Hon'ble Arvind Kumar Tripathi (II),J.
(Delivered by Justice Devi Prasad Singh)
1. These special appeals under the Rules of the Court (Chapter VIII Rule 5) have been preferred, being aggrieved with the judgment and order dated 29.9.2008, passed by learned Single Judge in writ petition No.6015(S/S) of 2005 and other connected petitions deciding an issue relating to inter se dispute between the direct recruits and promotees in the cadre of Assistant Consolidation Officer.
2. We have heard Mr. R.K. Tiwari, learned Senior counsel, Mr. Shobhit Mohan Shukla and other counsels on behalf of the appellants as well as Mr. S.K. Kalia, learned Senior Counsel and others representing the respondents.
3. Controversy relates to inter se seniority of the cadre of Assistant Consolidation Officers between direct recruits and promotees in pursuance to U.P. Government Servants Seniority Rules, 1991 (in short, 1991 Seniority Rules).
4. It has been admitted at bar that the direct recruits were appointed on 18.8.1997 whereas the promotees were promoted on the post of Assistant Consolidation Officer on 16.12.1997 within their quota (67%) in pursuance to U.P. Revenue Consolidation Service Rules, 1992 (In short, 1992 Rules). Promotions were done within the quota on the post of Assistant Consolidation Officer from the persons who were working on the post of Consolidators.
5. Under these admitted facts on record, it has been argued by the appellants' counsel that the direct recruits are entitled to be placed over and above the promotees since they were appointed earlier than the promotees, i.e. in the month of August, 1997.
It has been further argued by the appellants' counsel that the learned Single Judge while allowing the writ petitions directed that all the promotees who were promoted and appointed in the year 1997 should be placed over and above the direct recruits ignoring the roster. Learned Single Judge while allowing the writ petition has not only directed to place the promotees over and above direct recruits but also directed for en-block placement of all the promotees promoted in the year 1997 over and above direct recruits.
6. On the other hand, Mr. S.K. Kalia, learned Senior Counsel submits that since the direct recruits as well as the promotees were appointed in the same recruitment year in accordance with rules, the promotees were entitled to be placed over and above the direct recruits in accordance with rules.
7. 1991 Seniority Rules framed under the proviso to Art. 309 of the Constitution of India have overriding effect (Rule 3) and deals with the matter with regard to determination of seniority. According to Sub Rule (h) of Rule 4, substantive appointment has been defined as appointment, not being an ad hoc appointment, on a post in the cadre of the Service, made after selection in accordance with the service rules of the respective services.
8. Rule 5 deals with determination of seniority where appointment is done by direct recruitment only and Rule 6 deals with the situation where seniority is liable to be determined in a situation where appointment is done only by promotion from a single feeding cadre. Rule 7 deals with a situation where appointment by promotion is done from several feeding cadres. However, Rule 8 deals with a situation where appointments are done by promotion and direct recruitment. Rule 8 is relevant for the purpose of determination of present controversy. For convenience, Rule 8 is reproduced as under :
8. Seniority where appointments by promotion and direct recruitment.--(1) Where according to the service rules appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub- rules, be determined from the date of the order of their substantive appointments, and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order :
Provided that if the appointment order specifies a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases, it will mean the date of issuance of the order:
Provided further 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.
(2) The seniority inter se of persons appointed on the result of any one selection,--
(a) through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be;
(b) by promotion, shall be as determined in accordance with the principles laid down in Rule 6 or Rule 7, as the case may be, according as the promotion are to be made from a single feeding cadre or several feeding cadres.
(3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotees vis-`-vis direct recruits shall be determined in a cyclic order (the first being a promotee) so far as may be, in accordance with the quota prescribed for the two sources.
Illustrations.--(1) Where the quota of promotees and direct recruits is in the proportion of 1 : 1 the seniority shall be in the following order :
First .. .. .. Promotee Second .. .. .. Direct Recruits and so on (2) Where the said quota is in the proportion of 1 : 3 the seniority shall be in the following order :
First .. .. .. Promotee Second to fourth .. .. Direct Recruits Fifth .. .. .. Promotee Sixth of eight .. .. Direct recruits and so on Provided that :
(i) where appointment from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year or years in which there are vacancies in accordance with the quota;
(ii) where appointment from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees;
(iii) where, in accordance with the service rules the unfilled vacancies from any source could, in the circumstances mentioned in the relevant service rules be filled from the other source and appointment in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they are appointed against the vacancies of their quota."
9. Thus, under Sub Rule (1) of Rule 8, seniority is to be determined from the date of the order of substantive appointment. The proviso of Sub Rule (1) provides that if the appointment order specifies a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment but in other cases it will mean the date of issuance of the order. In the event of direct recruitment, the direct recruit shall lose seniority if he fails to join without valid reasons, when vacancy is offered to him. Under Sub Rule (2) of Rule 8, inter se seniority of persons appointed on the result of any one selection shall be the same as shown in the merit list prepared by the Commission.
10. However, under Sub Rule (3), where appointments are made both by promotion and direct recruitment on the result of any one selection, the seniority of promotees vis-a-vis direct recruits should be determined in a cyclic order (the first being a promotee) in accordance with the quota prescribed for the two sources. Where the quota of promotees and direct recruits is in the proportion of 1:1, the first shall be promotee and second shall be direct recruit but where the quota is in the proportion of 1:3, the seniority list shall give first place to promotee, second to fourth to direct recruits, fifth to promotee and sixth of eight to direct recruits. However, this shall be subject to certain conditions provided under the proviso to Rule 8 (supra).
11. Much emphasis has been given by the learned counsel for the appellant to the words, used in Sub Rule (3), "where appointments are made both by promotion and direct recruitment on the result of any one selection".
It is agreed at bar that ordinarily, it is not possible to make selection through direct recruitment and promote persons in a single selection process.
12. In District Mining officer vs. Tata Iron and Steel co. (2001) 7 SCC 358, Hon'ble Supreme court has held that function of the court is only to expound the law and not to legislate. A statute has to be construed according to the intent of them and make it the duty of the court to act upon true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose the interpretation which represents the true intention of the legislature.
13. In Krishna vs. state of Maharashtra (2001)2 SCC 441: Hon'ble Supreme court has held that, in absence of clear words indicating legislature intent, it is open to the court ,when interpreting any provision , to read with other provision of the same statute.
14. In Essen Deinki vs. Rajiv Kumar (2002)8 SCC 409, it has been observed that it is the duty of the court to give broad interpretation keeping in view the purpose of such legislation of preventing arbitrary action .however statutory requirement can not be ignored.
15. In Grasim industries ltd. vs. Collector of Custom (2002) 4 SCC297, it has been held that while interpreting any word of a statute every word and provision should be looked at generally and in the context in which it is used and not in isolation.
16. In Bhatia international vs. Bulk trading S.A. (2002)4 SCC 105, it has been held that where statutory provision can be interpreted in more than one way , court must identify the interpretation which represents the true intention of legislature. While deciding which is the true meaning and intention of the legislature, court must consider the consequences that would result from the various alternative constructions. Court must reject the construction which leads to hardship, serious inconvenience, injustice, anomaly or uncertainty and friction in the very system that the statute concerned is suppose to regulate.
17. In S.Samuel M.D. Harresons Malayalam vs. UOI (2004)1 SCC 256, it has been held that when a word is not defined in the statute a common parallence meaning out of several meanings provided in the dictionaries can be selected having regard to the context in which the appeared in the statute.
18. In M. Subba Reddy vs. A.P. SRTC (2004) 6 SCC 729, it has been held that although hardships can not be a ground for striking down the legislation, but where ever possible statute to be interpreted to avoid hardships.
19. In Delhi Financial Corpn. Vs. Rajiv Anand (2004)11 SCC 625, it has been held that legislature is presumed to have made no mistake and that it intended to say what it said. Assuming there is a defect or an omission in the words used by the legislature , the court can not correct or make up the deficiency , especially where a literal reading there of produces an intelligible result .the court is not authorized to alter words or provide a casus omissus.
20. In Deepal Girish bhai soni vs. United India insurance ltd. (2004) 5 SCC 385, it has been held that statute to be read in entirety and purport and object of Act to be given its full effect by applying principle of purposive construction.
21. In Pratap Singh vs. State of Jharkhand (2005) 3 SCC 551, it has been held that interpretation of a statute depends upon the text and context there of and object with which the same was made. It must be construed having regard to its scheme and the ordinary state of affairs and consequences flowing there from - must be construed in such a manner so as to effective and operative on the principle of "ut res magis valeat quam pereat". When there is to meaning of a word and one making the statute absolutely vague, and meaningless and other leading to certainty and a meaningful interpretation are given, in such an event the later should be followed.
22. In Bharat petroleum corpn.ltd. vs. Maddula Ratnavali (2007) 6 SCC 81, it has been observed that Court should construe a statute justly. An unjust law is no law at all. Maxim "Lex in justa non est."
23. Deevan Singh vs. Rajendra Pd. Ardevi (2007)10 SCC528, it has been held that while interpreting a statute the entire statute must be first read as a whole then section by section , clause by clause , phrase by phrase and word by word .the relevant provision of statute must thus read harmoniously.
24. In Japani sahoo vs. Chandra shekhar mohanty (2007) 7 SCC 394, it has been held that a court would so interpret a provision as would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconditional by adopting rule of literal legis.
25. In 2010 (9) SCC 280, Zakiya Begum Vs. Shanaz Ali, it has been held that an Explanation to a section should normally be read to harmonise with and clear up any ambiguity in the main section and normally not to widen its ambit.
26. In 2010 (7) SCC 129, Bondu Ramaswamy Vs. Bangalore Development Authority, it has been observed that an interpretation that would avoid absurd results should be adopted - When the object or policy of a statute can be ascertained, imprecision in its language not to be allowed in the way of adopting a reasonable construction which avoids absurdities and incongruities and carries out the object or policy.
27. In view of above, sub Rule (3) of Rule 8 of 1991 Seniority Rules should be construed in such a manner which may not make the rule inoperative. Further external aid from 1992 Service Rules may be taken while interpreting 1991 Seniority Rules for removal of ambiguity and doubt, if any.
28. Accordingly, the provisions contained in Sub Rule (3) of Rule 8 should be construed harmoniously to make it effective after taking into account the other rules as well as the purpose and object of the rule.
29. 1992 Rules deals with the service conditions of Asstt. Consolidation Officer and Consolidation Officer. Rule 22 of 1992 Rules provides that the seniority of persons substantively appointed in any category of posts shall be determined in accordance with 1991 Rules (supra). Sub Rule (m) of Rule 3 defines the year of recruitment as under :
""year of recruitment" means a period of twelve months commencing from the first day of July of calendar year."
Rule 19 deals with appointment on the respective posts. For convenience, Rule 19 is reproduced as under :
"19. appointments :- (1) Subject to the provisions of sub-rule (2) the appointing authority shall make appointment by taking the names of candidates in order in which they stand in the list prepared under Rule 15, 16 or 17, as the case may be.
(2) Where in any year of recruitment, appointments are to be made both by direct recruitment and by promotion, regular appointments shall not be made unless selections are made from both the sources and a combined list is prepared in accordance with Rule 18.
(3) If more than one orders of appointments are issued in respect of any one selection, a combined order shall also be issued, mentioning the names of the persons in order of seniority as determined in the selection or, as the case may be, as it stood in the cadre from which they are promoted. If the appointments are made both by direct recruitment and by promotion, names shall be arranged in accordance with the cyclic order referred to in Rule 18."
Under Sub Rule (2) of Rule 19, it has been provided that in every recruitment year, appointment shall be made both by direct recruitment and by promotion, i.e. from both sources.
30. Under Sub Rule (3) of Rule 19, it has been provided that if the appointments are made both by direct recruitment and by promotion, names shall be arranged in accordance with the cyclic order referred to in Rule 18. It means a roster shall be provided in terms of rule 18 in the cadre of Assistant consolidation Officer containing direct recruits and promotees. Since 1991 Seniority Rules have got overriding effect, so far as seniority is concerned, roster shall be in accordance with Sub Rule (3) of Rule 8(supra). In case the number of candidates are not available to apply roster for each and every person selected through direct recruitment and promotion, then remaining may be placed in block at appropriate place in the seniority list.
31. So far as the mandate contained in Rule 2 of 1991 Seniority Rules to the effect where appointments are made both by promotion and direct recruitment on the result of one selection, seniority of promotee and direct recruits will be determined by a cyclic order, is concerned, since admittedly and ordinarily, in one selection, appointment and direct recruitment may not be done, then while construing the provisions harmoniously, the provision contained in Sub Rule (3) may be interpreted relating it to the year of recruitment as defined by Sub Rule (m) of Rule 3 of 1992 Rules. It means all persons who have been appointed by direct recruitment or by promotion in a recruitment year shall be entitled to be considered for seniority in pursuance to 1991 Seniority Rules. The seniority list shall contain the names of officers in order of their recruitment against substantive vacancy relating back to the recruitment year. The appointment should have been done in accordance with rules.
32. So far as the order passed by learned Single Judge for enblock placement of promotees is concerned, it seem to be contrary to Rules (supra) which provides roster for the placement of promotees and direct recruits in a cyclic manner. To that extent, the impugned order passed by learned Single Judge required to be modified. It shall be appropriate to consider some of the cases, relied upon by learned counsels.
33. In the case of Uttaranchal forest Rangers versus State of U.P and others JT2006(12)SC513, their Lordships of Hon'ble Supreme court held that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to be adversely appointed validly in the meantime. Supreme Court relied upon earlier judgment reported in 1992 Supp. 1 SCC 272 Keshav Chandra Joshi and others versus Union of India and others. It means seniority may be given to direct recruits only from the date they were appointed or joined service and not earlier to it. While interpreting Rule 8(1) of Seniority Rules, 1991, the conferment of seniority to an employee from a previous date provided that the date of such conferment along with substantive appointment is mentioned in the order of substantive appointment which seems to exist in the case of Uttaranchal but such provision does not seem to exist in the Service Rules in question.
While interpreting Rule 8(3) of the Service Rules(supra), Hon'ble Supreme court observed as under :
"Rule 8(3) of the Rules is not applicable in this case because the appointments were not made by both the direct and promoted sources of recruitment as a result of one selection. Moreover, definite quota is not prescribed for the two sources of appointment ? As per Rule 8 of the Seniority Rules, there is a provision that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and in other cases, it will mean the date of issuance of the order. This implies that there is a provision of vacancies of being carried over. Moreover, it is also in the interest of natural justice that employees are promoted from the date they become eligible and the vacancy exits. Otherwise, it would result in denying promotion to them for no fault of theirs and only because of not holding selection procedure on time for which they cannot be held responsible. As far as Rule 8(3) is concerned, it applies to one selection made both for promotion and direct recruitment, which is not the case under consideration."
34. In views of above, since selection and promotion has not been done in a single process, seniority may be considered as observed hereinabove keeping in view the year of recruitment.
35. Their Lordships further proceeded to hold that no seniority can be granted from the date when an employee was even not borne in the cadre. To quote relevant portion :
"We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to be adversely appointed validly in the meantime, as decided by this court in the case of K.C. Joshi & others vs. Union of India, 1992 Suppl (1) SCC 272 held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous."
36. In the State of Uttaranchal and another versus Dinesh Kumar Sharma (2007)1 SCC 683, Hon. Supreme Court ruled that the seniority should be reckoned from the date of substantive appointment and not from the date of occurrence of vacancy. The provisions contained in the Rules cannot be ignored. While dealing with the matter with regard to Service Rules of U.P. Agriculture Group B, their Lordships further held that there can be no automatic appointment /promotion on mere recommendation of PSC unless Government sanctions such appointment/promotion.
37. In (2000)7 SCC 561 Suraj Parkash Gupta and others versus State of J & K and others, Hon'ble Supreme Court held that even if on account of delay and lethargic attitude of the State Government, promotion and appointment is delayed, it does not lead to an inference that the quota rule has broken down and where there is no explicit provision with regard to rota rule, then rota rule may not be applied. Employees cannot claim rota merely on the basis of post and perks.
However, in the present case, rota rule has been provided under both the Service Rules (supra), hence that should be applied while preparing the seniority list.
38. In Special Appeal No.1304 of 2003 Arun Kumar Saxena versus State of Uttar Pradesh and others, this Court has observed that under proviso 3 of Rule 8(3) (supra), a promotee shall be entitled for seniority from the date of promotion subject to fulfillment of other conditions. While considering Clause (3) of Rule 8, this Court held as under :
"Clause (3) or Rule 8 of 1991 Rules provides for the inter se seniority of direct recruits and promotees to be appointed on the basis of one selection and illustrations 1 and 2 thereto provide for the manner in which the direct recruits and the pro9motees are to be adjusted. Thereafter there are three provisions (i) to (iii) to the sub rule 3 of rule 8. However, it must be remembered that the provisos are to be read in a manner to suggest that something is being carved out from the main clause. As already noticed above, Rule 8(3) itself contemplates determination of seniority between the pro9motees and direct recruits as a result of any one selection, meaning thereby that the aforesaid rule will have application only where appointments both by direct recruitments and promotions are being made as a result of one selection. If selections are made in different years, Rule 8(3) will have no application, as a result whereof the proviso to the aforesaid Rule would also not apply."
39. However, the 1992 Rules as well as applicability of rota rule seems to have not been considered. Attention of this Court has not been invited to any finding with regard to applicability of rota rule under Rule 8(8) read with the provisions contained in 1992 Rules (supra) by Hon'ble Supreme Court.
40. In (2005)8 SCC 454 D. Ganesh Rao Patnaik and others versus State of Jharkhand and others, their Lordships interpreted the definition of cadre and considered the right of the employees appointed within and beyond the quota.
41. In (1996) 11 SCC 361 M.S.L. Patil, Asstt. Conservator of Forests, Solarpur (Maharashtra) and others versus State of Maharashtra and others, the question before the Supreme Court relates to binding nature of judgment and interpretation of Civil Services Regulations of Seniority Rules which does not seem to be applicable in the facts of the present case. However, their Lordships of Supreme Court have reiterated the principle emerging from the case of Keshav Chandra Joshi (supra).
42. In view of above, the impugned order passed by learned Single Judge does not seem to suffer from any impropriety or illegality subject to modification that keeping in view the Service Rules in question (supra), rota should be applied by the authorities of direct recruits and promotees appointed in one recruitment year. Accordingly, the order passed by Hon'ble Single Judge is modified to the extent that the State shall apply rota system to direct recruits and promotees appointed in one recruitment year.
The appeal is allowed in part accordingly.
(Justice Arvind Kumar Tripathi (II), J) (Justice Devi Prasad Singh) September 4, 2014 kkb/