over and above the selectees of waiting list.

The opposite party no.1 again issued tentative seniority list for restoring the seniority list dated 11.3.2004 on 15.2.2010 by which the objections were invited from affected persons, all the petitioners filed their objections which have been mentioned in the impugned order itself. In their objections the petitioners have raised several pleas, most important pleas were that the selection was held in the year 1995; the select list was prepared in the year 1997 and was issued for the appointment as per G.O.; there is no provision for waiting list, but appointment were given to the opposite party nos.4 to 11 in the year 2001 on that very ground that the special appeal is pending filed by the opposite party no.1 itself, therefore they cannot be included in seniority list.

IInd most important plea was that the Division Bench of this Hon'ble Court has been pleased to decide the matter finally in Writ Petition No.34043/2001 which was affirmed by the Hon'ble Supreme Court, wherein this Hon'ble Court has decided the selectees of the main list will be placed over and above the selectees and appointees from the waiting list.

The opposite party no.1 decided all the objections by stating that the judgment passed in Writ Petition No.34043/2001 is not related from the post in question, therefore the same will not be applicable in the matter. The opposite parties while deciding the objections have committed gross illegality by raising factum while law laid down by this Hon'ble Court and affirmed by the Hon'ble Supreme Court has already been complied with by the State Government in which it has been held that selectees of the waiting list even of general category having more marks than the petitioners reserve category likewise the O.B.C. cannot be placed above from the O.B.C. category as they are not the selectees in the main list. But the opposite party by overlooking the judgment and on his own way issued the impugned order by committing the gross illegality.

Undisputedly the opposite party nos.4 to 11 are not finding place in the merit list of main list of 82 persons, therefore they cannot be said as selectees of one selection.

In compliance of the judgment the opposite party nos.4 to 11 have given the appointment in 2001 while the petitioners were already appointed in March, 2000 upto preparation of the seniority list dated 20.9.2001 the opposite party nos.4 to 11 were not in cadre, therefore, in evident they cannot be placed over and above the petitioners.

It has been settled by this Hon'ble Court as well as Hon'ble Supreme Court that the persons will gain seniority from the date of their joining and not before that. The provisions of Rule 5 clearly indicates that if the persons even fail to join being selectee of the same one selection then he will loose his seniority, in the case in hand the opposite party nos.4 to 11 cannot be given any reason for their joining as they are not selectee of the main list. In these circumstances they cannot be placed above the petitioners.

Recently, this Hon'ble Supreme Court has been pleased to hold that no one can claim the seniority before taking birth in the cadre, in case in hand the opposite party nos.4 to 11 have been appointed in October, 2001 and they are claiming their seniority above the petitioners who have been appointed from main list in February and March, 2000 as per dates mentioned in the impugned seniority list but the opposite party nos.1 and 2 have placed arbitrarily the opposite party nos.4 to 11 above the petitioners in very illegal and arbitrary manner while they are liable to be placed at bottom as they have been placed in the seniority list dated 29.12.2005.

Opposite parties are taking recourse of merit list which was prepared by the opposite party no.3 in 2003 after request made by the opposite party no.1 after including the opposite party nos.4 to 11 who were not find place in the main list, therefore it cannot be said in any manner they are senior.

Opposite party nos.4 to 11 are not the selectees of same selection in fact they were in waiting list and not in select list and as per decision of State Government itself as were taken by the State Government not once but in the year 1992 and later in the years 1994 and 1999, earlier the provision was that wailing list will remain valid only for one year as per G.O. dated 29.8.1992 and same was reiterated on 31.1.1994 but in case in hand elect list was prepared along with waiting list for the year 1997 which was valid only up to the year 1998 but the appointments have been given to the opposite party nos.4 to 11 from the waiting list which was even not in existence after expiry of one year. The State Government vide G.O. dated 15.11.1999 has taken decision that no waiting list will be prepared along with main list.

The appointment of the opposite party nos.4 to 11 are itself illegal and not in accordance with provision of the G.O. issued by the State Government but the opposite parties against their own decision for providing favouritism to the opposite party nos.4 to 11 have placed them over and above the petitioners was impugned seniority.

Undisputedly all the petitioners have been promoted to the next higher post in the year 2001 and 2007 as per details given in preceding paragraphs but the opposite parties have placed the petitioner below from the opposite party nos.4 to 11 but yet have not been promoted.

The opposite party nos.1 and 2 are going to promote to the opposite parties nos.4 to 11 from the different date to the next higher post even from the date when they were not in service while as per the Rules 1993 at least the 5 years continuous service is required on the post of Assistant Accountant. Having no other alternative and effcacious remdy open to the petitioners expect to approach to this Hon'ble court by filing the writ petition under Article 226 of the Constitution of India.

5. Learned counsel for the petitioners submitted that the opposite party no.1 again issued tentative seniority list for restoring the seniority list dated 11.3.2004 on 15.2.2010 by which the objections were invited from affected persons; all the petitioners filed their objections which have been mentioned in the impugned order itself. In their objection the petitioners have raised several pleas most important pleas were that the selection was held in the year 1995 and select list was prepared in the year 1997 and was issued for appointment as per G.O. there is no provision for waiting list, but appointments were given to the opposite party nos.4 to 11 in the year 2001 on that very ground that the special appeal is pending filed by the opposite party no.1 itself, therefore they cannot be included in the seniority list. IInd most important plea was that the Division Bench of this Hon'ble Court has been pleased to decide the matter finally in Writ Petition No.34043/2001 which was affirmed by the Hon'ble Supreme Court, this Court has decided that the selectees of the the main list will be placed over and above the selectees and appointees from the waiting list.

6. Learned counsel for the petitioner next submitted that the opposite party no.1 decided all the objections by stating that the judgment passed in Writ Petition No.34043/2001 is not related from the post in question, therefore the same will not be applicable in the matter. The opposite parties while deciding the objections have committed gross illegality by raising factum while law laid down by the Hoon'ble Court and affirmed by the Hon'ble Supreme Court has already been complied by the State Government in which it has been held that selectees of the wailing list even of general category likewise the O.B.C. cannot be placed above from the O.B.C. category as they are not the selectee in the main list. But the opposite party by over looking the judgment on his own way issued the impugned order by committing the gross illegality.

7. Learned counsel for the petitioner next submitted that in compliance of the judgment the opposite party no.4 to 11 have given the appointment in 2001 while the petitioners were already appointed in March, 2000 upto preparation of the seniority list dated 20.9.2001 and the opposite party nos.4 to 11 were not in the cadre, therefore, in evident they cannot be placed over and above the petitioners.

8. Learned counsel for the next submitted that it has been settled by this Hon'ble Court as well as Hon'ble Supreme Court that the persons will gain seniority from the date of their joining and not before that. The provisions of Rules 5 clearly indicates that if the persons even fail to join being selectee of the same one selection then he will loss his seniority, in the case in hand the opposite party nos.4 to 11 cannot be given any reason for their joining as they are not selectee of the main list. In these circumstances they cannot be placed above the petitioners.

9. Learned counsel for the petitioner next submitted that recently, this Hon'ble Supreme Court has been pleased to hold that no one can claim the seniority before taking birth in the cadre, in case in hand the opposite party nos.4 to 11 have been appointed in October, 2001 and they are claiming their seniority above the petitioners who have been appointed from main list in February and March, 2000 as per dates mentioned in the impugned seniority list but the opposite party nos.1 and 2 have placed arbitrarily the opposite party nos.4 to 11 above the petitioners in very illegal and arbitrary manner while they are liable to be placed at bottom as they have been placed in the seniority list dated 29.12.2005.

10. Learned counsel for the petitioner next submitted that the impugned order as well as impugned seniority list is wholly illegal, arbitrary and against the settled principle of law.

11. Learned counsel for the petitioner next submitted that it is very well evident from the facts and circumstances of the case that favoritism has been given to the opposite party nos.4 to 11 in fixing the impugned seniority list by ignoring the final verdict by this Hon'ble Court for reason best known to the opposite party nos.1 and 2 themselves.

12. Learned counsel for the petitioner next submitted that the impugned order has been passed in malice of law and against the provision of Articles 14 and 16 of the Constitution of India, therefore the same cannot be sustained.

13. Learned counsel for the petitioner next submitted that permission was granted by this Hon'ble Court for fixing the seniority list according to law by looking application, that it is not means in any manner that license was granted to the opposite party no.1 to ignore the provisions of law and final verdict of this Hon'ble court while fixing the impugned seniority list.

14. Learned counsel for the petitioner next submitted that the decision rendered by this court as well as Hon'ble Supreme Court are binding upon the opposite parties and they are under legal obligation to act as per directions issued by this Hon'ble Court.

15. Learned counsel for the petitioner next submitted that the opposite parties are taking recourse of merit list which was prepared by the opposite party no.3 in 2003 after request made by the opposite party no.1 after including the opposite party nos.4 to 11 who were not find place in the main list, therefore, it cannot be said in any manner they are senior.

16. Learned counsel for the petitioner next submitted that the appointment of the opposite party nos.4 to 11 are itself illegal and not accordance with provisions of the G.O. issued by the State Government but the opposite parties against their own decision for providing favoritism to the opposite party nos.4 to 11 have placed them over and above the petitioners was impugned seniority list.

17. Learned counsel for the petitioners next submitted that undisputedly all the petitioners have been promoted to the next higher post in the year 2001 and 2007 as per details given in preceding paragraphs but the opposite parties have placed the petitioners below from the opposite parties have placed the petitioners below from the opposite party nos.4 to 11 but yet have not been promoted.

18. Learned counsel for the petitioners next submitted that the opposite party nos.1 and 2 are going to promote to the opposite party nos.4 to 11 from the different date to the next higher post even from the date when they were not in the service while as per the Rules,1993 at least the 5 years continuous service is required on the post of Assistant Accountants.

19. Learned counsel for the petitioners next submitted that the impugned order including the main seniority list is wholly illegal and arbitrary and is again the provisions of Rules as well as law laid down by this Hon'ble Court.

20. In support of his submissions, learned counsel for the petitioners placed reliance upon the following judgments:

(i) Sub-Inspector Rooplal v. Lt. Governor reported in (2000)1 SCC 644

(ii) D.P. Sharma v. Union of India reported in 1989 (Supp) 1 SCC 244

(iii) C.M.W.P. No.34043/2001 (Suprendra Jai Narain v. State of U.P.) decided on 9.12.2005.

(iv) Girdhar Kumar Dadhich v. State of Rajasthan reported in (2009)2 SCC 706

(vi) State of J & K v. Sat Pal reported in (2013) AA SCC 737

(vii) Pt. MSM Sharma v. Sri Krishna Sinha reported in AIR 1959 SC 395

(viii) Bhey Ram Sharma v. Haryana State El. Bd. Reported in 1994 Supp (1) SCC 276

(ix) R.N. Gosain v. Yashpal Dhir reported in (1992) 4 SCC 683

(x) State of Karnataka v. AIMO reported in (2006)4 SCC 683

(xi) U.P. Power Corpn. Ltd. v. Rajesh Kumar reported in (2012)7 SCC 1

(xii)Kamraj Nadar v. Kunju Thevar reported in AIR 1958 SC 687

21. Per contra, Shri U.N. Mishra, learned Senior Advocate appearing for the respondents-State submitted that in service jurisprudence, it is settled position of law that seniority is only a statutory right, which is conferred to an employee either by way of specific provisions contained in Service Rules, especially prepared for respective services or by way of General Rules prepared under Article 309 of the Constitution of India.

22. Learned counsel for the respondents next submitted that though the petitioners have challenged the seniority list dated 23.4.2010 on the ground that they should have been placed in the said seniority list, according to their date of appointment/ joining in the department and not according to the combined merit list dated 5.6.2003 prepared by the U.P.P.S.C. but they have utterly failed to indicate as to under what statutory legal provision, they can sustain such a claim of seniority from the date of substantive appointment, which is applicable only in the cases covered by provision-2 of Rule-5 and also of the cases covered under Rule-8 of the Seniority Rules, 1991. However, none of these two Ruls are applicable in the instant case.

23. Learned counsel for the respondent next submitted that the judgment of Bhey Ram Shar (supra) has no application in the instant case in hand because the said judgment about seniority was passed where selectees of two separate selections were concerned and therefore, provisions of the second proviso to Rule-5 of Seniority Rules, 1991 was applicable, whereas in the instant case, both the petitioners and respondents are selectees of the same selection, therefore hey are covered by the main provisions of Rule-5 of the Seniority Rules, 1991.

24. Learned counsel for the respondents next submitted that the seniority of candidates, where appointments are made only by direct recruitment from the result of "only one selection" is determined in accordance with the Rule-5 of the Seniority Rules, 1991, which mandates preparation seniority list only according to the merit list prepared by the Commission or the committee, as the case may be.

25. Learned counsel for the respondents next submitted that the last and final seniority list dated 23.4.2010 of ARO Accounts prepared by the State Government strictly according to the Rule 5 of the U.P. Government Seniority Rules, 1991 read with rule 20 of the Service Rules of 1993 deserves to be upheld, so that the State Government may prepare the fresh final seniority list of the next higher post of Review Officer Accounts on the basis of the same and thereafter, promotions on the vacant post of Section Officer Accounts may be made in the Secretariat Administration Department of U.P. Civil Secretariat.

26. Learned counsel for the respondents next submitted that it is a settled position of law that seniority is only a statutory right, which is conferred to an employee either by way of specific provisions contained in Service Rules, especially prepared for respective services or by way of General Rules prepared under Article 309 of the Constitution of India.

27. Learned counsel for the respondent in support of his submissions, relied upon the following judgments:

(i) Prafulla Kumar Das v. State of Orissa reported in (2003)11 SCC 614

(ii) State of U.P. v. Dinka Sinha reported in (2007) 10 SCC 548

(iii) State of U.P. and others v. U.P. Exercise Subordinate O.M. Association and others reported in (2002) 9 SCC 718

(iv) Pankaj Kumar v. State of U.P. and others passed by this Hon'ble Court in Civil Misc. W.P. No.41701 of 2008 decided on 3.1.2011.

(v) Anil Kumar Sharma v. State of U.P. and others reported in 1997 SCC Online All LJ 2003

(vi) Bhoodev Singh v. Chairman, U.P. State Electricity Board and others.

28. Learned counsel for the respondent nos.4 and 10 and respondent nos.8 and 11 adopted the submissions advanced by Shri Upendra Nath Misra, learned Senior Advocate.

29. I have considered the submissions advanced by learned counsel for the parties and perused the material available on record.

30. Perusal of the material indicates as under:

(i) On 16.04.1996, advertisement for UDA/LDA/ Assistant Accountant Exam-1995 was issued for 423 posts, out of which 271 posts of UDA, 71 posts of LDA and 82 posts of Assistant Accountant in U.P. Civil Secretariat were adversied. In January, 1997, combined written examination was conducted by UPPSC. On 20.9.1997, result was declared by UPPSC for 82 posts of Assistant Accountant.

(ii) On 6.12.1997, Commission gave its first recommendation of 75 candidates against 81 posts. On 23.4.1998, Commission gave its second recommendation of 1 candidate. On 6.8.1998, Commission gave its third recommendation of 4 candidates. On 28.01.1999, Commission gave its fourth recommendation of 3 candidates.

(iii) Despite first recommendation of 75 candidates received from UPPSC in December, 1997, when no appointments were made on the post of Assistant Accountant/ ARO Accounts, selected candidates filed W.P. No.42184/1998 at Allahabad i.e. Ramesh Chandra Deubey v. State. Vide order dated 15.01.1999, the Court directed the respondents to make appointment on the basis of ARO Accounts on the basis of recommendations of the UPPSC.

(iv) On 26.2.2000, appointments orders were issued to the selected candidates. Against the 81 posts, only 55 persons had joined. Thus, 26 posts were left vacant. Out of this bunch of 55 candidates the group of contesting parties i.e. the petitioners of Ali Safdar v. State.

(v) In the year 2001, when no further action was taken by the State for filling up the vacant 26 posts, W.P. No.7775 of 2001 i.e. Ghanshyam Singh v. State was filed for seeking a direction for filling up of the 26 vacant posts. Vide judgment and order dated 14.5.2001, while referring to the judgment of Yogendra Kumar Pal v. State of U.P. dated 9.4.1998, this Court directed the State Government to send the requisition to the UPPSC for seeking names of wait listed candidates in order of merit and then to fill up the unfilled vacancies within one month.

(vi) On 14.6.2001, the State Government reqeusted the UPPSC to send the names of the wait listed candidates for filling up the unfilled vacancies. On 17.9.2001, UPPSC recommended 15 candidates after verification of records. In the year 2001, State filed Special Appeal No.1060 of 2009 against the judgment and order dated 14.5.2001.

(vii) On 10.08.2001, tentative seniority list of ARO Accounts was issued which included 55 candidates. This was done even while stopping the ongoing procedure of appointment of wait-listed candidates. On 11.09.2001, even without finalizing the tentative seniority list, promotions of 47 ARO Accounts were made on the post of RO Account, only on the basis of tentative seniority list. Pre-requisite for these promotions under the service ruls was minimum 5 years of service as ARO Accounts.

(viii) On 20.09.2001, seniority list of ARO Accounts was issued in which only 55 ARO Accounts (then working) were included. On 27.09.2001, thereafter, appointment orders were issued to 15 candidates from the waiting list. In October, 2001, out of 15 appointments from waiting list, only 10 persons had joined (7 General, 2 OBC, 1 SC). In the year October, 2002, all the ARO Accounts were confirmed.

(ix) In the year 2002, a representation was given by 10 remaining persons for preparation of a combined seniority list. On 17.05.2003, State requested the UPPSC to send the combined merit-list of all 65 AROs appointed in the secretariat.

(x) On 5.6.2003, on a request of the State Government, a combined merit-list was sent by the UPPSC of all 65 AROs, who were appointed by the State on the recommendation of UPPSC and this merit-list was prepared strictly according to the marks obtained by the general category and reserved category candidates and they were placed below the cut off mark of the respective categories.

(xi) On 11.3.2004, first combined seniority list was prepared by the State Government strictly in accordance with 5 of the Seniority Rules, 1991 read with Rule 15(3) and 20 of the Service Rules, 1993 i.e. in accordance with the combined merit list uf UPPSC.

(xii) In the year 2004, seniority list dated 11.3.2004 was challenged in Writ Petition No.1517/2014 (Habib Ahmad v. State of U.P.) by the candidates who had joined the services during February to August, 2000. However, the combined merit list dated 5.6.2003 was initially not challenged by the writ petitioners. In Rejoinder affidavit, petitioners claimed the combined merit list dated 5.6.2003 to be irrelevant for determining seniority. Thus, they refused to challenge it.

(xiii) In the year 2004 also, a writ petition praying for promotion in terms of seniority list dated 11.3.2004 was filed by wait listed candidates i.e. Writ Petition No.7204/ 2004 ( Ramashankar Tiwari v. State of U.P.) and 44 promotions earlier made on 11.9.20012 were also challenged.

(ix) On 16.12.2004, meanwhile, a fresh tentative seniority list was issued for ARO Accounts without having any consultation with the Karmic Department. On 29.12.2005, second final seniority list dated 29.12.2005 was directly issued, on the principle of the date of substantive appointment while following the ratio of judgment of Bhey Ram Sharma's case, and not in accordance with Rule 5 of the 1991 Seniority Rules. Bhey Ram Sharma's case is inapplicable in these cases because in that case, there were no service rules applicable and then were 2 selections. So it was was held that seniority shall be given w.e.f. date of joining, but it had no application in this case.

(x) In the year 2006-07, since the first seniority list dated 11.3.2004 was annulled and then superseded by the second seniority list dated 29.12.2005, therefore 3 writ petitions were filed against 3rd seniority list dated 29.12.2005 i.e. (Writ Petition No.114/2006- Rama Shankar Tiwari v. State; Writ Petition No.8418 of 2006 i.e. Nand Kishore v. State and Writ Petition No.1179/ 2007 (Surendra Kumar Pandey v. State).

(xi) Vide order dated 24.8.2006 passed in Writ Petition No.4531 (SS) of 2006, interim order was passed for consideration of petitioners for promotion. On 27.12.2006, order of Chief Secretary was passed to the effect that seniority list dated 29.12.2005 was erroneously prepared in violation of Seniority Rules, 1991 that too without referring to Karmik Department. Hence directions were given to correct the error after taking permission from the Court.

(xii) In Contempt Case No.40(C) of 2007 filed by the petitioners for compliance of order dated 24.08.2006, the promotions of the petitioners on the post of RO Accounts were made on 23.2.2007. At that time, promotions were also given to 2 persons who had joined in October, 2001 from waiting list. In the year 2009, in continuation of the directions of the Chief Secretary, the State Government had filed application for recalling the seniority list dated 29.12.2005 prepared in violation of Rule-5 and permission was also sought to make fresh seniority list.

(xiii) On 6.5.2009, this Court allowed the said application and permitted the State to prepare a fresh seniority list. On 15.2.2010, fresh tentative seniority list was prepared as per combined merit list dated 5.6.2003 of UPPSC i.e. in accordance with Rule 5 of the Seniority Rules, 1991.

(xiv) On 23.4.2010, third final seniority list was circulated after disposal of the objections as per Rule 5 and Rule-9 of seniority Rules, 1991 i.e. after deciding all the objections in detail.

(xv) In May, 2010, Writ Petition No.2986(SS) of 2010 (Ali Safdar Ansari v. State) was filed challenging the final seniority list dated 23.04.2010 by the direct appointees of February, 2000 on the ground that the their joining was prior in time, than those who were appointed from waiting list in October, 2001. No explanation was given as to how their claim for seniority from the date of joining can be reconciled with the provisions of Rule-5 of the Seniority Rules, 1991.

(xvi) On 14.5.2010, interim order was passed in Ali Safdar's case (supra), to the effect that no promotion shall be made as per impugned seniority list. Thereafter, application for recall/ modification was filed by the waitlisted candidates.

(xvii) On 23.5.2012, interim order dated 14.5.2010 was modified. State was permitted to promote the private respondents in accordance with Rules, but private respondents were directed not to claim seniority over the petitioners till the final decision of the case.

(xviii) On 22.07.2013, promotion order in favour of 08 persons was issued which included 07 remaining AROs and one Dinesh Shukla, who has left the job. Thus, all the 1995 batch Assistant Accountant/ ARO Accounts were promoted as Accountants/ RO Accounts.

(xix) In the year 2014, Writ Petition No.1249 (SS) of 2014 i.e. Tanveer Ahmed v. State was filed by the direct appointees from waiting list for seeking a direction to finalize seniority list of RO Accounts and then make promotions on the post of SO Accounts. In the year 2016, Writ Petition No.10278 (S/B0 of 2016 i.e. Bhaskar Singh v. State was filed by the direct appointees of February, 2000 for seeking direction to the respondents to make promotion on the post of Section Officers on the basis of the earlier seniority list dated 06.06.2003 (which was infact Rule 8-A seniority list).

31. To resolve the controversy involved in the present writ petition, Rule 5 of the Seniority Rules, 1991 which is admittedly applicable in the case in hand, reads as under:

"Seniority where appointments by direct recruitment only.--Where according to the service rules appointments are to be made only by the Direct recruitment the seniority inter se of the persons appointed on the result of anyone selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be:

Provided that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reasons, shall be final:

Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of previous selection.

Explanation-Where in the same year separate selections for regular and emergency recruitment are made, the selection for regular recruitment shall be deemed to be the previous selection."

32. Learned counsel for the petitioner relied upon the several judgments operative portion of which are hereinbelow:

(i) Sub-Inspector Rooplal (supra):-

24. Before concluding, we are constrained to observe that the role played by the respondents in this litigation is far from satisfactory. In bur opinion, after laying down appropriate rules governing the service conditions of its employees, a State should only play the role of an impartial employer in the inter-se dispute between its employees. If any such dispute arises, the State should apply the rules laid down by it fairly. Still if the matter is dragged to a judicial forum, the State should confine its role to that of an amicus curiae by assisting the judicial forum to a correct decision. Once a decision is rendered by a judicial forum, thereafter the State should not further involve itself in litigation. The matter thereafter should be left to the parties concerned to agitate further, if they so desire. When a State, after the judicial forum delivers a judgment, files review petition, appeal etc. it gives an impression that it is espousing the cause of a particular group of employees against another group of its own employees, unless of course there are compelling reasons to resort to such further proceedings. In the instant case, we feel the respondent has taken more than necessary interest which is uncalled for. This act of the State has only resulted in waste of time and money of all concerned.

25. In the light of the view taken by us, the civil appeals and W.P. (C) No. 191/99 are allowed to the extent mentioned above. W.P.(C) No. 4128/98 pending on the file of Delhi High Court which has been registered here as TC (C) No. 56/99 is withdrawn to the file of this Court and the same is dismissed. The respondent (Delhi Administration) shall pay costs in all the above matters.

(ii) D.P. Sharma (supra):-

6. These considerations apply equally to the present case as well. The general rule is if seniority is to be regulated in a particular manner in a given period, it shall be given effect to, and shall not be varied to disadvantage retrospectively. The view taken by the Division Bench, which is in substance contrary to this principle is not sound and cannot be supported.

(iii) Surendra Jai Narain (supra):-

In the instant case, admittedly, while passing the impugned order dated 6th July, 2001 the authority did not consider at all that the petitioner had been appointed in the reserved category two years prior to the respondent no.5. More so, the petitioner had been appointed from the main list while respondent no.5 was appointed from the wait list. It is quite possible, rather, in fact it must have been that the name of petitioner, being a reserved category candidate, found place in the roster much prior to the respondent no.5, though the said respondent may have secured more marks. Respondent no.5 could not be given place in the cadre even before his birth. Therefore, if he was given appointment for the first time in 1983, he could not be given seniority over and above the petitioner, who had been appointed two years prior to him in 1981.

(iv) Girdhar Kumar Dadhich (supra):-

16. Furthermore the select list would ordinarily remain valid for one year. We fail to understand on what basis appointments were made in 2003 or subsequently. Whether the validity of the said select list was extended or not is not known. Extension of select list must be done in accordance with law. Apart from a bald statement made in the list of dates that the validity of the said select list had been extended, no document in support thereof has been placed before us.

17. State of Rajasthan & ors. v. Jagdish Chopra, this Court held:

"9. Recruitment for teachers in the State of Rajasthan is admittedly governed by the statutory rules. All recruitments, therefore, are required to be made in terms thereof. Although Rule 9(3) of the Rules does not specifically provide for the period for which the merit list shall remain valid but the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year. Vacancies which arose in the subsequent years could be filled up from the select list prepared in the previous year and not in other manner. Even otherwise, in absence of any rule, ordinary period of validity of select list should be one year. In State of Bihar v. Amrendra Kumar Mishra (2006) 12 SCC 561, this Court opined: (SCC p.564, para 9) "9. In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel."

It was further held: (SCC p.565, para 13) "13. The decisions noticed hereinbefore are authorities for the proposition that even the wait list must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period." xxx xxx xxx

11. It is well-settled principle of law that even selected candidates do not have legal right in this behalf. (See Shankarsan Dash v. Union of India (1991) 3 SCC 47, and Asha Kaul v. State of J&K (1993) 2 SCC 573)"

(v) Ghanshyam (supra):-

"Accordingly, the writ petition is finally disposed of with the direction that the State Government shall send requisition to the U.P. Public Service Commission calling for names of wait-listed candidates in order of merit to fill up the unfilled vacancies within one month from the date of production of certified copy of this order. In case, the petitioners come in the merit, they shall be offered appointment within another two months.

(vi) State of U.P. and another v. Ghanshyam & others:-

The judgment dated 9.4.1998 in Yogendra Kumar Pal's case (supra), following which the Ghanshyam case was decided, was set aside in Special Appeal No.99/ 1999 (State of U.P. v. Yogendra Kumar Pal) vide judgment dated 30.10.2007 which was while rejecting a application for recall thereof, affirmed vide judgment dated 2.5.2008; And Civil Appeal No.1845-46/2014: Yogendra Kumar Pal v. State of U.P. against these judgments in Special Appeal were disposed of vide order dated 3.2.2004 whereby the correctness of the judgments dated 30.10.1997 and 2.5.2008 was not disputed but, on a concession of the State of U.P. and the appellants, the wait-listed appointees were allowed to continue in service on the condition that their seniority would be below the merit-list appointees.

(vii) Yogendra Kumar Pal (supra):-

The State Govt. should send requisition to the commission calling for the names of the wait listed selected candidates as against the vacancies which arose as a result of resignation or otherwise of the selected candidates. The requisition may be sent by the State Government within a period of two months and the State Public Service Commission shall on receipt of the requisition, send the names of the wait-listed candidates in order of merit as against the requisition.

(viii) State of U.P. v. Yogendra Kumar Pal (supra):-

In our view, the controversy involved in this matter is squarely covered by our judgment dated 8.2.2007 in the case of U.P. Public Service Commission, Allahabad and another v. State of U.P. and another, 2007(5) ADJ 280(DB). The right of wait list candidate was considered by this Court and in para-15 of the judgment it was held "A wait list candidate does not have any indefeasible right to get appointment merely for the reason that his name finds place in the wait list." This Court in taking the aforesaid view relied upon the decision in Ved Prakash Tripathi v. State of Punjab and another, (1997) 8 SCC 488 and held that even a select list candidate has no indefeasible right to claim appointment. In para-31 of the judgment in U.P. Public Service Commission, Allahabad and another (supra) this Court has further held as under:

"Moreover, even in the case of a select list candidate, the law is well settled that such a candidate has no indefeasible right to claim appointment merely for the reason that his name is included in the select list as the State is under no legal duty to fill up all or any of the vacancy and it can always be left vacant or unfilled for a valid reason."

(ix) State of U.P. v. Yogendra Kumar Pal (supra):-

32. Be that as it may, from the facts as we have analysed, it is evident that the petitioner had no claim at all in any manner to get appointment pursuant to the judgment of the Hon'ble Single Judge against the vacancies advertised in the aforesaid selection. Thus, his appointment during the pendency of this appeal in the purported compliance of the judgment of the Hon'ble Single Judge was clearly made wholly illegally and by enlarging the scope of judgment of Hon'ble Single Judge to an extent which was not permissible at all. It, thus, would not confer any right, legal, equitable or otherwise upon him which can be protected as has been prayed by him.

34. 34. Apparently, the directions of the Apex Court are referable to its power under Article 142 of the Constitution. However, this Court while exercising its power under Article 226 of the Constitution is bound to act strictly in accordance with law and even justice and equity must be within the four corners of law. The Apex Court has held that the High Court should not decide the matters on sentiments and sympathy, ignoring rule of law. Where a person has no right to get appointment on the post or vacancy, which has to be filled in as per the statutory rules, equity, sympathy or sentiments cannot be imported to protect an appointment made by the authorities ignoring rule of law. The principle of equity in a case of this nature will have no role to play. In Maruti Udyog Ltd. Vs. Ram Lal 2005 (2) SCC 638, the Apex Court held that the Court cannot interpret the provisions of an Act ignoring the binding decisions of the Court only by way of sympathy to the workman concerned. In Teri Oat Estates (P) Ltd Vs. U.T. Chandigarh 2004 (2) SCC 130, it was held that ".....Sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right." The Apex Court also referred to Farewell, L.J. in Latham Vs. Richard Johnson & Nephew Ltd. 1913 1 KB 398 observing "We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o' the wisp to take as a guide in the search for legal principles." In Ramakrishna Kamat Vs. State of Karnataka 2003 (3) SCC 374, the Court observed "While being sympathetic to the persons who come before the Court the Courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment." In Ashok Kumar Sonkar Vs. Union of India 2007 (4) SCC 54, the Court held that if an appointment is illegal, it is non est. in the eyes of law rendering the appointment to be a nullity and further held "The appointment, therefore, was illegal and in that view of the matter, it would be wholly improper for us to invoke our equity jurisdiction." Recently, in Uttar Haryana Bijli Vitran Nigam Ltd. & others Vs. Surji Devi 2008 (2) SCC 310 the Court held "Sentiments and sympathy alone cannot be a ground for taking a view different from what is permissible in law." The Apex Court in U.B. Gadhe & others Vs. G.M. Gujrat Ambuja Cement Pvt. Ltd. JT 2007 (11) SC 425 strongly commented against the direction issued by the Court bereft of logic and legality and said "The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability." In State of M.P. & others Vs. Sanjay Kumar Pathak & others JT 2007 (12) SC 219, the Court observed "ordinarily the writ court should not in absence of any legal right act on the basis of sympathy alone." Even a Constitution Bench of the Apex Court in Secretary, State of Karnataka Vs. Uma Devi & others 2006 (4) SCC 1 referred to the aforesaid observations made in Teri Oat Estates (supra) and Latham Vs. Richard Johnson (supra) and took the view that even Article 142 would not be exercised by the Court on misplaced sympathy. In view of the aforesaid binding decision and also the law laid down by the Constitution Bench of the Apex Court, we do not find it expedient to accept the contention of the learned counsel for the petitioner that since he has been appointed during the pendency of the appeal and has worked for about 8 years, therefore, even if the judgment of the Hon'ble Single Judge is set aside, his appointment should be protected. Once the judgment of the Hon'ble Single Judge has been set aside, all consequential steps taken pursuant to the said judgement would also become non est. and cannot be protected as that would be against the rule of law and the well known principle that "act of Court shall prejudice none (auctus curiae neminem gravabit)" (See : South Eastern Coalfields Ltd. Vs. State of M.P. and others 2003 (8) SCC 648) and this Court under Article 226 of the Constitution would not pass an order, which would amount to permitting the authorities to act in the breach of rule of law.

(x) Yogendra Kumar Pal (supra):-

An additional affidavit dated 27th August, 2013, has been filed on behalf of the State of U.P.-Respondent no.1. Paragraphs 7 and 8 of the aforestated affidavit is being extracted hereunder:

"7. That upon deliberation of the facts, especially in deference to the oral observations of this Hon'ble Court and further keeping in view the humanitarian aspects attached and the dependents of the persons who have continued in service on the basis of the order of the High Court, a view was taken in the said meeting that they may be considered to be allowed to remain in service but keeping in view of the implications with respect to different batches of the employees having joined on different dates in their regular appointments, the seniority of these petitioners including the others who are similarly placed (total 39), shall have to be considered after 16.03.2005, the date on which last 2001 batch of direct recruitment has taken place.

8. That the said view to place them in seniority from 16.03.2005 have been taken in view of the fact that three batches of direct recruitment (i.e. 1995 batch, 1999 batch and 2001 batch) have joined and the last joining took place on 16.03.2005. These 28 petitioners herein (claimants) and other 11 who are not party to these proceedings, shall have to be placed before the said last appointee in view of the fact that it will become very different to reschedule and manage the seniority list. Even if the said efforts would be made, then that will create multiple causes of action for innumerable litigations by different parties claiming to be affected by the said rescheduling of the existing seniority list."

It was acknowledged by the learned counsel representing the State of Uttar Pradesh, during the course of hearing, that the position expressed in paragraphs 7 and 8 relates to such of the appellants who have been appointed against vacancies which were filled up in the first instance, but thereafter, became available again.

Learned counsel for the appellants states that he has no objection to the disposal of the instant appeals, in respect of the remaining appellants, in terms of the offer made by the State of U.P., as has been recorded in paragraphs 7 and 8 of the additional affidavit.

(v) State of J & K (supra):-

11. In view of the factual position noticed hereinabove, the reason indicated by the appellants in declining the claim of the respondent Sat Pal for appointment out of the waiting list is clearly unjustified. A waiting list would start to operate only after the posts for which the recruitment is conducted, have been completed. A waiting list would commence to operate, when offers of appointment have been issued to those emerging on the top of the merit list. The existence of a waiting list, allows room to the appointing authority to fill up vacancies which arise during the subsistence of the waiting list. A waiting list commences to operate, after the vacancies for which the recruitment process has been conducted have been filled up. In the instant controversy the aforesaid situation for operating the waiting list had not arisen, because one of the posts of Junior Engineer (Civil) Grade-II for which the recruitment process was conducted was actually never filled up. For the reason that Trilok Nath had not assumed charge, one of the posts for which the process of recruitment was conducted, had remained vacant. That apart, even if it is assumed for arguments sake, that all the posts for which the process of selection was conducted were duly filled up, it cannot be disputed that Trilok Nath who had participated in the same selection process as the respondent herein, was offered appointment against the post of Junior Engineer (Civil) Grade-II on 22.4.2008. The aforesaid offer was made, consequent upon his selection in the said process of recruitment. The validity of the waiting list, in the facts of this case, has to be determined with reference to 22.4.2008, because the vacancy was offered to Trilok Nath on 22.4.2008. It is the said vacancy, for which the respondent had approached the High Court. As against the aforesaid, it is the acknowledged position recorded by the appellants in the impugned order dated 23.8.2011 (extracted above), that the waiting list was valid till May, 2008. If Trilok Nath was found eligible for appointment against the vacancy in question out of the same waiting list, the respondent herein would be equally eligible for appointment against the said vacancy. This would be the unquestionable legal position, in so far as the present controversy is concerned.

(vi) Pt. MSM Sharma (supra):-

Seeing that the present proceedings have been initiated on a petition under Art. 32 of the Constitution and as the petitioner may not be entitled, for reasons stated above, to avail himself of Art. 19(1)(a) to support this application, learned advocate for the petitioner falls back upon Art. 21 and contends that the proceedings before the Committee of Privileges threaten to deprive him of personal liberty otherwise than in accordance with procedure established by law. The Legislative Assembly claims that under Art. 194(3) it has all the powers, privileges and immunities enjoyed by the British House of Commons at the commencement of our Constitution. If it has those powers, privileges and immunities, then it can certainly enforce the same, as the House of Commons can do. Article 194(3) confers on the Legislative Assembly those powers, privileges and immunities and Art. 208 confers power on it to frame rules. The Bihar Legislative Assembly has framed rules in exercise of its powers under that Article. It follows, therefore, that Art. 194(3) read with the rules so framed has laid down the procedure for enforcing its powers, privileges and immunities. If, therefore, the Legislative Assembly has the powers, privileges and immunities of the I-louse of Commons and if the petitioner is eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges, such deprivation will be in accordance with procedure established by law and the petitioner cannot complain of the breach, actual or threatened, of his fundamental right under Art. 21.

(vii) Bhey Ram Sharma (supra):-

4.It may be mentioned that another advertisement dated July 14, 1968 had been published by the Board for filling up the posts of Assistant Engineers Class II and pursuant to that advertisement, Respondents 2 to 29 (hereinafter referred to as "the respondents") made applications and they were selected and appointed between October and December 1968 as Assistant Engineers Class II. As the respondents aforesaid had been appointed between October and December 1968 and the appellants had been appointed w.e.f. January 1, 1969 in the seniority list which was published, the respondents were shown above the appellants. There is no dispute that so far the appellants are concerned, they were appointed as Assistant Engineers Class II by an order dated April 18, 1969, w.e.f. January 1, 1969 after completion of their apprenticeship, whereas the respondents were appointed as Assistant Engineers Class II before January 1, 1969. There was some confusion in respect of Respondents 6, 16, 17 and 28 as to whether they had also been appointed prior to January 1, 1969, but during hearing of the appeals, an affidavit was filed on behalf of the Board giving the dates of their appointments as October 23, 1968, November 21, 1968, November 21, 1968 and December 6, 1968 respectively. Photo copies of their appointment letters have been annexed along with the affidavit. They, however, joined later. It is well known that while determining the seniority of an officer, the date of his appointment is a more important factor than the date of his joining. In many compelling circumstances like accident, the distance at which a particular candidate resides and the time taken by him to join, cannot be ignored. So far the present case is concerned, Respondents 6, 16, 17 and 28 were not only appointed before the appellants but they joined also before April 18, 1969 the date of the appointment of the appellants. The notional seniority given to the appellants with effect from January 1, 1969 shall not affect the seniority of Respondents 6, 16, 17 and 28.

6.Once it is established that the appellants were appointed Assistant Engineers Class 11 on April 18, 1969 w.e.f. January 1, 1969, whereas the respondents had been appointed between October and December 1968 as Assistant Engineers Class II, then the respondents shall rank senior to the appellants, as they entered in the cadre of Assistant Engineers Class 11 of the Board before the appellants. The High Court has rightly pointed out that in fact the appellants were appointed as Assistant Engineers Class 11 on April 18, 1969, but notional seniority was given to them with effect from January 1, 1969. In this process they cannot affect the seniority of even Respondents 6, 16, 17 and 28.

(viii) R.N. Gosain (supra):-

10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid any thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". [See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd., (1921) 2 R.B. 608, at p.612, Scrutton, L.J]. According to Halsbury's Laws of England, 4th Edn.,Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside". (para 1508).

11. In Thacker Hariram Motiram v. Balkrishan Chatbrabhu Thacker & Ors.(supra), this Court was dealing with a similar situation. The High (Court, while deciding the second appeal in an eviction matter gave the appellant (tenant) one year's time subject to his giving an undertaking within a period of three weeks stating that vacant possession would be handed over within the aforesaid time. The appellant gave an undertaking in accordance with the said terms wherein he undertook that he would vacate and give vacant possession of the suit premises by December 31, 1985, i.e., to say after one year if "by that time no stay order from the Supreme Court is received as I intend to file an appeal in the Supreme Court". It was held that in view of the said undertaking the petitioner could not invoke the jurisdiction of this Court under Article 136 of the Constitution and he should abide by the terms of the undertaking, and it was observed "This undertaking filed by the appellant in our opinion is in clear variation with the oral undertaking given to the learned Judge which induced him to give one year's time. a We do not wish to encourage this kind of practice for obtaining time from the court on one plea of filing the undertaking and taking the different stand, in applications under Article 136 of the Constitution.

(ix) State of Karnataka (supra):-

56. According to Mr. Venugopal, Article 300A of the Constitution, as well as the KIAD Act, would be violated if the KIAD Board were to directly acquire or acquiesce in the acquisition of land in excess of what is required for the Project. In our view, this is nothing but a repetition of the arguments made by the State of Karnataka. As we have elaborately discussed, that the land was not in excess has been held by the Division Bench of the High Court on two occasions and we agree with it. Thus, there was no question of the land being acquired for a purpose other than a public purpose or there being any contravention of Article 300A. In fact, we are somewhat surprised that this type of argument must come from the KIAD Board, which was intimately involved, from the very beginning, with the process of acquiring land. Further, the State and its instrumentalities (including the KIAD Board) were enjoined by Clause 5.1.1.1 of the FWA, to make "best efforts" to acquire the land required for the Project. Indeed, till the State itself changed its stand with regard to the Project, nothing was heard from the KIAD Board about lands being acquired in excess of the public purpose. Further, as an instrumentality of the State, the KIAD Board cannot have a case to plead different from that of the State of Karnataka. Thus, we are unable to countenance the arguments of Mr. Venugopal on behalf of the KIAD Board.

(x) U.P. Power Corpn. Ltd. (supra):-

87. In the ultimate analysis, we conclude and hold that Section (7) of the 1994 Act and Rule 8-A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj. Any promotion that has been given on the dictum of Indra Sawhney and without the aid or assistance of Section 3(7) and Rule 8-A shall remain undisturbed.

(xi) Kamraj Nadar (supra):-

28 . If, however, a poll has to be taken under section 53(1) in spite of the retirement of a contesting candidate or candidates from contest as aforesaid the process of election continues in spite of such retirement and the question may arise as to what would happen if any of the contesting candidates who has thus retired dies before the commencement of the poll. If there was nothing more section 52 would apply and the returning officer upon being satisfied of the fact of the death of the candidate would have to countermand the poll and report the fact to the Election Commission and also to the appropriate authority. Provision is therefore made in section 55A(5) that any person who has given a notice of retirement under section 55A(2) is deemed not to be a contesting candidate for the purposes of section 52. This is a deeming provision and creates a legal fiction. The effect of such a legal fiction however is that a position which otherwise would not obtain is deemed to obtain under those circumstances. Unless a contesting candidate who had thus retired from the contest continued to be a contesting candidate for the purposes of election and the effect of the death of such contesting candidate was as contemplated in section 52, it would not have been found necessary to enact section 55A(5). It is because such a contesting candidate who retires from the contest under section 55A(2) continues to be a contesting candidate for the purposes of election that it has been considered necessary to provide for the consequence of his death and to exclude such a candidate from the category of contesting candidates within the meaning of the term as used in section 38 of the Act, that is to say, candidates who were included in the list of validly nominated candidates and who had not withdrawn their candidature within the period prescribed and who had been included in the list of candidates prepared and published by the returning officer in the manner prescribed. This provision, therefore, warrants the conclusion that a contesting candidate whose name was included in the list under section 38 but who retires from the contest under section 55A(2) continues to be a contesting candidate for the purposes of the Act though by reason of such retirement it would be unnecessary for the constituency to cast its votes in his favour at the poll. Such a candidate continues to be contesting candidate for the purposes of the Act, notwithstanding his retirement from the contest under section 55A(2).

(xii) Dr. Baliram Waman Hiray (supra):-

About a decade later in Jagannath Prasad v.State of Uttar Pradesh, supra, case, this Court following its earlier decision in Smt. Ujjam Bai v. State of Uttar Pradesh, [1961] 1 SCR 778 held that no doubt a Sales The Officer appointed under the U.P. Sales Tax Act, 1948 is an instrumentality of the State employed for the purposes of assessment and collection of taxes and merely because he has. in the discharge of his duties, to perform certain quasi-judicial functions i.e. has certain powers which are similar to the powers exercised by Courts, still is not a Court as understood in s. 195 of the Code. The Court relied upon the decision of the House of Lords in .Shell Co. of Australia for the view that a Sales Tax Office was not a Court in the strict sense of that term. It referred with approval to the following observations of Lord Sankey, L.C. where he enumerated some negative propositions to contra-distinguish a tribunal from a Court:

"In that connection it may be useful to enumerate some negative propositions on this subject: I. A tribunal is not necessarily a Court in this strict sense because it gives a final decision 2. Nor because it hears witnesses on oath 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a Court. 6. Nor because it is a body to which a matter is referred by another body. See Rex. v.Electricity Commissioners, [1924] 1 K.L.B. 171 PG NO 974 There had been prior to the enactment of sub-s. (3) of s. 195 of the present Code, a sharp conflict of opinion between the High Courts as to what are the Courts and what are not for the purposes of s. 195(1)(b) of the old Code. The question whether a Commission of Inquiry constituted under the Commissions of Inquiry Act was a Court within the meaning of the Contempt of Courts Act, 1952 and whether the proceedings before the Commission of Inquiry were judicial proceedings directly arose before a Division Bench of the Nagpur High Court in M. V. Rajwade v. Dr. S.M. Hassan, supra. Bhutt, J. speaking for himself and B.P. Sinha, CJ held that a Commission of Inquiry constituted under the Commissions of Inquiry Act, 1952 was not a Court within the meaning of the Contempt of Courts Act. The learned Judge rightly observed that the legal fiction created by the first part of sub-s. (4) is for the limited purpose specified in the second and that the purpose for which the fiction is created is therefore to be gathered from what follows after the words which create the fiction. In dealing with the fiction, Bhutt, J. observed:

"Applying this test in the instant case, it would appear that the purpose for which the fiction is created in sub- section (4) of Section 5 of the Commissions of Inquiry Act, 1952, is to be inferred from the words that follow the expression the Commission shall be deemed to be a Civil Court". It would not be correct to contend that the above expression is full and complete in itself and what follows it only denotes the limitation on the full-fledged status and powers of a civil Court that the Commission would otherwise have possessed. If that was the intention of the Legislature, the sentence would have been completed after the words "civil court" and what follows it would have been the subject of a separate sub-section or sentence. It is, therefore, clear that under the Commissions of Inquiry Act, 1952, the Commission is fictionally a civil court only for the purpose of the contempts punishable under ss. 175, 178, 179, 180 and 228 of the Indian Penal Code, 1860, subject to the condition that it has not the right itself to punish the contemners, a right which other Courts possess under Section 480 of the code of Criminal Procedure 1898. Similarly it follows that the fiction relating to the proceedings before the Commission is confined to offenses that are punishable under Sections 193 and 228 of the Indian Penal Code, I860, referred to in sub-section (5) of the Act, and does not extend beyond this limit."

PG NO 975 The learned Judge then dealt with a Commission of Inquiry constituted under the Commissions of Inquiry Act and held that the Commission has not the attributes of a Court. In repelling the contention that the function of the Commission being of a advisory nature which was akin to the Judicial Committee to the Privy Council which only advised His Majesty and did not deliver any judgment themselves, as well as distinguishing the decision of the Lahore High Court in M.M. Khan v. Emperor, ILR (1931) 12 Lah. 391 holding that the Special Commissioners appointed under the Public Servants (Inquiries) Act, 1850 constituted a Court within the meaning of s. 195, the learned Judge observed:

"An enquiry under the Commissions of Inquiry Act, 1952,on the other hand, is of wholly different character. There is no accuser, no accused and no specific charges for trial; nor is the Government under the law, required to pronounce. one way or the other, on the findings of the Commission "

The learned Judge relied upon the following observations of the Judicial committee of the Privy Council In re. Maharaja Madhava Singh, LR (1905) 31 IA 239 where the Judicial Committee in dealing with the Commissioners appointed by the Viceroy and the Governor General-in-Council for the purpose of enquiring into the truth of a certain imputation against the Maharajah, observed:

"It is sufficient to say that the Commission in question was one appointed by the Viceroy himself for the information of his own mind, in order that he should not act in his political and sovereign character otherwise than in accordance with the dictates of justice and equity, and was not in any sense a Court, or, if a Court, was not a Court from which an appeal lies to His Majesty in Council." The learned Judge rightly observed that the ratio decidendi in that case was that the Commissioner were not a Court and held that the observations made About a decade later in Jagannath Prasad v.State of Uttar Pradesh, supra, case, this Court following its earlier decision in Smt. Ujjam Bai v. State of Uttar Pradesh, [1961] 1 SCR 778 held that no doubt a Sales The Officer appointed under the U.P. Sales Tax Act, 1948 is an instrumentality of the State employed for the purposes of assessment and collection of taxes and merely because he has. in the discharge of his duties, to perform certain quasi-judicial functions i.e. has certain powers which are similar to the powers exercised by Courts, still is not a Court as understood in s. 195 of the Code. The Court relied upon the decision of the House of Lords in .Shell Co. of Australia for the view that a Sales Tax Office was not a Court in the strict sense of that term. It referred with approval to the following observations of Lord Sankey, L.C. where he enumerated some negative propositions to contra-distinguish a tribunal from a Court:

"The Commission in question was obviously appointed by the State Government" for the information of its own mind", in order that it should not act, in exercise of it power, "otherwise than in accordance with the dictates of justice PG NO 976 and equity" in ordering a departmental enquiry against its officers. It was, therefore, a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature. The two cases are parallel, and the decision must be, as in--`In re Maharaja Madhava Singh, (D)', that the Commission was not a Court. The term `Court' has not been defined in the Contempt of Courts Act, 1952. Its definition in the Indian Evidence Act, 1872, is not exhaustive and is intended only for purposes of the Act. The Contempt of Courts Act, 1952, however, does contemplate a 'Court of Justice' which as defined in S. 20, Penal Code, 1860 denotes 'a Judge who is empowered by law to act judicially'. The word `Judge' is defined in Section 19 as denoting every person--

"Who is empowered by law to give in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive .. ' The minimum test of a `Court of Justice, in the above definition, is, therefore, the legal power to give a judgment which, if confirmed by some other authority, would be definitive. Such is the case with the Commission appointed under the Public Servants (Inquiries) Act, 1850, whose recommendations constitute a definitive judgment when confirmed by the Government. This, however, is not the case with a Commission appointed under the Commissions of Inquiry Act, 1952, whose findings are not contemplated by law as liable at any stage to confirmation by any authority so as to assume the character of a final decision. ' We are in agreement with these observations.by the Judicial Committee apply mutatis mutandis to a Commission of Inquiry constituted under the Commissions of Inquiry Act, and observed:

33. Learned counsel for the respondents also placed reliance upon the several judgments operative portion of the judgments are extracted hereinbelow:

(i) Prafulla Kumar Das (supra):-

44. Seniority is not the fundamental right but is merely a civil right. The right of the seniority in this case was also not a vested or accrued right.

45. In this case, the petitioners seek benefit to which they are not otherwise entitled. The legislature, in our opinion, has the requisite jurisdiction to pass an appropriate legislation which would do justice to its employees. Even otherwise a presumption to that effect has to be drawn. If a balance is sought to be struck by reason of the impugned legislation, it would not be permissible for this Court to declare it ultra vires only because it may cause some hardship to the petitioners. A mere hardship cannot be a ground for striking down a valid legislation unless it is held to be suffering from the vice of discrimination or unreasonableness. A valid piece of legislation, thus, can be struck down only if it is found to be ultra vires Article 14 of the Constitution of India and not otherwise. We do not think that in this case, Article 14 of the Constitution is attracted.

(ii) State of U.P. v. Dinkar Sinha (supra):-

25. Seniority may not be a fundemental right, but is a civil right. (See Indu Shekhar Singh v. State of U.P., Bimlesh Tanwar v. State of Haryana and Prafulla Kumar Das v. State of Orissa). Infringement of the said right would be permissible only if there exists any rules validly framed under a statute and/or the proviso appended to Article 309 of the Constitution of India. It cannot act in a vacuum. Any rule taking away such rights would deserve strict construction.

(iii) State of U.P. and others v. U.P. Exercise Subordinate O.M. Association and others (supra):-

2. Prior to the Recruitment Rules, though the selection to the post of Clerks in the Excise Department was being held on the basis of a combined test, and on the basis of merit obtained in the said test, but the appointments were made either to the head office or to the subordinate offices according to the decision of the employer. Under the Recruitment Rules of 1980, "service" was defined to mean the Uttar Pradesh Exercise Department Ministerial Service and "member of the service" under Rule 3(f) would mean a person appointed in a substantive capacity under the provisions of these Rules or rules and orders in force prior to the commencement of these Rules to a post in the service. Rule 4 of the Recruitment Rules defines the cadre of service to mean the strength of the service and each category of posts therein shall be such as may be determined by the Governor from time to time. Sub-rule (2) of Rule 4 provides that until orders varying the same have been passed the cadre strength shall be as specified in the Apendix. In the Apendix, the cadre of Senior Clerks is Item 5 and the total strength is 42. Thus, the Recruitment Rules wipe off the distinction between the Clerks of the head office and Clerks of the subordinate offices and the Clerks of the subordinate offices and head office become one cadre. Rule 21 of the Recruitment Rules provides for determination of seniority. It stipulates that the seniority of persons substantively appointed in any category of pots shall be determined in accordance with the Uttar Pradesh Government Services Seniority Rules, 1991. Under the said Seniority Rules of 1991, Rule 5 provides that where according to the service rules appointments are to be made only by direct recrutiment, the seniority inter se of the persons appointed on the result of any one selection shall be the same as it is shown in the merit list prepared by the Commission or the committee, as the case may be. The appointments to the post of Senior Clerks have been made on the basis of direct recruitment, and therefore the inter se seniority of those personnel has to be determined in accordance with Rule 5 of the Seniority Rules read with Rule 21 of the Recruitment Rules. The High Court has considered the appropriate provisions, and has issued appropriate direction quashing the seniority list drawn up by the authority on the erroneous assumption; we see no infirmity with the said conclusion of the High Court requiring our interference. The Appeal fails and is accordingly dismissed.

(iv) Pankaj Kumar (supra):-

24. It is also admitted that validity of rule laying down the principle of determining seniority is not under challenge. Food Inspectors Service Rules, 1992 provides the manner in which seniority is to be determined vide Rule 20, which reads as under:

"20. Seniority:-The seniority of persons substantively appointed in any category of posts shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules, 1991, as amended from time to time."

25. This Rule 20 takes us to Seniority Rules, 1991. Rule 5 of Seniority Rules, 1991 which is admittedly applicable in the case in hand, reads as under:

"5. Seniority where appointments by direct recruitment only.--Where according to the service rules appointments are to be made only by the Direct recruitment the seniority inter se of the persons appointed on the result of anyone selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be:

Provided that a candidiate recruited directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reasons, shall be final:

Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection.

Explanation--Where in the same year separate selections for regular and emergency recruitment are made, the selection for regular recruitment shall be deemed to be the previous selection."

28. It is not the case of petitioner that seniority list of Food Inspectors has not been prepared according to the order of merit prepared by the Commission. On this aspect the petitioner has no grievance at all.

29. His sheet anchor is the decision of this Court in K.N. Singh (supra) which provides seniority from the "date of joining" in respect to direct recruits. In this regard learned counsel for the petitioner placed reliance on para 10 of the judgment, relevant extract whereof is as under:

". . . . and the Supreme Court further held that for determining the seniority of the direct recruits the only date for consideration was the date of joining the service."

30. I am constrained to observe that reference and reliance on the aforesaid judgment is thoroughly misconceived. Learned counsel for the petitioner without looking into the relevant service rules and the matter which was considered by the Court, in a blindfold manner has placed reliance on certain observations which are nothing but reiteration of the relevant service rules applicable in that case. This writ petition appears to have been filed only on the basis thereof and this itself is a sufficient reason for dismissal of the present writ petition. K.N. Singh (supra) was a decision relating to the dispute of seniority in U.P. Higher Judicial Service. It is admitted that U.P. Higher Judicial Service is governed by separate set of rules namely, U.P. Higher Judicial Service Rules, 1975. Rule 26 thereof lays down the principle of seniority in U.P. Higher Judicial Service, and that which came up for consideration before this Court in K.N. Singh (supra), reads as under:

"26. Seniority--(1) Except as provided in sub-rule (2), seniority of members of the service shall be determined as follows:

(a) Seniority of the officers promoted from the Nyayik Sewa vis-a-vis the officers recruited from the Bar shall be determined from the date of continuous officiation in the service in the case of promoted officers and from the date of their joining the service in the case of direct recruits. Where the date of continuous officiation in the case of an officers promoted from the Nyayik Sewa and the date of joining the service in the case of a direct recruit is the same, the promoted officer shall be treated as senior;

Provided that in the case of promoted officer the maximum period of continuous officiation in the service shall not, for the purpose of determining seniority exceed three years immediately preceding the date of confirmation."

31. Since Rule 26 itself provides different reckoning point of seniority for promotees and direct recruits in U.P. Higher Judicial Services, the Apex Court considered the aforesaid provision in O.P. Garg and others Vs. State of U.P. and others, AIR 1991 SC 1202 and held that seniority of promotees shall be determined from the date of continuous officiation against the vacancy in their quota while seniority of direct recruits would be determined from the date of their joining service and none else. This was only a reiteration of what was provided in Rule 26(2) as it stood at that time which was up for consideration before Apex Court in O.P. Garg (supra). Same was followed by this Court in K.N. Singh (supra).

32. A judgment in the matter of seniority based on a precise and specific service rule applicable to the particular service cannot be relied on or made a foundation for advancing arguments in respect to a different service governed by different set of service rules having different principles for determination of seniority. Rule 26 of U.P. Higher Judicial Service Rules 1975 was totally differently worded than Rule 5 of Seniority Rules, 1991 which is applicable in the present case. Therefore decision in K.N. Singh (supra) involving a different set of service rule and different service, relied on by learned counsel for the petitioner is wholly inapplicable. That would not carry his case further to support him at all.

33. Various decisions in matter of seniority, relating to different services and different service rules, cannot be relied on interchangeably unless it is shown that the rules are pari materia in all respects, bereft of relevant facts. The five Judges Bench of this Court in K.N. Singh (supra) has also led stress on this aspect, in para 9 of the judgement, which reads as under:

"The learned counsel no doubt made reference to various case-laws on the question of inter se seniority between promotee officers and directly recruited officers in different service. All these cases dealt with the particular rules applicable to the service in question in those cases and the Courts had given interpretations of those Rules. . . . . "

35. Learned counsel for the petitioner however submits that some candidates were allowed to join after several years and to allow them to retain seniority also is not only extremely harsh and unjust but travels in the realm of arbitrariness.

(v) Anil Kumar Sharma (supra):-

4. The second publication through which different date must have been fixed for submission of applications cannot be said to be continuation of the earlier publication, but it is an incomplete advertisement published. It is the case of the petitioner that he has submitted his application on 21st December, 1992 pursuant to the advertisement published in Newspaper 'Aaj' on 5.12.1992. Moreover, there having been two advertisements, the selection process can be said to have been started only when last adverrtisement is published. Since two advertisements are required and two advertisements have been sought to be complied with. Only after the advertisement is complete, the invitation for application is initiated and the selection process starts from the last date of such publication, therefore, the selection process has started after 5th Dec. 1992 which is the period subsequent to 10th July, 1992, when the Management did not have any authority by reason of the amending Act. From the fact it is apparent and can be safely presumed that the selection process was not initiated though advertisement was issued on 31st August, 1991 and no steps were taken till second advertisement was published on 5th Dec. 1992. The fact that the second advertisement was issued and the selection process was started thereafter clearly indicates that the selection started only after second advertisement. The facts in the present case are wholly distinguishble with that the decision rendered in the case of A.A. Calton (1983 All LJ 516) (supra). On which reliance has been placed, thus the ratio decided in the said case cannot be attracted in the facts and circumstances of the present case, particularly when selection process had started after 14th July 1992. In that view of the matter, I do not find any infirmity in the order impugned.

(vi) Bhoodev Singh (supra):-

44. The eligibility has to be determined on the last date of submission of the applications, In Y.V. Rangaiah and others v. J. Sreenivasa Rao and Ors. MANU/SC/0354/1983: (1983)IILL23SC; A.A.Calton v. The Director of Education and Anr. MANU/SC/0047/1983; (1983) ILLJ502SC; P. Ganeshwar Rao and Ors. v. State of Andhra Pradesh and Ors. MANU/SC/0357/1988: AIR1988SC2068; P. Mahendran and Ors. v. State of Karnataka and Ors. MANU/SC/0417/1990: AIR1990SC405; and Ramesh Chandra Chaudha and Ors. v. State of M.P. and others. MANU/SC/1723/1996: (1996)11SCC242, the Hon'ble Supreme Court has taken the view that candidates have to be assessed for selection as per the eligiblity criteria existing on the date of advertisement of vacancies for the reason that selection process starts with advertisement and all those persons who apply in response to the same, would be eligible to be considered.

34. Perusal of Rule 5 clearly provides that where according to service rules appointment are to be made only by direct recruitment, the seniority inter se of the persons appointed on the result of any one selection shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be.

35. Perusal of the above-extracted judgments relied upon by learned counsel for the petitioners shows that once the seniority list is issued by the State Government, the role of the State Government in litigation arising therefrom does not extend to defending the list so as to effectively favour one set of employees against the other, which the State Government is ignoring in the present case by appearing in the case as a contesting party favouring the wait-listed appointees and opposing the merit list appointees. The general rule is if the seniority is regulated in a particular manner in a given period, it shall be given effect to and shall not be varied to disadvantage retrospectively.

36. It further shows that the person could not be given place in the cadre even before his birth. A wait-list candidate does not have any indefeasible right to get appointment merely for the reason that his name finds place in the wait list. It further shows that the High Court while exercising its power under Article 226 of the Constitution of India is bound to act strictly in accordance with law and even justice and equity must be within the four corners of law. A waiting list commences to operate after the vacancies for which the recruitment process has been conducted have been filled up.

37. It is further shows that it is almost settled that while determining the inter-se seniority amongst officers recruited from different sources or between officers appointed by the same process at different times, the date of entering in the service is relevant. A person who enters in the service first shall rank senior unless there is some rule providing otherwise which can be held to be consistent with Articles 14 and 16 of the Constitution.

38. It further shows that law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. The instrumentality of State cannot plead differently from State.

39. It further shows that Section 3(7) of the 1984 Act and Rule 8-A of the 2007 Rules are ultra vires as they run counter to the dictum. Any promotion that has been given on the dicutm of Indira Sawhney and without the aid or assistance of Section 3(7) and Rule 8-A shall remain undisturbed. It further shows that this is a deeming provision and creates a legal fiction. The effect of such a legal fiction however is that a position which otherwise would not obtain is deemed to obtain under those circumstancs.

40. Perusal of the above extracted judgments relied upon by learned counsel for the respondents shows that seniority is not the fundamental right but is merely a civil right. If a balance is sought to be struck by reason of the impugned legislation, it would not be permissible for this Court to declare it ultra vires only because it may cause some hardship. A mere hardship cannot be a ground for striking down a valid legislation unless it is held to be suffering from the vice of discrimination or unreasonableness. A valid piece of legislation, thus, can be struck down only if it is found to be ultra vires Article 14 of the Constitution of India and not otherwise. Infringement of the said right would be permissible only if there exists any rules validly framed under a statute and/ or the proviso appended to Article 309 of the Constitution of India. It cannot act in a vacum. Any rule taking away such rights would deserve strict construction.

41. It further shows that the seniority of persons substantively appointed in any category of posts shall be determined in accordance with the Uttar Pradesh Government Services Seniority Rules, 1991.

42. It further shows that a judgment in the matter of seniority based on a precise and specific service rule applicable to the particular service cannot be relied on or made a foundation for advancing arguments in respect to a different service governed by different set of service rules having different principles for determination of seniority. Various decisions in matter of seniority, relating to different services and different service rules, cannot be relied on interchangeably unless it is shown that the rules are pari materia in all respects, bereft of relevant facts.

43. It also shows that the candidates have to be assessed for selection as per the eligibility criteria existing on the date of advertisement of vacancies for the reason that selection process starts with advertisement and all those persons who apply in response to the same, would be eligible to be considered.

44. I have examined the material on record in the light of the judgments relied upon by learned counsel for the parties.

45. It is an undisputed fact that both the petitioners and private respondents of the case of Ali Safdar (supra) are appointed on the basis of only one selection which was advertised on 16.4.1996, written examination of which was held in January, 1997. Therefore, the seniority of the aforesaid AROs (Accounts) of 1996 batch who were appointed in 2000-2001 under the orders of this Court on the basis of same advertisement, same examination, same question paper and same selection i.e. one selection only, has to be determined only according to the provisions of Rule-5 of the Seniority Rules, 1991 i.e. on the basis of their initial merit obtained by them in the same selection.

46. Out of the three combined final seniority lists, the seniority lists dated 11.03.2004 and 23.04.2010 were prepared in accordance with Rule-5 i.e. on the basis of inter-se merit list prepared by the Commission, whereas seniority list dated 29.12.2005 was prepared on the basis of the date of appointment/ joining while applying the ratio of Bhey Ram Sharma case (supra) and not according to Rule-5 of Seniority Rules, 1991, though in a matter of appointment only by direct selection, seniority cannot be given from the date of appointment/ joining, unless specifically prescribed by the Service Rules, rather it is to be determined only on the basis of combined merit list as per rule 5 of the seniority rules and rule 20 of the Service Rules of 1993.

47. Though the combined merit list dated 5.6.2003 prepared and sent by UPPSC was consciously not challenged by the direct recruits initially while filing their writ petition no.1517 of 2004 (Habib Ahmad v. State) and it was subsequently sought to be challenged by an amendment was orally not pressed by the petitioners, as the said writ petition filed against seniority list dated 11.03.2004 had become infructuous and irrelevant after preparation of seniority list dated 29.12.2005. Therefore, in absence of any challenge made to the combined merit list dated 5.6.2003 prepared by the UPPSC, the petitioners cannot make any claim of any better seniority which nullifies the merit list prepared by the UPPSC. Since the operation of the combined merit list dated 5.6.2003 was not stayed by this Court in any proceeding till date, therefore it is binding on all parties and the same was rightly relied upon by the State while preparing the seniority list dated 11.03.2004 and 23.04.2010 in accordance with Rule-5 of the Seniority Rules, 1991.

48. In regard to issue that right of seniority is not a fundamental/ constitutional right but only a statutory right, conferred by Special Service Rules made under some Act or General Rules prepared under Article 309, it is a settled position of law that seniority is only a statutory right, which is conferred to an employee either by way of specific provisions contained in Service Rules, especially prepared for respective services or by way of General Rules prepared under Article 309 of the Constitution of India.

49. In the instant case, Rule 20 of Service Rules i.e. U.P. Secretariat Accounts Service Rules, 1993 provides that the seniority of persons, substantively appointed in any category of posts covered by the said Rules shall be determined according to the provisions of U.P. Government Servants Seniority Rules, 1991 as amended from time to time.

50. Rule-5 of the Seniority Rules, 1991 also provides that where according to the Service Rules, appointments are to be made only by way of direct recruitment, seniority inter-se of the persons appointed on the result of any one selection shall be the same, as it is shown in the merit list prepared by the Commission or the Committee, as the case may be.

51. There has been no deviation in preparation of seniority lists dated 11.03.2004 and 23.04.2010 by the State Government, as both these seniority lists have been prepared on the basis of the merit list prepared by the UPPSC and thus, they are in conformity with the previous of Rule-5 of the Seniority Rules, 1991.

52. The only aberration/ deviation in preparation of Seniority list was present in the seniority list dated 29.12.2005 which was prepared without any reference to Karmik Department and while relying on the ratio of the judgment of the Hon'ble Apex Court passed in the case of Bhey Ram Sharma (supra).

53. The judgment of Bhey Ram Sharma (supra) has no application in the case in hand because the said judgment about seniority was passed where selectees of two separate selections were concerned and therefore, provisions of the second proviso to Rule-5 of the Seniority Rules, 1991 was applicable, whereas in the instant case, both the petitioners and respondents are selectees of the same selection, therefore, they are covered by the main provisions of Rule-5 of the Seniority Rules, 1991..

54. The seniority of candidates, where appointments are made only by direct recruitment from the result of "only one selection" is determined in accordance with Rule-5 of the Seniority Rules, 1991, which mandates preparation of seniority list only according to the merit list prepared by the Commission or the Committee, as the case may be.

55. In regard to parity with the judgment passed in the case of Yogendra Pal (supra), I have examined the judgment and found that in the case of Yogendra Pal and others v. State of U.P. and others decided by the Hon'ble Single Judge on 09.04.1998, the State's contention was that the posts, "once occupied" by the appointees of a selection after joining, if vacated/ abandoned the said post, after becoming vacant, cannot be filled up by waitlisted candidates of the same selection, as they are new vacancies, which can be filled up only by way of fresh selection and after making fresh advertisement for the same. The Hon'ble Single Judge proceeded to direct the State to fill up the vacancies, both unfilled as well as those created after resignation of the selected candidates.

The Special Appeal of the State i.e. State of U.P. v. Yogendra Pal was therefore allowed by this Hon'ble Court vide judgment dated 30.10.2007 and thereby the appointments made on the said fresh vacancies, from amongst the candidates of the waiting list of the previous selection were declared irregular and unlawful. A review/ recall application no.265023 of 2007 filled by Yogendra Pal and others was also dismissed vide judgment dated 2.5.2008.

The SLP filed against the aforesaid two judgments of this Court was finally disposed off by the Hon'ble Apex Court vide judgment and order dated 3.2.2014. In the said case, the Hon'ble Apex Court even after finding that the appointments made from the wait listed candidates on abandoned vacancies were unlawful, orally asked the State to reconsider the continuance of the appellants' employment sympathetically.

An affidavit was therefore filed by the State Government on 27.8.2013 and an observation was made that only on humanitarian considerations, the wait listed candidates so appointed on abandoned vacancies can be allowed to remain in service but they shall be placed at the bottom of seniority list. The Hon'ble Apex Court while relying on the State's affidavit disposed off the aforesaid SLP vide judgment dated 3.2.2014 in terms of paras 7 and 8 of the State's affidavit.

56. In the instant case, both the petitioners and private respondents are selected and appointed from the same selection and appointments from the waiting list were made only on those vacancies which remained vacant in the first round i.e. "on unfilled vacancies". Since there are no such vacancies, which were initially occupied and subsequently abandoned, which has been filled up from wait listed candidates in the instant case, therefore no parity can be claimed by petitioners with the case of Yogendra Kumar Pal (supra).

57. In Yogendra Kumar Pal's case (supra), waitlisted candidates were appointed on new vacancies for which they had no right of appointment, hence they were directed to be placed at the bottom of seniority list only on humanitarian consideration of the Hon'ble Apex Court. However, in the instant case, private respondents were appointed only on unfilled vacancies of the same selection and not on the new vacancies.

58. Since direction for placing those petitioners of Yogendra Kumar Pal (supra) at the bottom of seniority list was given by the Hon'ble Supreme Court, only on humanitarian consideration that is after finding their appointment illegal but also considering their long continuance in service and since the appointments of the private respondents were made from the waiting list only on unfilled vacancies, therefore no parity can be claimed by the petitioners with the ratio of judgment passed in the case of Yogendra Kumar Pal (supra).

59. The appointments of the waitlisted candidates from the same selection was made according to the merit of the candidates only under the order dated 14.5.2001 passed by this Court in the case of Ghanshyam Singh v. State of U.P. and others. Since a reference was made by this Court in the order dated 14.5.2001 to the judgment dated 9.4.1998 of the Hon'ble Single Judge passed in Yogendra Kumar Pal v. State of U.P., therefore a Special Appeal No.1060 of 2009 i.e. State of U.P. v. Ghanshyam Singh was initially filed by the State.

60. The candidates of Yogendra Kumar Pal's case were appointed against the "abandoned vacancies" on which prior appointment were made and they fell vacant due to resignation of the appointed candidates, hence they were fresh vacancies whereas in the instant case all the 15 candidates who were subsequently recommended by the UPPSC from the waiting list, out of which 10 candidates had joined, were infact appointees on the leftover/ unfilled vacancies and not fresh vacancies, therefore, ratio of Yogendra Kumar Pal's case had no application in the instant case. For the aforesaid reasons an application for dismissal of State's special appeal as withdrawn was filed on 14.12.2006 which was allowed by this Court vide order dated 5.1.2017.

61. In view of the aforesaid facts, there was no illegality in the withdrawal of the special appeal of the State filed in Ghanshyam Singh's case (supra). Moreover, the order dated 5.1.2017 passed by this Court regarding dismissal of the said case as withdrawn has not been challenged by the petitioners in any higher Forum and, therefore, the baseless allegation of malafides, leveled by the petitioners on the State authorities etc. are not tenable in law.

62. Considering in totalities of facts and circumstances of the present case as well as submissions advanced by learned counsel for the parties, it is well established that since the two combined final seniority list dated 11.03.2004 and 23.04.2010 have been consistently prepared in accordance with Rule-5 of the Seniority Rules, 1991 and the seniority list dated 29.12.2005 was only an aberration which was prepared without reference to Karmik Department and while applying the ratio of judgment passed in the case of Bhey Ram Sharma (supra) which was not at all applicable in the instant case. More specifically, there were two advertisements and two successive selections were under consideration and there were service rules in Bhey Ram Sharma's case and, therefore, seniority was prepared under second proviso to Rule 5 i.e. persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of previous selection.

However, in the instant case there was only one advertisement and only one selection was held, therefore seniority cannot be prepared under second proviso to Rule 5 but only under Rule 5 and its first proviso, which collectively provides that seniority of "persons on the result of any one selection, shall be the same as it is shown in the merit list prepared by the commission.

63. It has repeatedly been held that selection process starts with the issuance of advertisement. In the instant case there was only one advertisement dated 16.4.1996 advertising 82 posts of Assistant Accountant, against which in all 65 appointments have been made, therefore in absence of a second advertisement, the seniority cannot be determined as per second proviso to Rule 5(2) i.e. subsequent appointees placed below the initial appointees, rather the collective merit list of UPPSC would determine the seniority of the selected candidates. Therefore, the challenge made by the petitioners to the final seniority list dated 29.12.2005 of ARO Accounts which was not prepared in accordance with Rule-5 of the Seniority Rules, 1991 i.e. according to the combined merit list dated 5.6.2003 prepared by the State Government under the permission granted by this Court.

64. Accordingly, the Writ-A No.2986 of 2010 (Ali Safdar Anhsari and Others v. State of U.P. Through The Principal Secy. Administration Lko.), Writ-A No.2001249 of 2014 (Mohd. Tanveer Haider and 3 Ors. v. State of U.P. Through Prin. Secy. Administration Deptt. Lko.) and Writ-A No.10278 of 2016 (Bhashkar Singh and 6 Ors. v. State of U.P. Thru Prin. Secy. Administration Civil Sectt. And Ors.) are dismissed and Writ-A No.1517 of 2004 (Habib Ahmad and 5 Ors. v. State of U.P. Through Prin. Secy. Sectt. Administration Dept) is disposed of.

65. It is, however, made it clear that the last and final seniority list dated 23.4.2010 of ARO Accounts prepared by the State Government strictly according to the Rule 5 of the U.P. Government Seniority Rules, 1991 read with rule 20 of the Service Rules of 1993 deserves to be upheld and is hereby upheld, so that the State Government may prepare the fresh final seniority list of the next higher post of Review Officer, Accounts on the basis of the same and thereafter, promotions on the vacant post of Section Officer, Accounts may be made in the Secretariat Administration Department of U.P. Civil Secretariat.

66. It is also made it clear that while making promotion to the next higher post, the respondents shall take into account the long standing period of services of parties and also take into account that long standing seniority cannot be disturbed as per the law laid down by this Court as well as Hon'ble Supreme Court of India in catena of judgments.

 
Order Date :- 27/09/2023
 
GK Sinha								           [Irshad Ali, J.]

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