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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.  6967   OF 2013 (Arising out of SLP (C) No. 31481 of 2010)

State of Uttar Pradesh & Others ...  Appellants

Versus

Ashok Kumar Srivastava & Anr.      ...Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.  

2. The 1st respondent was appointed as a Lecturer on  

23.3.1996 in “Ras Shastra” in Rajkiya Ayurvedic College  

and Chikitsalaya,  Lucknow.  The State Government vide  

notification dated 21.12.1990 notified the Service Rules,  

namely, Uttar Pradesh Ayurvedic Aur Unani Mahavidyalaya  

Aadhyapako  Ki  Seva  Niyamawali,  1990  (for  short,  “the  

rules”)  for  the  teachers  of  Uttar  Pradesh  Ayurvedic  

Colleges.    Under  the  rules,  the  promotional  post  from  

amongst the Lecturers is  Readers.   As the vacancies in

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respect of Readers were not filled up, the respondent No.  

1 preferred W.P. No. 1136 (S/B) of 2004 before the High  

Court  of  Judicature  at  Allahabad  at  Lucknow  Bench,  

Lucknow,  wherein  the  High  Court  took  note  of  the  

statement  by  the  learned  counsel  for  the  State  and  

directed that it should be in the fitness of things that the  

Public Service Commission shall  make earnest efforts to  

expedite the whole process relating to promotion within a  

period of  six  months.  Eventually,  on 15.6.2005 the U.P.  

Public Service Commission, (for short ‘the Commission’),  

the respondent No. 2 herein, recommended the names of  

six persons for promotion to the post of Readers.  As far as  

the respondent No. 1 is concerned, he was placed at serial  

No. 6 and it was mentioned therein that the vacancy in  

respect  of  which  the  1st respondent  had  been  

recommended  for  promotion  had  arisen  after  the  

superannuation  of  one  Dr.  Hari  Shanker  Pandey  on  

31.7.2001.    The  state  Government  considering  the  

recommendation  of  the  commission  issued  an  office  

memorandum on 16.8.2005 promoting the 1st respondent  

and  given  him  the  posting  in  State  Auyrvedic  College,  

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Lucknow.   As the 1st respondent was given seniority w.e.f.  

16.8.2005 which  is  the  date  of  passing  of  the  order  of  

promotion  he  felt  aggrieved  and  the  said  grievance  

compelled him to prefer O.A. No. 134 of 2006 before the  

U.P. State Public Service Tribunal (for short “the tribunal”).  

The  tribunal  by  order  dated  2.2.2007  directed  that  the  

applicant  therein  should  submit  a  representation  to  the  

Government  within  a  period  of  one  month  against  the  

order dated 16.08.2005 which shall be disposed of within  

two months by passing a reasoned order.  In pursuance of  

the  aforesaid  order  the  State  of  U.P.  vide  letter  dated  

4.6.2007 sought a clarification from the Commission about  

its  recommendation  and  after  receipt  of  the  said  

communication  from  the  Commission  and  on  due  

deliberation vide order dated 2.1.2008 the representation  

of  the  1st respondent  was  rejected  and  it  was  clearly  

stated that seniority had been accorded to him from the  

date of passing of the order of promotion i.e. 16.8.2005.

3. Grieved by the order rejecting the representation the  

respondent No. 1 preferred W. P. No. 1268 (S/B) of 2008  

before the High Court contending, inter alia, that he was  

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entitled  to  be  given  retrospective  seniority  with  effect  

from the date when the vacancy had arisen.  The stand  

and stance put forth by him was opposed by the State and  

its functionaries by filing a counter affidavit that as per  

Rule 21 of 1990 rules the respondent’s seniority had been  

correctly fixed from the date of promotion but not from  

the  date  when  the  vacancy  arose.   The  1st respondent  

brought to the notice of the High Court that ten persons  

had been conferred seniority with retrospective effect and  

he  had  been  discriminated.    The  High  Court  placing  

reliance  on  a  three-Judge  Bench  decision  in  Keshav  

Chandra  Joshi  and  Others  v.  Union  of  India  and  

Others1 and after reproducing paragraph 24 of the said  

Judgment  expressed  the  opinion  that  the  principle  laid  

down  therein  was  binding  and  on  that  rationale  

distinguished the decision in Nirmal Chandra Sinha  v.   

Union of India2.  The High Court further proceeded to  

state  that  the  service  rules  itself  empower  the  

Government  to  decide  the  seniority  from  the  date  of  

vacancy  and  when  ten  promotees  had  been  accorded  

seniority relating back to the date of arising of vacancy,  1 1992 Supp (1) SCC 272  2 (2009) 14 SCC 29

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denial of the similar benefit to the petitioner by adopting a  

different  criteria  amounted  to  hostile  discrimination  

inviting the frown of Article 14 of the Constitution.  Being  

of this view, the Division Bench of the High Court quashed  

the  impugned  order  dated  2.1.2008  and  directed  the  

respondents therein to consider the case of the petitioner  

and  pass  a  fresh  order  in  accordance  with  the  verdict  

given by it.   The penetrability  of  the aforesaid order  is  

called in question by the State of U.P and its functionaries  

in this appeal by way of special leave.  

4. It  is  submitted  by  Mr.  P.  N.  Misra,  learned  senior  

counsel  appearing for the appellant that the High Court  

has flawed by placing reliance on the decision rendered in  

Keshav  Chandra  Joshi  (supra),  as  the  same  was  

delivered in a different context and that apart the ratio  

that has been culled out by the High court from the said  

pronouncement is not the correct one.  The learned senior  

counsel has criticized the reasoning that when the service  

rule  itself  empowers  the  Government  to  decide  the  

seniority from the year of vacancy, the Government is not  

justified  in  deciding  the  seniority  of  the  1st respondent  

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from the date of promotion to the post of Reader.   It is his  

further submission that the High Court has committed a  

grave factual error by opining that under Rule 21 of the  

1990  rules  when  seniority  was  accorded  to  10  persons  

form  the  date  of  vacancy,  non-granting  of  the  similar  

benefit  to  the  respondent  did  tantamount  to  hostile  

discrimination,  though  it  had  clearly  been  brought  on  

record that seniority of all the promoted candidates was  

fixed  from  the  date  of  promotion  and  not  from  the  

respective dates when the vacancies had arisen.

5. Mr.  Aseem Chandra,  learned counsel  appearing for  

the contesting respondent No. 1,  per contra, urged that  

the High Court has properly applied the principle stated in  

Keshav Chandra Joshi (supra) and same being a three-

Judge Bench decision has been aptly followed and, hence,  

the analysis made by the High court cannot be found fault  

with.  Learned counsel would submit as the department  

had not filled up the promotional  posts,  the respondent  

was constrained to approach the High Court and on the  

basis of the direction issued by the High court when the  

posts  had  been  filled  up,  it  was  incumbent  on  the  

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authorities to reckon the seniority from the date when the  

vacancy had occurred.  It is propounded by him that the  

language  of  Rule  21  of  the  1990  rules  confers  

discretionary power on the State Government and in the  

case  at  hand  the  authorities  in  an  inequitable  manner  

have failed to exercise the said power and, therefore, the  

High Court is absolutely justified in issuing directions for  

fixation  of  seniority  with  retrospective  effect  and,  

therefore,  the  order  passed  by  it  is  absolutely  

impregnable.  

6.  At the very outset, we think it appropriate to deal  

with the facet of hostile discrimination.  The High Court, as  

is  manifest,  has  opined  that  ten  promotees  have  been  

accorded  seniority  relating  back  to  the  date  when  the  

vacancies arose.  Reference has been made to Rule 20.  It  

is worthy to note that an additional affidavit has been filed  

on behalf of the appellants clarifying the position that ten  

incumbents to whom the benefit of retrospective seniority  

was extended, they were selected under Rule 15 of Uttar  

Pradesh  State  Medical  College  Teacher  Service  (Second  

Amendment) Rules, 2005.  The said amended rules were  

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brought  into  force  on  12.5.2005  to  amend  the  Uttar  

Pradesh  State  Medical  Colleges  Teachers  Service  Rules,  

1990.  Rule 15 of original rules dealt with procedure for  

recruitment by promotion.  The amended Rule 15 of 2005  

provides  the  procedure  for  recruitment  by  personal  

promotion.   Rule  20  of  the  original  rules  dealt  with  

seniority  and  it  has  been  amended  and  in  the  present  

incarnation the said Rule reads as follows: -  

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

Provided that a person appointed to a post  except  the  post  of  Associate  Professor  or  Professor  on  the  recommendation  of  the  Commission for which the requisition had been  sent  to  the  Commission  before  the  commencement  of  the  Uttar  Pradesh  State  Medical  colleges  Teacher  Service  (Second  Amendment)  Rules,  2005  shall  be  entitled  to  seniority  from  the  date  of  his  appointment  notwithstanding  the  fact  that  a  teacher  has  been  given  personal  promotion  to  the  same  post  under  rule  15  in  the  same  recruitment  year.”

Thus, on a plain reading of Rule 20 it is perceptible  

that  certain  categories  of  incumbents  are  entitled  to  

seniority  from  the  date  of  their  appointment  

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notwithstanding the fact  that  they have been conferred  

personal promotion to the same post under Rule 15 in the  

same  recruitment  year.   It  is  evident  that  benefit  of  

seniority  has  been  given  to  the  incumbents  who  are  

governed by a different set of rules altogether.  The High  

Court, as we notice, has referred to Rule 21 of 1990 rules  

which governs the case of the respondent No. 1.  The said  

Rule  clearly  stipulates  that  if  an  order  of  appointment  

specifies a particular back date with effect from which a  

person is substantively appointed then only that date will  

be  deemed  to  be  the  date  of  the  order  of  substantive  

appointment. From the narration of the aforesaid facts, it  

is demonstrable that respondent is governed by different  

set of rules and the promotions that have been given to  

other category of teachers are under separate set of rules.  

When the  seniority  is  governed by  two separate  set  of  

rules, it is inconceivable that one can claim seniority on  

the basis of the rule relating to determination of seniority  

enshrined  in  the  other  rules.   The respondent  No.  1  is  

bound to base his case under Rule 21 of the 1990 rules by  

which he is governed.  Thus analysed, we find that the  

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High Court has misdirected itself by recording the finding  

that there has been hostile discrimination.  The question  

of hostile discrimination would have arisen had the State  

Government extended the benefit  under  Rule 21 of  the  

1990 rules  to  similarly  placed persons governed by the  

same Rules.  That being not the position we are afraid that  

the view expressed by the High Court on that score is not  

sustainable.  

7. In this context, it is seemly to state that the names of  

candidates  selected  by  the  Selection  Committee  in  its  

meeting held on 19.5.2005 were sent to the Commission.  

Be  it  noted,  six  candidates,  namely,  Dr  Hari  Shanker  

Pandey,  Dr.  Jai  Ram  Verma,  Dr.  S.K.  Arya,  Dr.  V.P.  

Upadhyaya, Dr. Lal Bahadur Singh and Dr. Ashok Kumar  

Srivastava were found fit for promotion and none of them  

was given retrospective seniority from the date when the  

vacancy arose.  The High Court has placed reliance on the  

recommendation of the Public Service Commission which  

was a reply to the query dated 4.6.2007.  The commission  

by  letter  dated  10.8.2007  had  stated  that  

recommendation has been made for promoting Dr. Ashok  

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Kumar Srivastava on the post of Reader of Ayurvedic and  

Unani  Colleges  w.e.f.  the  date  of  vacancy  created  on  

account of the superannuation of Dr. Hari Shanker Pandey  

on  31.7.2001.    It  is  condign  to  note  here  that  the  

commission  in  his  clarificatory  recommendation  had  

amended its letter dated 2.7.2007.   It is also perceivable  

that  the  language  used  in  the  communication  by  the  

Commission is not free from ambiguity.  That apart, the  

discretion, if any, rests with the Government.  Be that as it  

may, the recommendations of the commission cannot be  

treated to be binding on the State Government.    (See  

Jatinder  Kumar  and  Others  v.  State  of  Punjab3.)  

Thus, it  is perceptible that all  the incumbents promoted  

along with the respondent No. 1 were given seniority from  

the date of promotion and not  from the date when the  

vacancies  arose.   Therefore,  the  factum  of  arbitrary  

discrimination  does  not  arise  and  accordingly  we  are  

unable to concur with the view of the High Court.   

3 (1985) 1 SCC 122

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8. Presently, we shall advert to the rule position.  The  

relevant part of Rule 21 of the 1990 rules by which the 1st  

respondent is governed, is reproduced below:-

“21. Seniority –  (1)  Except  as  hereinafter  provided,  the  seniority  of  persons  in  any  category of  posts  shall  be determined from  the  date  of  the  order  of  substantive  appointment and if two or more persons are  appointed  together   by  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 issue  of the order :

Provided further that, if more than one  orders of appointment are issued in respect  of any one selection the seniority shall be as  mentioned  in  the  combined  order  of  appointment issued under sub-rule (3) of rule  18 :

Provided also 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 reason shall be  final.”   

9. On a studied scrutiny of the aforesaid Rule, it is vivid  

that the seniority of the candidates is to be determined  

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from the date of order of substantive appointment.  The  

proviso carves out an exception by stipulating 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  order  of  substantive  

appointment otherwise it would be the date of the issue of  

the order.  The second proviso clarifies that the seniority  

will  be  determined  when  more  than  one  orders  of  

appointment are issued in respect of any one selection.  

From the aforesaid, it  is luminous that unless otherwise  

stipulated in the letter of appointment the seniority has to  

be computed from the date of appointment to the post.  In  

the case at hand, nothing has been stipulated in the letter  

of  appointment.   The  High  Court  while  granting  

retrospective  seniority  with  consequential  benefits  has  

placed  reliance  on  the  principle  stated  in  Keshav  

Chandra  Joshi (supra).   In  the  said  case,  controversy  

related to fixation of seniority between direct recruits and  

the promotees.  A three-Judge Bench took note of the plea  

which  was  to  the  effect  that  promotees  should  be  

declared  to  have  been  regularly  appointed  from  the  

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respective  dates  of  their  initial  promotion  as  Assistant  

Conservators of Forest with all consequential benefits.  To  

substantiate the said plea it was urged that though the  

promotees were appointed on ad hoc basis due to non-

availability  of  direct  recruits  to  the  vacant  posts  of  

Assistant Conservators of Forest, yet they were continuing  

for well over 5 to 12 years discharging the same duties,  

drawing the same scale of pay without any reversion and,  

therefore, the posts held by them were not fortuitous, nor  

stop  gap.   In  this  backdrop  it  was  contended  that  the  

entire continuous length of service from the dates of their  

initial  promotion  should  be  counted  towards  their  

seniority.    In  opposition,  it  was  urged  that  the  

appointment of the promotees admittedly being ad hoc,  

they had no right to the posts and hence, their seniority  

could be counted only from the dates of their substantive  

appointment.   The Court after scanning the anatomy of  

relevant rules opined that in order to become a member  

of  the  service  he/they  must  satisfy  two  conditions,  

namely, the appointment must be in substantive capacity  

and the appointment has to be to the post in the service  

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according to rules and within the quota to a substantive  

vacancy.  The learned Judges observed that there exists a  

marked distinction between appointment in a substantive  

capacity  and  appointment  to  the  substantive  post.  

Therefore,  the  membership  to  the  service  must  be  

preceded by an order of appointment to the post validly  

made  by  the  Governor.   Then  only  he/they  become  

member/members  of  the  service.   The  Court  further  

stated that any other construction would be violation of  

the  Rules.    After  so  expressing,  the  Court  posed  two  

questions :-

“When promotees  become members  of  the  cadre  of  Assistant  Conservators  in  accordance with the rules,  and whether the  entire  length  of  service  from  the  date  of  initial  appointments  should  be  counted  towards their seniority.”

Thereafter, analyzing the entire gamut of case law, opined  

that employees appointed purely on ad hoc or officiating  

basis  due  to  administrative  exigencies,  even  though  

continued for a along spell, do not become the members  

of  the  service  unless  the  Governor  appoints  them  in  

accordance with the rules, and so they are not entitled to  

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count the entire length of their continuous officiating or  

fortuitous  service  towards  their  seniority.  Eventually,  in  

paragraph  24  which  has  been  reproduced  by  the  High  

Court in entirety in the impugned order to build the edifice  

of its reasoning, in essence, it has been laid down thus: -  

“It  is  notorious  that  confirmation  of  an  employee in  a  substantive  post  would  take  place  long  years  after  the  retirement.  An  employee  is  entitled  to  be  considered  for  promotion on regular basis to a higher post if  he/she  is  an  approved  probationer  in  the  substantive lower post. An officer appointed  by promotion in accordance with Rules and  within quota and on declaration of probation  is  entitled  to  reckon  his  seniority  from the  date  of  promotion  and the  entire  length  of  service,  though initially  temporary,  shall  be  counted  for  seniority.  Ad  hoc  or  fortuitous  appointments  on  a  temporary  or  stop  gap  basis  cannot  be  taken into  account  for  the  purpose  of  seniority,  even  if  the  appointee  was subsequently qualified to hold the post  on a  regular  basis.  To give benefit  of  such  service  would  be  contrary  to  equality  enshrined in Article 14 read with Article 16(1)  of  the  Constitution  as  unequals  would  be  treated as equals. When promotion is outside  the quota,  the seniority  would be reckoned  from  the  date  of  the  vacancy  within  the  quota,  rendering  the  previous  service  fortuitous. The previous promotion would be  regular  only  from the  date  of  the  vacancy  within  the  quota  and  seniority  shall  be  counted from that date and not from the date  of  his  earlier  promotion  or  subsequent  confirmation.”  

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In  the  ultimate  conclusion  the  learned  Judges  ruled  as  

follows:-  

“Accordingly we have no hesitation to hold  that  the  promotees  have  admittedly  been  appointed  on  ad  hoc  basis  as  a  stop  gap  arrangement, though in substantive posts, and  till  the  regular  recruits  are  appointed  in  accordance with the rules. Their appointments  are  de  hors  the  rules  and  until  they  are  appointed by the Governor according to rules,  they  do  not  become  the  members  of  the  service in  a substantive capacity.  Continuous  length of ad hoc service from the date of initial  appointment  cannot  be  counted  towards  seniority.”  

10. From the aforesaid,  it  is  clear  as day that  what is  

meant by reckoning of seniority from the date of vacancy  

in the context of the facts of the said judgment has been  

wholly misunderstood by the High Court.  In the case of  

Keshav  Chandra  Joshi (supra),  the  controversy  that  

arose pertained to the seniority  between direct  recruits  

and promotees.  The Court opined that when promotion is  

given beyond the quota of the promotees, the seniority  

has  to  be  reckoned  from  the  date  of  vacancy  arising  

within  the  quota  meant  for  the  promotees.   The  Court  

further  observed that  the  previous  promotion would  be  

regular only from the date of vacancy within the quota  

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and the seniority shall be counted only from that date and  

not  from  date  of  earlier  promotion  or  subsequent  

confirmation.  The factual matrix, the relevant rules, the  

concepts of direct recruit quota and the promotee quota  

and the fortuitous appointment and the principle stated  

therein  have  nothing  to  do  with  grant  of  retrospective  

seniority in the context of the present case.    Thus, we  

have  no  scintilla  of  doubt  that  the  High  Court  has  

erroneously  applied  the  ratio  laid  down  in  Keshav  

Chandra Joshi  (supra).

11. The thrust of the matter is how the seniority is to be  

determined in such circumstances.  In Union of India v.  

S.S. Uppal and another,4 it  has been opined that the  

seniority of a person is to be determined according to the  

seniority rule applicable on the date of appointment.  It  

has also been observed that weightage in seniority cannot  

be  given  retrospective  effect  unless  it  is  specifically  

provided in the rule in force at the material time.  

12. In State of Karnataka and others v. C. Lalitha5 it  

has  been observed that  it  is  well  settled  that  seniority  4  (1996) 2 SCC 168 5 (2006) 2 SCC 747

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should be governed by rules and a person should not be  

allowed  to  derive  any  undue  advantage  over  other  

employees,  for  concept  of  justice  demands  that  one  

should get what is due to him or her as per law.  

13. In  State of Uttaranchal and another v. Dinesh  

Kumar Sharma6 it has been clearly stated that seniority  

has to be decided on the basis of rules in force on the  

date of  appointment and no retrospective promotion or  

seniority can be granted from a date when an employee  

has not even been born in the cadre.  

14. In Nirmal Chandra Singh (supra) it has been ruled  

that  promotion  takes  effect  from  the  date  of  being  

granted and not from the date of occurrence of vacancy or  

creation of the post.  It has also been laid down therein  

that it is settled in law that date of occurrence of vacancy  

is not relevant for the determination of seniority.  

15.  Learned senior counsel for the appellants has drawn  

inspiration from the recent  authority  in  Pawan Pratap  

Singh  and  others  v.  Reevan  Singh  and  others,7  

6 (2007) 1 SCC 683 7 (2011) 3 SCC 267

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where the Court after referring to earlier authorities in the  

field  has  culled  out  certain  principles  out  of  which  the  

following being the relevant are reproduced below:  

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

                xxx         xxx      xxx       

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

16. In  view  of  the  aforesaid  enunciation  of  law,  the  

irresistible  conclusion  is  that  the  claim of  the  first  

respondent for conferment of retrospective seniority  

is absolutely untenable and the High Court has fallen  

into  error  by  granting  him  the  said  benefit  and  

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accordingly  the  impugned  order  deserves  to  be  

lancinated and we so do.

17. Consequently,  the  appeal  is  allowed and the order  

passed by the High Court is set aside.  The parties  

shall bear their respective costs.  

…………………………….J. [Anil R. Dave]

….………………………….J.                                      [Dipak Misra]

New Delhi; August 21, 2013.

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