STATE OF UTTAR PRADESH & OTHERSversusASHOK KUMAR SRIVASTAVA & ANR.

                       (2013] 11 S.C.R. 846


A           STATE OF UTTAR PRADESH & OTHERS
                                 v.
              ASHOK KUMAR SRIVASTAVA & ANR.
                {Civil Appeal No. 6967 of 2013)
                        AUGUST 21, 2013
B
            [ANIL R. DAVE AND DIPAK MISRA, JJ.]

        SeNice Law:

c      Seniority- Date of seniority- Seniority granted w.e.f. the
  date of promotional order - The promotee claimed
  retrospective seniority w.e.f. the date the vacancy had arisen
  - High Court allowed the claim of the promotee on the
  grounds that the seNice rules provided to decide seniority
0 w.e.f. the date of arising of vacancy; and that there has been
  hostile discrimination against the promotee as other 10
  promotees had been accorded seniority w.e.f. the date of
  arising of vacancy - Held: Conferment of retrospective
  seniority to the promotee by High Court is not tenable - As
  per seNice rules the seniority has to be computed from the
E date of appointment, unless otherwise stipulated in the letter
  of appointment - High Court misdirected itself in holding that
  there was discrimination because the promotee in question
  and the other 10 promotees were governed by different set of
  rules - Uttar Pradesh AyuNedic Aur Unani Mahavidyalaya
F Adhyapako ki Seva Niyamava/i, 1990 - r. 21 - Constitution
  of India - Article 14.

      State Public Service Commission recommended the
  name of respondent No.1 (lecturer in an Ayurvedic
G College) for promotion to the post of Reader against the
  vacancy which arose on 31.7 .2001. On the
  recommendation of the Commission, the State.
  Government promoted respondent No.1 giving him
  seniority w.e.f. 16.8.2005 i.e. the date of promotion order.
H                               846
  STATE OF UTIAR PRADESH v ASHOK KUMAR                847
                SRIVASTAVA
    High Court, by the impugned judgment held that the       A
service rules empower the Government to decide the
seniority from the date of vacancy and that 10 promotees
had been accorded seniority w.e.f. the date of arising of
vacancy, hence non-granting of similar benefit to
respondent No.1 would tantamount to hostile                  B
discrimination. Hence the present appeal.

    Allowing the appeal, the Court
    HELD: 1. The claim of the first respondent for
conferment of retrospective seniority is absolutely          C
untenable and the High Court has fallen into -error by
granting him the said benefit. [Para 16] [861-H; 862-A]
     2. Rule 21 of Uttar Pradesh Ayurvedic Aur Unani
Mahavidyalaya Aadhyapako Ki Seva Niyamavali, 1990,
                                                             0
the seniority of the candidates is to be determined from
the date of order of substantive appointment. The proviso
carves out an exception by stipulating that if the
appointment order specifies a particular back date with
effect from which a person is substantively appointed that - E
date will be deemed to be the order of substantive
appointment otherwise it would be the date of the issue
of the oraer. The second proviso clarifies that the
seniority will be determined when more than one orders
of appointment are issued in respect of any one selection.
From the aforesaid, it is luminous that unless otherwise F
stipulated in the letter of appointment, the seniority has
to be computed from the date of appointment to the post.
In the case at hand, nothing has been stipulated in the
letter of appointment. [Para 9] [856-G-H; 857-A-B]
                                                             G
     3. The High Court has misdirected itself by recording
the finding that there has been hostile discrimination, as
ten promotees have been accorded seniority relating
back to the date when the vacancies arose. An additional
affidavit has been filed on behalf of the appellants         H
    848    SUPREME COURT REPORTS             [2013] 11 S.C.R.


A clarifying the position that ten incumbents to whom the
  benefit of retrospective seniority was extended, they were
  selected under Rule 15 of Uttar Pradesh State Medical
  College Teacher Service (Second Amendment) Rules,
  2005. Respondent is governed by different set of rules
8 and the promotions that have been given to other
  category of teachers are under separate set of rules.
  When the seniority is governed by two separate set of
  rules, it is inconceivable that one can claim seniority on
  the basis of the rule relating to determination of seniority
C enshrined in the other rules. Respondent No. 1 is bound
  to base his case under Rule 21 of the 1990 Rules by
  which he is governed. The question of hostile
  discrimination would have arisen had the Sta.te
  Government extended the benefit under Rule 21 of the
  1990 Rules to similarly placed persons governed by the
D same Rules. [Para 6] [853-D-E; 854-F-H; 855-A-B]

      4. The names of candidates selected by the Selection
  Committee were sent to the Commission. Be it noted, six
  candidates were found fit for promotion and none of them
E was given retrospective seniority from the date when the
  vacancy arose. [Para 7] [855-C-D]
                                                   .
      5. The High Court placed reliance on the
  recommendation of the Public Service Commission which
  was a reply to the query dated 4.6.2007. The commission
F by letter dated 10.8.2007 had stated that recommendation
  has been made for promoting respondent No.1 w.e.f. the
  date of vacancy created on 31.7.2001. The commission in
  his clarificatory recommendation had amended its letter
  dated 2.7.2007. The language used in the communication
G by the Commission is not free from ambiguity. That apart, .
  the discretion, if any, rests with the Government. The
  recommendations of the Commission cannot be treated
  to be binding on the State Government. [Para 7] [855-C-G]

H
   STATE OF UTTAR PRADESH v ASHOK KUMAR                  849
                 SRIVASTAVA
     Nirmal Chandra Sinha vs. Union of India (2009) 14 SCC     A.
29; Jatinder Kumar and Ors. vs. State of Punjab (1985) 1 SCC
122: 1985 (1) SCR 899; Union of India vs. S.S. Uppal and
Anr. (1996) 2 SCC 168: 1996 (1) SCR 230; State of
Karnataka and Ors. vs. C. Lalitha (2006) 2 SCC 747: 2006
(1) SCR 971; State of Uttaranchal and Anr. vs. Dinesh Kumar    B
Sharma (2007) 1 SCC 683: 2006 (10) Suppl. SCR 1; Pawan
Pratap Singh and Ors. vs. Reevan Singh and Ors. (2011) 3
sec 267: 2011 (2) SCR 831 - relied on.
     Keshav Chandra Joshi and Ors. vs. Union of India and      C
Ors. 1992 Supp (1) SCC 272: 1990 (2) Suppl. SCR 573 -
distinguished.
                    Case Law Reference:
    1990 (2) Suppl. SCR 573      distinguished    Para 3
                                                               D
    (2009) 14 sec 29             relied on        Para 3
    1985 (1) SCR 899             relied on        Para 7
    1996 (1) SCR 230             relied on        Para 11
                                                               E
    2006 (1) SCR 971             relied on        Para 12
    2006 (10) Suppl. SCR 1       relied on        Para 13
    2011 (2) SCR 831             relied on        Para 15
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.            F
6967 of 2013.

    From the Judgment and Order dated 21.12.2009 of the
High Court of Judicature at Allahabad, Lucknow Bench,
Lucknow in Service Bench No. 1268 of 2008.                     G

    P.N. Misra, Sanjay V., Abhisth Kumar for the Appellants.

    Aseem Chandra, Vivek Singh for the Respondents.

                                                               H
    850       SUPREME COURT REPORTS                (2013] 11 S.C.R.


A         The Judgment of the Court was delivered by

          DIPAK MISRA, J. 1. Leave granted.

         2. The 1st respondent was appointed as a Lecturer on
    23.3.1996 in "Ras Shastra" in Rajkiya Ayurvedic College and
8   Chikitsalaya, Lucknow. The State Government vide notification
    dated 21.12.1990 notified the Service Rules, namely, Uttar
    Pradesh Ayurvedic Aur Unani Mahavidyalaya Aadhyapako Ki
    Seva Niyamawali, 1990 (for short, "the rules") for the teachers
    of Uttar Pradesh Ayurvedic Colleges. Under the rules, the
C   promotional post from amongst the Lecturers is Readers. As
    the vacancies in respect of Readers were not filled up, the
    respondent No. 1 preferred W.P. No. 1136 (S/B) of 2004
    before the High Court of Judicature at Allahabad at Lucknow
    Bench, Lucknow, wherein the High Court took note of the
D   statement by the learned counsel for the State and directed that
    it should be in the fitness of things that the ·Public Service
    Commission shall make earnest efforts to expedite the wttole
    process relating to promotion within a period of six months.
    Eventually, on 15.6.2005 the U.P. Public Service Commission,
E   (for short 'the Commission'), the respondent No. 2 herein,
    recommended the names of six persons for promotion to tbe
    post of Readers. As far as the respondent No. 1 is concerned,
    he was placed at serial No. 6 and it was mentioned therein that
    the vacancy in respect of which the 1st respondent had been
F   recommended for promotion had arisen after the
    superannuation of one Dr. Hari Shanker Pandey on 31.7.2001.
    The state Government considering the recommendation of the
    commission issued an office memorandum on 16.8.2005
    promoting the 1st respondent and given him the posting in
G   State Auyrvedic College, Lucknow. As the 1st respondent was
    given seniority w.e.f. 16.8.2005 which is the date of pa.ssing of
    the order of promotion he felt aggrieved and the said grievance
    compelled him to prefer O.A. No. 134 of 2006 before the U.P.
    State Public Service Tribunal (for short "the tribunal"). The
H
     STATE OF UTTAR PRADESH v ASHOK KUMAR                    851
            SRIVASTAVA [DIPAK MISRA, J.]
tribunal by order dated 2.2.2007 directed that the applicant         A
therein should submit a representation to the Government within
a period of one month against the order dated 16.08.2005
which shall be disposed of within two months by passing a
reasoned order. In pursuance of the aforesaid order the State
of U.P. vide letter dated 4.6.2007 sought a clarification from       B
the Commission about its recommendation and after receipt
of the said communication from the Commission and on due
deliberation vide order dated 2.1.2008 the representation of the
1st respondent was rejected and it was clearly stated that
seniority had been accorded to him from the date of passing          c
of the order of promotion i.e. 16.8.2005.

     3. Grieved by the order rejecting the representation the
respondent No. 1 preferred W. P. No. 1268 (S/B) of 2008
before the High Court contending, inter alia, that he was entitled
to be given retrospective seniority with effect from the date        D
when the vacancy had arisen. The stand and stance put forth
by him was opposed by the State and its functionaries by filing
a counter affidavit that as per Rule 21 of 1990 rules the
respondent's seniority had been correctly fixed from the date        E
of promotion but not from the date when the vacancy arose. The
1st respondent brought to the notice of the High Court that ten
persons had been conferred seniority with retrospective effect
and he had been discriminated. The High Court placing reliance
on a three-Judge Bench decision in Keshav Chandra· Joshi
and Others v. Union of India and Others1 and after reproducing       F
paragraph 24 of the said Judgment expressed the opinion that
the principle laid down therein was binding and on that rationale
distinguished the decision in Nirrnal Chandra Sinha v. Union
of lndia2 • The High Court further proceeded to state that the
service rules itself empower the Government to -decide the           G
seniority from the date of vacancy and when ten promotees had
been accorded seniority relating back to the date of arising of
1.   1992 Supp (1) sec 212.
2.   c2000) 14 sec 20.                                               H
    852      SUPREME COURT REPORTS                  [2013) 11 S.C.R.


A   vacancy, denial of the similar benefit to the petitioner by
    adopting a different criteria amounted to hostile discrimination
    inviting the frown of Article 14 of the Constitution. Being of this
    view, the Division Bench of the High Court quashed the
    impugned order dated 2.1.2008 and directed the respondents
s   therein to consider the case of the petitioner and pass a fresh
    order in accordance with the verdict given by it. The penetrability
    of the aforesaid order is called in question by the State of U.P
    and its functionaries in this appeal by way of special leave.

       4. It is submitted by Mr. P. N. Misra, learned senior counsel
C appearing for the appellant that the High Court has flawed by
  placing reliance on the decision rendered in Keshav Chandra
  Joshi (supra), as the same was delivered in a different context
  and that apart the ratio that has been culled out by the High court
  from the said pronouncement is not the correct one. The learned
D senior counsel has criticized the reasoning that when the service
  rule itself empowers the Government to decide the seniority
  from the year of vacancy, the Government is not justified in
  deciding the seniority of the 1st respondent from the date of
  promotion to the post of Reader. It is his further submission that
E the High Court has committed a grave factual error by opining
  that under Rule 21 of the 1990 rules when seniority was
  accorded to 1O persons form the date of vacancy, non-granting
  of the similar benefit to the respondent did tantamount to hostile .
                                                                      •
  discrimination, though it had clearly been brought on record that
F seniority of all the promoted candidates was fixed from the date ·.
  of promotion and not from the respective dates when the \
  vacancies had .arisen.

      5. Mr. Aseem Chandra, learned counsel appearing for the             1

G contesting respondent No. 1, per contra, urged that the High
  Court has properly applied the principle stated in Keshav
  Chandra Joshi (supra) and same being a three-Judge Bench
  decision has been aptly followed and, hence, the analysis
  made by the High court cannot be found fault with. Learned
H counsel would submit as the department had not filled up the
  c

   STATE OF UTTAR PRADESH v ASHOK KUMAR                        853
          SRIVASTAVA [DIPAK MISRA, J.]
                                                                       A
promotional posts, the respondent was constrained to
approach the High Court and on the basis of the direction
issued by the High court when the posts had been filled up, it
was incumbent on the authorities to reckon the seniority from
the date when the vacancy had occurred. It is propounded by            8
him that the language of Rule 21 of the 1990 rules confers
discretionary power on the State Government and in the case
at hand the authorities in an inequitable manner have failed to
exercise the said power and, therefore, the High Court is
absolutely justified in issuing directions for fixation of seniority   C
with retrospective effect and, therefore, the order passed by it
is absolutely impregnable.

      6. At the very outset, we think it appropriate to deal with
the facet of hostile discrimination. The High Court, as is
manifest, has opined that ten promotees have been accorded D
seniority relating back to the date when the vacancies arose.
Reference has been made to Rule 20. It is worthy to note that
an additional affidavit has been filed on behalf of the appellants
clarifying the position that ten incumbents to whom the benefit
of retrospective seniority was extended, they were selected E
under Rule 15 of Uttar Pradesh State Medical College Teacher
Service (Second Amendment) Rules, 2005. The said amended
rules were brought into force on 12.5.2005 to amend the Uttar'
Pradesh State Medical Colleges Teachers Service Rules, ·
1990. Rule 15 of original rules dealt with procedure for F
recruitment by promotion. The amended Rule 15 of 2005
provides the procedure for recruitment by personal promotion.
Rule 20 of the original rules dealt with seniority and it has been
amended and in the present incarnation the said Rule reads
as follows: -                                                      G

      "20. Seniority - The seniority of persons substantively
      appointed in any category of posts in the service' shall be
      determined in accordance with the Utta~.· Pradesh
                                                                       H
    854       SUPREME COURT REPORTS              [2013] 11 S.C.R.


A         Government Servants Seniority Rules. 1991. as amended
          from time to time.

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

       Thus, on a plain reading of Rule 20 it is perceptible that
  certain categories of incumbents are entitled to seniority from
0
  the date of their appointment notwithstanding the fact that they
  have been conferred personal promotion to the same post
  under Rule 15 in the same recruitment year. It is evident that
  benefit of seniority has been given to the incumbents who are
  governed by a different set of rules altogether. The High Court,
E as we notice, has referred to Rule 21 of 1990 rules which
  governs the case of the respondent No. 1. The said Rule clearly
  stipulates that if an order of appointment specifies a particular
  back date with effect from which a person is substantively
  appointed then only that date will be deemed to be the date of
F the order of substantive appointment. From the narration of the
  aforesaid facts, it is demonstrable that respondent is governed
  by different set of rules and the promotions that have been given
  to other category of teachers are under separate set of rules.
  When the seniority is governed by two separate set of rules, it
G is inconceivable that one can claim seniority on the basis of
  the rule relating to determination of seniority enshrined in the
  other rules. The respondent No. 1 is bound to base his case
  under Rule 21 of the 1990 rules by which he is governed. Thus
  analysed, we find that the High Court has misdirected itself by
H
     STATE OF UTTAR PRADESH v ASHOK KUMAR                   855
           SRIVASTAVA [DIPAK MISRA, J.]

recording the finding that there has been hostile discrimination.   A
The question of hostile discrimination would have arisen had
the State Government extended the benefit under Rule 21 of
the 1990 rules to similarly placed persons governed by the
same Rules. That being not the position we are afraid that the
view expressed by the High Court on that score is not               B
sustainable.

     7. In this context, it is seemly to state that the names of
candidates selected by the Selection Committee in its meeting
held on 19.5.2005 were sent to the Commission. Be it noted,         c
six candidates, namely, Dr Hari Shanker Pandey, Dr. Jai Ram
Verma, Dr. S.K. Arya, Dr. V.P. Upadhyaya, Dr. Lal Bahadur
Singh and Dr. Ashok Kumar Srivastava were found fit for
promotion and none of them was given retrospective seniority
from the date when the vacancy arose. The High Court has D
placed reliance on the recommendation of the Public Service
Commission which was a reply to the query dated 4.6.2007.
The commission by letter dated 10.8.2007 had stated that
recommendation has been made for promoting Dr. Ashok
Kumar Srivastava on the post of Reader of Ayurvedic and Unani E
College~ w.e. f. the date of vacancy created on account of the
superannuation of Dr. Hari Shanker Pandey on 31. 7 .2001. It
is condign to note here that the commission in his clarificatory
recommendation had amended its letter dated 2.7.2007. It is
also perceivable that the language used in the communication F
by the Commission is not free from ambiguity. That apart, the
discretion, if any, rests with the Government. Be that as it may,
the recommendations of the commission cannot be treated to
be binding on the State Government. (See Jatinder Kumar and
Others v. State of Punjab. 3) Thus, it is perceptible that·all the G
incumbents promoted along with the respondent No. 1 were
given seniority from the date of promotion and not from the date
when the vacancies arose. Therefore, the factum of arbitrary

3.   (1985) 1 sec 122.                                              H
    856       SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A   discrimination does not arise and accordingly we are unable
    to concur with the view of the High Court.

         8. Presently, we shall advert to the rule position. The
    relevant part of Rule 21 of the 1990 rules by which the 1st
8   respondent is governed, is reproduced below:-

          "21. Seniority - (1) Except as hereinafter provided, the
          seniority of persons in any category of posts shall be
          determined from the date of the order of substantive
          appointment and if two or more persons are appointed
c         together by the order in which their names are arranged
          in the appointment order :

                Provided that if the appointment order specifies a
          particular back date with effect from which a person is
D         substantively appointed, that date will be deemed to be the
          date of order of substantive appointment and in other
          cases, it will mean the date of issue of the order :

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

                  Provided also that a candidate recruited directly may
          lose his seniority if he fails to join without valid reasons
F         when vacancy is offered to him, the decision of the
          appointing authority as to the validity of reason shall be
          final."

       9. On a studied scrutiny of the aforesaid Rule, it is vivid
G that the seniority of the candidates is to be determined from
  the date of order of substantive appointment. The proviso
  carves out an exception by stipulating that if the appointment
  order specifies a particular back date with effect from which a
  person is substantively appointed that date will be deemed to
H
     STATE OF UTTAR PRADESH v ASHOK KUMAR                    857
            SRIVASTAVA [DIPAK MISRA. J.] .
   be the order of substantive appointment otherwise it would be A
   the date of the issue of the order. The second proviso clarifies
   that the seniority will be determined when more than one orders
   of appointment are issued in respect of any one selection. From
   the aforesaid, it is luminous that unless otherwise stipulated in
   the letter of appointment the seniority has to be computed from B
   the date of appointment to the post. In the case at hand, nothing
   has been stipulated in the letter of appointment. The High Court
   while granting retrospective seniority with consequential benefits
   has placed reliance on the principle stated in Keshav Chandra
   Joshi (supra). In the said case, controversy related to fixation C
   of seniority between direct recruits and the promotees. A three-
   JL1dge Bench took note of the plea which was to the effect that
-- promotees should be declared to have been regularly
   appointed from the respective dates of their initial promotion
   as Assistant Conservators of Forest with all consequential o
   benefits. To substantiate the said plea it was urged that though
   the promotees were appointed on ad hoc basis due to non-
   availability of direct recruits to the vacant posts of Assistant
   Conservators of Forest, yet they were continuing for well over
   5 to 12 years discharging the same duties, drawing the same E
   scale of pay without any reversion and, therefore, the posts held
   by them were hot fortuitous, nor stop gap. In this backdrop it
   was contended that the entire continuous length of service from
   the dates of their initial promotion should be counted towards
   their seniority. In opposition, it was urged that the appointment F
   of the promotees admittedly being ad hoc, they had no right to
   the posts and hence, their seniority could be counted only from
   the dates of their substantive appointment. The Court after
   scanning the anatomy of relevant rules opined that in order to
   become a member of the service he/they must satisfy two G
   conditions, namely, the appointment must be in substantive
   capacity and the appointment has to be to the post in the
   service according to rules and within the quota to a substantive
   vacancy. The learned Judges observed that there exists a
   marked distinction between appointment in a substantive H
    858       SUPREME COURT REPORTS                   [2013] 11 S.C.R.


A   capacity and appointment to the substantive post. Therefore,
    the membership to the service must be preceded by an order
    of appointment to the post validly made by the Governor. Then
    only he/they become member/members of the service. The
    Court further stated that any other construction would be
B   violation of the Rules. After so expressing, the Court posed two
    questions:-

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

       Thereafter, analyzing the entire gamut of case law, opined
  that employees appointed purely on ad hoc or officiating basis
  due to administrative exigencies, even though continued for a
D along spell, do not become the members of the service unless
  the Governor appoints them in accordance with the rules, and
  so they are not entitled to count the entire length of their
  continuous officiating or fortuitous service towards their
  seniority. Eventually, in paragraph 24 which has been
E reproduced by the High Court in entirety in the impugned order
  to build the edifice of its reasoning, in essence, it has been laid
  down thus: -

                "It is notorious that confirmation of an employee in a
F         substantive post would take place long years after the
          retirement. An employee is entitled to be considered for
          promotion on regular basis to a higher post if he/she is an
          approved probationer in the substantive lower post. An
          officer appointed by promotion in accordance with Rules
          and within quota and on declaration of probation is entitled
G
          to reckon his seniority from the date of promotion and the
          entire length of service, though initially temporary, shall be
          counted for seniority. Ad hoc or fortuitous appointments on
          a temporary or stop gap basis cannot be taken into
          account for .the purpose of seniority, even if the appointee
H
  STATE OF UTTAR PRADESH v ASHOK KUMAR                     859
        SRIVASTAVA [DIPAK MISRA, J.]
    was subsequently qualified to hold the post on. a regular A
    basis. To give benefit of such service would be contrary
    to equality enshrined in Article 14 read with Article 16(1)
    of the Constitution as unequals would be treated as
    equals. When promotion is outside the quota, the seniority
    would be reckoned from the date of the vacancy within the B
    quota, rendering the previous service fortuitous. The
    previous promotion would be regular only from the date of
    the vacancy within the quota and seniority shall be counted
    from that date and not from the date of his earlier
    promotion or subsequent confirmation."                      c
     In the ultimate conclusion the learned Judges ruled as
follows:-

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

     10. From the aforesaid, it is clear as day that what is meant F
by reckoning of seniority from the date of vacancy in the context
of the facts of the said jtJdgmen't has been wholly
misunderstood by the High Court. In the case of Keshav
Chandra Joshi (supra), the controversy that arose pertained to
the seniority between direct recruits and promotees. The Court G
opined that when promotion is given beyond the quota of the
promotees, the seniority has to be reckoned from the date of
vacancy arising within the quota meant for the promotees. The
Court further observed that the previous promotion would be
regular only from the date of vacancy within the quota and the H
    860       SUPREME COURT REPORTS                (2013) 11 S.C.R.

A   seniority shall be counted only from that date and not from date
    of earlier promotion or subsequent confirmation. The factual
    matrix, the relevant rules, the concepts of direct recruit quota
    and the promotee quota and the fortuitou·s appointment and the
    principle stated therein have nothing to do with grant of
B   retrospective seniority in the context of the present case. Thus,
    we have no scintilla of doubt that the High Court has erroneously
    applied the ratio laid down in Keshav Chandra Joshi (supra).

        11. The thrust of the matter is how the seniority is to be
C determined in such circumstances. In Union of India v. S.S.
  Uppal and another, 4 it has been opined that the seniority of a
  person is to be determined according to the seniority rule
  applicable on the date of appointment. It has also been
  observed that weightage in seniority cannot be given
D retrospective effect unless it is specifically provided in the rule
  in force at the material time.

        12. In State of Kamataka and others v. C. Lalitha5 it has
   been observed that it is well settled that seniority should be
  governed by rules and a person should not be allowed to derive
E any undue advantage over other employees, for concept of
  justice demands that one should get what is due to him or her
  as per law.

        13. In State of Uttaranchal and another v. Dinesh Kumar
F   Sharma6 it has been clearly stated that seniority has to be
    decided on the basis of rules in force on the date of
    appointment and no retrospective promotion or seniority can
    be granted from a date when an employee has not even been
    born in the cadre.
G
          14. In Nirmal Chandra Singh (supra) it has been ruled that

    4.   (1996) 2 sec 168.
  s.     (2006) 2 sec 747.
H s..    c2001) 1 sec 683.
     STATE OF UTTAR PRADESH v ASHOK KUMAR                        861
            SRIVASTAVA [DIPAK MISRA, J.]

promotion takes effect from the date of being granted and not            A
from the date of occurrence of vacancy or creation of the post.
It has also been laid down therein that it is settled in law that
date of occurrence of vacancy is not relevant for the
determination of seniority.
                                                                         B
     15. Learned senior counsel for the appellants has drawn
inspiration from the recent authority in Pawan Pratap Singh and
others v. Reevan Singh and others, 7 where the Court after
referring to earlier authorities in the field has culled out certain
principles out of which the following being the relevant are             c
reproduced below:

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

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

      16. In view of the aforesaid enunciation of law, the
irresistible conclusion is that the claim of the first respondent

7.   c2011) 3 sec 267.                                                   H
    . 862     SUPREME COURT REPORTS                 (2013] 11 S.C.R.


A    for conferment of retrospective seniority is absolutely untenable
     and the High Court has fallen into error by granting him the said
     benefit and accordingly the impugned order deserves to be
     lancinated and we so do.

B          17. Consequently, the appeal is allowed and the order
     passed by the High Court is set aside. The parties shall bear
     their respective costs.

     K.K.T.                                         Appeal allowed.