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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO(S) 4594-4595 OF 2017  

Sunaina Sharma & Ors.                                   … Appellant(s)  

Vs.  

State of Jammu and Kashmir & Ors.      ….Respondent(s)  

WITH  

CIVIL APPEAL NO(S) 4596-4597 OF 2017  

J U D G M E N T  

Deepak Gupta, J.  

1. The issue that arises for determination in these appeals  

is whether the private respondents, who are promotee Excise

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and Taxation Officers (ETOs for short) could be granted  

retrospective promotion from the dates when the vacancies  

occurred in the promotion quota.    

2. The undisputed facts are that appointment to the post of  

ETO under the J&K Excise & Taxation (Gazetted) Recruitment  

Rules, 1977 (for short the ‘Excise Rules’) is made from two  

sources, promotion and direct recruitment.  The appellants  

are the original writ petitioners.  They are direct recruits who  

were appointed as ETOs on the basis of J&K Combined  

Competitive Examination. They were issued appointment  

letters on 23.07.2004.  The private respondents are  

promotees who were promoted to the post of ETOs.  The J&K  

Public Service Commission proposed and cleared the names  

of the private respondents for promotion on 05.10.2004 and  

the private respondents were promoted as ETOs on the  

recommendation of the Public Service Commission on  

06.12.2004.  It is not disputed that the direct recruits and  

promotees have been promoted within their quota and there  

is no violation of quota. However, the private respondents

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were given retrospective promotion/appointment in the cadre  

of ETOs on various dates between 01.05.2002 and  

01.01.2004.  Resultantly, they were deemed to have been  

appointed as ETOs prior to the appellants who were  

appointed on 23.07.2004.  As such the private respondents  

were placed senior to the appellants.  

3. A seniority list of ETOs was issued on 03.01.2006 in  

which the promotee/respondents were shown senior to the  

appellants.  The appellants filed a writ petition before the J&K  

High Court challenging the grant of retrospective appointment  

to the private respondents.  It was urged by the appellants  

that the private respondents were not even born in the cadre  

of ETOs when the appellants were appointed as ETOs on  

23.07.2004.  It was further averred that the private  

respondents, i.e., promotees had never worked as ETOs either  

on officiating or stop-gap basis and, in fact, the promotees  

had worked under the direct recruits for a few months before  

their promotion.  It was further submitted that the post of  

ETO was in a separate service being a gazetted service and,

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therefore, the service rendered in the lower post could not be  

equated with the service rendered in the higher post.  The  

stand of the contesting respondents was that in terms of Rule  

23 of the J&K Civil Service (CCA Rules), 1956 (hereinafter  

referred to as Civil Service Rules), seniority could be assigned  

to the promotees from the date the vacancy occurred in the  

quota of promotees.  The learned Single Judge held that  

retrospective promotions could not be granted, and allowed  

the writ petition.  Two Letters Patent Appeals were filed which  

were disposed of by a common judgment of 06.03.2014 and  

the Division Bench held that in terms of Rules 23 and 24 of  

the Civil Service Rules the promotees were entitled to get  

retrospective promotion.  The Division Bench placed reliance  

on the judgment of this Court in Suraj Prakash Gupta and  

Others  vs.  State of J&K and Others1  to come to the  

conclusion that promotees were entitled to promotion from a  

date anterior to their appointment.  This judgment is under  

challenge in these appeals.   

                                                           1  (2000) 7 SCC 561

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4.  It may not be necessary to refer to the J&K Excise Rules  

in detail.  Rule 9 of the Excise Rules provides that a person  

appointed to the service whether by direct recruitment or by  

selection shall be placed on probation for a period of two  

years.  The explanation to Rule 9 provides that appointment  

on probation will be made against substantive vacancies only.   

All other appointments will be on trial.  It has been further  

provided that any period of officiating appointment shall be  

reckoned as period spent on probation when a person  

appointed on trial is formally appointed to the service.  The  

explanation reads as under :-  

“Explanation –Appointments on probation will  

be made against substantive vacancies only.   

All other appointments will be on trial; Provided  

that any period of officiating appointment shall  

be reckoned as period spent on probation when  

a person appointed on trial is formally  

appointed to the service.”  

Rule 13 of the Excise Rules provides that seniority of  

members of the service shall be regulated under the Civil  

Service Rules.  Rule 23 of the Civil Service Rules, reads as  

follows :-

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“23. Appointments of members  

(1)      A probationer shall, if a substantive  

vacancy in the permanent cadre of the  

category for which he was selected exists, be  

appointed to the service at the earliest  

possible opportunity in order of seniority,  

and if such vacancy existed from a date  

previous to the issue of the order of  

appointment, he may be so appointed from  

the date of retrospective effect from such  

date or, as the case may be, from such  

subsequent date from which he was  

continuously on duty as a member of the  

service.  

(2)      Where recruitment to any service shall  

normally be both by direct recruitment and  

by transfer or promotion, the provision of  

sub rule (1) shall apply separately as    

regards :  

(a)   vacancies against which     person  

have recruited direct;  and   

(b)     other vacancies.  

(3)      No probationer shall be required to  

produce a medical certificate of physical  

fitness before appointment as member of  

service:  

        Provided that in case of a probationer who  

is not a member of any other service, the  

appointing authority may, if it has reason to  

believe that the probationers physical fitness  

has seriously deteriorated since he satisfied the  

authority under clause (c) of rule 17 require  

him to undergo a fresh medical examination.  If  

on such examination he is found to be  

physically unfit for the service for which he was  

selected the appointing authority shall  

discharge him from the service.

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(4)     No person shall at the same time be a  member of more than one service.”  

Rule 24 lays down that seniority shall be determined by the  

date of first appointment to such service, class, category or  

grade, as the case may be and reads as follows :-  

“24. Seniority – (1) The seniority of a person  

who is subject to these rules has reference to  

the service, class, category or grade with  

reference to which the question has arisen.   

Such seniority shall be determined by the date  

of his first appointment to such service, class  

category or grade as the case may be.  

Note:- The rule in this clause will not affect the  

seniority on the date on which these rules come  

into force of a member of any service, class,  

category or grade as fixed in accordance with the  

rules and orders in force before the date on  

which these rules come into force.   

Interpretation – The words ‘date of first  

appointment’ occurring in the above rule will  

mean the date of first substantive appointment,  

meaning thereby the date of permanent  

appointment or the date of first appointment on  

probation on a clear vacancy, confirmation in  

the latter case being subject to good work and  

conduct and/or passing of any examination or  

examinations and/or tests:  

Provided that the inter se-seniority of two  

or more persons appointed to the same service,  

class, category or grade simultaneously, will,  

notwithstanding the fact that they may assume  

the duties of their appointments on different

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dates by reason of being posted to different  

stations, be determined:  

(a) In the case of those promoted by their  

relative seniority in the lower service,  

class, category or grade;  

(b) In the case of those recruited direct  

except those who do not join their  

duties when vacancies are offered to  

them according to the positions  

attained by and assigned to them in  

order of merit at the time of  

competitive examination or on the  

basis of merit ability and physical  

fitness etc. in case no such  

examination is held for the purpose of  

making selections;  

(c) As between those promoted and  

recruited direct by order in which  

appointments have to be allocated for  

promotion and direct recruitment as  

prescribed by the rules.”  

The interpretation of these Rules is the subject matter of this  

case.    

5. The judgment in Suraj Prakash Gupta (supra) has  

been relied upon by both the sides and has been referred to  

by both the learned Single Judge and the Division Bench of  

the High Court.  In this case also, Rule 23 and 24 of the Civil  

Services Rules were in consideration.  Therefore, it is  

necessary to refer to this case in detail.  The facts of Suraj

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Prakash Gupta (supra) case are that as per the then existing  

rules 20% of the posts of Assistant Engineers had to be filled  

by direct recruitment, 60% by promotion from Junior  

Engineers having degree in Engineering or equivalent  

qualification and 20% from diploma holders with 10 years’  

service.  The Government of Jammu and Kashmir upgraded a  

large number of posts of Assistant Engineers and re-

designated them as Assistant Executive Engineers.  Therefore,  

a large number of promotions were made on ad hoc basis,  

initially for a period of six months.  As per the rules, the stop  

gap/ad hoc arrangement could be made by the State only for  

six months without consulting the Commission and if such  

arrangement was to continue beyond six months, it was  

necessary to consult the Commission.  The State, in violation  

of the rules, continued the ad hoc promotions for a long time.   

Direct recruitment to the post of A.E. prior to 1997 was done  

in the year 1984.  Thereafter, no direct recruitment was done.   

As a result, the promotees worked on ad hoc basis against a  

large number of higher posts in excess of their quota.  The  

State after a gap of almost 4 years made a reference to the

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Commission to fill up 10% of the posts by direct recruitment  

[as against 20% provided in the rules].  The Commission  

issued advertisements in this regard on 03.12.1987.  The  

finally selected direct recruits applied for the posts and  

appeared in the test.  However, the Commission did not make  

any recommendations for almost 4 years.  Thereafter, the  

candidates who were successful in the written test were  

interviewed during 1993-94 and the list of selected candidates  

of 10% of the posts was sent by the Commission to the State  

Government.  Even then, the appointments were not made  

and some persons had to approach the High Court of Jammu  

and Kashmir, which gave directions on 22.02.1994.  It was  

only after issuance of such directions that some of the direct  

recruits were offered appointment on different dates in the  

year 1994 and some direct recruits were offered appointment  

much later.  The direct recruits filed writ petitions challenging  

the ad hoc promotion of Assistant Engineers, made by the  

Government without consulting the Commission and  

continued for a period of six months.  According to the direct  

recruits, the service rendered by the promotees became non-

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est and void and could not be recognised.  They sought  

quashing of the seniority list and also contended that the  

seniority was in breach of the quota.  The promotee officers  

filed writ petitions and contended that they should be granted  

promotion from the date when they were working irrespective  

of the quota.  The J&K Government constituted a high level  

committee to look into the matter and the committee  

recommended that the seniority of both the direct recruits  

and the promotees were to be granted by placing them in the  

vacancies reserved for them in their respective quotas.  The  

committee also recommended that the ad hoc stop-gap  

appointees, who had continued in violation of the rules, could  

not be granted any benefit.  Despite this recommendation of  

the committee, the State Government in relaxation of the  

rules, regularised the promotees from anterior dates.  The  

direct recruits challenged this order.  The High Court held  

that the appointment could not be made to the promotional  

posts without consulting the Commission.   The High Court  

also held that the promotees whose promotions were in excess  

of the quota had to be pushed down and those promotees had

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to be fitted in the subsequent vacancies in their quota in the  

later years.  The High Court also held that the ad hoc  

appointment can only be made initially for 6 months and  

where the ad hoc service had continued beyond this period  

without consultation with the Commission, the promotees  

were not entitled to seniority.  It was held that an ad hoc  

promotee could not be treated to be a member of the service.   

The High Court also held that according to rule 24 of the Civil  

Service Rules, the seniority will have to be reckoned from the  

first appointment and, therefore, the order of the Government  

regularising ad hoc promotions was illegal and was  

accordingly set aside.    

6. Thereafter, the matter came to this Court and this Court  

framed 4 issues.  We are concerned with issue nos. 3 and 4,  

which read as under:  

“…….  

(3) Whether the ad hoc/stopgap promotion of  

Assistant Engineers  (and Assistant Executive  

Engineers) could be made beyond six months  

and till regularization, by the Government  

without consulting the Public Service  

Commission?  Whether the Government could  

have regularized the ad hoc service by executive

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order dated 2.1.1998?  Whether the direct  

recruits’ contention that retrospective  

regularization could not be made in respect of  

the ad hoc/ stopgap service and could be made  

only if the initial appointment as Assistant  

Engineers or Assistant Executive Engineers was  

“in accordance with rules”, was correct?  

(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?  

…….”  

Dealing with Rule 23, this Court held as follows :-  

“52. Under Rule 23, whenever probation is  

commenced in respect of an officer, it is  

permissible to appoint him to the service with  

retrospective effect from such date from which  

the person was “continuously on duty as a  

member of the service”.  Read with Rule 2(e)  

which defines ‘member of service’ it means the  

time from which he was “continuously holding  

the pensionable post”.  Rule 23 does not make  

any distinction between different modes of  

recruitment.  It is well settled that in the case of  

a direct recruit, the probation can commence  

only from a date after his selection and he can  

hold a permanent vacancy only after such  

selection.  According to service jurisprudence  

(see in fact, discussion under Point 4), a direct  

recruit cannot claim appointment from a date  

much before his selection.  So far as a promotee  

and also one who is recruited by transfer, are  

concerned, before such persons are appointed  

as members of the service under Rule 23, first

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their probation must commence.  Then such  

person becomes a probationer for purposes of  

Rule 23.  Once he is on probation, and if a  

substantive vacancy in the permanent cadre  

existed in which the promotee or a recruitee by  

transfer can be accommodated, and if such a  

vacancy has arisen from a date previous to the  

issue of the order of appointment (i.e.  

appointment by promotion or transfer) then  

under Rule 23 he may be appointed to the  

service (i.e. regularly) with retrospective effect  

from such anterior date (or, as the case may be,  

from such subsequent date) from which (he has  

been continuing on duty on a non-pensionable  

post (see 2(e) defining ‘member of service’].  This  

period can certainly be one that a person holds  

in a stop gap or ad hoc manner.  The order of  

‘promoting a person in the service’ regularly  

from an anterior date and the order of  

probation from an anterior date can be  

simultaneously passed.  That is how under Rule  

23, a person holding a temporary, stopgap or ad  

hoc appointment beyond three months can  

become a probationer and get appointed  

regularly to the service with retrospective effect.  

xxx   xxx  xxx  

56. It is true that while Rule 15 permits  

probation to be commenced from an anterior  

date in the case of one “appointed” temporarily  

there is no such clause in rule 25 dealing with  

“promotions”.  That does not, in our opinion,  

mean that in respect of a person temporarily  

promoted or a person temporarily appointed by  

transfer, probation cannot be commenced from  

an anterior date.  In our view, this power is  

implicit in Rule 23 itself when it speaks of a  

probationer being appointed as a member of a  

service with retrospective effect.  Once a

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promotee or recruitee by transfer is appointed  

on probation, it is permissible to appoint him  

under Rule 23 as a member of the service from  

an anterior date when a substantive vacancy  

existed in his quota.  It is then obvious that  

such power to make a retrospective  

appointment of a member implies a power to  

commence probation of such person from an  

anterior date when a clear vacancy existed in  

his quota.  We cannot imagine that the rule-

making authority did not visualize delays in  

regularization of ad hoc or stopgap or  

temporary service rendered by the promotees or  

those recruited by transfer and kept in mind  

delay only in cases of appointments under     

Rule 14.  

57. Thus, the stopgap/ad hoc or temporary  

service of a person appointed by transfer as an  

Assistant Engineer or by promotion as an  

Assistant Executive Engineer can be regularized  

through PSC/DPC from an anterior date in a  

clear vacancy in his quota, if he is eligible and  

found suitable for such transfer or promotion,  

as the case may be, and his seniority will count  

from that date.”  

7. Since judgment in Suraj Prakash Gupta’s case (supra)  

deals with very same Rules which fall for consideration in the  

present case, it is relevant for decision of our case.  There is  

however, one marked difference between this case and the  

case of Suraj Prakash Gupta (supra).  In Suraj Prakash  

Gupta (supra) all the promotees had actually worked in the

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higher posts and the challenge was that they could not get the  

benefit of the higher posts since they had not worked as per  

the rules.  In the present case, the promotees have not  

worked even for a day in the higher post before being  

regularly promoted.   In the present case, the learned Single  

Judge relied upon this judgment to hold that the promotees  

could not get benefit of anterior appointment under Rule 23.  

The Division Bench held otherwise.  The difference of opinion  

is only because of one factor.  According to the learned Single  

Judge, the promotees should have actually worked either on  

ad hoc basis or officiating basis on the promotional post,  

whereas according to the Division Bench, regardless of the  

fact whether the employee had actually worked on the  

promotional post or not, he is entitled to claim promotion  

from the date the vacancy arises in the promotional cadre, as  

long as he was working on a pensionable post and is a  

member of the service.  

8. At this stage, it would be pertinent to mention that it is a  

settled principle of law that normally no person can be

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promoted with retrospective effect from a date when he was  

not born in the cadre.  Seniority has to be reckoned only from  

the date the person entered into that service.  In this behalf  

reference may be made to the judgment of this Court in State  

of Bihar Vs.  Akhouri Sachindra Nath & Ors.2 where this  

Court held as follows :-    

“12. …..It is well settled that no person can be  

promoted with retrospective effect from a date  when he was not born in the cadre so as to  

adversely affect others.  It is well settled by  several decisions of this Court that amongst  members of the same grade seniority is  

reckoned from the date of their initial entry into  service…..”  

Thereafter, in Kaushal Kishore Singh  vs.  Dy. Director of  

Education3  this Court held as follows :-  

“5. The claim of seniority of the employee is  

always determined in any particular grade or  

cadre and it is not the law that seniority in one  

grade or cadre would be dependent on the  

seniority in another grade or cadre…..."  

In State of Uttaranchal  vs.  Dinesh Kr. Sharma4  this  

Court held as follows :-  

                                                           2  (1991) Supp.1 SCC 334  3  (2002) 9 SCC 634

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“34. Another issue that deserves consideration  

is whether the year in which the vacancy  

accrues can have any relevance for the purpose  

of determining the seniority irrespective of the  

fact when the persons are recruited.  Here the  

respondent’s contention is that since the  

vacancy arose in 1995-96 he should be given  

promotion and seniority from that year and not  

from 1999, when his actual appointment letter  

was issued by the appellant.  This cannot be  

allowed as no retrospective effect can be given  

to the order of appointment order under the  

Rules nor is such contention reasonable to  

normal parlance.  This was the view taken by  

this Court in Jagdish Ch. Patnaik  vs.  State of  

Orissa.”   

This principle was followed in Sheikh Abdul Rashid & Ors.   

vs.  State of J&K & Ors.5  again dealing with J&K Civil  

Service Rules.  Again in State of Uttar Pradesh and Others   

vs.  Ashok Kumar Srivastava and Another6 this Court held  

that the normal rule is that seniority should be reckoned from  

the actual date of appointment. It was held thus:-  

“25. In view of the aforesaid enunciation of  

law, the irresistible conclusion is that the claim  

of the first respondent for conferment of  

retrospective seniority is absolutely untenable  

and the High Court has fallen into error by  

granting him the said benefit and accordingly  

                                                                                                                                                                           4  (2007) 1 SCC 683  5  (2008) 1 SCC 722  6  (2014) 14 SCC 720

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the impugned order deserves to be lancinated  

and we so do.”  

9. The respondents have relied upon two judgments in U.D.  

Lama and Others  vs.  State of Sikkim and Others7  and  

Asis Kumar Samanta and Others  vs.  State of West  

Bengal and Others8. In both the cases this Court upheld the  

grant of promotion from a retrospective date.  The facts in  

U.D. Lama and Others case (supra) are very peculiar.  The  

State of Sikkim was formed on 26th April, 1975.  The Sikkim  

State Civil Service Rules, 1977 came into force on 01.07.1977  

which provided for consultation with the State Public Service  

Commission.  Surprisingly however, there was no Public  

Service Commission in the State and Chairman to the Public  

Service Commission was appointed for the first time on 20th  

November, 1981 and he assumed office on 11.01.1982.  Prior  

to the constitution of the Commission, the State Government  

took a decision to induct officers into the State Public Service  

on the basis of a written examination and interview.  Certain  

officers were selected and so appointed.  The second set of  

                                                           7  (1997) 1 SCC 111  8  (2014) 10 SCC 357

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officers were those who had been selected by the Sikkim  

Public Service Commission.  The first set of officers were  

appointed in 1982 whereas the second set of officers were  

appointed in 1990 but the officers who were appointed in  

1990 were given retrospective appointment from the date of  

vacancy.  This Court held that the appointment of the first  

batch of officers though upheld by this Court in another case,  

having been made without consultation with the Commission,   

these officers appointed in violation of the Rules cannot claim  

seniority over those who had been appointed strictly in  

accordance with the Rules and in consultation with the  

Commission.  In Asis Kumar Samanta and Others case  

(supra) also the situation was very unusual.  Vacancies in the  

promotion quota occurred in 01.01.1989 but the promotions  

could not be made because of interim stay granted by the  

High Court.  The stay order was vacated on 11.12.1990 and  

the selection process for promotions commenced only  

thereafter.  In these circumstances the Public Service  

Commission recommended that the promotees be given  

retrospective seniority with effect from 31.12.1990 because

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for almost two years the promotion process had been stalled.   

It would be pertinent to mention that in both these cases  

normal principle that seniority should be considered from the  

date of appointment has not been overruled but these  

judgments have been rendered in the peculiar facts and  

circumstances of these cases.  

10. On behalf of the private respondents-promotees, it was  

urged that the promotees had passed the departmental exam  

many years back and became eligible to be promoted much  

earlier.  It is submitted that in view of these peculiar facts, the  

State was justified in granting permission to the promotees  

retrospectively.  We are not impressed with these arguments  

because even the direct recruitment process took an  

inordinately long time.  The vacancies in the quota of direct  

recruits also occurred much earlier.  The combined  

competitive examination was held in the year 2002 and it took  

more than 2 years to finalise the process of direct  

recruitment.  Therefore, the delay has affected both the  

promotees and the direct recruits.  

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11. From the judgments referred to hereinabove it is  

apparent that the normal rule is that a person is entitled to  

seniority only from the date when the said person actually  

joins the post.  True it is, that there are exceptions and  

sometimes “in service” candidates can be granted promotion  

from a date anterior to their being regularly  

promoted/appointed.  However, this can be done only if the  

rules enable retrospective appointment and on fulfilling the  

other requirement of the rules.    

12.   As far as the present case is concerned, Rule 23 of the  

Civil Services Rules has been extracted hereinabove.  It, no  

doubt, postulates the appointment of a probationer to the  

service on a date anterior to his regular appointment.   

However, this is subject to two conditions.  The first, is that  

the vacancy in his category should have existed and no  

appointment can be made from a date prior to the date of  

existence of vacancy.  The second condition is that the person  

must have been continuously on duty as member of service  

from the said date.  As far as the first condition is concerned

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there is no doubt that the promotees have been appointed  

from the date when the vacancies existed in their promotional  

quota.  It is the second aspect of the matter which needs to be  

analysed in detail.  

13. In Suraj Prakash Gupta’s case (supra) this Court held  

that direct recruits could not claim seniority from a date  

anterior to their appointment.  The reason is simple.  The  

direct recruits were not even born in the cadre and were not  

holding any post in the service.  There can be no manner of  

doubt that direct recruits cannot get seniority from a date  

prior to their appointment.  While interpreting Rule 23, we  

must also take note of Rule 9 of Excise Rules which deals  

with probation.  When a person is appointed to the post of  

ETO whether by promotion or by way of direct recruitment, he  

shall be on probation for a period of two years.  The  

explanation to Rule 9 provides that appointment on probation  

shall be made against substantive vacancies only.  The  

explanation also provides that any period of officiating service  

shall be reckoned as period spent on probation when a person

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is formally appointed to the service.  This clearly envisages  

that the person should have been actually working on the  

post of ETO to be considered to be on probation.  The whole  

concept of probation is to judge the suitability of the  

candidate appointed to the post.  There can be no objective  

assessment if the person is not actually working on the post.  

The promotees never worked as ETOs prior to their formal  

promotion.  Therefore, though vacancies may have been there  

in their quota, they having not worked against the post of  

ETO could not have been appointed and granted seniority  

from an anterior date.    

14. In our view the rules in question clearly provide that not  

only vacancies should have been existing from an earlier date  

but the person to be granted retrospective promotion should  

have also been working against the post.  To give an example  

in the context of the present Rules, a vacancy in the  

promotional cadre existed on 01.01.10.  However, a person  

from the feeder category is promoted on  

temporary/officiating/adhoc/or on any other basis to work

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against the post on 01.01.11. He is thereafter regularly  

appointed on 01.01.12.  Though the vacancy may have  

existed from 01.01.10 the employee can get promotion only  

from 01.01.11 when he actually started working against the  

said post.  

15. It is well settled that retrospective promotion to a  

particular group can violate Article 14 and 16 of the  

Constitution of India. Even if the Rules enable the State to  

make retrospective promotion, such promotion cannot be  

granted at the cost of some other group.  Therefore, the only  

reasonable interpretation can be that the promotees can get  

promotion from an anterior date only if they have worked  

against the said post even if it be on temporary or officiating,  

or ad-hoc basis etc.  

16. On analysis of Rule 24 of the Civil Services Rules, it is  

apparent that as per this Rule the seniority of a person  

subject to the said Rules is to be determined by the date of  

first appointment to such service, class, category or grade, as  

the case may be.  Therefore, it is apparent that only the

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service rendered in a particular service, class, category or  

grade can be taken into consideration and not the service  

rendered in some other service, class , category or grade while  

determining the seniority.  Note-1 to the Rules also makes it  

clear that the date of first appointment shall mean the date of  

permanent appointment or the first appointment on probation  

on a clear vacancy.  We have already held above that  

appointment on probation obviously envisages that the  

person is working against the said post in the particular  

service, class, category or grade.  

17. Therefore, on a combined reading of Rule 9 of the Excise  

Rules and Rule 23 and 24 of the Civil Services Rules, we are  

clearly of the view that promotion can be granted on  

retrospective basis to promotee officers from a date on which  

the clear-cut vacancy in the promotional cadre has occurred  

subject however to the conditions that the promotee should  

have worked against that post prior to his regular  

appointment.

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18. The Division Bench relied upon the definition of the  

‘member of service’ as defined in Section 2(e) of the Civil  

Service Rules, according to which the ‘member of service’ is a  

person who holds a pensionable post.  According to the  

Division Bench, since the promotees were working against  

pensionable posts in the feeder category they were members  

of the Service and thus they satisfied the conditions of Rule  

23.  We cannot agree with this proposition.  The post of ETO  

is a gazetted post in a totally different cadre.  The promotees  

were not members of the Service as ETOs.  They may have  

been holding pensionable posts but that does not mean that  

they were members of the Service as ETOs.  The learned  

Single Judge was right in holding that the promotees could  

not have been given the benefit of retrospective promotion and  

seniority from a date when they were not even born in the  

cadre and not working against the post.  We are also of the  

view that this retrospective promotion also violates the  

provisions of Rule 9 of the Excise Rules.  

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19. In view of the above discussion we set aside the  

judgment of the Division Bench dated 06.03.2014 and restore  

the judgment of the learned Single Judge dated 07.05.2013 in  

S.W.P. No.2356 of 2009.  

20. The appeals are accordingly allowed.  

………………………………J.  (Madan B. Lokur)  

………………………………J.  (Deepak Gupta)  

 New Delhi  October 26, 2017