Karnataka High Court

The State Of Karnataka vs Sharanabasava N Patil on 18 February, 2022

Bench: G.Narendar, Shivashankar Amarannavar

                             1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU      R
         DATED THIS THE 18TH DAY OF FEBRUARY, 2022

                          PRESENT

            THE HON'BLE MR. JUSTICE G.NARENDAR

                            AND

     THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

            WRIT PETITION NO.16865/2021 (S-KSAT)

BETWEEN:

1.     THE STATE OF KARNATAKA
       REP. BY ITS PRINCIPAL SECRETARY
       FINANCE DEPARTMENT,
       VIDHANA SOUDHA
       BANGALORE-560001

2.     THE COMMISSIONER OF
       COMMERCIAL TAXES (KARNATAKA),
       COMMERCIAL TAXES DEPARTMENT,
       GANDHINAGAR, BENGALURU-560009
                                           ... PETITIONERS

(BY SRI VENKAT SATYANARAYAN A, HCGP.)

AND:

1.     SHARANABASAVA N.PATIL
       51 YEARS,
       S/O NEELANAGOWDA, COMMERCIAL TAX
       OFFICER (ENFORCEMENT)-4
       O/O ASSISTANT COMMISSIONER OF
       COMMERCIAL TAXES ENFORCEMENTS,
       DEVARAJ URS LAYOUT, 'A' BLOCK
       DAVANAGERE-577004
       R/AT 2ND FLOOR, ABOVE STAR MART,
       VIDYANAGAR, DAVANAGERE.
                            2


2.   PRABHAT RANJAN PATIL
     AGED 47 YEARS
     S/O HEMACHANDRAPATIL
     WORKING AS
     COMMERCIAL TAX OFFICER
     O/O ASSISTANT COMMISSIONER OF
     COMMERCIAL TAXES (ENFORCEMENT)-2
     SECTOR-7 VANIJAY TERIGE BHAVANA,
     NAVANAGAR, BAGALKOT
     R/AT C/P SHIVANANDA MIRJI
     ADARSHA NILAYA, MANAGOLI LAYOUT
     24TH CROSS, VIDYAGIRI, BAGALKOT.

3.   D M C GOWDA
     AGED 49 YEARS,
     S/O D M THIMMANNA
     WORKING AS
     COMMERCIAL TAX OFFICER
     (ENFORCEMENT)-II
     O/O ADDITIONAL COMMISSIONER OF
     COMMERCIAL TAXES
     ENFORCEMENT (SOUTH ZONE)
     KORAMANGAL, BENGALURU-560047.

4.   M C PRASANNA
     AGED 56 YEARS,
     S/O M B CHINNAPPA
     WORKING AS
     COMMERCIAL TAX OFFICER
     O/O JOINT COMMISSIONER OF
     COMMERCIAL TAXES (VIG)
     3RD FLOOR A BLOCK,
     VANIJYA THERIGE KARYALAYA-II
     KORAMANGALA, BENGALURU-560047
     R/AT SATWIK, 13TH CROSS,
     4TH LINKA, MAHALAKSHMIBADAVANE,
     TUMKUR-3.

5.   BASANNAJANADRI
     AGED 49 YEARS,
     S/O LATE GOVINDAPPA
     WORKING AS
                            3


     COMMERCIAL TAX OFFICER (AUDIT),
     O/O COMMISSIONER OF COMMERCIAL TAXES
     4TH FLOOR, VANIJYA TERIGE KARYALAYA-I
     GANDHINAGARA, BENGALURU-9
     R/AT NO.1/4, 2ND FLOOR, 2ND CROSS,
     MARENAHALLI, 20TH MAIN,
     VIJAYANAGAR, BENGALURU-40.

6.   GIRIMALLESHARA M.GANAGI
     AGED 49 YEARS
     S/O MAHADEVAPPA, WORKING AS
     COMMERCIAL TAX OFFICER
     (ENFORCEMENT)-7
     O/O JOINT COMMISSIONER OF
     COMMERCIAL TAXES,
     ENFORCEMENT (NORTH ZONE)
     CLUB ROAD, SUMOULYASOUDHA
     BELAGAVI.

7.   G SHASHIDHARA
     AGED 48 YEARS,
     S/O GAGAIAH, WORKING AS
     COMMERCIAL TAX OFFICER
     (ENFORCEMENT)
     O/O ADDL. COMMISSIONER OF
     COMMERCIAL TAXES (ENFORCEMENT)
     SOUTH ZONE,
     VANIJYA TERIGE KARYALAIA-II
     KORAMANGALA, BENGALURU-560047
     R/AT NO.374, 1ST FLOOR, 1ST MAIN,
     SARASWATHINAGAR, VIJAYANAGARA
     EXTENSION, BENGALURU-40.

8.   B CHANDRASHEKHARAPPA
     AGED 51 YEARS
     S/O BASAPPA, WORKING AS
     COMMERCIAL TAX OFFICER
     (ENFORCEMENT)
     O/O ASSISTANT COMMISSIONER OF
     COMMERCIAL TAXES,
     SIDDARAMESHWARABHAVAN, TUMKUR-03.
                            4


9.    G P SREEDHARACHAR
      AGED 49 YEARS
      S/O PARAMESHWARACHAR
      WORKING AS
      COMMERCIAL TAX OFFICER
      VANIJAYA TERIGE BHAVAN
      DAVANAGERE

10.   BASAVARAJU L S
      AGED 57 YEARS,
      S/O SANGAIAH, WORKING AS
      COMMERCIAL TAX OFFICER (ENFORCEMENT)
      NANJANAGUD ROAD,
      CHAMARAJANAGAR.

11.   KASHINATH N PALLERI
      AGED 50 YEARS,
      S/O NAGAPPA, WORKING AS
      COMMERCIAL TAX OFFICER (ENFORCEMENT)-I
      O/O ASSISTANT COMMISSIONER OF
      COMMERCIAL TAXES,
      OPP. ASHOK HOTEL, BIDAR.

12.   SMT PRABHAVTHI M
      AGED 53 YEARS,
      D/O MADAIAH, WORKING AS
      COMMERCIAL TAX OFFICER (AUDIT)-2
      MYSURU

13.   CHANDRASHEKHAR G.MEDEGAR
      AGED 50 YEARS,
      S/O GURUSIDDAPPA, WORKING AS
      COMMERCIAL TAX OFFICER
      O/O ASSISTANT COMMISSIONER OF
      COMMERCIAL TAXES, LGSTO-550
      NEAR H P GAS GODOWN
      YADGIR-585101.

14.   MALLIKARJUN S KUBUSAD
      AGED 49 YEARS,
      S/O SHANKARAPPA
      WORKING AS
                            5


      COMMERCIAL TAX OFFICER
      O/O JOINT COMMISSIONER OF
      COMMERCIAL TAXES (ADMIN)
      DEVARAJ URS LAYOUT
      A BLOCK, DAVANAGERE

15.   SIDDANAGOUDA B.DORIGOL
      AGED 49 YEARS,
      S/O BASANAGOUDA
      WORKING AS
      COMMERCIAL TAX OFFICER
      (ENFORCEMENT)-1
      O/O DEPUTY COMMISSIONER OF
      COMMERCIAL TAXES (ENFORCEMENT),
      AFZALPURTAKKE, VIJAPUR-586102.

16.   G B RAVISHANKARA
      AGED 50 YEARS
      S/O BOREGOWDA, WORKING AS
      COMMERCIAL TAX OFFICER,
      O/O DEPUTY COMMISSIONER OF
      COMMERCIAL TAXES,
      1ST FLOOR, KALIDASA ROAD,
      GANDHINAGARA, BENGALURU-09

17.   SMT UMA R KATI
      AGED 48 YEARS,
      W/O RAMACHANDRAPPA
      WORKING AS
      COMMERCIAL TAX OFFICER (ENFORCEMENT)-3
      O/O COMMISSIONER OF
      COMMERCIAL TAXES,
      DEVARAJURS LAYOUT
      A BLOCK, DAVANAGERE

18.   RAVINDRA R BANGERA,
      AGED 54 YEARS
      S/O RAMA MARAKALA B,
      WORKING AS
      COMMERCIAL TAX OFFICER
      SUB GOODS AND SERVICE TAX OFFICE
      MAGHAMALA COMPLEX,
                           6


      NAGARAKATTE ROAD,
      MOODABIDARI.

19.   NAVEENKUMAR L N
      AGED 47 YEARS,
      S/O K NARASIMHAMURTHY
      WORKING AS
      COMMERCIAL TAX OFFICER
      SGSTO-182
      RAGHAVENDRA MUTT BUILDING
      KGF, KOLAR DISTRICT

20.   G NARAPPA
      AGED 49 YEARS,
      S/O MUNIYAPPA, WORKING AS
      COMMERCIAL TAX OFFICER,
      O/O ASSISTANT COMMISSIONER OF
      COMMERCIAL TAXES, LGSTO-465
      DEVARAJA URS BADAVANE,
      VANIJAYA THERIGE BHAVANA
      DAVANAGERE.

21.   KALAMAPPA SHANKARAPPA HOLI
      COMMERCIAL TAX OFFICER,
      ENFORCEMENT-2
      O/O JCCT (ENFORCEMENT),
      NORTH ZONE, TERIGE BHAVAN,
      CLUB ROAD, BELAGAVI-01

22.   BASAVANT GOUDA PATIL
      COMMERCIAL TAX OFFICER
      ENFORCEMENT-2
      O/O JCCT (ENFORCEMENT)
      NAVANAGAR
      HUBBALLI-580009

23.   SHIVALINGAPPA A NADAGOWDA
      COMMERCIAL TAX OFFICER
      LGSTO-510
      VANIJYA TERIGE BHAVAN
      KINNAL ROAD, KOPPAL-583231
                             7


24.   KUNTOJI S N
      COMMERCIAL TAX OFFICER
      SGSTO-421
      MARUTHI COLONY
      ANJANEYA TEMPLE
      MUDDEBIHAL
      BIJAPUR DISTRICT-586101

25.   SANGAPPA K SHAHPUR
      COMMERCIAL TAX OFFICER
      (AUDIT)-3
      VANIJYA TERIGE SANKEERNA
      AFZALPUR TAKKE
      VIJAYAPUR

26.   PUSHPAKUMARI C S
      COMMERCIAL TAX OFFICER
      (VIGILANCE)-9
      O/O JCCT (VIGILANCE)
      VANIJYA TERIGE KARYALAYA-II
      KORAMANGALA
      BENGLAURU-560047

27.   RASHID AHMED G
      COMMERCIAL TAX OFFICER
      (ENFORCEMENT)-50, SOUTH ZONE
      VANIJYATERIGE
      KARYALAYA-II, KORAMANGALA
      BENGALURU-560047

28.   STEPHEN SUNIL D'SOUZA
      COMMERCIAL TAX OFFICER
      (AUDIT)-2, HUDA COMPLEX
      HOSAPETE-583201

29.   SHANKARAPPA
      COMMERCIAL TAX OFFICER
      HELP DESK, GROUND FLOOR,
      VANIJYA TERIGE KARYALAYA
      GANDHINAGAR
      BENGALURU-560009.
                                8


30.   VEERENDRA KUMAR
      COMMERCIAL TAX OFFICER
      (ENFORCEMENT)-29
      SOUTH ZONE,
      VANIJYATERIGE KARYALAYA-2,
      KORAMANGALA
      BENGALURU-560047.
                                               ... RESPONDENTS

(BY SRI VIJAY KUMAR, ADV. FOR C/R1 TO 18 & 19 & 20.)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS IN APPLICATION No-5830 TO 5849/2019 DATED
25.01.2021   PASSED     BY    THE   KARNATAKA     STATE
ADMINISTRATIVE            TRIBUNAL           BENGALURU
ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER
APPROPRIATE WRIT OR DIRECTION TO QUASH THE ORDER
DATED 25.01.2021 IN APPLICATION No-5830 TO 5849/2019
PASSED BY THE KARNATAKA STATE ADMINISTRATIVE TRIBUNAL
BENGALURU VIDE ANNEXURE-A ETC.


     THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
G.NARENDAR J, MADE THE FOLLOWING:

                            ORDER

Heard the learned counsel for the petitioners and the

learned counsel for the respondents.

2. Though the writ petition is listed for 'orders', as it

was understood that the matter would be taken up for

disposal, it is taken up for disposal with the consent of both

the counsels.

3. The learned High Court Government Pleader

would place reliance on the ruling of a Co-ordinate Bench

rendered in W.P. No.39315/2018 and other batch of writ

petitions whereby, a Co-ordinate Bench after examining the

issue of refixation of seniority, was pleased to reject the

writ petitions and was further pleased to affirm the orders

of the tribunal which in turn, affirms the order of the DG &

IG of Police refixing the seniority. The respondents herein

are also similarly situated as the petitioners therein and

there is no dispute with regard to the same.

4. The brief facts are that, the KPSC invited

applications for the posts of Commercial Tax Inspectors and

that in the interregnum, the State had introduced Clause

(mm) to Rule 2(1) and Rule 3-B of the Karnataka Civil

Services (General Recruitment) Rules, 1977 (Herein after

referred to as 'KCS (GR) Rules'). The term 'Rural Candidate'

came to be defined and further a weightage of 10% marks

was awarded to that class of applicants. That the rules

were subjected to further amendments by a notification

dated 15.03.1996, 27.04.1997 and 06.12.1997.

5. That the said rules came to be questioned in

W.P. No.13157/1998 and the learned Single Judge of this

Court was pleased to allow the same by order dated

11.11.1998 and the learned Single Judge was further

pleased to declare Rule 3-B of the 'KCS (GR) Rules' as being

unconstitutional. However the appointments, that were

made till the date of judgment, were saved under the

'Doctrine of Prospective Ruling'.

6. The order of the learned Single Judge was

challenged in W.A. No.5807/1998 & by an interim order in

the writ appeal, the Division Bench was pleased to stay the

order of the learned Single Judge. But ultimately, the writ

appeal also came to be rejected by an order dated

26.11.1999 and while so rejecting the writ appeal, the

Division Bench was further pleased to grant protection to

such of those appointees who came to be appointed during

the pendency of the writ appeal. But was pleased to affirm

the ruling of the learned Single Judge holding the amended

Rule 3-B of the 'KCS (GR) Rules' to be unconstitutional.

7. The order of the Division Bench that extended

protection to the candidates, who came to be appointed

post the order of the learned Single Judge and till the date

of disposal by the Division Bench, came to be questioned

before the Hon'ble Apex Court in the matter of Sreedhara

Vs. State of Karnataka and Another, reported in 2002 (9)

SCC 441 and other connected matters, on the ground that

by its order, the Division Bench had advanced the case of

candidates who were less meritorious than the petitioners.

8. By its order dated 11.10.2001, the Hon'ble Apex

Court was pleased to allow the SLP and further pleased to

quash the extended protection granted by the Division

Bench by its order dated 26.11.1999, holding the same as

unsustainable and further was pleased to set-aside the

appointments made during the pendency of the appeal. In

that regard, the Hon'ble Apex Court was pleased to hold as

under:-

"9. Having considered xxx have been nullified. The learned Single Judge however protected the appointments already made till the Rule was struck down. The ambit of that direction cannot be however

amplified and extended as has been done by the Division Bench in the case in hand while passing the final judgment. The Division Bench committed an error in not considering the interim order that had been passed while entertaining the appeals. In that interim order, it was unequivocally indicated that any appointments to be made thereafter would be subject to the final decision in the appeals and the State Government would obtain an undertaking from the appointees so that they cannot claim any equity on the basis of such appointments. In fact, it is conceded that such undertakings have been obtained by the State Government from all those who were appointed subsequent to the order passed by the learned Single Judge. In that view of the matter, the two directions of the Division Bench referred to earlier i.e. dated 26-11- 1999 and 16-12-1999 must be held to be unsustainable in law. We, therefore, set aside those directions of the Division Bench of the High Court of Karnataka in relation to appointments made during the pendency of appeal and also the selection made. These appeals are accordingly allowed."

Consequent to the dislocation or the removal of candidates

who were appointed pendente lite the writ appeal, the

petitioners before the Co-ordinate Bench came to be

appointed on 16.04.2002. Thereafter, consequent to their

appointment, the State Government also issued appropriate

directions to revise the selection list by inclusion of newly

appointed candidates and by the said circular it was also

ordered that, their appointments would take effect

prospectively (emphasis by this Court). Thus as a result of

the order of the Hon'ble Apex Court in Sreedhara's case

(stated supra) and in the case of Vithal and Others Vs.

State of Karnataka and Others, reported in (2004) 10 SCC

162, the exercise of removal of the candidates, who were

selected on the basis of rural weightage, was completed and

a revised list was published and on account of which,

certain candidates came to be appointed. It is further

appropriate to note the observations of the Hon'ble Apex

Court in Vithal's case (stated supra), has observed as

under:-

"15. However, as far as the submission of the private respondents and other "interim appointees" is concerned, on equitable considerations we allow them to take the interview in respect of the examination held in 2002. It is made clear that this Court is acting only on the basis of the statement made by these respondents that they had qualified in the written

examination and were entitled to be called for interviews. We have not decided that issue as a finding of fact. If these preconditions are prevailing, namely, that the written examination has been taken in 2002 and that these respondents have passed the written examination and are entitled to be called for interview, they shall be called for interview by the authority concerned within a period of four weeks from date. If any of these respondents are successful as a result of this, they shall be treated as having been appointed from the date of the issuance of their fresh appointment letter (emphasis by this Court). Their past service will not be taken into consideration for the purpose of granting them seniority in any fashion whatsoever. Having regard to the passage of time and in the circumstances of the case, we also direct that the competent authority will allow those respondents who have crossed the age-limit to appear at the interview for the aforesaid purpose. If any of these respondents and other "interim appointees" had not sat in the examination during any particular year, it is made clear that they can also sit in the next examination to be held even if they have crossed the age- limit."

The said position has also been reiterated in the case of

S.R. Manikya & Others Vs. High Court of Karnataka.

9. As noted supra, the office of the DG & IG revised

the seniority list and the same resulted in objections being

raised by the petitioners, who came to be subsequently

appointed pursuant to the removal of the candidates

selected under Rule 3-B of 'KCS (GR) Rules'. The same was

called in question before the Tribunal contending that in the

light of the observations in Sreedhara's case (stated supra),

that they are deemed to have been appointed from the

original date i.e. 04.01.1999 and the date of their actual

order of appointment, issued on 16.04.2002, is of no

consequence and that the seniority ought to be counted

from the date on which the other candidates were appointed

pursuant to the select list, which also included 13

candidates selected after granting the benefit of rural

weightage as provided under Rule 3-B 'KCS(GR) Rules' and

which rule came to be declared as unconstitutional. That

the State having accepted their appointment from the

original date could not have worked their seniority from the

subsequent date of appointment i.e. 16.04.2002 or actual

date of appointment. The said contention came to be

rejected by the Tribunal and aggrieved, the petitioners

before the Co-ordinate Bench (hereinafter known as

Rajesha's case) approached this Court. This Court after

hearing the petitioners in Rajesha's case, was pleased to

reject the writ petition and while so rejecting the case of the

petitioners therein, was pleased to place reliance on the

observations of the Hon'ble Apex Court in the Vithal's case

and Sridhara's case (stated supra). More particularly

reliance is placed on paragraphs 10, 14, 16 which reads as

under:-

"10. We have already made it clear that the High Court's reading of the clarification was entirely incorrect. Indeed, it is not in dispute that each of the persons who have got the benefit of the second notification was appointed during the pendency of the appeal before the High Court and all of them had given undertakings in terms of the interim order passed by the High Court. They, therefore, knew that their appointments were precarious and subject to the outcome of the appeal. The decision in the appeal having gone against them, they are bound by the undertaking given to the Court and cannot now contend otherwise."

14. We are unable to accede to the submissions of the State Government, the High Court and the "interim appointees". The decision of this Court rendered on 11-10-2001 cannot be rendered nugatory by allowing the very persons in respect of whose appointment this Court has held that the Division Bench should not have allowed them to continue in service. If the subsequent clarification has been misunderstood by the High Court and the State, we can only say that it was unfortunate and surprising as it could not reasonably be accepted that on a review application which was being dismissed the Court had in fact allowed the review and redecided the matter in a diametrically opposite manner. Where the rule has been declared to be unconstitutional the consequences must apply to all the services (emphasis by this Court). The rule could not be taken to be good in part and bad in part. Therefore, only to the extent that appointments had been specifically and expressly protected by this Court the striking down of the rule would operate against all persons who were otherwise not so protected. The question of continuing the "interim appointees" in service, therefore, does not arise. The second notification is therefore quashed.

16. As far as the other services are concerned, if the State has not complied with the Court's order dated 11-10-2001 [(2002) 9 SCC 441] they have done so at

their peril. If indeed what the writ petitioners in the writ petitions filed in respect of the police service have said is correct, the State Government is directed to take immediate action to rectify this situation and comply with this Court's direction as contained in the order dated 11- 10-2001 [(2002) 9 SCC 441] within a period of eight weeks from date. This only leaves the relief that can be granted to the writ petitioners. As far as they are concerned, if their case for appointment had not been considered only because otherwise unqualified candidates had been appointed by virtue of Rule 3(B) and if as a result of the decision of this Court on 11-10- 2001 [(2002) 9 SCC 441] any vacancies have been created in the year in which these writ petitioners had successfully qualified and been named in the merit list, they shall, against the vacancies so created, be entitled to be appointed in their turn and in accordance with the merit list. This exercise shall also be carried out within a period of eight weeks from the date. However, we make it clear that if any of the writ petitioners is so appointed his/her appointment will be taken (sic take effect) from the date of the issuance of the order of the appointment." (emphasis by this Court).

The reliance is also placed on the ruling reported in 2020

(5) SCC 689 in the case of K. Meghachandra Singh and

Others Vs. Ningam Siro and Others, has observed in

paragraph 28 as under:-

"28. Before proceeding to deal with the contention of the appellants' counsel vis-à-vis the judgment in N.R. Parmar, it is necessary to observe that the law is fairly well settled in a series of cases, that a person is disentitled to claim seniority from a date he was not borne in service (emphasis by this Court). For example, in Jagdish Ch. Patnaik the Court considered the question whether the year in which the vacancy accrues can have any bearing for the purpose of determining the seniority irrespective of the fact when the person is actually recruited. The Court observed that there could be time-lag between the year when the vacancy accrues and the year when the final recruitment is made. Referring to the word "recruited" occurring in the Orissa Service of Engineers Rules, 1941 the Supreme Court held in Jagdish Ch. Patnaik that person cannot be said to have been recruited to the service only on the basis of initiation of process of recruitment but he is borne in the post only when, formal appointment order is issued." (emphasis by this Court).

The Co-ordinate Bench has placed further reliance on the

ruling reported in 2018 (11) SCC 413 in the case of Sunaina

Sharma & Others Vs. State of Jammu and Kashmir &

Others. More particularly on the observations of the

Hon'ble Apex Court in paragraphs No.11, 12, 15 and 17 in

Sunaina Sharma's (stated supra) which reads as under:-

"11. At this stage, it would be pertinent to mention that it is a settled principle of law that normally no person can be promoted with retrospective effect from a date when he was not born in the cadre (emphasis by this Court). Seniority has to be reckoned only from the date the person entered into that service. In this behalf reference may be made to the judgment of this Court in State of Bihar Vs. Akhouri Sachindra Nath & Ors.2 where this Court held as follows :-

"12. .....It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into service....." (emphasis by this Court). Thereafter, in Kaushal Kishore Singh vs. Dy. Director of Education this Court held as follows :-

"5. The claim of seniority of the employee is always determined in any particular grade or cadre and it is not the

law that seniority in one grade or cadre would be dependent on the seniority in another grade or cadre......"

"15. From the judgments referred to hereinabove it is apparent that the normal rule is that a person is entitled to seniority only from the date when the said person actually joins the post (emphasis by this Court). True it is, that there are exceptions and sometimes "in service" candidates can be granted promotion from a date anterior to their being regularly promoted/appointed. However, this can be done only if the rules enable retrospective appointment and on fulfilling the other requirement of the rules."

"17. In Suraj Prakash Gupta's case (supra) this Court held that direct recruits could not claim seniority from a date anterior to their appointment (emphasis by this Court). The reason is simple. The direct recruits were not even born in the cadre and were not holding any post in the service. There can be no manner of doubt that direct recruits cannot get seniority from a date prior to their appointment. While interpreting Rule 23, we must also take note of Rule 9 of Excise Rules which deals with probation. When a person is appointed to the post of ETO whether by promotion or by way of direct recruitment, he shall be on probation for a period of two years. The

explanation to Rule 9 provides that appointment on probation shall be made against substantive vacancies only. The explanation also provides that any period of officiating service shall be reckoned as period spent on probation when a person is formally appointed to the service. This clearly envisages that the person should have been actually working on the post of ETO to be considered to be on probation. The whole concept of probation is to judge the suitability of the candidate appointed to the post. There can be no objective assessment if the person is not actually working on the post. The promotees never worked as ETOs prior to their formal promotion. Therefore, though vacancies may have been there in their quota, they having not worked against the post of ETO could not have been appointed and granted seniority from an anterior date."

It is needless to say that the issue is no more res-integra,

the question of seniority, all things being equal, would

commence from the date the person was born in the

service. This is the settled law as stated and affirmed by

the Hon'ble Apex Court. The case on hand is also no

different. The petitioners who are unsuccessful applicants

pursuant to the notification by the KPSC and as noted supra

in Rajesha's case and Vithal's case, the petitioners names

were entered in the select list pursuant to this Court

upholding the challenge to rule 3-B of 'KCS (GR) Rules'.

There is no dispute to the said fact that the respondents

were appointed in 2002 and the merit list was pursuant to

refixation of the merit list.

10. In that view of the matter, the respondents

herein are also similarly situated as the petitioners in

Rajesha's case (stated supra), heard and disposed off by a

Co-ordinate Bench. Despite the said fact the learned

counsel for the respondents would vehemently contend that

the issue as to whether the seniority is to be counted from

the date of actual appointment or from the date of original

appointment i.e. 04.01.1999 and that the issue as to

whether the seniority is to be considered as notional

seniority or actual seniority is seized off by the Hon'ble Apex

Court and in that view of the matter, he would contend

that, this Court ought to hold its hands and await the

judgment of the Hon'ble Apex Court.

11. We are unable to appreciate the same. The

learned counsel would place reliance on the ruling reported

in 2000 (8) SCC 182 in the case of Sunjay Dhar Vs. J&K

Public Service Commission and Another. We need not delve

deep into the said ruling as a mere reading of paragraphs

No.14 and 16 would demonstrate that the appellants

therein were differently placed than the respondents herein

and that was a case, where despite the appellant having

placed on record the experience certificate as notified in the

publication issued by the Commission and further following

it up with the another experience certificate pursuant to the

demand of the commission and the commission having

rejected both the certificates without assigning any reason,

the Hon'ble Apex Court was pleased to hold that the

appellant has been "wrongly denied" an appointment

despite him having been qualified and on such ground, was

pleased to declare that the appointment has been wrongly

denied and hence, was pleased to grant him seniority with

retrospective effect. In effect the Hon'ble Apex Court has

upheld the case of the appellant therein alleging a case of

legal malice in the exercise of powers and on the said

grounds the extraordinary relief of conferring the seniority

with retrospective effect came to be granted and departing

from the settled law declared by the Hon'ble Apex Court,

wherein, it has been consistently held that the seniority of

the employee commences from the date he is born in the

service i.e. the date he is appointed or takes charge in his

post. In the instant case, no such malafides are pleaded

much less demonstrated or proved before the Court. In

that view of the matter, we are of the opinion that the

ruling is inapplicable to the facts involved in the instant writ

petition.

12. The learned counsel would further place reliance

on an order of an other Co-ordinate Bench rendered in W.P.

No.13594/2014 and other connected writ petitions dated

26.03.2015. In our considered opinion, the facts involved

in the said writ petition are at variance with the facts on

hand. In the said writ petition the petitioners were

advancing a case of discrimination. It was the case of the

petitioner therein that the respondent-State Education

department was practicing discrimination against them and

was treating others who were similarly appointed along with

them differently.

13. In the course of arguments it was fairly admitted

that the direction issued in respect of other similarly placed

candidates regarding the same has been implemented. The

Co-ordinate Bench was pleased to hold/observe in

paragraphs 7 and 8 in Vithal's case (stated supra) as

follows:-

"7. Several interlocutory applications and review applications were filed by the persons who had been appointed pursuant to the interim order passed by the Division Bench of the High Court as well as by the State Government. The interlocutory applications as well as the review applications were dismissed by this Court on 26-11-2001. After recording that the Court was not inclined to entertain any of the applications so filed, the Court specifically directed that: (SCC p. 170, paras 1-2) "The review petitions as well as IAs are dismissed. If any person not being a party to the same is aggrieved by any order of this Government pursuant to our judgment, it would be a fresh cause of action which he can assail in an appropriate forum.

(In review petitions) Needless to mention, judgment of this Court would bind the parties in the proceedings."

8. This order was not intended to reopen the issue which had been decided by this Court on 11-10-2001. The "right" of the review petitioners was to approach the Court after the Government issued an order pursuant to the decision dated 11-10-2001 if the review petitioners were otherwise aggrieved by the same. Naturally, no grievance could be ventilated on the basis of the issues which had been concluded on 11-10-2001. The rule granting rural weightage had been struck down and this Court had come to the conclusion that only those appointments which were made up to the date of the learned Single Judge's decision would be continued and no further appointments on the basis of Rule 3(B) would be considered to have been validly made."

14. From a reading of the above, it is apparent that

the petitioners therein, were sought to be discriminated and

treated differently though they were similarly placed as the

other batch of petitioners in respect of whom benefits which

were denied to the petitioners are sought to be conferred on

other similarly placed employees. We have queried to the

learned counsel for the petitioners, as to whether there are

any other petitioners who have been differentiated or

treated differently than from the petitioners, the petitioners'

counsel fairly admitted that they are not aware of any such

instances. Proceeding further, the learned counsel for the

petitioners would submit that in view of the issue being