Supreme Court of India
GANGA VISHAN GUJRATI & ORS.versusSTATE OF RAJASTHAN & ORS.
- Citation
- 2019 INSC 938
- Decided
- 21 August 2019
- Disposal
- Dismissed
- Bench
- D Y CHANDRACHUD
Holding
Retrospective seniority cannot be granted to employees selected through the limited departmental examination because pre‑amendment Rule 171‑A(2) requires seniority to be based on continuous officiation, and the other service rules do not override this provision.
Summary
The appellants, appointed as Land Records Inspectors (LRIs) through a limited departmental examination for vacancies that arose in 2008‑09, 2009‑10 and 2010‑11, were placed in seniority lists dated 2012‑14 and later treated as appointed in 2014‑15. They claimed seniority should be computed from the year the vacancy arose, relying on the interplay of Rajasthan Land Revenue (Land Records) Rules 1957 (rules 171‑A, 347‑A, 347‑B), the 1960, 1972 and 2001 Subordinate Services Rules, and a 2014 amendment to rule 171‑A. The State argued that seniority must be based on continuous officiation under rule 171‑A(2) as it stood before amendment and that the other rules do not override this. The Supreme Court examined whether the competitive examination route is a form of promotion, whether the 1972 and 2001 Rules create a deeming fiction for retrospective seniority, and whether the 2014 amendment is applicable. It held that retrospective seniority cannot be granted where the employee was not borne on the cadre, that rule 171‑A(2) pre‑amendment controls seniority, and that rules 347‑A/B and the 1960/1972/2001 Rules do not override it. Consequently, the appeals were dismissed.
Issues considered
- Whether selection under Rule 284(ii) of the 1957 Rules constitutes promotion for seniority purposes
- Whether Rules 347‑A and 347‑B, together with the 1960, 1972 and 2001 Rules, permit retrospective seniority based on the year of vacancy
- Whether Rule 171‑A(2) prior to its 2014 amendment bars granting seniority from a date antecedent to the employee’s entry on the cadre
- Whether the 2014 amendment to Rule 171‑A(2) is applicable to promotions that occurred before the amendment
- Whether the 2001 Rules govern the appointment of LRIs and can be used to compute seniority
Legislation cited
- Constitution of Indias. Article 309
- Rajasthan Land Revenue Act, 1956s. 261(2)
- Right to Information Act, 2005
Subjects
senioritypromotionservice rulesretrospective seniorityRajasthan Land Recordsdepartmental examinationaccelerated promotionRule 347-ARule 347-BRule 171-AArticle 14Article 16
Judgment
444 [2019]
SUPREME COURT 11 S.C.R. 444
REPORTS [2019] 11 S.C.R.
A GANGA VISHAN GUJRATI & ORS.
v.
STATE OF RAJASTHAN & ORS.
(Civil Appeal No. 6007 of 2019)
B AUGUST 21, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
INDIRA BANERJEE, JJ.]
Rajasthan Land Revenue (Land Records) Rules 1957 – rr.
C 17-A, 284, 347-A and 347-B – Rajasthan Subordinate Services
(Recruitment and other service conditions) Rules 1960 – Rajasthan
Services (Recruitment by Promotion against vacancies of earlier
years) Rules 1972 – Rajasthan Subordinate Services (Recruitment
and Other Service Conditions) Rules 2001 – The State issued
advertisement for holding a departmental examination/limited
D
competitive examination in the post of Land Records Inspector (LRI)
– Vacancies related to the years 2008-09, 2009-10 and 2010-11 –
On 16.05.2013, the appellants appeared for the departmental
examination and were declared successful – According to
appellants, their names were not included in the seniority list despite
E the fact that the recruitment year was 2010-11 – Thereafter, appellants
were included in the seniority list – However, appellants claimed
that in seniority list they were placed below the persons who were
promoted against vacancies which arose after the year of vacancies
against which the appellants were promoted – Thereafter, State
passed an order directing to remove the appellants from the seniority
F
list and to treat them as appointed in 2014-15 – The Division Bench
of the High Court held that the claim for seniority with reference to
the date of the accrual of the vacancy will not be maintainable
merely on the ground that no competitive examination was held in
the years in which the vacancies arose – On appeal, held: It is
G necessary to evaluate the interplay between the Rules of 1957 more
particularly, rr.171-A, 347-A and 347-B with the Rules of 1960,
1972 and 2001 – A consistent line of precedent of Supreme Court
follows the principle that retrospective seniority cannot be granted
to an employee from a date when the employee was not borne on a
H
444
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 445
cadre – Seniority amongst members of the same grade has to be A
counted from the date of initial entry into the grade – The opening
words of r.347-A, the provisions contained in the 1960 Rules would
have to give way and be subject to r.171-A(2) which provided for
determining seniority on the basis of continuous officiation – In the
face of r.171-A(2) as it stood prior to amendment, it is not possible
B
to apply a deemed date for determining seniority based on the year
of vacancy – r.171-A(2) rules out the grant of seniority with effect
from a date anterior to the date on which the employee is borne on
the cadre – R. 347-B is prefaced with a non-obstante provision –
Consequently, conditions of service which are governed by the rules
referred to in the entries of r.347-B will govern notwithstanding C
anything contained in the 1957 Rules – Among them is an entry
pertaining to the 1972 Rules – r.2 of the 1972 Rules applies in a
situation where a service rule regulating recruitment “provides for
recruitment by both direct recruitment and promotion” – Whereas,
recruitment u/cl.(i) and (ii) of r.284 of the 1957 Rules is from
D
seniority-cum-merit and competitive departmental examination – In
the present case, ex facie r.284 of the 1957 Rules is not a provision
falling in that category since there is an absence of a service rule
requiring recruitment by direct recruitment and promotion – The
1972 Rules have no application – Hence, r.347-B of the 1957 Rules
will not come to the aid of the appellants – Insofar as 2001 Rules E
are concerned, the procedure for recruitment in Part V of the 2001
Rules does not comprehend a situation involving a limited
competitive examination for accelerated promotion – Where a limited
competitive examination is being held for accelerated promotion, r.
35 of 2001 Rule governing promotion has no application –
F
Therefore, the view taken by the Division Bench of the High Court
was justified and in accord with the principles of law enunciated in
the decisions of Supreme Court.
The State issued an advertisement f or holding a
departmental examination in the post of Land Records Inspector
(LRI). The vacancies related to the years 2008-09, 2009-10 and G
2010-11. On 16.05.2013, the appellants appeared for the
departmental examination and were declared successful.
Thereafter, appointment orders for the 80% seniority-cum-merit
vacancies were issued in 2012, while those for the 20 per cent
H
446 SUPREME COURT REPORTS [2019] 11 S.C.R.
A competitive exam vacancies were issued on 31 March 2014. On
7.11.2013, a provisional seniority list was issued which excluded
appellants. On 24.4.2017, another seniority list was issued
determining the seniority as on 1.4.2014. The appellants claimed
that they were placed below the persons who were promoted
against vacancies which arose after the year of vacancies against
B
which the appellants were promoted. Thereafter, State passed an
order directing to remove the appellants from the seniority list
and to treat them as appointed in 2014-15. Aggrieved, appellants
filed a writ petition. The appellants sought computation of
seniority based on the year in which their vacancies arose. The
C writ petition was allowed by the Single Judge of the High Court.
However, the Division Bench of the High Court held that the
claim for seniority with reference to the date of the accrual of the
vacancy will not be maintainable merely on the ground that no
competitive examination was held in the years in which the
vacancies arose. Hence, the present appeals.
D
Dismissing the appeals, the Court
HELD : 1. It is necessary to evaluate the interplay between
the Rajasthan Land Revenue (Land Records) Rules 1957 more
particularly, Rules 171-A, 347-A and 347-B with the Rajasthan
E Subordinate Services (Recruitment and other service conditions)
Rules 1960, Rajasthan services (Recruitment by Promotion
against vacancies of earlier years) Rules 1972 and Rajasthan
Subordinate Services (Recruitment and Other Service Conditions)
Rules 2001. Rules 347-A and 347-B of the 1957 Rules were
introduced by amendment on 22 September 1977. Rule 347-A
F stipulates that the pay, allowances, pension, leave and other
conditions of service shall be regulated by the rules, as amended
from time to time enumerated in the several entries which follow.
Among them are other rules for the time being in force, made
under the proviso to Article 309 of the Constitution prescribing
G the general conditions of service. Any other general order or
amendment in the 1960 Rules by the Department of Personnel is
to apply mutatis mutandis unless there is an order to the contrary
issued by the government. However, Rule 347-A indicates that
the provisions of the enumerated rules do not have overriding
effect since the opening words contain the phrase “except as
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 447
otherwise provided in these rules”. Where a specific provision A
is made in the 1957 Rules, that will hence prevail. [Para 24]
[473-D-F]
2. Rule 347-A contemplates that the conditions of service
would be governed by the provisions contained in the rules
enumerated (including the 1960 Rules) unless otherwise provided B
in the 1957 Rules. Rule 171-A was such a provision contemplated
by the opening words of Rule 347-A. Until it came to be amended
in October 2014, Rule 171-A(2) specifically contemplated that
the seniority of the LRIs will be determined from the date of
their continuous officiation on the post in the land records
department or any other equivalent post provided that such C
officiation was not fortuitous or ad hoc in nature. After the
amendment, Rule 171-A contemplates that the seniority of
Inspectors shall be determined on the basis of the recruitment
year of promotion. The amendment took effect in October 2014.
[Para 26] [474-D-F] D
3. The Counsel for the appellants is justified in submission
that the 1957 Rules did not make a provision specifically for a
year-wise determination of vacancies and that such a provision
was embodied in the 1960 Rules. The difficulty in accepting the
sequitur (as Counsel portrayed it) of this submission lies in the E
fact that Rule 171-A(2) prior to its amendment expressly
incorporated the principle of continuous officiation as the basis
for determining seniority of LRIs. This principle, which is
specifically embodied in Rule 171-A(2) cannot stand overridden
by any provision to the contrary contained in the 1960 Rules.
This is for the reason that Rule 347-A expressly stipulates that F
where there is a specific provision contained in the 1957 Rules,
that provision will govern. [Para 27] [474-G-H; 475-A]
4. Part IV of the 2001 Rules lays down the procedure for
direct recruitment from Rules 22 to 33. Part V provides for the
procedure for recruitment by promotion. Rule 13 requires a G
determination of the actual number of vacancies occurring during
a financial year as on 1 April every year. Where a post is filled in
by a single method then the vacancies as determined shall be
filled in by that method. Where more than one method is
H
448 SUPREME COURT REPORTS [2019] 11 S.C.R.
A prescribed posts are filled by apportionment of vacancies. Rule
35 applies to promotions which are carried out by a departmental
promotion committee constituted under Rule 34. Rule 35(6)
requires the committee to consider the cases of persons who
would have been eligible in the year to which the vacancy relates,
irrespective of the year in which the meeting of the committee is
B
held. Such promotions would be governed by the criteria and
procedure applicable in the year to which the vacancy relates
and the service / experience of the incumbent who is promoted
shall be counted for promotion to a higher post for any period
during which the candidate has not actually performed the duties
C of the post. Where a limited competitive examination is being
held for accelerated promotion, Rule 35 has no application. The
procedure for recruitment in Part V of the 2001 Rules does not
comprehend a situation involving a limited competitive
examination for accelerated promotion. [Para 29] [476-D-G]
D 5. It is evident from Part V of the 2001 Rules more
particularly, the rules governing promotion contained in Rules
34 and 35 that the deeming fiction envisaged in Rule 35(6) applies
to promotions made under the auspices of a DPC. In the present
case, it is evident that the deeming fiction which applies in the
context of a DPC having been convened beyond the year in which
E the promotional vacancy arose has no application to candidates
who are recruited on the basis of a competitive examination for
the grant of accelerated promotion. There is a fundamental reason
why the deeming fiction cannot be extended to the situation
implicated in Rule 284(ii). In order to appear in the competitive
F examination contemplated by Rule 284(ii), a candidate must fulfill
the conditions of eligibility prescribed in Rule 286. Rule 286
stipulates that in-service Patwaris must have a minimum service
of five years before they can appear at the competitive
examination under Rule 284(ii). Conferment of a deemed
seniority may result in a situation where a candidate secures
G seniority with effect from an anterior date on which he or she was
neither borne on the cadre nor was qualified. Such a consequence
would be impermissible, at least in the absence of an express
statutory provision to that effect. [Para 30] [477-B, E-H]
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 449
6. A consistent line of precedent of this Court follows the A
principle that retrospective seniority cannot be granted to an
employee from a date when the employee was not borne on a
cadre. Seniority amongst members of the same grade has to be
counted from the date of initial entry into the grade. [Para 31]
[478-A-B]
B
7. In the present case, this Court has dealt with the issue
of the applicability of the 1960 Rules in the context of determining
the principle of seniority. This Court has held that in view of the
opening words of Rule 347-A, the provisions contained in the
1960 Rules would have to give way and be subject to Rule 171-
A(2) which provided for determining seniority on the basis of C
continuous officiation. In the face of Rule 171-A(2) as it stood
prior to amendment, it is not possible to apply a deemed date for
determining seniority based on the year of vacancy. Rule 171-
A(2) rules out the grant of seniority with effect from a date anterior
to the date on which the employee is borne on the cadre. D
[Para 34] [480-F-G]
8. But the submission which now needs to be analysed is
whether a different result would follow from the application of
Rule 347-B of the 1957 Rules. Rule 347-B is prefaced with a
non-obstante provision. Consequently, conditions of service which E
are governed by the rules referred to in the entries of Rule 347-
B will govern notwithstanding anything contained in the 1957
Rules. Among them is an entry pertaining to the 1972 Rules.
Hence, it is necessary to consider the applicability of the 1972
Rules. A plain reading of the 1972 Rules indicates that they
envisage a situation where recruitment is made both by direct F
recruitment and promotion and the promotional quota is not filled
up in the absence of a DPC recommendation. On its terms, Rule
2 of the 1972 Rules has no application to a situation such as the
present which is governed by Rule 284 of the 1957 Rules. Under
Rule 284, there is no direct recruitment at all. Rule 2 of the 1972 G
Rules applies in a situation where a service rule regulating
recruitment “provides for recruitment by both direct recruitment
and promotion”. In the present case, ex facie Rule 284 of the
1957 Rules is not a provision falling in that category since there
is an absence of a service rule requiring recruitment by direct
H
450 SUPREME COURT REPORTS [2019] 11 S.C.R.
A recruitment and promotion. The 1972 Rules have no application.
Rule 347-B of the 1957 Rules will hence not come to the aid of
the appellants. [Para 35] [480-H; 481-A-F]
Direct Recruit Class II Engineering Officers’ Association v
State of Maharashtra (1990) 2 SCC 715 : [1990] 2 SCR 900
B – followed.
State of Bihar v. Akhouri Sachindra Nath (1991) Supp 1 SCC
334 : [1991] 2 SCR 410 ; State of Uttaranchal v. Dinesh
Kumar Sharma (2007) 1 SCC 683 : [2006] 10 Suppl. SCR 1
; Pawan Pratap Singh v. Reeven Singh (2011) 3 SCC 267
C : [2011] 2 SCR 831 ; P Sudhakar Rao v. U Govinda Rao
(2013) 8 SCC 693 : [2013] 13 SCR 540 – relied on.
Jagdish Prasad v. State of Rajasthan (2011) 7 SCC
789 : [2011] 12 SCR 1 – distinguished.
Jagdish Ch. Patnaik v. State of Orissa (1998) 4 SCC 456 :
D [1998] 2 SCR 676 – referred to.
Case Law Reference
[1998] 2 SCR 676 referred to Para 19 (iv)
[1990] 2 SCR 900 followed Para 31
E
[1991] 2 SCR 410 relied on Para 31
[2006] 10 Suppl. SCR 1 relied on Para 31
[2011] 2 SCR 831 relied on Para 31
[2013] 13 SCR 540 relied on Para 31
F
[1998] 2 SCR 676 distinguished Para 32
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6007
of 2019.
From the Judgment and Order dated 06.08.2018 of the High
G Court of Judicature for Rajasthan, at Jodhpur in D.B. Special Application
Writ No. 917 of 2018.
With
Civil Appeal Nos. 6009, 6008 of 2019
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 451
Paras Kuhad, Sr. Adv., Ms. Shraddha Deshmukh, Jitin Chaturvedi, A
Ms. Aditi Tripathi, Shuaib Hussain, Rahul Jajoo, Abhishek Gupta, Advs.
for the Appellants.
Dr. Manish Singhvi, P. N. Misra, Manoj Swarup, Sr. Advs., Harsha
Vinoy, Shailja Nanda Mishra, Satendra Kumar, Milind Kumar, Ms. Charu
Mathur, Hitendra Nath Rath, Rohit K. Singh, Ms. Pratibha Jain , Advs. B
for the Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. Adjudicating on a vexed issue of service jurisprudence, a Division C
Bench of the High Court of Judicature of Rajasthan allowed a batch of
Special Appeals and reversed a judgment of the learned Single Judge
dated 19 April 2018. The consequence of the judgment of the Division
Bench dated 6 August 2018 is that the writ petition instituted by the
appellants under Article 226 of the Constitution stands dismissed. This
has given rise to the present batch of appeals. Since similar issues arise, D
all the appeals were heard together.
2. The appellants were appointed as Patwaris in the Revenue
Department on 21 December 1993. On 17 June 2011, an advertisement
was issued by the State of Rajasthan for holding a departmental
examination to select candidates for 93 vacancies in the post of Land E
Records Inspector1. The vacancies related to the years 2008-09 and
2009-10. A fresh advertisement dated 28 January 2013 notified an
increase in the number of vacancies to 155, including the vacancies for
2010-11. In response to a query made on 24 December 2014 under the
Right to Information Act 2005, a year-wise bifurcation of the 155 F
vacancies was provided indicating that:
67 vacancies arose in 2008-09;
26 vacancies arose in 2009-10; and
62 vacancies arose in 2010-11.
G
3. On 16 May 2013, the appellants appeared for the departmental
examination and were declared successful for the post of LRI. On 7
November 2013, a provisional seniority list was issued from 1 April 2012.
The grievance of the appellants is that though (in their submission) they
1
“LRI” H
452 SUPREME COURT REPORTS [2019] 11 S.C.R.
A were appointed against vacancies that arose in 2008-09, 2009-10 and
2010-11, their names were not included in the provisional seniority list.
On 31 March 2014, the appellants were promoted as LRIs in pursuance
of which they have been working on that post. On 12 March 2015, the
Rajasthan Revenue Board2 issued a communication to the Collector to
prepare a list of persons who were appointed as LRIs against vacancies
B
for the year 2009-10. The names of the appellants did not find mention
in the seniority list as on 1 April 2012. Orders were issued on 11 June
2015, 6 July 2015 and 6 August 2015 promoting LRIs to the post of
Nayab Tehsildar, treating them to have been appointed on the post of
LRI against the year of promotion in which the vacancies arose. This
C was in terms of a notification dated 8 October 2014 by which Rule 171-
A of the Rajasthan Land Revenue (Land Records) Rules 19573 was
amended to change the criterion for determining seniority from the date
of continuous officiation on the post of LRI to the recruitment year of
promotion. The appellants were aggrieved by the denial of the benefit of
the notification dated 8 October 2014. Aggrieved by what was perceived
D
as differential treatment, a representation was submitted on 14 September
2015 to the Chairman of the Board of Revenue for granting the appellants
the benefit of the notification dated 8 October 2014 and placing them in
the seniority list against the recruitment year. A final seniority list,
computing seniority as on 1 April 2012 was issued on 12 May 2016 in
E terms of Rule 171-A(2). According to the appellants, their names were
not included in the seniority list despite the fact that the recruitment year
was 2010-11.
4. This led to the institution of a Writ Petition4 by the appellants
before the High Court of Rajasthan seeking a direction for the declaration
F of appointments; promoting them against the recruitment year of
promotion and placing them in the seniority list issued on 12 May 2016
against the recruitment year of promotion with consequential benefits.
On 24 April 2017, another final seniority list was issued determining
seniority as on 1 April 2014. The appellants claim that they were placed
below persons who were promoted against vacancies which arose after
G the year of vacancies against which the appellants were promoted. During
the pendency of the Writ Petition, an order was passed by the State of
Rajasthan on 8 May 2017 whereby, persons along with the appellants
2
“Board”
3
“1957 Rules”
4
SB Civil Writ Petition No 6530/2016
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 453
[DR. DHANANJAYA Y CHANDRACHUD, J.]
who were placed in the seniority list dated 24 April 2017, were sought to A
be removed from the list and were directed to be treated as appointed in
2014-15. This gave rise to a subsequent Writ Petition5 before the High
Court.
5. By a judgment dated 19 April 2018, the Single Judge allowed
the Writ Petition by setting aside the action of the State in not regarding B
the year of promotion of those, including the appellants, who were selected
pursuant to the advertisements dated 17 June 2011 and 28 January 2013
against vacancies for 2008-09, 2009-10 and 2010-11. The Single Judge
held that persons selected under Rule 284(2) of the 1957 Rules through
a competitive examination restricted to serving Patwaris were entitled
to be promoted against the vacancies of the respective years subject to C
their eligibility. The State was accordingly directed to place persons
selected in the final seniority list issued on 12 May 2016 against the
recruitment year of promotion with consequential benefits.
6. The judgment of the Single Judge has been reversed in appeal
by the Division Bench of the High Court on 6 August 2018. D
7. Assailing the judgment of the Division Bench, the appellants
moved this Court in proceedings under Article 136 of the Constitution.
Pleadings have been completed. We have heard Mr Paras Kuhad, Senior
Counsel on behalf of the Appellants; Dr Manish Singhvi, Senior Counsel
appearing for the State of Rajasthan; Mr P N Misra, Senior Counsel, Mr E
Manoj Swarup, Senior Counsel and Mr Hitendra Nath Rath, Mr Rohit K
Singh and Ms Pratibha Jain, Counsel for the contesting respondents.
8. In order to appreciate the nature of the controversy in the present
batch of appeals, it is necessary to understand the enabling legal
framework. The State of Rajasthan, in pursuance of its powers conferred F
by Section 261(2) of the Rajasthan Land Revenue Act 19566, laid down
provisions governing the service conditions of the employees of the Land
Revenue Department. They were embodied in the 1957 Rules. Rule
284 of the 1957 Rules regulates the mode of selection to the post of
LRI. Initially selection was envisaged through direct recruitment and on G
seniority-cum-merit. Later, as explained below, a proportion was set apart
for in-service candidates who passed a competitive departmental
examination. Thereafter, direct recruitment was abolished. Rule 284 was
amended from time to time in the following manner:
5
SB Civil Petition No 6299/2017
6
“Act 1956” H
454 SUPREME COURT REPORTS [2019] 11 S.C.R.
A On 22 September 1977, recruitment to the post was to be made
on the basis of direct recruitment (50 per cent) and seniority-
cum-merit (50 per cent);
On 27 June 1981, the quota for promotion through seniority-cum-
merit was increased to 65 per cent; 15 per cent was to be through
B a competitive examination amongst serving Patwaris and 20 per
cent was to be through direct recruitment; and
On 22 August 1985, promotion through seniority-cum-merit was
increased to 80 per cent, while selection through a departmental
examination for serving Patwaris was increased to 20 per cent.
C The category of direct recruitment was deleted.
Rule 284, as amended, reads thus:
“284. Selection of candidates for admission to the school in the
respective cadre strength shall be made:-
D (i) by promotion of Patwaris of the Revenue and Land
Records Departments, on the basis of seniority-cum-merit,
for 80% of the vacancies;
(ii) on the basis of a competitive examination which shall be
restricted to serving patwaris of Revenue (Land Records)
Department who fulfill the conditions of eligibility as given
E
in Rules 286, for 20% of the vacancies. Provided that the
minimum age limit for such patwaris shall be 45 years.”
Rule 285 requires the Board to notify the actual number of
vacancies that will be filled up by recruitment from among the serving
Patwaris of the Revenue (Land Records) Department and the number
F
to be allotted to the Scheduled Castes and Scheduled Tribes.
Rule 286 prescribes the qualifications:
“286. Qualifications - Candidates intending to apply for selection
must possess the following qualification: -
G (i) That he is a patwari of Revenue (Land Records)
Department and has five years of service experience as
patwari;
(ii) That he has passed Secondary Examination or any other
equivalent examination recognized by Government;
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 455
[DR. DHANANJAYA Y CHANDRACHUD, J.]
(iii) That he is not above 45 years of age on the first day of A
January, next following the last date fixed for receipt of
application for admission to the said school;
(iv) That he is patwar diploma holder or he is exempted from
this diploma as per rules.”
Rule 287 requires a competitive examination to be held by the B
Board for recruitment from amongst serving Patwaris of the Revenue
(Land Records) Department for admission to the training school in the
manner laid down in the 1957 Rules. Rule 288 provides for the submission
of applications, the subjects for the examination, preparation of a list of
candidates securing qualifying marks, making of admissions to the school, C
reservations, salary during training, grant of diplomas on the passing of
the training examination and the maintenance of a list of successful
candidates on the basis of the aggregate marks obtained in the
examination. Rule 299 provides that upon the completion of one year of
probation period, candidates would be eligible for being confirmed. Rule
299 stipulates that promotees of the same year shall rank senior to the D
direct recruits from serving Patwaris of the same year. Rule 299 contains
a reference to direct recruitment though the provision for direct
recruitment has been done away with in Rule 284.
9. On 22 September 1977, an amendment was made to the 1957
Rules by the introduction of Part V-A containing Rules 347-A and 347- E
B. Rule 347-A provides thus:
“347-A. Regulation of pay, Leave, allowances, Pension etc.-Except
as otherwise provided in these rules, the pay allowances, pension,
leave and other conditions of service of the Patwaris, Inspectors’
Land Records and Sadar Qanungos shall be regulated by the F
following rules as amended from time to time:-
1. The Rajasthan Travelling Allowance Rules, 1971;
2. The Rajasthan Civil Services (Unification of Pay Scales)
Rules, 1950;
G
3. The Rajasthan Civil Services (Rationalisation of Pay Scales)
Rules, 1956;
4. The Rajasthan Service Rules, 1951;
5. The Rajasthan Civil Services (Revised Pay) Rules, 1961;
H
456 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 6. The Rajasthan Civil Services (New Pay) Rules, 1968
7. Any other rules prescribing general conditions of service
made by the appropriate authority under the proviso to
Article 309 of the Constitution of India and for the time
being in force.
B 8. Any other general order or amendment in the Rajasthan
Subordinate Services (Recruitment and other Service
Conditions) Rules 1960, issued by the Department of
Personnel shall mutatis mutandis be applicable unless any
order to the contrary is issued by the Government.”
C Rule 347-B provides thus:
“347-B Application of Certain miscellaneous Rules. -
Notwithstanding anything contained in these rules, the following
rules shall apply to the recruitment and other conditions of service
of the Patwaris, Inspectors, Land Records and Sadar Qanungos
D as they apply to other categories of Government servants: -
1. The Rajasthan Civil Services (Absorption of Surplus
Personnel) Rules, 1969.
2. The Rajasthan Civil Services (Substantive appointment and
determination of seniority of temporary employees) Rules,
E
1972.
3. The Rajasthan Services (Recruitment by promotion against
vacancies of Earlier Years) Rules, 1972.”
10. Rule 347-A provides that except as otherwise provided in the
F rules, pay, allowances, pension, leave and other conditions of service are
to be regulated by the rules enumerated under eight categories. Among
the rules which have been enumerated are the Rajasthan Subordinate
Services (Recruitment and other Service Conditions) Rules 19607. Any
general order or amendment in the 1960 Rules is made applicable, mutatis
mutandis. Besides this, entry 7 refers to other rules prescribing general
G conditions of service made under Article 309 of the Constitution, for the
time being in force. The opening words of Rule 347-A make the
applicability of the enumerated rules subject to a provision specifically
contained in the 1960 Rules. On the other hand, Rule 347-B contains an
7
“1960 Rules”
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 457
[DR. DHANANJAYA Y CHANDRACHUD, J.]
overriding provision under which notwithstanding anything contained in A
the 1957 Rules, conditions of service would be governed by certain
enumerated rules. Among them are the Rajasthan Services (Recruitment
by promotion against vacancies of earlier years) Rules 19728.
11. A significant distinction which must be noticed between Rule
347-A and Rule 347-B, lies in their prefatory words. Rule 347-A begins B
with the expression “except as otherwise provided in these rules”. Rule
347-B commences with the expression “notwithstanding anything
contained in these rules”. The significance of this difference in
terminology lies in the fact that the rules enumerated in Rule 347-A will
govern the conditions of service unless a specific provision on the subject
is contained in the 1960 Rules. On the other hand, the rules which have C
been enumerated in Rule 347-B will govern the service conditions
irrespective of what is contained in the other provisions of the 1957
Rules. To put it differently, the rules which are enumerated in Rule 347-
A of the 1957 Rules are made subservient to provisions contained in the
1960 Rules. On the other hand, the rules referred to in Rule 347-B of the D
1957 Rules have an overriding effect over any other provision contained
in the 1957 Rules. This is the plain consequence which ensues from the
use of the expression “except as otherwise provided in these rules” in
Rule 347-A as distinguished from the expression “notwithstanding
anything contained in these rules” in Rule 347-B. The former is an
indication of subservience. The latter is an indication of overriding effect. E
12. Now, it is necessary to analyse the rules adverted to in entries
7 and 8 of Rule 347-A of the 1957 Rules.
13. The 1960 Rules were made to govern the recruitment and
other conditions of service of persons appointed to the subordinate service F
in various departments of the State other than posts regarding which
separate service rules had been or would be promulgated. Rule 9 provided
for a year-wise determination of vacancies on 1 April of each year by
the appointing authorities. Rule 9 of the 1960 Rules stipulated thus:
“9. Determination of Vacancies: - (1) (a) Subject to the provisions G
of these Rules, the Appointing Authority shall determine on 1st
April every year, the actual number of vacancies occurring during
the financial year.
8
“1972 Rules”
H
458 SUPREME COURT REPORTS [2019] 11 S.C.R.
A (b) Where a post is to be filled in by a single method as prescribed
in the rule or schedule, the vacancies so determined shall be filled
in by that method.
(c) Where a post is to be filled in by more than one method as
prescribed in the Rules or Schedule, the apportionment of
B vacancies, determined under clause (a) above, to each such method
shall be done maintaining the prescribed proportion for the overall
number of posts already filled in. If any fraction of vacancies is
left over, after apportionment of the vacancies in the manner
prescribed above, the same shall be apportioned to the quota of
various methods prescribed in a continuous cyclic order giving
C precedence to the promotion quota.
(2) The Appointing Authority shall also determine the vacancies
of earlier years yearwise which were required to be filled in by
promotion, if such vacancies were not determined and filled earlier
in the year in which they were required to be filled in.”
D
14. On 2 March 2001, the Rajasthan Subordinate Services
(Recruitment and Other Service Conditions) Rules 2001 9 were notified
under the proviso of Article 309 of the Constitution. Rule 13 of the 2001
Rules requires the appointing authority to determine the vacancies actually
occurring on 1 April of every financial year:
E
“13. Determination of vacancies: -
(1) Subject to the Provisions of these rules, the Appointing Authority
shall determine on 1st April every year, the actual number of
vacancies occurring during the financial year.
F (2) Where a post is to be filled in by a single method as prescribed
in the Rule or Schedule, the vacancies so determined shall be
filled in by that method.
(3) Where a post is to be filled in by more than one method as
prescribed in Rules or Schedule, the apportionment of vacancies,
G determined under sub-rule (1) above, to each such method shall
be done maintaining the prescribed proportion for the overall
number of post(s) already filled in. If any fraction of vacancies is
left over, after apportionment of the vacancies in the manner
prescribed above, the same shall be apportioned to the quota of
H 9
“2001 Rules”
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 459
[DR. DHANANJAYA Y CHANDRACHUD, J.]
various methods prescribed in a continuous cyclic order giving A
precedence to the promotion quota.
(4) The Appointing Authority shall also determine the vacancies
of earlier years year wise which were required to be filled in by
promotion, if such vacancies were not determined and filled earlier
in the year in which they were required to be filled in.” B
Rule 9(1)(c) of the 1960 Rules and Rule 13 of the 2001 Rules
require vacancies to be apportioned between each method of promotion.
Rule 9(2) of the former and Rule 13(4) of the latter requires the
determination of vacancies of earlier years which were required to be,
but were not filled in by promotion, in the year in which the vacancies C
should have been filled in.
Rule 35 speaks of the eligibility, criteria and procedure for
promotion. Rule 35, insofar as is material, reads thus:
“35. Eligibility, Criteria and Procedure for Promotion: -
D
(1) As soon as the Appointing Authority determined the number
of vacancies under rule 13 of these rules and decides that a certain
number of post(s) are required to be filled in by promotion, it shall
subject to provisions of sub-rule (4), prepare a correct and complete
list of the senior most persons who are eligible and qualified under
these rules for promotions to the class of post(s) concerned. E
(2) the persons enumerated in Column 6 of Schedule shall be
eligible for promotion to posts specified against them in Column 4
subject to their possessing minimum qualification and experience
on the first day of the month of April of the year of selection as
specified in Column 7. F
…
(6) If any subsequent year, after promulgation of these rules
vacancies relating to any earlier year are determined under
rule 14 which were required to be filled by promotion, the
Committee shall consider the cases of all such persons who G
would have been eligible in the year to which the vacancies
relating irrespective of the year in which the meeting of
the Committee is held and such promotions shall be
governed by the criteria and procedure for promotion as
was applicable in the particular year to which the vacancies H
460 SUPREME COURT REPORTS [2019] 11 S.C.R.
A relate and the Service/Experience of an incumbent who has
been so promoted, for promotion to higher post for any
period during which he/she has not actually performed the
duties of the post to which he/she would have been
promoted, shall be counted. The pay of a person who has
been so promoted shall be refixed at the pay which he/she
B
would have derived at the time of his/her promotion but no
arrears of pay shall be allowed to him/her...”
(Emphasis supplied)
Under Rule 13 of the 2001 Rules, the appointing authority must
C determine the actual number of vacancies occurring during the financial
year on the first day of April of each year. When a post is filled in by
more than one method, the vacancies have to be apportioned, to every
such method by maintaining the prescribed proportion. Vacancies which
were required to be filled in by promotion in earlier years, but which
were not determined and filled in earlier are similarly required to be
D determined. Under Rule 35(2), eligibility for promotion is defined with
reference to the possession of minimum qualifications and experience
on the first day of April of the year of selection. Under sub-rule (6) of
Rule 35, where vacancies of an earlier year are determined as being
required to be filled by promotion, the committee is under a mandate to
E consider all such persons who would have been eligible in the year to
which the vacancies relate, irrespective of the year in which the meeting
is held. The criteria and procedure for promotion would be governed by
what is applicable to the year to which the vacancy related. Significantly,
the service or experience of a person who has been promoted shall be
counted for promotion to a higher post for any period during which the
F candidate has not actually performed the duties of the post. While the
pay of a person promoted would be re-fixed, no arrears of pay are required
to be given.
15. Rule 347-B of the 1957 Rules contains a reference to the
1972 Rules. The 1972 Rules comprised of six rules, which are extracted
G below:
“1. Short title and commencement
(1) These rules may be called the Rajasthan Services
(Recruitment by Promotion against Vacancies of earlier years)
Rules, 1972.
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 461
[DR. DHANANJAYA Y CHANDRACHUD, J.]
(2) They shall come into force at once. A
2. Where a service rule, regulating recruitment and condition of
service made under the proviso to Article 309 of the Constitution
of India, provides for recruitment by both direct recruitment and
promotion and where promotion quota of any earlier year could
not be filled up in the absence of recommendations of the B
Departmental Promotion Committee appointed under the rule
pertaining to the Service the appointing authority shall determine
the number of vacancies which were required to be filled up by
promotion specifying the year with reference to which the
vacancies are to be filled up.
C
3. The Departmental Promotion Committee, appointed under the
service rules referred to in rule 2 shall make their recommendation
within a period of three months from the date the competent
authority makes the determination of the number of vacancies
and specifies the year of vacancies of earlier years under the said
rule whereupon the appointing authority shall giving due regard to D
the recommendations of the Departmental Promotion Committee,
make the appointments by promotion in the promotion quota
vacancies relevant to the year specified under rule 2.
4. When the appointing authority make appointments by promotion
under rule 3, it shall specify the year in which such promotion E
shall be deemed to have been made.
5. Where any vacancy existed in the promotion quota in a year
earlier than that in which an appointment by promotion was made
on the recommendation of the Departmental Promotion Committee
the appointing authorities shall modify the appointment order by F
specifying the year in which such promotion shall be deemed to
have been made.
6. Where any appointment by promotion has been made under
rule 3 or where the appointing authority has specified the year of
promotion under rule 5, the person who has been so promoted G
shall not be entitled to claim any arrears of pay for any period
during which he has not actually performed the duties of the post
to which he has been promoted.”
H
462 SUPREME COURT REPORTS [2019] 11 S.C.R.
A Rule 2 contemplates a situation in which the service rules framed
under the proviso to Article 309 for regulating recruitment and conditions
of service provide for both direct recruitment and promotion. Where the
promotional quota of any earlier year is not filled in the absence of a
recommendation of the Departmental Promotion Committee10, the
appointing authority has to determine the vacancies which were required
B
to be filled up by promotion. Thereupon, the DPC has to make its
recommendation within three months of the determination by the
competent authority specifying the number and the year of vacancies.
The appointing authority is then required to make appointments by
promotion in the promotion quota vacancies relevant to the year specified
C in Rule 2. While making an appointment under Rule 3 by promotion, the
appointing authority has to specify the year in which the promotion shall
be deemed to have been made. Consequently, where a vacancy existed
in the promotion quota in an earlier year, prior to the year in which the
appointment by promotion is made, the appointing authority has to specify
the year in which the promotion shall be deemed to have been made.
D
However, in such a case, no arrears of pay for the period during which
the appointed candidate has not worked are payable.
16. In order to complete the narration of the relevant provisions, a
reference is necessary to Rule 171-A of the 1957 Rules which deals
with seniority. Rule 171-A, read as follows insofar as is material prior to
E its amendment:
“171-A. Seniority. - (1) The seniority of Inspectors, Land Record
working in the various districts will be interlaced by the Board of
Revenue and the Secretary (Land Records) Revenue Board will
maintain an up-to-date list of seniority of the Inspectors, Land
F Records working in the Department.
(2) The seniority of the Inspector, Land Records will be determined
from the date of their continuous officiation on the post of Inspector
Land Records in the Land Records Department and/or Inspector
in the Settlement/Consolidation /Colonization Department or any
G other equivalent post in such Departments provided such officiation
was not fortuitous or ad hoc in nature and subject to the condition
that they possess a diploma of having passed the Girdawar
Qanungo Examination:…”
10
“DPC”
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 463
[DR. DHANANJAYA Y CHANDRACHUD, J.]
By an amendment which was notified on 8 October 2014, sub- A
rule 2 of Rule 171-A has been substituted to read thus:
“(2) The seniority of inspector, Land Records shall be determined
on the basis of recruitment year of promotion on the post of
Inspector, Land Records in the Land Records Department and
inspector in the Settlement Department, Colonisation Department B
and Consolidation Department.”
17. Now, it is in this background, that it becomes necessary to
advert to the area of contest, as it emerges from the rival submissions
which have been urged before this Court.
18. Mr Paras Kuhad, learned Senior Counsel appearing on behalf C
of the appellants, submitted thus:
(i) The judgment of the Division Bench of the High Court dated
6 August 2018 denies to the appellants selected by the
‘competitive examination route’, the benefit of seniority on
the post of LRI, based on the year of vacancy, though D
persons who have been promoted on the basis of seniority
cum-merit have been granted seniority on the basis of the
year of vacancy;
(ii) Though vacancies arose in years 2008-09, 2009-10 and
2010-11 on the post of LRI, selections were not held in E
time. These vacancies were to be filled up in the proportion
of 80 per cent for seniority-cum-merit and 20 per cent by
competitive examination. The selection process for these
vacancies was not held year-wise and the vacancies for all
the three years were clubbed together. Appointment orders F
for the 80 per cent seniority-cum-merit vacancies were
issued in 2012, while those for the 20 per cent competitive
exam vacancies were issued on 31 March 2014;
(iii) Originally, while drawing up the provisional list on 7
November 2013, LRIs who were appointed by seniority
G
cum-merit were accorded seniority based on the date of
appointment as LRIs and were not allowed seniority based
on the year of vacancy;
(iv) The right to seniority based on the year of vacancy flows
statutorily from the provisions of the 1972 Rules and the
H
464 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 2001 Rules. These rules provide for ‘deemed appointment’,
a ‘deemed date of officiation / experience’ and for
promotions that relate back to the year of vacancy;
(v) The seniority-cum-merit promotees filed a petition before
the Rajasthan Civil Services Appellate Tribunal11 which
B allowed them the benefit of seniority based on the year of
vacancy. The State of Rajasthan accepted the judgment of
the Tribunal as a result of which the above promotees were,
in the final list of seniority prepared in 2016, accorded
seniority based on the year in which the vacancy arose;
C (vi) The appellants were however denied the benefit upon which
they represented to the Board on 4 September 2015, claiming
parity under Article 14 of the Constitution in the computation
of seniority based on the year in which their vacancies arose;
(vii) The appellants were compelled to file a Writ Petition before
D the High Court in which the following issues arose for
consideration:
“A. Whether or not filling up of vacancies by seniority-cum
merit and competitive examination are both subsets of
appointment by promotion; and
E B. If the answer to A is in the affirmative, whether the
appellants too are entitled to promotion from the year in
which the vacancies arose on account of the interplay
between the Rules of 1957, Rules of 2001 and the Rules
of 1972.”
F (viii) Appointment by competitive examination under Rule 284 is
also a method of promotion. This position was accepted by
the judgment of the learned Single Judge and by the Division
Bench in appeal upon analysing the provisions of Rule 284;
(ix) On three different occasions, the Department of Personnel
G of the State Government accepted the position that selection
in the case of 20 per cent of the vacancies on the basis of
a limited competitive examination is a method of promotion;
(x) As to the interplay between the Rules of 1957, 1960 (as
repealed and substituted by the 2001 Rules) and 1972, the
H 11
“Tribunal”
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 465
[DR. DHANANJAYA Y CHANDRACHUD, J.]
Single Judge correctly held that the 1957 Rules do not A
provide for a situation where the selections under Rule 284
are not held in the year in which the vacancies arose. Rules
347-A and 347-B were introduced to obviate such a situation
by making the 1960 and 1972 Rules applicable;
(xi) The Division Bench of the High Court held that since Rule B
347-B begins with a non-obstante clause, the question of
incorporating a principle from some other rule would not
arise if on that subject a parent rule holds the field. This
conclusion of the Division Bench is flawed because:
(a) Rule 347-B brought about the incorporation of the 1972 C
Rules as a result of which effect has to be given to the
latter, even if there is any inconsistency with the 1957
Rules;
(b) The 1957 Rules are silent on the determination of
vacancies and holding of year-wise promotions; D
(c) The 1972 Rules introduced an obligation to determine
year-wise vacancies and to hold year-wise promotions.
Where the appointing authority has failed to carry out
its obligations to do so, it has to issue an order for
deemed appointment from the date on which the E
vacancy arose. The selections, when held, would be
with reference to the year in which the vacancies
arose; and
(d) The 2001 Rules introduced a deeming fiction of
service / experience from the date on which the F
vacancy arose.
(xii) The 1957 Rules are silent in regard to the above conditions
of service and hence, full effect has to be given to the legal
fiction, as a result of Rules 347-A and 347-B. The object of
the rule making authority in creating the legal fiction is to
G
neutralize the adverse effect caused by a lapse of the
government to carry out its obligations of making year-wise
determinations of vacancies and appointments;
(xiii) As a result of the deeming fiction, persons promoted
belatedly, are deemed to be appointees of an earlier date,
H
466 SUPREME COURT REPORTS [2019] 11 S.C.R.
A carrying experience from an earlier date. By virtue of the
fiction, such persons are deemed to be holding the post of
LRI from the date on which they were entitled to hold the
post in terms of the accrual of vacancy. This position has
been accepted by the Tribunal and was given effect to by
the Board;
B
(xiv) Rule 284 provides for two streams of promotion: once
promoted, promotees of both streams constitute one class.
Both the Tribunal and the State Government found that by
virtue of Rule 347-A and Rule 347-B, promotees on the
post of LRI are entitled to have their seniority computed
C and have the benefit of seniority and experience from the
date of occurrence of the vacancy. The State cannot accord
differential treatment to two different streams of promotees
since this would be subversive of Article 14;
(xv) The amendment to Rule 171-A on 8 October 2014 is
D clarificatory. The judgment of the Tribunal has been acted
upon and attained finality. Rule of law principles require
that the appellants should not be denied the benefit;
(xvi) The object of Rules 347-A and 347-B is to bring about a
uniformity in the conditions of service for all members of
E the subordinate staff across the State. The appellants cannot
be denied the benefit of the 2001 Rules;
(xvii) Depriving them of the benefit of the Rules of 1972 and
2001 would make the rights of the appellants dependent on
the fortuitous event of the date on which the selection
F process was held; and
(xviii) The State cannot escape the consequence of not holding
timely selections and delaying them for years on an end.
19. Opposing the above submissions, Dr Manish Singhvi, learned
Senior Counsel appearing on behalf of the State of Rajasthan submitted:
G
(i) The 1972 Rules have to be read in conjunction with the
1957 Rules. The 1972 Rules make a reference to a DPC.
The concept of a DPC applies to promotions made on the
basis of seniority-cum-merit and cannot be equated with
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 467
[DR. DHANANJAYA Y CHANDRACHUD, J.]
competitive examinations. The rights of persons who are A
eligible or those who are recommended by the DPC in a
particular year are crystalised. The importance of the 1972
Rules is that the delay in convening a DPC should not deprive
persons who are otherwise eligible of their legitimate rights.
In contrast, the holding of a competitive examination is
B
uncertain. The year of vacancies has no correlation with
the competitive examination. Consequently, the deeming
fiction relatable to the year of vacancy is confined to persons
whose rights have crystalised in the year when the DPC
was required to have been convened and will not extend to
persons selected through competitive exams. Even the C
promotees of 2013 have been given substantive
appointments from the date of appointment and not from
the year of vacancy;
(ii) The 2001 Rules do not apply per se for the following reasons:
(a) The 2001 Rules do not expressly state that the 1960 D
Rules have been repealed;
(b) The 2001 Rules are not general in nature so as to fall
within the purview of entry 7 of Rule 347-A. The 2001
Rules apply to services specified in the schedule thereto
and posts of Inspectors / Naib Tehsildars / Patwaris E
are not part of the posts specified in the schedule. The
2001 Rules are only meant to cover residuary cadres /
services which are not already covered by the state /
subordinate services;
(c) The 1960 Rules have been repealed, and the 2001 Rules F
cannot be termed as rules providing for general
conditions of service;
(d) The 2001 Rules do not apply to regular / state /
subordinate / ministerial services which are governed
by their own rules. Rule 4(g) of the repealed 1960 Rules G
was all encompassing and covered posts under the
Rajasthan Civil Services (Classification, Control and
Appeal) Rules 195812. The CCA Rules 1958 covered
12
“CCA Rules 1958”
H
468 SUPREME COURT REPORTS [2019] 11 S.C.R.
A all appointments in subordinate / state services. The
2001 Rules are confined to specific categories
mentioned in the schedule; and
(e) Even if the 2001 Rules apply, the scheme of those rules
does not contemplate a competitive examination as
B being a method of promotion. Part IV of the 2001 Rules
deals with the procedure for direct recruitment by
competitive examinations, while Part V pertains to
promotion. The case of the appellants will not fall within
Part V. In the absence of any statutory basis, the
appellants cannot claim seniority or promotion from an
C anterior date. Rule 347-A is subject to the provisions
contained in the 1957 Rules and hence, if any field is
occupied, the Rules of 1960 and 2001 shall not apply.
Rule 171-A which provided at the material time for
seniority on the basis of continuous officiation held the
D field.
(iii) The amendment to Rule 171-A which replaced the word
“continuous officiation” with the expression “recruitment
year of promotion”, was effected in October 2014, whereas
the present controversy relates to 2012-13. Continuous
E officiation refers to a person actually working on the post
and cannot incorporate the concept of a deeming experience
or retrospective claim of seniority. The State Government
has treated even the promotees on the basis of seniority-
cum-merit from the date of appointment. The situation has
altered only after the amendment of Rule 171-A in October
F 2014;
(iv) The requirement of determining year-wise vacancies does
not by itself lead to the grant of seniority from the date of
vacancy. If the State ignores one source of recruitment for
an unreasonable period of time or if its action is mala fide,
G the court can issue a writ of mandamus to make recruitments
from the ignored source of recruitment. This was the situation
in Jagdish Ch. Patnaik v State of Orissa13 (“Jagdish
Ch. Patnaik”). In the present case, no mala fides have
13
H (1998) 4 SCC 456
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 469
[DR. DHANANJAYA Y CHANDRACHUD, J.]
been urged and the State simply clubbed together vacancies A
for three years to hold a competitive examination; and
(v) The service jurisprudence emanating from Articles 14 and
16 of the Constitution provides that seniority has to be
reckoned from the date of the substantive appointment.
However, if a statutory rule so provides, it can be reckoned B
from a retrospective date. Retrospective operation of
seniority, however, has to be confined to appointment by
promotion and cannot extend to competitive examinations.
Candidates in competitive examinations cannot be given
seniority from a retrospective date because they are not
borne on the cadre. Candidates drawn from the source of C
competitive examinations are borne on the cadre from the
date of substantive appointment after undergoing probation
and confirmation. In the present case, the appellants were
selected by open competitive examination from Patwaris
for the post of LRI. If retrospective seniority was to be D
given from the date on which the vacancy arose, it would
lead to a situation where a person who is not qualified to
take the examination on the date when the vacancy arose
would get seniority. In the present case, some persons were
recruited by departmental examinations from the feeder
cadre. The statutory rules did not envisage retrospective E
seniority from the date when the vacancy had arisen. The
grant of seniority is not a facet of a fundamental right. Hence,
there is no violation of a fundamental right when a person
who takes a competitive examination is given seniority from
the date of substantive appointment. F
20. Supporting the submissions which were urged on behalf of
the State of Rajasthan, Mr P N Misra and Mr Manoj Swaroop, learned
Senior Counsel appearing on behalf of the contesting respondents
submitted:
(i) Recruitment under clause (i) and (ii) of Rule 284 of the G
1957 Rules is from two different streams: clause (i) provides
for seniority-cum-merit, while clause (ii) provides for a
competitive departmental examination. The appellants are
governed by Rule 284(ii) and only those amongst the serving
Patwaris who qualify and meet the requirements under Rule H
470 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 286 could appear for an open competitive examination held
pursuant to Rules 286-287. After completing their training
such persons have to undergo probation. Rule 298(iii)
specifies that persons who obtain the diploma are not
immediately entitled for appointment since appointment can
be granted when vacancies occur on the basis of seniority;
B
(ii) Rule 171-A (2) embodies the criteria of continuous
officiation. The private respondents are governed by Rule
284(i). They faced a DPC in 2012-13 and the recruitment
year for them was 1 April 2013. The private respondents
are not claiming seniority from the year of vacancy. Though
C for some of them the DPC was 2009-10, their date of joining
as LRI was in the year 2013 as a result of which they were
given promotion only with effect from 1 April 2013;
(iii) Rule 347-A of the 1957 Rules commences with the
expression “except as otherwise provided in these rules”.
D Rule 7 of the 2001 Rules provides three sources of
recruitment namely - (i) direct recruitment; (ii) promotion;
and (iii) transfer. Chapter V of the 2001 Rules deals with
the procedure for promotion. The 2001 Rules provide for
promotion on the basis of a DPC and do not contemplate a
E selection of candidates by a limited competitive examination.
The 2001 Rules will not be applicable to LRIs appointed
under the 1957 Rules and seniority has to be fixed under
Rule 171-A;
(iv) The 1972 Rules apply to promotions which are made on the
F recommendation of a DPC hence, if the rules are construed
in their entirety, it is evident that those rules are applicable
to promotions made on the recommendation of a DPC and
not to those selected on the basis of a department
examination;
G (v) The appellants cannot claim seniority from a date on which
they were not borne on the cadre. The appellants appeared
in the competitive exam in 2013 for advertisements issued
in 2011 and 2013. They are not entitled to claim seniority, as
they seek to do, from the year of vacancy; and
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 471
[DR. DHANANJAYA Y CHANDRACHUD, J.]
(vi) It is well settled that promotion takes effect from the date A
of promotion and not from the date of the occurrence of the
vacancy or the creation of a post.
The above submissions have been reiterated by the other counsel.
We now proceed to consider the submissions.
21. Part IV of the 1957 Rules provides for a training school for B
Patwaris and Qanungos. Among the Chapters comprised in Part IV is
Chapter III which deals with admission, training and examination of
candidates to the Patwari school. Rule 284 of the 1957 Rules contemplates
selection of candidates for admission to the school from two sources.
The first, comprised in clause (i) is the promotion of Patwaris of the C
Revenue and Land Records Departments through seniority-cum-merit.
The second source in clause (ii) is a competitive examination which is
restricted to serving Patwaris of the Revenue (Land Records)
Department who fulfill the conditions of eligibility in Rule 286. The quota
for promotion on the basis of seniority-cum-merit is 80 per cent, while
that for candidates selected on the basis of a competitive examination is D
20 per cent. Candidates seeking selection need to fulfill qualifications
prescribed for selection in Rule 286. The requirements of eligibility
mandate, among other things that the candidate must have five years’
experience as a Patwari. After completion of the training, a candidate
will be granted a diploma of the training school and a list of successful E
candidates is maintained in order of seniority based on the aggregate of
marks obtained. The grant of a diploma does not entitle a candidate to
immediate appointment but makes the candidate eligible to be considered
as and when a vacancy arises, on the basis of seniority. On the completion
of a probationary period of one year, the candidate is eligible for being
confirmed in terms of Rule 299. F
22. Rule 284 indicates that there are two sources of selection on
the basis of which admission to the training school is made namely: (i)
promotion; and (ii) a departmental examination for in-service Patwaris.
The departmental examination is, as described in-service jurisprudence,
a limited departmental examination since within-service candidates who G
are working as Patwaris with the requisite experience and who fulfill
the conditions of eligibility can only be considered under Rule 284(ii)
read with Rule 286. Rule 284(ii) is evidently not a source of open direct
recruitment since only in-service candidates fulfilling the conditions of
eligibility can apply. The history of Rule 284 indicates that initially there H
472 SUPREME COURT REPORTS [2019] 11 S.C.R.
A was a 50 per cent quota in 1977 for direct recruitment while the balance
was for seniority-cum-merit. In 1981, promotion on the basis of seniority-
cum-merit was enhanced to 65 per cent, while 15 per cent was to take
place on the basis of a limited competitive examination among serving
Patwaris. As a consequence, the quota for direct recruitment was
reduced to 20 per cent. In 1985, the method of direct recruitment was
B
altogether abolished resulting in an enhancement of the quota for seniority-
cum-merit promotion to 80 per cent while the balance of 20 per cent
was through a limited departmental examination. This history clearly
indicates a progressive dilution of the quota that was prescribed for direct
recruitment until it was eventually abolished altogether. In consequence,
C selection within the meaning of Rule 284 is governed by a promotional
quota (80 per cent) based on seniority-cum-merit and a quota for
candidates passing a limited department examination (20 per cent) drawn
from those who are serving as Patwaris.
23. Now, it is in the above context, that both the Single Judge as
D well as Division Bench in appeal came to the conclusion that the
examination which is confined to candidates drawn from the feeder
category would essentially be a case of accelerated promotion. The
learned Single Judge held:
“…the very fact that at one stage there were three sources for
E selection / appointment, which included that direct recruitment,
regular promotion and accelerated promotion is sufficient to come
to a conclusion that selection through competitive examination
cannot be equated with direct recruitment…”
The Single Judge held that the quota of 20 per cent is to be filled
F up by accelerated promotion and merely because a competitive
examination for entry to the training school is envisaged that does not
change the status of the selection. Though, the streams are different,
essentially, the selection is by way of promotion. The Division Bench
accepted this analysis of the learned Single Judge, holding:
G “…An examination restricted only to the feeder category
prescribed for promotion by seniority-cum-merit, would therefore
essentially be a case of promotion by way of selection or
accelerated promotion as learned single judge has rightly put and
not direct recruitment...”
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 473
[DR. DHANANJAYA Y CHANDRACHUD, J.]
The Division Bench noticed that Rule 299 of the 1957 Rules (in A
the context of the completion of the probationary period) provides that
promotees of the same year will rank senior to the direct recruits from
serving Patwaris of the same year. The mere use of the expression
“direct recruitment” in Rule 299 was held not to render the source
comprehended in Rule 284(ii) as a source of direct recruitment. For the
B
purpose of the present proceedings, we accept the correctness of this
view which has been adopted both by the Single Judge and by the Division
Bench. This is also the consistent view of the Department of Personnel
of the State Government. Hence, we hold that the limited departmental
examination for in-service Patwaris under Rule 284(ii) is a means of
accelerated promotion. Rule 284 provides for selection by promotion C
through two streams: one by seniority-cum-merit and the other on the
basis of a limited departmental examination for in-service Patwaris.
24. Now it is in this context, that it become necessary to evaluate
the interplay between the Rules of 1957 more particularly, Rules 171-A,
347-A and 347-B with the Rules of 1960, 1972 and 2001. Rules 347-A D
and 347-B of the 1957 Rules were introduced by amendment on 22
September 1977. Rule 347-A stipulates that the pay, allowances, pension,
leave and other conditions of service shall be regulated by the rules, as
amended from time to time enumerated in the several entries which
follow. Among them are other rules for the time being in force, made
under the proviso to Article 309 of the Constitution prescribing the general E
conditions of service. Any other general order or amendment in the 1960
Rules by the Department of Personnel is to apply mutatis mutandis
unless there is an order to the contrary issued by the government.
However, Rule 347-A indicates that the provisions of the enumerated
rules do not have overriding effect since the opening words contain the F
phrase “except as otherwise provided in these rules”. Where a specific
provision is made in the 1957 Rules, that will hence prevail.
25. The 1960 Rules governed the recruitment and conditions of
service of persons appointed to subordinate service posts in various
departments, except where there existed separate service rules. Rule 2 G
provided:
“2. Scope. - These rules shall govern the recruitment and other
conditions of service in respect of persons appointed to the
subordinate service posts in the various departments other than
H
474 SUPREME COURT REPORTS [2019] 11 S.C.R.
A posts regarding which separate service rules have been
promulgated or may be promulgated in future.”
Rule 9 of the 1960 Rules required the appointing authority to
determine the actual number of vacancies occurring during the financial
year, on 1 April every year. Under Rule 9, where a post is filled up by
B more than one method prescribed in the rules or schedule, an
apportionment of vacancies to every such method was to be done for
maintaining the required proportion. The appointing authority was also
duty bound to determine the year-wise vacancies of earlier years, which
were required to be filled in by promotion, if such vacancies were not
determined and filled earlier in the year in which they were required to
C be filled in. Rule 9 in specific terms contemplated a year-wise
determination of vacancies, allocation of vacancies to different methods
of appointment and the determination of vacancies of earlier years which
were not filled in the relevant year. However, Rule 9 did not, in express
terms, provide for deemed seniority or a deemed date of promotion.
D 26. Rule 347-A contemplates that the conditions of service would
be governed by the provisions contained in the rules enumerated (including
the 1960 Rules) unless otherwise provided in the 1957 Rules. Rule 171-
A was such a provision contemplated by the opening words of Rule 347-
A. Until it came to be amended in October 2014, Rule 171-A(2)
E specifically contemplated that the seniority of the LRIs will be determined
from the date of their continuous officiation on the post in the land records
department or any other equivalent post provided that such officiation
was not fortuitous or ad hoc in nature. After the amendment, Rule 171-
A contemplates that the seniority of Inspectors shall be determined on
the basis of the recruitment year of promotion. The amendment took
F effect in October 2014.
27. Mr Paras Kuhad, learned Senior Counsel is justified in his
submission that the 1957 Rules did not make a provision specifically for
a year-wise determination of vacancies and that such a provision was
embodied in the 1960 Rules. The difficulty in accepting the sequitur (as
G learned Counsel portrayed it) of this submission lies in the fact that Rule
171-A(2) prior to its amendment expressly incorporated the principle of
continuous officiation as the basis for determining seniority of LRIs.
This principle, which is specifically embodied in Rule 171-A(2) cannot
stand overridden by any provision to the contrary contained in the 1960
H Rules. This is for the reason that Rule 347-A expressly stipulates that
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 475
[DR. DHANANJAYA Y CHANDRACHUD, J.]
where there is a specific provision contained in the 1957 Rules, that A
provision will govern.
28. On 2 March 2001, the 2001 Rules were notified under the
proviso to Article 309 of the Constitution. Rule 2 defines the scope of
the 2001 Rules:
“2. Scope. - These rules shall govern the recruitment and other B
conditions of service in respect of persons appointed to the
subordinate service posts in the various departments other than
post(s) regarding which separate service rules have been
promulgated or may be promulgated in future.”
Rule 3(h) defines the expression “member of service”: C
“(h). ‘Member of Service’ means a person appointed in a
substantive capacity to a post in the service under the provisions
of these rules or the rules or orders superseded by rule 48 and
includes a probationer.”
D
Rule 6 defines the constitution of the service:
“6. Constitution of Service-the Service shall consist of-
(a) all person holding substantively the post(s) or recruited to
the Subordinate Service post(s) specified in the Schedule
or orders issued by the Government or the Appointing E
Authority before the commencement of these rules;
(b) all persons recruited to the service in accordance with the
provisions of these rules, except an urgent temporary
appointment.”
Rule 7 provides for the method of recruitment: F
“7. Method of recruitment:- (1) Subject to the provisions herein
after contained in these rules, recruitment or appointment to post(s)
in the service shall be made by the following methods in the
proportion as indicated in the Schedule:-
G
(i) by direct recruitment in accordance with the provisions contained
in part-IV of these rules;
(ii) by promotion in accordance with the provisions contained in
part-V of these rules;
H
476 SUPREME COURT REPORTS [2019] 11 S.C.R.
A (iii) (a) by transfer from amongst the person(s) holding equivalent
post(s) in other Department.
provided that if the post(s) to which transfer is proposed to be
made within the purview of the Commission. Such person should
have already been approved by the Commission on such equivalent
B post.
(b) by transfer of persons from any institution that has been taken
over by the State Government with the condition to suitably
absorbed its staff:…”
Rule 7 contemplates three modes of recruitment, namely:
C
(i) Direct recruitment in terms of Part IV;
(ii) Promotion in terms of Part V; and
(iii) Transfer.
29. Part IV of the 2001 Rules lays down the procedure for direct
D
recruitment from Rules 22 to 33. Part V provides for the procedure for
recruitment by promotion. Rule 13 requires a determination of the actual
number of vacancies occurring during a financial year as on 1 April
every year. Where a post is filled in by a single method then the vacancies
as determined shall be filled in by that method. Where more than one
E method is prescribed posts are filled by apportionment of vacancies.
Rule 35 applies to promotions which are carried out by a departmental
promotion committee constituted under Rule 34. Rule 35(6) requires the
committee to consider the cases of persons who would have been eligible
in the year to which the vacancy relates, irrespective of the year in
which the meeting of the committee is held. Such promotions would be
F
governed by the criteria and procedure applicable in the year to which
the vacancy relates and the service / experience of the incumbent who
is promoted shall be counted for promotion to a higher post for any
period during which the candidate has not actually performed the duties
of the post. Where a limited competitive examination is being held for
G accelerated promotion, Rule 35 has no application. The procedure for
recruitment in Part V of the 2001 Rules does not comprehend a situation
involving a limited competitive examination for accelerated promotion.
Rule 48 which is the repeal and savings provision stipulates that all rules
and orders relating to matters covered by those rules and in force
immediately before the commencement of the rules are repealed. The
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 477
[DR. DHANANJAYA Y CHANDRACHUD, J.]
2001 Rules contains a schedule and as we have seen earlier, Rule 6(a) A
provides that the service shall consist of persons holding substantive
posts or persons recruited to subordinate service posts or persons specified
in the schedule, besides persons recruited in accordance with the
provisions of the rules.
30. It is evident from Part V of the 2001 Rules more particularly, B
the rules governing promotion contained in Rules 34 and 35 that the
deeming fiction envisaged in Rule 35(6) applies to promotions made under
the auspices of a DPC. In the case of such promotions, Rule 35 mandates
that the committee constituted under Rule 34 must consider the cases of
persons who were eligible in the year to which the vacancy relates
irrespective of the year in which the meeting of the committee is held. C
The underlying rationale for Rule 35(6) is that on the determination of
year-wise vacancies, rights are crystalised with reference to the year in
which the vacancy has arisen. Consequently, the delay on the part of the
DPC in convening its meeting should not result in a prejudice to those
candidates who were eligible for promotion and ought to have been D
promoted but were not considered with reference to the year in which
the vacancy arose. This principle in Rule 35(6) is in the nature of a
deeming fiction. Undoubtedly, once a deeming fiction comes into being,
full effect must be given to its ambit. Equally, a deeming fiction can
apply to the extent to which and in a situation where the law mandates
that it be applied. In the present case, it is evident that the deeming E
fiction which applies in the context of a DPC having been convened
beyond the year in which the promotional vacancy arose has no application
to candidates who are recruited on the basis of a competitive examination
for the grant of accelerated promotion. There is a fundamental reason
why the deeming fiction cannot be extended to the situation implicated F
in Rule 284(ii). In order to appear in the competitive examination
contemplated by Rule 284(ii), a candidate must fulfill the conditions of
eligibility prescribed in Rule 286. Rule 286 stipulates that in-service
Patwaris must have a minimum service of five years before they can
appear at the competitive examination under Rule 284(ii). Conferment
of a deemed seniority may result in a situation where a candidate secures G
seniority with effect from an anterior date on which he or she was neither
borne on the cadre nor was qualified. Such a consequence would be
impermissible, at least in the absence of an express statutory provision
to that effect.
H
478 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 31. A consistent line of precedent of this Court follows the principle
that retrospective seniority cannot be granted to an employee from a
date when the employee was not borne on a cadre. Seniority amongst
members of the same grade has to be counted from the date of initial
entry into the grade. This principle emerges from the decision of the
Constitution Bench of this Court in Direct Recruit Class II
B
Engineering Officers’ Association v State of Maharashtra14. The
principle was reiterated by this Court in State of Bihar v Akhouri
Sachindra Nath15 and State of Uttaranchal v Dinesh Kumar
Sharma16. In Pawan Pratap Singh v Reeven Singh17, this Court
revisited the precedents on the subject and observed:
C “45. … (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 issuance of advertisement or the factum of
preparation of the select list, as the case may be.
D (ii) Inter se seniority in a particular service has to be determined
as per the service rules. The date of entry in a particular service
or the date of substantive appointment is the safest criterion for
fixing seniority inter se between one officer or the other or between
one group of officers and the other recruited from different
E 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
backdate and if it is done, it must be based on objective
F 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
G seniority cannot be given on retrospective basis when an employee
has not even been borne in the cadre and by doing so it may
14
(1990) 2 SCC 715
15
1991 Supp (1) SCC 334
16
(2007) 1 SCC 683
17
(2011) 3 SCC 267
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 479
[DR. DHANANJAYA Y CHANDRACHUD, J.]
adversely affect the employees who have been appointed validly A
in the meantime.”
This view has been re-affirmed by a Bench of three judges of this
Court in P Sudhakar Rao v U Govinda Rao18.
32. During the course of the hearing, learned Counsel appearing
on behalf of the appellants placed reliance on a decision of a two judge B
Bench of this Court in Jagdish Prasad v State of Rajasthan 19
(“Jagdish Prasad”). The issue in that case pertained to promotions
from the post of District Transport Officer20 to the post of Motor Vehicle
Inspector. Prior to April 1992, candidates were required to pass a
qualifying examination for the post of DTO but by an amendment, the C
requirement was deleted. Under Rule 10 of the Rajasthan Transport
Service Rules 197921, the appointing authority was required to make a
year-wise determination of vacancies and to make an apportionment to
each method prescribed for filling up the posts. In doing so, the authority
was to determine the vacancies of earlier years which were required to
be filled up by promotion but were not in fact filled in that year. Rule 24 D
of the 1979 Rules contains sub-rule (11) which is pari materia with
Rule 35(6) of the 2001 Rules. Under the 1979 Rules, 50 per cent of the
vacancies were allocated for direct recruitment and 50 per cent for
promotion. This Court noted that the 1979 Rules postulated merit to be
the criteria for promotion to the higher posts. Right from 1983-84 until E
1993-94, no examination was conducted. Faced with the question of
delay in holding the qualifying examination, this Court observed:
“29. In light of this, we now come to the conduct of the
Government which we cannot but help to comment upon. Right
from 1983-1984 till 1993-1994 no examination has been conducted F
by the appropriate authority despite the fact that they also issued
notifications for holding exams on a few of these occasions. If
there was a representation from the Rajasthan Transport
Inspectors’ Union, it cannot be considered as a sufficient cause
or reason for not holding the examinations for more than ten years
and causing serious prejudice to the candidates who might have G
been sufficiently meritorious to qualify in the exams and be
18
(2013) 8 SCC 693
19
(2011) 7 SCC 789
20
“DTO”
21
“1979 Rules” H
480 SUPREME COURT REPORTS [2019] 11 S.C.R.
A considered for promotion to 50% of the posts under the promotion
quota. It is a matter of regret that a Government can take such a
stand before a court of law and expects the Court to accept such
a submission. It is ex facie untenable. Once the rules stand clear,
the authority concerned is expected to act in accordance with
law and not to defeat the law. One who defeats the law by his
B
unjustifiable and unsustainable acts is liable for the consequences
of such default. We fail to understand why the Government and
its entire hierarchy had shut its eyes to this gross violation of
statutory rules over such a long period.”
The process of selection was held to be in violation of the statutory
C rules. In this background, this Court noticing the illegality in the process,
issued directions for holding a fresh process of selection.
33. Jagdish Prasad is a decision which has been rendered in a
situation where the 1979 Rules applicable to the Transport department
contained a specific provision for considering the case for promotion of
D persons who are eligible in the year to which the vacancy relates and
who could not be considered as a result of the failure of the DPC to
convene. The decision related to a situation where the State Government
had acted arbitrarily and even mala fide in failing to hold the qualifying
examination for a decade on the specious ground that there was a
E representation from the union. The action of the State was held to be
unsustainable because it was designed to defeat the law. This
distinguishing feature is absent in the present case.
34. In the present case, we have dealt with the issue of the
applicability of the 1960 Rules in the context of determining the principle
F of seniority. We have held that in view of the opening words of Rule
347-A, the provisions contained in the 1960 Rules would have to give
way and be subject to Rule 171-A(2) which provided for determining
seniority on the basis of continuous officiation. In the face of Rule 171-
A(2) as it stood prior to amendment, it is not possible to apply a deemed
date for determining seniority based on the year of vacancy. Rule 171-
G A(2) rules out the grant of seniority with effect from a date anterior to
the date on which the employee is borne on the cadre.
35. But the submission which now needs to be analysed is whether
a different result would follow from the application of Rule 347-B of the
1957 Rules. Rule 347-B, as we have noted, is prefaced with a non-
H
GANGA VISHAN GUJRATI v. STATE OF RAJASTHAN 481
[DR. DHANANJAYA Y CHANDRACHUD, J.]
obstante provision. Consequently, conditions of service which are A
governed by the rules referred to in the entries of Rule 347-B will govern
notwithstanding anything contained in the 1957 Rules. Among them is
an entry pertaining to the 1972 Rules. Hence, it is necessary to consider
the applicability of the 1972 Rules. Rule 2 contemplates a situation where
the service rules regulating recruitment and conditions of service made
B
under the proviso to Article 309 of the Constitution provide for recruitment
by both direct recruitment and promotion. Where the promotion quota of
a previous year cannot be filled in due to the absence of a DPC
recommendation, the appointing authority is to determine the number of
vacancies required to be filled up by promotion with reference to the
year when the vacancies were required to be filled up. In such a situation, C
upon a determination of the vacancies by the appointing authority, the
DPC is required to convene within a stipulated period. Upon the
recommendations of the DPC, the appointing authority must make
appointments to promotion quota vacancies relevant to the year in
question. Where a vacancy relates to a year earlier than the year in
D
which the appointment has been made, the order of appointment has to
be modified so as to take effect from the year in which the promotion is
deemed to have been made. A plain reading of the 1972 Rules indicates
that they envisage a situation where recruitment is made both by direct
recruitment and promotion and the promotional quota is not filled up in
the absence of a DPC recommendation. On its terms, Rule 2 of the E
1972 Rules has no application to a situation such as the present which is
governed by Rule 284 of the 1957 Rules. Under Rule 284, there is no
direct recruitment at all. Rule 2 of the 1972 Rules applies in a situation
where a service rule regulating recruitment “provides for recruitment
by both direct recruitment and promotion”. In the present case, ex
F
facie Rule 284 of the 1957 Rules is not a provision falling in that category
since there is an absence of a service rule requiring recruitment by direct
recruitment and promotion. The 1972 Rules have no application. Rule
347-B of the 1957 Rules will hence not come to the aid of the appellants.
36. The situation, as we have noted has been altered by the rule
making authority which amended the provisions contained in Rule 171- G
A(2) of the 1957 Rules. As a result of the amendment, sub-rule (2)
came to be substituted with effect from 8 October 2014. Post
amendment, the seniority of LRIs has to be determined on the basis of
the recruitment year of promotion. The provision for continuous officiation
H
482 SUPREME COURT REPORTS [2019] 11 S.C.R.
A as embodied in Rule 171-A(2) prior to the amendment was to the contrary.
A deliberate departure has been made in the rules which were modified
on 8 October 2014. We cannot accept the submission that the amendment
was clarificatory in nature. The present case relates to the exercise
conducted prior to the amendment of Rule 171-A(2).
B 37. For the above reasons, we are of the view that the Division
Bench of the High Court was justified in coming to the conclusion, though
for the reasons which we have indicated, that the claim for seniority
with reference to the date of the accrual of the vacancy will not be
maintainable merely on the ground that no competitive examination was
held in the years in which the vacancies had arisen. The view taken by
C the Division Bench of the Rajasthan High Court is in accord with the
principles of law enunciated in the decisions of this Court and consistent
with the statutory rules as they held the field at the material time.
38. For the above reasons, we find no merit in the appeals. The
appeals are accordingly dismissed. There shall be no order as to costs.
D Pending application(s), if any, shall stand disposed of.
Ankit Gyan Appeals dismissed.
E
F
G
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "seniority"Sign in to search