REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9906 OF 2003

Pawan Pratap Singh & Ors.         ……  Appellants

   Vs.

Reevan Singh & Ors.          ……  Respondents

WITH

CIVIL APPEAL NO. 9907 OF 2003

AND CIVIL APPEAL NO. 9908 OF 2003

JUDGMENT

R.M. LODHA, J.  

In  this  group  of  three  appeals,  by  special  leave,  the  

question  presented  for  consideration  before  this  Court  relates  to  

determination of seniority between two groups of direct recruits to the  

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posts  of  Deputy  Jailor  (Group  ‘C’  post),  one  appointed  in  1991  

through the selection made by Uttar Pradesh Subordinate Services  

Selection  Commission  (for  short,  ‘Selection  Commission’)  and  the  

other in 1994 by Uttar Pradesh Public Service Commission (for short,  

‘UPPSC’).

2. The  Uttar  Pradesh  Jail  Executive  Subordinate  (Non-

Gazetted) Service Rules, 1980 (for short, ‘1980 Rules’) were framed  

by the Governor of the State in exercise of the powers conferred by  

the proviso to Article 309 of the Constitution which were published in  

U.P. Gazette, Extraordinary on June 9, 1980.  Rule 5 of the 1980  

Rules  deals with the recruitment to the  posts of  Deputy Jailor and  

Assistant  Jailor  in  the  service.   The   recruitment  to  the  posts  of  

Deputy Jailor is by two sources: (i)   by direct recruitment and (ii) by  

promotion from amongst  the permanent  Assistant  Jailors.  Rule 15  

provides for procedure for direct recruitment to the posts of Deputy  

Jailor and Assistant Jailor.  It  reads thus :

“15. Procedure for  direct  recruitment  to  the posts of  Deputy  Jailor,  Assistant  Jailor.—(1)   Applications  for  permission  to  appear  in  the  competitive  examination  shall  be  called  by  the  Commission  in  the  prescribed  form, which may be obtained from the Secretary to the  Commission on payment.

(2)    No  candidate  shall  be  admitted  to  the  examination unless he holds a certificate of admission  issued by the Commission.

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(3)   After the results of the written examination  have  been  received  and  tabulated,  the  Commission  shall  having  regard  to  the  need  for  securing  due  representation  of  the  candidates  belonging  to  the  Scheduled Castes, Scheduled Tribes and others under  Rule  6,  summon  for  interview  such  number  of  candidates as, on the result of the written examination,  have come up to the standard fixed by the Commission  in this respect. The marks awarded to each candidate at  the interview shall be added to the marks obtained by  him in the written examination.

(4)    The  Commission  shall  prepare  a  list  of  candidates in order of their proficiency as disclosed by  the aggregate of marks obtained by each candidate at  the written examination and interview and recommend  such  number  of  candidates  as  they  consider  fit  for  appointment.   If  two or more candidates obtain equal  marks  in  the  aggregate,  the  name  of  the  candidate  obtaining higher mark in the written examination shall  be placed higher in the list. The number of names in the  list shall be larger,  but not larger by more than 25 per  cent of the number of vacancies. The Commission shall  forward the list to the appointing authority.”  

3. Part-VI  of  the  1980  Rules   deals  with   appointment,  

probation,   confirmation  and  seniority.  For  the  purposes  of  these  

appeals,  rule 22 of the 1980  Rules needs to be referred which is as  

follows:

“22.  Seniority.—Seniority in any category of posts in the  service shall be determined from the date of substantive  appointment and if two or more persons are appointed  together,  from  the  order  in  which  their  names  are  arranged in the appointment order :

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Provided that—

(1) the  inter  se  seniority  of   persons  directly  appointed  to  the  service  shall  be  the  same  as  determined at the time of selection.

(2) the inter se seniority of persons appointed  to the posts of Deputy Jailor by probation shall be the  same as it was in the substantive post held by them at  the time of promotion; and

    ………”

4. On  December  26,  1987,  the  UPPSC  published  an  

advertisement (No. A-5/E-4/87-88) for holding the Combined Lower  

Subordinate  Services  Examination,  1987.  It  was  mentioned  in  the  

advertisement that the number of vacancies to be filled on the result  

of  the  examination  is  expected  to  be  approximately  600  which  

included  the  vacancies   in  the  cadre  of  Deputy  Jailor.   There  is  

dispute  of  fact  about  actual  number  of  vacancies  in  the  cadre  of  

Deputy Jailor notified by the UPPSC in the above advertisement but  

the stand of the first respondent that 114 vacancies of Deputy Jailors  

were  notified  may  be  assumed  as  fact  for  the  purpose  of  these  

appeals.  

5. The  Uttar  Pradesh  Subordinate  Services  Selection  

(Commission) Act,  1988 (for short,  ‘1988 Act’) was enacted by the  

U.P.  Legislature  to  establish  a  Subordinate  Services  Selection  

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Commission for direct recruitment to all Group ‘C’ posts in the State  

of U.P.  The 1988 Act came into force on February 15, 1988.  

6. On November 25, 1989, a notification was issued by the  

Governor  of  Uttar  Pradesh  clarifying  that  the  vacancies  already  

referred to the UPPSC  shall be filled  on the recommendation of the  

UPPSC alone.  

7. Pursuant to the advertisement (No. A-5/E-4/87-88) dated  

December  26,  1987,  the   UPPSC  conducted  the  preliminary  

examinations on September 24, 1989.  

8. On  October  27,  1990,  the   Selection  Commission  

advertised  and notified that for filling 60 posts of Deputy Jailor,  a  

competitive examination, ‘U.P. Karapal (Deputy Jailor) Examination,  

1990’ shall be held.   The examination was held on due date and after  

holding oral interview, the Selection Commission sent a select list to  

the State Government in 1991 for issuance of appointment letters.

9. On  November  23,  1991,  the  State  Government  issued  

appointment  letters  to  the  candidates  selected  by  the  Selection  

Commission. The present appellants in Civil Appeal No. 9906 of 2003  

and Civil  Appeal No. 9908 of 2003 were amongst those who were  

appointed by the State Government pursuant to the selection made  

by the Selection Commission.

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10. In  1991,  the  UPPSC  also  conducted  the  main  

examination for filling up  different posts of Group ‘C’ including  the  

posts of direct recruitment of Deputy Jailor. The result thereof was  

declared on July 27, 1993.  The UPPSC,  then,  sent the select list to  

the State Government.  The State Government issued appointment  

letters to the selected candidates on April 26, 1994.  The private first  

respondent was one of them.  

11. The Uttar Pradesh Government Servants Seniority Rules,  

1991  (for  short,  ‘1991  Rules’)  were  framed  under  the  proviso  to  

Article 309 of the Constitution effective from March 20, 1991.   The  

1991  Rules  were  made  applicable  to  all  government  servants  in  

respect of whose recruitment and conditions of service, rules may be  

or have been made by the Governor under the proviso to Article 309  

of the Constitution and had overriding effect to other service rules.  

Rule  5  and  rule  8  of  the  1991  Rules  which  are  relevant  for  the  

purposes of these appeals read 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 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:

Provided that a candidate recruited directly may  lose his seniority, if he fails to join without valid reasons  

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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. ………….”

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;

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(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-à-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  promotes  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 to 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;

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(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.”

The parties are in agreement that 1991 Rules were in existence when  

the appointments were made to the posts of Deputy Jailor in 1991  

and 1994.  

12. On August 29, 1995, a tentative seniority list of Deputy  

Jailors  was  notified  by  the  Inspector  General  (Prisons)  –  the  

appointing  authority  –   and  objections  were  called  for  from  the  

concerned officers. In that list, the candidates appointed in 1991 were  

shown  senior  to  the  candidates  appointed  in  1994.  The  litigation  

between the two groups started with this list.   The tentative seniority  

list  dated August 29, 1995 came to be challenged before Allahabad  

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High Court in three writ petitions;   one  by   Bholanath Mishra   (Writ  

Petition No. 26560 of 1996), the other by  Samar Bahadur Singh (Writ  

Petition No. 13138/2000)  and the third by the  first respondent herein  

Reevan Singh (Writ Petition No. 22919/2001). The writ petition filed  

by Samar Bahadur Singh was dismissed by the High Court on the  

ground of availability of  alternative remedy  before the State  Service  

Tribunal. The writ petition filed by the  first respondent  herein was  

allowed  on December 2, 2002 and the High Court directed the State  

of Uttar Pradesh and the Director General (Prisons), Lucknow to treat  

the appointees of 1994 senior to  1991 appointees.  The contention  

raised by the writ petitioner (first respondent herein) before the High  

Court was that in view of the second proviso to rule 5 of 1991 Rules,  

the  Deputy  Jailors  who  were  selected  in  the  selection  which  

commenced   in  1987   must  be  treated  senior  to  those  selected  

pursuant  to  the  selection  that  commenced  in  1990.  The  Division  

Bench agreed with this contention and held as follows:

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

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While construing the words ‘appointed on the result of a subsequent  

selection’ in second  proviso to rule 5 of the 1991 Rules, the High  

Court held as under :

“It may be noted from the language used in the proviso  to  Rule  5  that  a  distinction  has  been made between  appointment  and  selection.  The  words  “appointed  on  the result of a subsequent selection” clearly indicate that  for the purpose of the proviso appointment is different  from selection. Hence even if persons selected on the  basis of the selection which commenced in 1990 were  given   appointment  before  giving  appointment  to  the  petitioner and others similarly situate the latter will  be  senior to the former because proviso to Rule 5 treats  selection different from appointment. Had that not been  so  the  language  of  the  provision  would  have  been  different?

The High Court went on to observe  further as under :

“There is no dispute that the process of selection of the  petitioner  and  others  similarly  situate  had  begun   in  1987 whereas  selection  in  which  the newly  amended  (sic) respondent nos. 3 and 4 and others situated similar  to them had begun in 1990. Thus the selection process  of the petitioner and others similarly situate had begun  three  years  prior  to  the  beginning of  the  selection  of  respondent nos. 3 and 4 and others similarly situate. It  was no fault of the petitioner and others similarly situate  that their  selection was prolonged far as much as six  years, whereas the selection of respondent no. 3 and 4  and others similarly situate was completed in just one  year.”

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The High Court held that 1991 Rules will prevail over 1980 Rules, if  

there is any conflict between the two Rules. It  held :

“………In the present case the proviso to Rule 5 of the  1991  Rules makes it clear that appointment is not to be  treated as part of the selection because the words used  in  the  provision  are  “appointed  on  the  result  of  a  subsequent  selection”.  The  petitioner  and  others  similarly  situate  were  appointed  against  the  vacancy  which existed in 1987 while the selection of respondent  nos.  3 and 4 and others similarly  situate by the U.P.  Subordinate Selection Commission were made against  vacancies  which  existed  in  1990.  In  our  opinion  the  petitioner and others similarly situate should not suffer,  for no fault of theirs.”

13. Being not satisfied with the judgment of the High Court  

dated December  2,  2002,  three appeals,  by special   leave,   have  

been filed, one by the State of Uttar Pradesh and the other two by  

1991 appointees.

14. We have heard M/s.   P.N.  Mishra,  Vijay  Hansaria  and  

Subodh  Markandey,  senior  counsel   for  the  appellants   and  Shri  

Pramod Swaroop, senior counsel  for Respondent No. 1. On behalf of  

the  appellants,  it  is  urged  that  rule  5  of  the  1991  Rules  has  no  

application  as  it  is  applicable  where  the  service  rules  provide  for  

appointment  by direct recruitment only. Since the posts of Deputy  

Jailor, as per 1980 Rules, are to be filled  by direct recruitment as well  

as by promotion,  the mode and manner  of determination of seniority  

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provided in rule 5 cannot be applied and instead rule 8 of the 1991  

Rules  would  be  applicable  for  the  purposes  of  determination  of  

seniority.

15. Learned senior counsel for the appellants submitted in the  

alternative  that  even  if  rule  5  of  the  1991  Rules  is  held  to  be  

applicable, second proviso appended to rule 5  does not contemplate  

that the persons appointed pursuant to the result  of  a subsequent  

selection (although their date of substantive appointment is earlier in  

point  of  time)  shall  rank  junior  to  the  persons  appointed  later  

because  their  process  of  selection  was  initiated  earlier.   It  was  

submitted that the   word ‘result’ in second proviso of rule 5 of the  

1991 Rules is not without significance.  Our attention  was drawn to  

rule 4 (h) of the 1991 Rules that defines the expression ‘substantive  

appointment’ and rule 9  which provides for preparation of seniority  

list and it was submitted that the private appellants were substantively  

appointed  in  1991 in  the  cadre  of  Deputy  Jailors  by  following the  

procedure and in accordance with the 1980 Rules much before the  

1994 appointees. It was argued  on behalf of the appellants that the  

year  of  vacancy against  which a particular  person is  appointed is  

wholly  irrelevant  for  the  purpose  of  determination  of  seniority  and  

seniority cannot relate back to the date of vacancy.  In this regard,  

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reliance was placed  upon the decisions of this Court in : (i) Jagdish  

Ch. Patnaik & Ors. v. State of Orissa & Ors.1; (ii)  Ajit Kumar Rath v.  

State  of  Orissa  &  Ors.2;  (iii)   Uttaranchal  Forest  Rangers’  Assn.  

(Direct  Recruit)  & Ors.  v.  State of  U.P. & Ors.3 and (iv)   State of  

Uttaranchal & Anr. v. Dinesh Kumar Sharma4.

16. Learned senior counsel for the appellants also contended  

that the High Court erred in invoking Article 226 of the Constitution in  

the matter when the writ petition filed by  Samar Bahadur Singh (Writ  

Petition No. 13138/2000) was dismissed  on the ground of alternative  

remedy.  In this regard, the Constitution Bench decision of this Court  

in L. Chandra Kumar v. Union of India & Ors.5  was referred.  

17. On the other hand, Mr. Pramod Swaroop, learned senior  

counsel  for  the  contesting  first  respondent  stoutly  defended  the  

judgment  of  the  High  Court.  He  argued  that  the  High  Court  was  

justified in relying upon second proviso to rule 5 of the 1991 Rules  

and holding that the candidates appointed on the basis of result of  

earlier  selection  process  must  rank  senior  to  the  candidates  who  

were appointed on the basis of the result of subsequent selection. He  

would submit that the UPPSC started selection process for filling 114  1 (1998) 4 SCC 456 2 (1999) 9 SCC 596 3 (2006) 10 SCC 346 4 (2007) 1 SCC 683 5 (1997) 3 SCC 261

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posts of Deputy Jailor in 1987; it was in this process of selection that  

the  contesting  private  respondent  was  selected  and  appointed  

(although in the year 1994) and  insofar as the 1991 appointees are  

concerned they underwent the subsequent selection process which  

started in the year 1990. Mr. Pramod Swaroop contended  that 1991  

Rules have the overriding effect and the seniority amongst  1991 and  

1994 appointees has to be determined with  reference to rule 5 of  

1991 Rules. According to him, the  expression ‘selection’ in second  

proviso  to  rule  5  cannot  be  construed  to  mean  only  the  ‘final  

selection’ and since the process of selection involves several steps  

which begins with the issuance of the advertisement and ends with  

the  preparation  of  select  list,  the  expression  ‘result  of  selection’  

means the result  of  entire selection process. In this regard,  heavy  

reliance was placed by him on few decisions of this Court, namely, (i)  

A.P.  Public  Service  Commission,  Hyderabad  &  Anr. v.  B.  Sarat  

Chandra & Ors.6 (ii)  State of U.P. v. Rafiquddin & Ors.7; (iii) Surendra  

Narain Singh & Ors. v. State of Bihar & Ors.8 and (iv) Balwant Singh  

Narwal & Ors. v. State of Haryana & Ors.9.

6 (1990) 2 SCC 669 7 1987 (Suppl.) SCC 401  8 (1998) 5 SCC 246 9 (2008) 7 SCC 728

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18. It must be stated immediately that the recruitment to the  

posts of Deputy Jailor in the State of Uttar Pradesh is governed by  

the 1980 Rules which have been framed by the Governor in exercise  

of  the  powers  conferred  by  the  proviso  to  Article  309  of  the  

Constitution. 1980 Rules provide for cadre of service, procedure for  

recruitment  to  the  post  of  Deputy  Jailor,  reservation,  academic  

qualifications,  determination  of  vacancies,  appointment,  probation,  

confirmation  and  inter  se seniority  of  persons  appointed  to  the  

service. However, by subsequent Rules, namely, 1991 Rules which  

too were made by the Governor under the proviso to Article 309 of  

the Constitution,  comprehensive provisions have been made for the  

determination of seniority of all government servants in the State of  

Uttar Pradesh. Rule 2 of the 1991 Rules says that these rules shall  

apply to all government servants in respect of whose recruitment and  

conditions  of  service,  rules  may  be  or  have  been  made  by  the  

Governor under the proviso to Article 309 of the Constitution and rule  

3 gives to the 1991 Rules overriding  effect notwithstanding anything  

to the contrary contained in  earlier service rules.  In this view of the  

matter,   inter se seniority amongst  1991 and 1994 appointees by  

direct recruitment has to be determined under the 1991 Rules and  

rule 22 of the 1980 Rules has to give way to the 1991 Rules.  

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19. Now,  insofar  as  1991  Rules  are  concerned,  the  said  

Rules  provide  for  determination  of  seniority  in  relation  to  different  

categories.  Rule 5 makes  provision for determination of seniority in  

cases where according to service rules, appointments are  made only  

by the direct recruitment. It would be seen that 1980 Rules are the  

relevant service  rules for appointment to the posts of Deputy Jailor.  

As per rule 5 of the 1980 Rules, there are two sources of recruitment  

to the post of Deputy Jailor; one,   by direct recruitment and the other,  

by promotion from amongst the permanent Assistant Jailors in ratio of  

50%  each.   The  word  ‘only’  in  rule  5  of  the  1991  Rules  is  of  

significance and it becomes clear therefrom that rule 5 of the 1991  

Rules has no application at all for determination of inter se seniority of  

the  1991  and  1994  appointees  because  1980  Rules  provide  for  

appointment to the posts of Deputy Jailor by direct recruitment as well  

as by promotion.  It is only where service rules in the State of U.P.  

provide for appointments  by direct recruitment alone that rule 5 of  

1991 Rules comes into  play for  determination of  seniority  and not  

otherwise.  The  reliance  placed  by  the  High  Court  upon  second  

proviso  to  rule  5  of  the  1991  Rules  for  determination  of  inter  se  

seniority amongst 1991 and 1994 appointees is, thus,   misplaced.  

1

The High Court fell into grave error in not appreciating that rule 5 of  

the  1991  Rules  operates  where  service  rules  provide  for  

appointments  by direct  recruitment  only.  Rule 6 and rule  7 of  the  

1991  Rules  also  have  no  application  as  these  rules  provide  for  

determination  of  seniority  where  appointments  are  made  by  

promotion  only  from  a  single  feeding  cadre  or  only  from  several  

feeding  cadres.  These  appeals  are  not  concerned  with  the  

determination of inter se seniority between the promotees. Rule 8 of  

the  1991  Rules  makes  a  provision  for  determination  of  seniority  

where  according  to  service  rules  appointments  are  made both  by  

promotion  and  by  direct  recruitment.  The  marginal  note  of  rule  8  

‘seniority  where appointments by promotion and direct  recruitment’  

and the body of sub-rule (1) of rule 8 that provides, ‘where according  

to the service rules appointments are made both by promotion and by  

direct recruitment’, leave no manner of doubt that rule 8 of the 1991  

Rules would govern  the controversy in the present case since 1980  

Rules clearly provide for appointments to the posts of Deputy Jailor  

by two sources i.e., by direct recruitment as well as by promotion. It is  

true that the controversy in hand relates to determination of seniority  

between two groups of direct recruits to the posts of Deputy Jailor,  

one appointed in 1991 through the selection made by the Selection  

1

Commission  and  the  other  in  1994  by  the  UPPSC  and  the  

controversy  does  not  relate  to  determination  of  inter  se  seniority  

between direct recruitees and the promotees, but that does not take  

away the applicability of rule 8 of the 1991 Rules.  It is so because in  

the  1991  Rules,  the  basis  of  categorization  for  the  purpose  of  

determination of seniority is the method and manner for appointments  

in the service rules. It is in this view of the matter that rule 5, rule 6,  

rule  7  and  rule  8  of  the  1991  Rules  provide  for  determination  of  

seniority amongst different categories of appointments made under  

the  service  rules.  Once  it  is  held  that  rule  8  is  applicable  for  

determination of inter se seniority amongst 1991 and 1994 recruitees  

to the posts of Deputy Jailor, it is clear that their seniority has to be  

determined on the basis of their substantive appointments.  Insofar as  

the present controversy is concerned, none of the provisos to sub-rule  

(1) is attracted since the appointment orders of 1994 appointees do not  

specify the back date nor these appeals are concerned with a situation  

where 1991 appointees failed to join on time. These appeals are also  

not concerned  with  seniority inter  se  of  persons  appointed  on the  

result  of  one selection through direct  recruitment  or  through direct  

recruitment and promotion in one selection and, therefore, provisions  

of sub-rules (2) and (3) of rule 8 are also not attracted.  Sub-rule (1)  

1

of rule 8 in unambiguous terms states that the seniority of persons,  

subject  to  the  provisions  of  the  sub-rules  (2)  and  (3),   shall  be  

determined  from  the  date  of  the  order  of  their  substantive  

appointments.  Rule  4(h)  defines  ‘substantive  appointment’  as  an  

appointment, not being an ad-hoc appointment, on a post in the cadre  

of service, made after selection in accordance with the service rules  

relating to that service. It,  thus, becomes abundantly clear that for  

determination of inter se seniority between the two rival groups (1991  

and 1994 appointees by direct  recruitment)  what  is relevant is the  

date  of  the  order  of  their  substantive  appointment  and  since the  

substantive appointment of 1991 appointees is much prior in point of  

time, they must rank senior to the 1994 appointees.

20. It  is now appropriate to consider the authorities cited at  

the Bar and a couple of other decisions. In Rafiquddin7, this Court in  

the context of U.P. Civil Service (Judicial Branch) Rules, 1951 made  

general observations that seniority in the service is determined on the  

basis of the year of the competitive examination irrespective of the  

date of appointment and inter se seniority of candidates recruited to  

the service is determined on the basis of their ranking in the merit list.

2

21. In  A.P.  Public  Service  Commission6,  this  Court  was  

concerned  with  the  Andhra  Pradesh  Police  Service  Rules,  1966.  

While  dealing  with  the  word  ‘selection’  in  rule  5(A)(i)  of  the  said  

Rules, this Court observed as follows :

“If the word ‘selection’ is understood in a sense meaning  thereby only the final  act  of  selecting candidates with  preparation  of  the  list  for  appointment,  then  the  conclusion of the Tribunal may not be unjustified.  But  round  phrases  cannot  give  square  answers.  Before  accepting  that  meaning,  we  must  see  the  consequences, anomalies and uncertainties that it may  lead to. The Tribunal in fact does not dispute that the  process  of  selection  begins  with  the  issuance  of  advertisement and ends with the preparation of select  list for appointment. Indeed, it consists of various steps  like  inviting  applications,  scrutiny  of  applications,  rejection  of  defective  applications  or  elimination  of  ineligible  candidates,  conducting  examinations,  calling  for  interview  or  viva  voce  and  preparation  of  list  of  successful  candidates  for  appointment.  Rule  3  of  the  Rules of Procedure of the Public Service Commission is  also indicative of  all  these steps.  When such are the  different steps in the process of selection, the minimum  or  maximum  age  for  suitability  of  a  candidate  for  appointment  cannot  be  allowed  to  depend  upon  any  fluctuating  or  uncertain  date.  If  the  final  stage  of  selection  is  delayed  and  more  often  it  happens  for  various reasons, the candidates who are eligible on the  date of  application may find themselves eliminated at  the final stage for no fault of theirs. The date to attain  the  minimum  or  maximum  age  must,  therefore,  be  specific,  and  determinate  as  on  a  particular  date  for  candidates  to  apply  and  for  recruiting  agency  to  scrutinise  applications.  It  would  be,  therefore,  unreasonable to construe the word selection only as the  factum of preparation of the select list. Nothing so bad  would have been intended by the rule making authority.”

2

Pertinently, the aforesaid observations of this Court with regard to the  

word ‘selection’ are in the context of the age eligibility as the provision  

under consideration read,  ‘has completed the age of 21 years and  

had not completed the age of 26 years on the first day of July of the  

year  in  which  the  selection  is  made’.  The  aforesaid  observations,  

therefore,  have  to  be  read  in  the  context  of  the  provision  under  

consideration before this Court.  

22. In  Ram Janam Singh v.  State of  U.P.  and Anr.10 ,  this  

Court reiterated that the date of entry into a service is the  safest rule  

to follow while determining the inter se seniority between one officer  

or the other or between one group of officers and the other recruited  

from the different sources. It was observed that this is consistent with  

the  requirement  of  Articles  14  and  16  of  the  Constitution.  It  was,  

however, observed that if the circumstances so require, a group of  

persons  can  be  treated  a  class  separate  from  the  rest  for  any  

preferential  or  beneficial  treatment  while  fixing  their  seniority,  but,  

normally  such  classification  should  be  by  statutory  rule  or  rules  

framed under Article 309.

23. A two-Judge Bench of this Court in Jagdish Ch. Patnaik1,  

while construing the word ‘recruited’  occurring in Orissa Service of  10 (1994) 2 SCC 622

2

Engineers Rules, 1941, held that a direct  recruit  is recruited when  

formal appointment order is issued and not when recruitment process  

is initiated. This is what this Court said :  

“34. The  only  other  contention  which  requires  consideration  is  the  one  raised  by  Mr  Raju  Ramachandran, learned Senior Counsel appearing for  the  intervenors,  to  the  effect  that  the  expressions  “recruitment”  and  “appointment”  have  two  different  concepts  in  the  service  jurisprudence  and,  therefore,  when Rule 26 uses the expression “recruited” it must be  a stage earlier to the issuance of appointment letter and  logically  should  mean  when  the  selection  process  started and that  appears  to be the intendment  of  the  rule-makers  in  Rule  26.  We  are,  however,  not  persuaded  to  accept  this  contention  since  under  the  scheme of Rules a person can be said to be recruited  into  service  only  on  being  appointed  to  the  rank  of  Assistant Engineer, as would appear from Rule 5 and  Rule 6. Then again in case of direct recruits though the  process of recruitment  starts when the Public Service  Commission invites applications under Rule 10 but until  and unless the Government  makes the final  selection  under Rule 15 and issues appropriate orders after the  selected  candidates  are  examined  by  the  Medical  Board,  it  cannot  be  said  that  a  person  has  been  recruited  to  the  service.  That  being  the  position  it  is  difficult  for  us  to  hold  that  in  the  seniority  rule  the  expression  “recruited”  should  be  interpreted  to  mean  when the selection process really started. That apart the  said expression “recruited” applies not only to the direct  recruits  but  also  to  the  promotees.  In  case  of  direct  recruits  the  process  of  recruitment  starts  with  the  invitation of application by the Commission and in case  of promotees it starts with the nomination made by the  Chief Engineer under Rule 16. But both in the case of  direct recruits as well as in the case of promotees the  final  selection vests with the State Government under  Rules  15  and  18  respectively  and  until  such  final  selection  is  made  and  appropriate  orders  passed  

2

thereon no person can be said to have been recruited to  the  service.  In  this  view  of  the  matter  the  only  appropriate and logical construction that can be made of  Rule 26 is the date of the order under which the persons  are appointed to the post of Assistant Engineer, is the  crucial date for determination of seniority under the said  Rule………”

24. While dealing with the dispute relating to inter se seniority  

of  Munsifs—one  set  of  Munsif  recruited  on  the  basis  of  15th  

examination held by the Public Service Commission under the Bihar  

Judicial  Service  (Recruitment)  Rules,  1955  and  another  set  of  

Munsifs appointed under the Bihar Civil Service (Judicial Branch) Ad  

hoc Recruitment Rules, 1974, in  Surendra Narain Singh8, this Court  

held  that  candidates recruited against earlier vacancies shall rank  

senior to those recruited against the later vacancies.

25. In  Ajit  Kumar  Rath2,  this  Court  followed  Jagdish  Ch.  

Patnaik1   and  did  not  accept  the  contention  that  those  who were  

appointed  against  the  vacancies  of  the  earlier  years  although,  

appointed later in point of time,  must rank senior to the appointees of  

the vacancies of the subsequent years though appointed in prior point  

of time.

2

26. This Court emphasized  in the case of Uttaranchal Forest  

Rangers’  Association3    that  no  retrospective  promotion  can  be  

granted nor any seniority can be given on retrospective basis from a  

date  when  an  employee  has  not  even  born  in  the  cadre.  In  this  

regard, the Court relied upon  earlier decisions of this Court in State  

of Bihar & Ors. v. Akhouri Sachindra Nath & Ors.11  and  Jagdish Ch.  

Patnaik1.

27. In  the  case of  Dinesh Kumar Sharma4,  this  Court  was  

concerned with U.P. Agriculture Group ‘B’ Service Rules, 1995 and  

the 1991 Rules.   With reference to rule 8 of  the 1991 Rules,  this  

Court  held   that  seniority  cannot  be  reckoned  from  the  date  of  

occurrence of  the vacancy and should be reckoned only  from the  

date of  substantive appointment to the vacant post under the Rules  

and not retrospectively from the date of occurrence of vacancy.

28. The dispute  in Balwant Singh Narwal9 related to seniority  

of the Principals,  some of whom were appointed between  1995 and  

2000  and   others  on  May  26,  2000.  The  Principals  who  were  

appointed on May 26, 2000 were given seniority with retrospective  

effect from June 2, 1994. This Court while relying upon a decision in  

Surendra Narain Singh8 held as under : 11 (1991 (suppl.) 1 SCC 334

2

“9. There is no dispute about these general principles.  But  the  question  here  is  in  regard  to  seniority  of  Respondents  4  to  16  selected  on  1-10-1993  against  certain vacancies of 1992-1993 who were not appointed  due to litigation, and those who were selected against  subsequent vacancies. All others from the same merit  list declared on 1-10-1993 were appointed on 2-6-1994.  Considering a similar situation, this Court, in  Surendra  Narain Singh v. State of Bihar held that candidates who  were selected against earlier vacancies but who could  not be appointed along with others of the same batch  due  to  certain  technical  difficulties,  when  appointed  subsequently, will have to be placed above those who  were appointed against subsequent vacancies.”

29. The  Constitution  Bench  of  this  Court  in  Direct  Recruit   

Class II Engineering Officers’ Association v.  State of Maharashtra &  

Ors.12 stated  the  legal  position  with  regard  to  inter  se seniority  of  

direct recruits and promotees and while doing so, inter alia, it  was  

stated that once an incumbent is appointed to a post according to  

rules, his seniority has to be counted from the date of his appointment  

and not according to the date of his confirmation.

30. From  the  above,  the  legal  position  with  regard  to  

determination of seniority in service  can be summarized as follows :

(i) The  effective  date  of  selection  has  to  be  understood  in  the  

context of  the service rules under which the appointment is made. It  

may mean the date on which the  process of selection starts with the  12 (1990) 2 SCC 715

2

issuance of advertisement or the factum of preparation of the select  

list, as the case may be.

(ii) Inter se seniority in a particular service has to be determined as  

per the service rules. The date of entry in a particular service or the  

date  of  substantive  appointment  is  the  safest  criterion  for  fixing  

seniority  inter se between one officer or the other or between one  

group of officers and the other recruited from the different sources.  

Any departure therefrom in the statutory rules, executive instructions  

or otherwise must be consistent with the requirements of Articles 14  

and 16 of the Constitution.

(iii) Ordinarily, notional seniority may not be granted from the back  

date and if it is done, it must be based on objective considerations  

and on a valid classification and must be traceable to the statutory  

rules.  

(iv) The seniority  cannot be reckoned from the date of occurrence  

of  the vacancy and cannot be given retrospectively unless it  is  so  

expressly  provided by the relevant  service  rules.  It  is  so  because  

seniority cannot be given on retrospective basis when an employee  

has not  even born in the cadre and by doing so it  may adversely  

2

affect the employees who have been appointed validly in the mean  

time.

31. In light of the legal position summed up above and rule 8  

of the 1991 Rules, it is plain that 1991 appointees who were selected  

and appointed in accordance with the service rules cannot be made  

junior to 1994 appointees even if it is assumed that the selection and  

appointment of 1994 appointees was for earlier vacancies. The 1991  

appointees having been appointed substantively much prior in point  

of  time,    they are entitled to  rank senior  to  1994 appointees.  As  

already noticed above, rule 5 of the 1991 Rules has no application for  

determination of inter se seniority of the Deputy Jailors appointed by  

direct recruitment in 1991 and 1994. The consideration of the matter  

by the High Court is apparently flawed and cannot be sustained.  In  

the present fact situation, it must be held that 1994 appointees cannot  

legitimately claim their seniority over 1991 appointees.  

32. In view of the above,  it is not necessary to deal with the  

objection raised by the appellants about maintainability of writ petition  

filed by contesting private respondent directly before the High Court  

bypassing the remedy before the State Service Tribunal.

2

33. For the foregoing reasons, these appeals are allowed; the  

judgment  and  order  dated  December  2,  2002  passed  by  the  

Allahabad High Court is set aside. The seniority of the two groups of  

direct recruits to the posts of Deputy Jailor, one appointed through  

the  selection  made  by  the  Uttar  Pradesh  Subordinate  Services  

Selection Commission in 1991 and the other by Uttar Pradesh Public  

Service Commission in 1994 shall be now determined as indicated  

above, if  not determined in the manner stated above, so far.  The  

parties shall bear their own costs.

    ….….……………. J.                                                                   (R.M. Lodha) NEW DELHI, FEBRUARY 10, 2011.    

2

REPORTABLE       

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9906 OF 2003

PAWAN PRATAP SINGH & ORS. … APPELLANTS

VERSUS

REEVAN SINGH & ORS. … RESPONDENTS

WITH

CIVIL APPEAL NO.9907 OF 2003 AND

CIVIL APPEAL NO.9908 OF 2003

J U D G M E N T

Aftab Alam, J.

I have had the benefit of going through the judgment prepared by my  

brother  Lodha  J.  The  judgment  deals  with  all  the  relevant  facts  and the  

statutory  provisions  and  by  application  of  rule  8  of  the  Uttar  Pradesh  

Government Servants Seniority Rules, 1991 (the 1991 Rules) concludes that  

3

the appellants who were appointed as Deputy Jailers in 1993 (on the basis of  

the  selection  process  that  commenced  on October  27,  1990)  would  rank  

senior to the first respondent who was appointed in 1994, even though in his  

case the selection process had commenced much earlier on December 26,  

1987.  I too reach the same conclusion but by a different way and for slightly  

different reasons.  

The Uttar Pradesh Jail Executive Subordinate (Non-Gazetted) Service  

Rules,  1980  (the  1980  Rules)  under  which  the  appellants  and  the  first  

respondent were appointed as Deputy Jailers had, in rule 22, the provision  

for determination of seniority in any category of posts in the service. But  

rule 22 of the 1980 Rules was superseded by the 1991 Rules framed under  

Article  309  of  the  Constitution  and  coming  into  force  with  effect  from  

March 20, 1991. The 1991 Rules were made applicable to all government  

servants whose recruitments were governed by rules framed under Article  

309  of  the  Constitution  and  were  given  overriding  effect  over  all  other  

service rules. Both the appellants and respondent no. 1 were appointed after  

the 1991 Rules came into force. Hence, both sides agreed that the question  

of their  inter se seniority can be determined only under the provisions of the  

1991 Rules.

The High Court on application of the (second) proviso to rule 5 of the  

1991 Rules held that respondent no.1 would rank senior to the appellants,  

3

observing that the candidates who were selected in the selection process that  

commenced in 1987 should rank senior to those selected in the selection  

process  commencing  much  later  in  1990.  By  a  process  of  semantic  

reasoning, the High Court tried to make a distinction between ‘selection’ and  

‘appointment’  and  held  that  under  the  proviso  to  rule  5  what  was  

determinative was not appointment but selection. Proceeding on that basis  

the High Court held that though the appellants were appointed earlier (in  

1991) than respondent no.1 who was appointed later (in 1994), nevertheless  

they would rank junior to him because they were appointed “on the result of  

a subsequent selection”.            

I  am completely  unable  to  see  how the  facts  of  this  case  can  be  

squeezed to fit into the proviso to rule 5 of the 1991 Rules. An indication of  

the  kind  of  cases  to  which  the  proviso  would  apply  is  given  in  the  

explanation to it.  Further,  in service law it  is not unknown (especially in  

cases where recruitments are made regularly and the selection process is not  

inordinately prolonged) that even while a select list is alive and it is yet to be  

completely exhausted another select list on the basis of the next selection  

comes  into  being  and  appointments  are  made  from  that  list.  In  such  a  

situation certain vacancies relatable to the previous selection may still  be  

filled up from the waiting list/unexhausted previous list and in those cases  

even though the appointment might take place later, by virtue of the proviso  

3

in question, the candidate from the previous list would rank senior to the  

candidate appointed from the third list. To my mind, the proviso relied upon  

by the High Court has no application to the facts of this case where the two  

appointments,  based  on  selections  made  by  two  different  agencies,  are  

separated by a gap of two and a half years.

In my brother’s judgment, rule 5 is discarded in preference to rule 8 of  

the 1991 Rules because the post of Deputy Jailer is open to two modes of  

recruitment,  one  direct  and  the  other  by  promotion  from  amongst  the  

permanent Assistant Jailers (vide rule 5 of the 1980 Rules). It is pointed out  

that rule 5 of the 1991 Rules begins by expressly stating, “Where according  

to  the  service  rules  appointments  are  to  be  made  only by  the  direct  

recruitment….”  On  the  other  hand  rule  8  begins  by  saying,  “Where  

according to the service rules appointments are made both by promotion and  

by direct recruitment….” And under rule 8, seniority is to be determined on  

the basis of the date of the order of the substantive appointment. Applying  

the date of substantive appointment as the basis to determine seniority the  

appellants would indeed rank senior to respondent no.1.

With full respect, however, I am unable to persuade myself in regard  

to the application of rule 8 of the 1991 Rules to the facts of the case. The  

facts of the case are extraordinary and they seem to me, to fall completely  

outside the provisions of the 1991 Rules. An attempt to fit those facts into  

3

any of the provisions of the 1991 Rules would, to my mind, amount to doing  

violence to the rules. The 1991 Rules were not made exclusively for the Jail  

Executive Subordinate Service (to which the post of Deputy Jailer belongs)  

but those rules apply to all government servants for whose recruitments rules  

are framed under the proviso to Article 309 of the Constitution. In making  

rules of general application it is not possible to take into account a situation  

that is way out of the normal.

In the main judgment, the facts of the case are taken note of in detail  

but it would be useful to briefly recapitulate them here. Before November  

25, 1989, the statutory agency to make the selection for appointment to the  

post  of  Deputy  Jailer  was  the  Uttar  Pradesh Public  Service  Commission  

(hereinafter  “UPPSC”).  On  December  26,  1987  the  UPPSC  issued  an  

advertisement for filling up a large number of vacancies in different posts,  

including  144  vacancies  in  the  post  of  Deputy  Jailers.  It  held  the  main  

examination of the candidates applying in response to the advertisement in  

1991 and finally declared the result on July 27, 1993. On the basis of the list  

received from the UPPSC, the State Government issued appointment letters  

to the selected candidates (one of them being respondent no. 1) on April, 26  

1994. In short, the selection process started by the UPPSC was completed  

and materialized in appointments of the selected candidates in seven years.  

In the meanwhile, it seems, the State Legislature, having regard to the long  

3

delays in the completion of selection by the UPPSC, decided to lighten its  

burden by taking away from it the recruitments on all group ‘C’ posts in the  

State.  The  State  Legislature,  accordingly,  passed  the  Uttar  Pradesh  

Subordinate  Services  Selection  (Commission),  Act,  1988  to  establish  a  

Subordinate  Services  Selection  Commission  for  direct  recruitment  to  all  

group ‘C’  posts  in  the  State.  The  Act  came into  force  with  effect  from  

February 15, 1988. After coming into force of this Act, a notification had to  

be  issued  by  the  Governor  on  November  25,  1989,  clarifying  that  the  

vacancies for which requisition had earlier been made to the UPPSC would  

be filled up on the recommendation of the UPPSC alone and that is how the  

UPPSC continued  to  have  seisin  over  the  vacancies  advertised  by  it  on  

December  26,  1987.  The  newly  formed Selection Commission  issued an  

advertisement on October 27, 1990, for filling up 60 posts of Deputy Jailer.  

It  completed  the  selection  process  and  sent  the  select  list  to  the  State  

Government in 1991 and on that basis the appellants were appointed vide  

appointment  letter  dated  November  23,  1991  issued  by  the  State  

Government.  At  this  stage,  it  is  important  to  note  that  in  terms  of  the  

advertisement issued by the  Selection Commission  on October  27,  1990,  

there was nothing to prevent those (including respondent no.1) who might  

have applied in response to the earlier advertisement by the UPPSC to also  

apply for the 60 vacancies under the later advertisement by the Selection  

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Commission. When this aspect of the matter was pointed out, it was stated  

on behalf of the respondents that by the time the later advertisement by the  

Selection  Commission  was  issued  on  October  27,  1990  some  of  the  

applicants  before  the  UPPSC  had  become  overage  and  were  no  longer  

eligible to apply. There are no details available as to how many of the 144  

candidates appointed from the select list of the UPPSC had become overage  

by the time the advertisement of the Selection Commission came on October  

27, 1990; even in the case of respondent no. 1 it is not stated clearly and  

definitely that he was unable to apply in response to the advertisement of  

October 27, 1990, issued by the Selection Commission because by that time  

he had become over age. Be that as it may, this aspect of the matter is only  

incidental  and it  is recalled simply to point out that it  is not open to the  

respondents to contend that the position in which they are placed is the result  

of circumstances over which they had no control and to make an appeal in  

the name of equity.          

The purpose in recapitulating the facts of the case is to show that the  

situation arising from the two sets of appointments and the resultant dispute  

of seniority is highly anomalous. It should be accepted as such instead of  

trying to fit the facts into any of the rules of the 1991 Rules. The 1991 Rules  

were not designed to resolve a dispute of seniority arising from such facts. If  

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I put on the cap of the rule maker I cannot imagine myself conceiving of a  

fact situation of this kind and making a provision to meet the contingency.  

Now,  in  case  the  seniority  between  the  appellants  and  the  first  

respondent is to be determined outside the 1991 Rules, one has to go to the  

basic  principles  for determination of  seniority.  One cardinal  principle  for  

determination of seniority is that unless provided for in the rules, seniority  

can not relate back to a period prior to the date of the incumbent’s birth in  

the service/cadre.                    

As  a  matter  of  fact  this  principle  is  fully  dealt  with  in  the  main  

judgment in which reference is made to the decisions of this Court in Ram  

Janam  Singh  v. State  of  UP,  (1994)  2  SCC  622;  Uttaranchal  Forest   

Rangers’ Association (Direct Recruit) & Ors. v. State of UP & Ors., (2006)  

10 SCC 346; State of Bihar & Ors. v. Akhouri Sachindra Nath & Ors., 1991  

Supp (1) SCC 334 and the principle is summarized in sub-paragraphs (2) &  

(4) of paragraph 30 of the judgment.

To the decisions referred to on this point in the main judgment I may  

add just one more in Suraj Parkash Gupta v. State of J & K, (2000) 7 SCC  

561. The decision relates to a dispute of seniority between direct recruits and  

promotees but in that case the Court considered the question of ante-dating  

the date of recruitment on the ground that the vacancy against which the  

appointment was made had arisen long ago. In paragraph 18 of the decision  

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(at  page 578 of the SCC) the Court framed one of the points arising for  

consideration in the case as follows:

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

This Court answered the question in the following terms:

“Point 4:

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

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

This contention, in our view, cannot be accepted. The reason as  to why this argument is wrong is that in service jurisprudence, a  direct  recruit  can  claim  seniority  only  from  the  date  of  his  regular  appointment.  He  cannot  claim  seniority  from a  date  when he was not borne in the service. This principle is  well  settled.  In  N.K.Chauhan v.  State of  Gujarat,  Krishna Iyer,  J.  stated:

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

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Again, in  A. Janardhana v.  Union of India, it was held that a  later direct recruit cannot claim seniority from a date before his  birth  in  the  service  or  when  he  was  in  school  or  college.  Similarly it was pointed out in A.N. Pathak v. Secretary to the  Government that  slots  cannot  be  kept  reserved for  the  direct  recruits for retrospective appointments.”

In conclusion I would say that in the facts of this case the issue of  

seniority between the appellants and respondent no. 1 must be decided on  

the basis of the aforesaid principle and there is no need to refer to rule 8 of  

the 1991 Rules. By this way I also hold that respondent no.1 cannot claim  

seniority  over  the  appellants  and  the  appellants  would  rank  senior  to  

respondent no.1.

In the result, the appeals are allowed. The judgment of the High Court  

is set aside and the writ petition filed by respondent no. 1 in the High Court  

is directed to be dismissed.  

There shall be no order as to costs.     

………………………..J. (Aftab Alam)

New Delhi; February 10, 2011.

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9906 OF 2003

PAWAN PRATAP SINGH & ORS. … APPELLANTS

VERSUS

REEVAN SINGH & ORS. … RESPONDENTS

WITH

CIVIL APPEAL NO.9907 OF 2003 AND

CIVIL APPEAL NO.9908 OF 2003

O R D E R

In  view  of  the  two  separate  judgments  (which  are  concurrent  in  

nature) pronounced by us in these appeals today, the appeals are allowed.  

There shall be no order as to costs.     

………………………J. (Aftab Alam)

………………………J. (R.M. Lodha)

New Delhi; February 10, 2011

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