REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    4949                         OF 2011 (Arising out of SLP (C) No.5098 of 2007)

Rajendra Pratap Singh Yadav  and Others                  …Appellants

Versus

State of U.P. and Others                         …Respondents

WITH

CIVIL APPEAL NO.     4950                          OF 2011 (Arising out of SLP (C) No.7393 of 2007)

Sureshwar  …Appellant

Versus

State of U.P. and Others                         …Respondents

WITH

CIVIL APPEAL NOS.        4951-4953                       OF 2011 (Arising out of SLP (C) Nos.25949-25951 of 2008)

Sudhir Kumar  …Appellant

Versus

Madhukar Dwivedi and Others                         …Respondents

1

AND

CIVIL APPEAL NOS.      4954-4956                         OF 2011 (Arising out of SLP (C) Nos.26022-26024 of 2008)

Rajendra Singh …Appellants

Versus

Madhukar Dwivedi and Others                         …Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. Leave granted in all the Special Leave Petitions.

2. Since common questions of law arise in all these appeals,  

therefore, these appeals are being disposed of by a common  

judgment.  The facts of Civil Appeal No. 4949 of 2011 arising  

out of Special Leave Petition (Civil)  No.5098 of 2007 entitled  

Rajendra Pratap Singh Yadav & Others v. State of U.P. &  

Others are recapitulated for the sake of convenience.

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3. The  appellants  and  respondent  No.4  -  Rakesh  Kumar  

Jolly are direct recruits to the Uttar Pradesh Provincial Police  

Service.   It  is  stated  that  the  appellants  are  4  to  10 years  

senior to respondent No. 4, who was selected and appointed in  

the  year  1994 as  Deputy  Superintendent  of  Police  in  Uttar  

Pradesh Provincial Police Service.  Respondent No.4 was given  

benefit  of  his  past  service  in  the  Indian  Army  as  a  Short  

Service Commissioned Officer of eight years vide order dated  

29.11.2004  issued  by  the  State  Government.   Since  

respondent  No.4,  though  junior  was  placed  above  the  

appellants, therefore, the appellants filed a writ petition before  

the High Court of judicature at Allahabad.

4. According to the appellants, respondent No.4 could not  

have been given the benefit of past service.  The benefit of back  

seniority was given to respondent No.4 under the U.P. Non-

technical  (Class-II/Group  ‘B’)  Services  (Appointment  of  

Demobilised  Officers)  Rules,  1980,  as  amended  in  1990.  

Demobilised  Officer  has  been  defined  in  Rule  3(b)  of  the  

Demobilisation Rules, 1980, which reads as under:

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“3. Definitions – In these rules unless the context  otherwise requires –

(a) ……………. (b) “Demobilised  Officer”  means  Disabled  

Defence  Service  Officer,  Emergency  Commissioned  Officer  and  the  Short  Service  Commissioned  Officer  of  the  Armed  Forces  of  the  Union  who  was  commissioned  on  or  after  November  1,  1962 but before January 10, 1968 or on  or after December 3, 1971 and released  at any time thereafter.

(c) ……………..”

5. Respondent  No.4  joined  the  Indian Army in  1981 and  

was  discharged  from  the  Army  in  1986.   He  was  a  Short  

Service  Commissioned  Officer.   The  appellants  raised  the  

following questions in this case.

(1) Whether  a  Short  Service  Commissioned  Officer  who  was  commissioned  in  the  Army during the normal period is entitled  to the certain benefits given to the Army  officers  who  were  commissioned  during  the  emergency  when  the  nation  was  at  war with the foreign enemy.

(2) Whether  a  demobilized  Short  Service  Commissioned  Officer  who  was  commissioned in the army during normal  period  and  whose  selection  in  the  civil  post is not against the vacancies reserved  for demobilized officers under U.P. Non- Technical  (class-II)  Services  (Reservation  of  Vacancies  for  Demobilised  Officers)  Rules,  1973  (hereinafter  referred  to  as  

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“1973  Rules”)  is  entitled  to  seniority  under  the  Uttar  Pradesh  non-technical  (Class II/Group-B) Services (Appointment  of  Demobilised  Officers)  Rules,  1980  (hereinafter referred to as “1980 Rules”)?

(3) Whether  a  demobilized  Short  Service  Commissioned Officer who is not selected  for appointment to a non-technical Class- II/Group-B  service  or  post  against  the  vacancies  reserved  for  demobilised  officers,  as  a  result  of  recruitment,  the  process  of  which  was  concluded  or  commenced prior to 6th August, 1978, in  accordance  with  the  provisions  of  1973  Rules is entitled to seniority and pay as  meant for the persons appointed against  the  vacancies  reserved  under  the  1973  Rules?

(4) Whether  when  a  Short  Service  Commissioned  Officer  who  has  been  selected  and  appointed  against  the  vacancies reserved for such officers under  the  Government  Order  of  1977  which  does  not  contemplate  any  seniority  for  the past services rendered in the Army, is  entitled  to  seniority  under  the  1980  Rules?

(5) When  the  order  of  appointment  itself  provides that the seniority of the selected  Short Service Commissioned Officer shall  be  determined  according  to  the  Uttar  Pradesh Police Service Rules, 1942, can  the Government dehors the terms of the  appointment order grant him seniority of  8  years  because  he  happened  to  be  a  Short Service Commissioned Officer?

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6. The  main  argument  articulated  by  the  appellants  is  

whether  a  Short  Service  Commissioned  Officer  who  was  

commissioned in the Army during the normal period is entitled  

to  the  certain benefits  given to  the  Army officers  who were  

commissioned during the emergency when the nation was at  

war with the foreign enemy.

7. It was submitted before the High Court that the person  

who had joined the Army after declaration of emergency due to  

foreign aggression and those who joined after the war came to  

an  end  stand  on  an  entirely  different  footing.   Those  who  

joined the Army after revocation of emergency joined the Army  

as a career and belong to different class distinct from those  

who had joined the Army during war and emergency.    

8. It is well known that many persons who joined the Army  

service  during  the  foreign  aggression  could  have  opted  for  

other career or other softer career or service but the nation  

itself  being  under  peril,  impelled  by  the  spirit  to  serve  the  

nation,  they opted for  joining the Army where the  risk was  

little more.  Such persons formed a class by themselves and by  

framing Rules an attempt had been made to compensate those  6

who  returned  from  the  war  if  they  compete  in  different  

services.   

9. The persons who joined the Army service after cessation  

of the foreign aggression and revocation of emergency cannot  

be  treated  like  persons  who  have  joined  the  Army  during  

emergency  due  to  foreign  aggression  and  similar  benefits  

cannot be given to such persons even by making rules.     

10. The  appellants  also  submitted  that  whenever  any  

particular period is spent in any service by a person is added  

to the service to which such person joined later; it is bound to  

affect the seniority of persons who have already entered in the  

service.  As such, any period of earlier service should be taken  

into account for determination of seniority in the latter service  

only  for  special  or  compelling  reasons,  which  stand  test  of  

reasonableness and on examination,  can be held  to be free  

from arbitrariness.  Therefore, the decision of the Government  

of India to give seniority to respondent No.4, who did not join  

the armed forces during emergency and thus stealing a march  

over  181  officers  is  not  only  contrary  to  the  Rules  but  is  

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discriminatory and arbitrary and violative of Articles 14 and  

16 of the Constitution of India.  

11. According  to  the  appellants,  the  High  Court  in  the  

impugned  judgment  did  not  appreciate  the  controversy  

involved in the case in proper perspective and dismissed the  

writ petition.  The appellants aggrieved by the said judgment  

of the High Court filed these appeals before this court.  

12. The appellants placed reliance on a number of judgments  

of this Court to strengthen their submissions.

13. In  Ex-Captain  A.S. Parmar and Others v.  State of   

Haryana and Others  1986 (Supp) SCC 283 this court held  

that  the  seniority  of  the  Military  Service  rendered  by  the  

Armed Forces Personnel who joined the Military Service during  

emergency would only be counted for the purpose of seniority  

in  the  civil  service  and  the  Military  Service  rendered  

subsequent to the lifting of emergency cannot be taken into  

account for the purpose of reckoning the seniority in the civil  

post.

8

14. In  Union of  India  and Others  etc.  etc.   v.   Dr.  S.   

Krishna Murthy and Others   etc.  etc.  (1989)  4 SCC 689  

this court observed that the persons who had joined the armed  

forces after the declaration of the emergency at the time when  

the  security  of  the  nation  was  in  peril  due  to  external  

aggression  had  voluntarily  offered  their  services  for  the  

defence of the country.  They belong to a separate class and  

there is no question of discrimination in giving the benefits of  

seniority to them in the civil services by framing Rules.  

15. This court in Dhan Singh and others etc. etc. v.  State  

of Haryana and others  1991 Supp (2) SCC 190 specifically  

held  that  the  young  persons  who  had  joined  the  military  

service during emergency and those who were already in the  

service and due to exigency of the service had been compelled  

to  serve  during  the  emergency  form  two  distinct  classes.  

Those  who joined  the  Army  before  the  proclamation  of  the  

emergency  had  chosen  the  career  voluntarily  and  their  

services  during  emergency  were  a  matter  of  course.   The  

person  who  got  enrolled  or  commissioned  during  the  

emergency, on the other hand, on account of the call of the  

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nation  joined  the  Army at  that  critical  juncture  of  national  

emergency to  save  the  motherland  by  taking  a  greater  risk  

where  danger  to  life  of  a  member of  the  armed forces  was  

higher.  They include persons who could have pursued their  

studies, acquired higher qualifications and could join a higher  

post and those who could have joined the government service  

before  attaining  the  maximum  age  prescribed  and  thereby  

gained seniority in the service.   Foregoing all  these benefits  

and avenues, they joined the Army keeping in view the needs  

of  the  country  and  assurances  contained  in  conditions  of  

service in executive instructions.  The latter formed a class by  

themselves and they cannot be equated with those, who joined  

the Army before proclamation of the emergency.   

16. In  Ram  Janam  Singh  etc.  v.   State  of  U.P.  and  

Another etc.  (1994) 2 SCC 622, this court while interpreting  

U.P. 1968 Rules, 1973 Rules and 1980 Rules, specifically held  

that the persons who had joined the Army after declaration of  

the emergency due to foreign aggression and those who joined  

after the war cannot stand on the same footing.  Those who  

joined the Army after revocation of emergency, joined the Army  

10

as a career.  This court specifically rejected the plea in para 14  

to  treat  the  persons  who  joined  the  Army  service  after  

cessation of foreign aggression and revocation of emergency to  

be  treated  alike  the  persons  who  had  joined  Army  service  

during emergency due to foreign aggression.  It was also held  

that any period of earlier service should be taken into account  

for  determination  of  seniority  for  some  very  compelling  

reasons,  which  stand  the  test  of  reasonableness  and  on  

examination can be held free from arbitrariness.   

17. In  Chittaranjan Singh Chima and Another v.  State  

of Punjab and others  (1997)  11 SCC 447 this court while  

relying on the judgment in the case of  Ram Janam Singh  

(supra) held that the preferential treatment could be given only  

to those who joined armed forces during emergency and grant  

of notional seniority in the civil services by taking into account  

service rendered in the armed forces cannot be extended to  

those who joined armed forces during normal times.   

18. This  court  in  State  of  Punjab  and  Others  v.  

Harbhajan Singh and Another  (2007)  12 SCC 549,  while  

relying on judgment in the case of Ram Janam Singh (supra)  11

held that the military service can be counted only if the person  

has joined during the emergency and not otherwise.   

19. In  State  of  U.P.  and  another  etc.  etc.  v.   Dinkar  

Sinha  (2007)  10  SCC  548, this  court  specifically  placed  

reliance on the judgment in Ram Jam Singh’s case (supra) and  

held that a person, who joined the Army after the cessation of  

emergency cannot be given benefit of seniority of the services  

rendered in the Army after selection in the civil services.   

20. The appellants also submitted that a demobilized Short  

Service  Commissioned officer  who was commissioned in the  

Army during the normal period and whose selection in the civil  

post is against the vacancies reserved for demobilized officers  

under the 1973 Rules is not entitled to seniority under the  

1980 Rules.  

21. Under  Rule  3  of  1973  Rules,  10%  of  the  permanent  

vacancies in all Non-Technical (Class-II) services were reserved  

for Emergency Commissioned Officers who joined the armed  

forces during the first emergency i.e. 1.11.1962 to 10.1.1968  

and during the second emergency i.e. 3.12.1971 to 27.3.1977.  

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Under Rule 1(2), these rules were to remain in force only for a  

period of 5 years.  Rule 6 provided for seniority and pay and  

specifically provided that seniority of the candidates appointed  

against the 10% vacancies reserved under Rule 3 should be  

determined on the assumption that they entered the service at  

their second opportunity of competing of recruitment and they  

should be assigned the same year of allotment as successful  

candidates of the relevant competitive examination.  Therefore,  

the benefit of the 1973 Rules cannot be extended after these  

Rules ceased to exist on 5.8.1978 and to the persons whose  

appointment in the civil  posts was not under the vacancies  

reserved under Rule 3 of the 1973 Rules.  

22. When the 1973 Rules lapsed in 1978 some selections for  

the vacancies reserved under the 1973 Rules were concluded  

or the selection process was on but the appointments could  

not be made.  To regularize the selection and appointment of  

these officers against the vacancies reserved under the 1973  

Rules, a new set of Rules i.e. 1980 Rules were promulgated on  

19.8.1980 by the State Government.  

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23. The  appellants  submitted  that  only  Rules  governing  

reservation  is  1973  Rules,  which  ceased  to  exist  after  five  

years, i.e., on 5.8.1978.  The appellants also submitted that no  

one could be given the benefit of 1973 Rules after 5.8.1978.  

The  appellants  further  submitted  that  in  Dilbag  Singh  v.  

State  of  U.P.  and  others  (1995)  4  SCC  495 this  court  

observed that 1973 Rules must be deemed to be in operation  

till 1980.

24. According  to  the  appellants  this  is  not  the  correct  

position  of  law,  but  in  any  event  no  one  could  derive  any  

benefit after 1980.  Respondent No.4 admittedly joined service  

much after 1980 and could not have been extended the benefit  

of the Rules.  

25. According to the appellants, 1980 Rules do not deal with  

reservation.   They  are  only  Rules  for  appointment.   The  

appellants also submitted that under 1980 Rules there is no  

provision  with  respect  to  reservation  of  vacancies  to  the  

demobilized officers of armed forces of the Union.  These Rules  

are not replacement of 1973 Rules as generally misunderstood  

and  these  rules  are  a  new  set  of  rules  for  the  purpose  of  14

regularising  appointments  of  demobilized  officers  whose  

selection  process  had  commenced  or  concluded  under  the  

1973 Rules but appointments were not made before expiry of  

the 1973 Rules i.e. 6.8.1978.  Nomenclature of the 1980 Rules  

is different from the 1973 Rules which explain the purpose of  

these  rules.   The  1973  Rules  provide  for  reservation  of  

vacancies  for  the  demobilized  officers,  whereas  1980  Rules  

provide for appointment of demobilized officers whose process  

of  selection  as  per  the  1973  Rules  either  got  completed  or  

commenced but appointments were not made before the expiry  

of  the  said  1973  Rules.   The  1980  Rules  have  been  given  

retrospective effect with effect from 6.8.1978 to regularize the  

appointment  of  the  demobilized  officers  whose  selection  

process  was  concluded  or  commenced  before  6.8.1978  

otherwise appointment orders of those officers after 6.8.1978  

to 19.8.1980 would have been invalid who were given benefit  

of 1973 Rules.  Rule 4 of the 1980 Rules prescribes a cut-off  

date  which  provides  that  benefits  of  the  Rules  shall  be  

available only against the vacancies reserved for demobilized  

officers  under  1973  Rules  whose  process  of  recruitment  

commenced or was completed prior to the 6.8.1978 when the  15

1973  Rules  had  lapsed.   Therefore,  a  demobilized  officer,  

whose selection was not against the vacancies reserved under  

the  1973  Rules  and  his  process  of  selection  started  after  

6.8.1978,  by  no  stretch  of  imagination,  is  entitled  to  the  

seniority under the 1980 Rules.  

26. The appellants also submitted that it  is not in dispute  

that respondent No. 4 was appointed in the year 1994 against  

the 8% vacancies reserved under the Government Order dated  

20.8.1977, which provides reservation to other categories of  

persons  as  well.   There  is  no  provision  in  the  Government  

Order for granting seniority to a Short Service Commissioned  

officer for his past military service, who was appointed against  

the 8% vacancies reserved for the armed forces personnel as  

mentioned in the Government Order.  Since the appointment  

of respondent No.4 in the U.P. Police Service in the year 1994  

was not against the vacancies reserved under the 1973 Rules,  

he could not have been granted seniority of eight years by the  

State Government.  

27. In the case of  Rana Randhir Singh and others etc.  

etc. v. State of U.P. and others 1989 Supp (1) SCC 615 this  16

Court  has specifically  held  that  the  seniority  of  the  officers  

appointed  in  the  U.P.  Police  Service  after  1980  shall  be  

determined in accordance with the provisions of Rule 21 of the  

U.P.  Police  Service  Rules,  1942.   Therefore,  the  respondent  

could  not  have  been  assigned  seniority  of  eight  years  only  

because  he  happened  to  be  a  Short  Service  Commissioned  

Officer.  

28. In  reply  to  question  No.  5  i.e.  “when  the  order  of  

appointment  itself  provides  that  the  seniority  of  the  selected  

Short  Service  Commissioned  Officer  shall  be  determined  

according to the Uttar Pradesh Police Service Rules, 1942, can  

the  Government  dehors  the  terms  of  the  appointment  order  

grant him seniority  of  8 years because he happened to be a  

Short Service Commissioned Officer”, the appellants submitted  

that it is trite law that the service conditions mentioned in the  

order  of  appointments  are  binding  on  the  employee  and  

employer alike if the same are not against the statutory rules  

governing  the  service  conditions  or  public  policy  or  the  

provisions of the Constitution of India.  The appointment order  

of respondent No. 4 specifically mentions that the seniority of  

17

respondent No.4and other officers selected shall be determined  

in accordance with the U.P. Police Service Rules, 1942.  It is  

also submitted that having accepted this service condition as  

mentioned in the appointment order, the claim of respondent  

No.4 for grant of eight years seniority as he was Short Service  

Commissioned Officer could not have been allowed.  

29. In Dinkar Sinha (supra) the controversy has been set at  

rest  where  this  court  has  categorically  held  that  a  person  

whose appointment  in the civil/police  service  is  not against  

the  vacancies  reserved under  the  1973  Rules  cannot  claim  

seniority under the 1980 Rules.  

30. The appellants also submitted that the final seniority list  

of  the  officers  of  the  U.P.  Police  Service  was  published  on  

1.2.2000 and respondent No. 4 was placed at Sl. No. 340.  He  

was  satisfied  and felt  contended  with  his  placement  in  the  

seniority  list.   Once  the  seniority  list  was  finalized  and  no  

representation  was  made  by  respondent  No.4  for  years,  

therefore,  it  ought  not  to  have  been  disturbed.  The  final  

seniority list should not be disturbed or tinkered with unless it  

becomes imperative in the larger interest of justice.  18

31. It  may  be  pertinent  to  mention  that  Dinkar  Sinha,  a  

Short  Service  Commissioned  Officer,  who  was appointed  as  

Deputy  Superintendent  of  Police  against  the  8%  vacancies  

reserved under the Government Order dated 20.8.1977 made  

a  representation claiming seniority  under  1980 Rules.   The  

State  Government  rejected  his  representation  on  14.9.2000  

saying  that  he  was  not  selected and appointed  against  the  

vacancies reserved under the 1973 Rules.  However, the High  

Court vide its judgment dated 8.2.2002 allowed the prayer of  

Dinkar Sinha.   

32. Respondent  No.4,  after  the  said judgment  by the High  

Court and after four years from the date of publication of the  

final  seniority  list,  filed  a  representation  before  the  State  

Government that he was similarly placed as Dinkar Sinha and  

he  should  be  assigned  seniority  of  1980 batch.   The  State  

Government rejected the representation of Dinkar Sinha but  

obliged  respondent  No.  4  and  vide  order  dated  29.11.2004  

granted him seniority of 1982 batch and thus, he was given a  

jump of  181 places.   According  to  the  appellants,  the  long  19

drawn seniority should not have been disturbed after so many  

years.  

33. It  may  also  be  pertinent  mention  here  that  Dilbag  

Singh’s  (supra)  case was approved in  Mahesh Chand and  

Others v.  State of U.P. and Others (2000) 10 SCC 492.

34. The main submission of the learned counsel for the State  

of U.P. has been that individuals who were appointed under  

the 10% vacancies are not entitled for the benefit.  He placed  

reliance on advertisement and the appointment letter of all the  

three respondents who got the benefit but their appointments  

were not made against 10% vacancies.

35. Dr. Rajiv Dhawan, learned senior counsel appearing in  

Civil  Appeals  No.4954-4956  of  2011  arising  out  of  Special  

Leave  Petition  (Civil)  Nos.26022-26024  of  2008  entitled  

‘Rajendra  Singh  v.  Madhukar  Dwivedi  and  Others’,  

submitted that  Dilbag Singh  (supra) has been approved in  

Mahesh  Chand  (supra),  which  is  a  three  Judges  Bench  

judgment and binding on this court.  He submitted that even  

the State of U.P. till 2007 has prepared all lists according to  

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the judgment of  Mahesh Chand’s  (supra) case.  He further  

submitted that Dinkar Sinha’s (supra)  judgment is delivered  

by  two  judges  and  they  were  bound  by  the  judgment  of  

Mahesh  Chand  (supra)  and  they  could  not  have  taken  a  

contrary view.

36. Dr. Dhawan also placed reliance on the judgment of this  

court in the case of  Narendra Nath Pandey and Others v.  

State of U.P. and others  (1988) 3 SCC 527.  He submitted  

that  despite  Rules,  the  executive  has  the  power  to  grant  

reservation by an executive order.

37. Mr. Dinesh Dwivedi, learned senior counsel appearing in  

Civil  Appeals  No.4951-4953  of  2011  arising  out  of  Special  

Leave  Petition  (Civil)  Nos.  25949-25951  of  2008  entitled  

‘Sudhir Kumar v.  Sri Madhukar Dwivedi etc.’ submitted  

that Sudhir Kumar had joined the Army on 17.5.1976.  On  

19.3.1977  appellant  was  commissioned  as  a  Short  Service  

Commissioned Officer.   On 12.5.1982 he was released from  

the Army services.  In the year 1984 he appeared in Provincial  

Civil  Services (Executive)  Examination in Uttar Pradesh and  

passed in the year 1984.  On 7.7.1986 the appellant joined  21

State Civil Services as Deputy Collector.  He was confirmed in  

the batch of 1985 for the purpose of seniority.  On 25.6.1994,  

Sudhir Kumar made a representation to the State Government  

to accord seniority to him at proper place and the batch in  

gradation list following the decisions of this court as accorded  

to  other  similarly  situated  demobilized  officers  by  the  State  

Government.  Vide  order  dated  13.3.2003,  the  State  

Government decided the seniority of the appellant and fixed  

his name below the name of Santosh Kumar Dwivedi of 1976  

batch and above Vinod Kumar Singh of 1977 batch.     

38. The  appellant  being  aggrieved  by  the  judgment  dated  

30.9.2008  delivered  by  the  High  Court  of  judicature  at  

Allahabad,  Lucknow Bench in Writ  Petition No.494 (S/B) of  

2003  entitled  Madhukar  Dwivedi  v.  State  of  U.P., Writ  

Petition No. 504 (S/B) of 2003 entitled Arvind Narain Mishra  

and Another v. State of U.P. and others and Writ Petition  

No.  1083  (S/B)  of  2004  entitled  Har  Charan  Prakash  v.  

State  of  U.P.  filed  Civil  Appeals  No.4951-4953  of  2011  

arising out of Special Leave Petition (Civil) Nos. 25949-25951  

of 2008 in this Court.

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39. According  to  Mr.  Dwivedi  the  appellant  was  

commissioned  as  a  Short  Service  Commissioned  Officer  on  

19.3.1977 during the period when the emergency was invoked  

and he ought to have been given the benefit of 1973 Rules.  He  

cannot be denied the benefit on the ground that he was not  

appointed under the 10% vacancy quota or 1973 Rules.

40. Mr.  Dwivedi  placed  reliance  on  Ram  Janam  Singh  

(supra) and particularly laid stress on para 12 of the judgment  

which reads as under:

“… … …we fail  to  understand as to how persons  who joined after the emergency was over i.e. after  January  10,  1968  and  before  December  3,  1971  when another emergency was imposed in view of the  foreign aggression, can be treated on a par or on the  same level.  It  need not  be  pointed out  that  such  persons were on the lookout for a career and joined  the Armed Forces of  their  own volition.  It  can be  presumed that they were prepared for the normal  risk in the service of the Armed Forces. Those who  joined  Armed  Forces  after  November  1,  1962  or  December  3,  1971,  not  only  joined Armed Forces  but  joined  a  war  which  was  being  fought  by  the  nation. If the benefits extended to such persons who  were commissioned during national emergencies are  extended even to the members of the Armed Forces  who joined  during  normal  times,  members  of  the  Civil  Services  can  make  legitimate  grievance  that  their seniority is being affected by persons recruited  to  the  service  after  they  had  entered  in  the  said  

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service  without  there  being any rational  basis  for  the same.”

41. We have carefully  gone through the pleadings of  these  

appeals  and  perused  relevant  judgments  delivered  by  this  

court.   

42. The 1973 Rules ceased to exist  after  five years i.e.  on  

5.8.1978.   The life  of  the Rules,  according to the judgment  

delivered in Dilbag Singh (Supra) was extended upto 1980.  In  

any event, no one could be given benefit of 1973 Rules after  

1980.  Admittedly, respondent No. 4 was appointed in 1994  

and the benefit could not have been extended to respondent  

No.4.   

43. Same  Rules  came  up  for  consideration  in  Dinkar  

Sinha’s case (supra) wherein the Court observed as under:  

“31. The  1973 Rules was a temporary statute.  It  died its natural death on expiry thereof. The 1980  Rules  does  not  contain  any  repeal  and  saving  clause. The provisions of the relevant provisions of  the  General  Clauses  Act  will,  thus,  have  no  application. Once a statute expires by efflux of time,  the  question  of  giving  effect  to  a  right  arising  thereunder may not arise. In any event, in this case,  no  such  right  accrued  to  the  respondent.  Reservation to  the  extent  of  2% might  have  been  

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fixed by reason of a government order issued in the  year 1977 but the same had nothing to do with the  1973 Rules  or with the 1980 Rules.  Provision for  reservation made in general by the State in exercise  of  its  executive power  could not  have conferred a  benefit  in terms of the provisions of a rule which  seeks to apply to a particular category of employees  in the service.

32. The  1980  Rules  neither  repealed  nor  replaced  the  1973  Rules.  The  question  of  continuation of the 1973 Rules by the 1980 Rules,  thus, did not and could not arise. The 1980 Rules  provided for a new set of rules. They were to have a  limited  application  viz.  regularisation  of  appointment of Demobilised Officers.”

44. Consequently,  persons  who  joined  the  Army  after  the  

emergency was over cannot also be given the benefit  which  

was extended to those persons who joined the Army during  

emergency.  Those who joined the Army during the period of  

emergency virtually joined the war which was being fought by  

the nation.  The benefit extended to such persons cannot be  

extended to the members of the armed forces who had joined  

the Army during normal periods.

45. Persons  who  have  joined  the  Army  during  the  foreign  

aggression could have opted for other career or softer career or  

service but the nation itself being under peril, impelled by the  

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spirit  to  serve  the  nation,  they  opted  for  joining  the  Army  

where the risk was much more.  Such persons formed a class  

by  themselves  and the  benefit  extended  to  them cannot  be  

extended  to  the  persons  who  joined  the  Army  during  the  

normal times.   The differential treatment given to those who  

joined  the  Army  during  emergency  cannot  be  termed  as  

discriminatory and arbitrary.  

46. Respondent No.4, after the judgment of the High Court  

and after four years from the date of publication of the final  

list, filed a representation before the State Government that he  

be  similarly  placed  as  Dinkar  Sinha  as  he  being  assigned  

seniority  of  1980  batch.   The  State  Government  granted  

seniority to respondent No. 4 and he was given a jump of 181  

places and the final seniority list was disturbed by the State.  

47. The appointment of respondent no.4 was not against the  

vacancies reserved under the 1973 Rules, therefore, he cannot  

get benefit of 1973 Rules.

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48. In  Rana  Randhir  Singh’s  case  (supra),  this  Court  

clearly held that the seniority of the officers appointed in the  

U.P.  Police  Service  after  1980  shall  be  determined  in  

accordance with the provisions of Rule 21 of the U.P. Police  

Service Rules, 1942.  Respondent no.4 was appointed in 1994,  

therefore, the 1942 Rules would be applicable to him as the  

said Rules are still in force.

49. Respondent  no.4 did  not  join the  armed forces  during  

emergency and thus stealing a march over 181 officers is not  

only contrary to the Rules but is discretionary and arbitrary  

and violative of Articles 14 and 16 of the Constitution.

50. We  are  clearly  of  the  view  that  respondent  No.4  and  

similarly  placed  employees  could  not  have  been  given  the  

benefit of the 1973 Rules.  These Rules were not in existence  

when they were appointed.   Therefore,  they could  not  have  

derived any benefit from the 1973 Rules.   

51. Consequently,  we  are  constrained  to  set  aside  the  

impugned judgment of the High Court.  We have no hesitation  

in  holding  that  respondent  No.4  –  Rakesh  Kumar  Jolly,  

27

Rajendra  Singh  and  Sudhir  Kumar  were  wrongly  given  the  

benefit of the 1973 Rules.     

52. We  deem  it  appropriate  to  reiterate  that  in  service  

jurisprudence  there  is  immense sanctity  of  a  final  seniority  

list.  The seniority list once published cannot be disturbed at  

the behest of  person who chose not to challenge it  for  four  

years.  The sanctity of the seniority list must be maintained  

unless there are very compelling reasons to do so in order to  

do substantial justice.  This is imperative to avoid avoidable  

litigation and unrest and chaos in the services.

53. We,  therefore,  direct  the  respondent-State  of  U.P.  to  

prepare a fresh seniority list and place all  three of them on  

their respective positions as they had not received the benefit  

of 1973 seniority.   

54. There  has  been  a  considerable  delay  in  this  matter,  

therefore,  we  direct  the  State  of  U.P.  to  publish  a  fresh  

seniority list as expeditiously as possible, in any event within  

two months from the date of this judgment.

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55. In the facts and circumstances of this case we make it  

clear  that  the  financial  benefits  which  have  already  been  

extended to respondent No. 4 – Rakesh Kumar Jolly, Rajendra  

Singh and Sudhir Kumar may not be recovered from them.   

56. These appeals are accordingly disposed of in terms of the  

aforesaid directions.   In the facts and circumstances of  the  

case, the parties are left to bear their own costs.

….……………........................J.      (DALVEER BHANDARI)

…..…………….......................J.            (DEEPAK VERMA)

New Delhi; July 5, 2011

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