Holding

Promotion and seniority are determined from the date of substantive appointment; the respondent is not entitled to retroactive seniority from the vacancy year.

Summary

The respondent, Dinesh Kumar Sharma, a Subordinate Agricultural Services officer, claimed promotion and seniority from the 1995-96 vacancy year, although his substantive appointment order was issued on 19 November 1999. The High Court directed the State to reconsider his claim, but the Supreme Court held that under the Uttar Pradesh Government Servants Seniority Rules, 1991 and the Uttar Pradesh Agriculture Group "B" Service Rules, 1995, seniority for a promotee is fixed on the date of substantive appointment, not on the date a vacancy arose. The Court observed that Rule 8 of the Seniority Rules and Rule 21 of the Service Rules expressly state that promotion seniority cannot be back‑dated. It also noted that the respondent had concealed earlier representations that had already been decided. Consequently, the Supreme Court set aside the High Court order and allowed the appeal, confirming that the respondent is entitled to promotion and seniority only from 19 November 1999.

Issues considered

Whether the respondent can claim promotion and seniority from the 1995-96 vacancy year or only from the date of his substantive appointment in 1999.
Whether the High Court erred in ignoring the provisions of the U.P. Government Servants Seniority Rules, 1991 and the U.P. Agriculture Group "B" Service Rules, 1995 in granting relief.

Legislation cited

Constitution of Indias. 309

Subjects

promotionseniorityservice lawsubstantive appointmentU.P. service rulesretrospective promotioncivil appealhigh court errorrepresentation concealment

Judgment

•
STATE OF UTTARANCHAL AND ANR. A
v.
DINESH KUMAR SHARMA

DECEMBER 4, 2006

[DR. AR. LAKSHMANAN AND AL TAMAS KABIR, JJ.] B

Service Law:

Promotion-Seniority-Respondent-employee cannot claim promotion
ji-om date of occurrence of vacancy but can only get promotion and seniority c
fi·om the time he has been substantively appointed-High Court erred in

- understanding and appreciating Rules 17 and 21 of the 1995 Service Rules
and Rule 8 of the 199 I Seniority Rules which categorically state that date
of 'substantive appointment' is the date for determining promotion, seniority
and other benefits-UP. Government Servants Seniority Rules, 1991-Rule D
8-U.P. Agriculture Group "B" Service Rules, 1995-Rules 17 and 21.
f- -
The questions which arose for consideration in the present appeal are
(1) Whether the respondent has the right to claim promotion and seniority
from 1995-96 when the vacancy arose or whether his seniority will be
reckoned from the date of substantive appointment which is in the year 1999 E
and (2) Whether the High Court was justified in overlooking and ignoring
the provisions of the U.P. Government Servants Seniority Rules, 1991 and
granting relief in favour of the Respondent

Allowing the appeal, the Court
F
HELD: I. With regard to the issue as to whether the respondent has

.. the right to claim promotion and seniority from 1995-96 when the vacancy
arose or whether seniority will be reckoned from the date of substantive
appointment which is 1999, it can be observed that an employee will be
considered member of a cadre from the date of his/her substantive appointment
in the cadre after selection. 17-G-H)
G

K. V Subba Rao & Ors. v. Government ofAndhra Pradesh & Ors., 11988)
2 SCC 201; Smt. M Nirmala & Ors. v. State ofAndhra Pradesh & Ors., (1986)
3 SCC 647 and Sanjay K. Sinha-II & Ors. v. State of Bihar & Ors., 12004) 10
I
H
.....
2 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. •
A sec 734, referred to.

2.1. It is clear from Rule 8 of the U.P. Government Servants Seniority
Rules, 1991 that a person appointed on promotion shall not get seniority of
any earlier year but shall get the seniority of the year in which his/her
appointment is made. Therefore, in the present fact situation the respondent
B cannot claim promotion from the date of occurrence of the vacancy which is
1995-96 but can only get promotion and seniority from the time he has been
substantively appointed i.e. from 1999. Likewise, the seniority also will be
counted against the promotion/appointment in the cadre from the date of
issuance of order of substantive appointment in the said cadre, i.e. from
c 19.11.1999. (9-C-D)

2.2. The High Court committed an error in understanding and
appreciating Rules 17 and 21 of the Uttar Pradesh Agriculture Group "B" .
Service Rules, 1995 and Rule 8 of the U.P. Government Servants Seniority
Rules, 1991, which categorically states that the date of 'substantive
D appointment' will be the date that shall be taken for determining promotion, ?--
~
seniority and other benefits. 113-B-CI

Uttaranchal Forest Rangers Association (Direct Recruit) & Ors. v. State
o/UP.& Ors., (2006) 9 Scale 577; KC. Joshiv. Union of India, (1992) Suppl
1 SCC 272; State of Bihar & Ors. v. Akhouri Sachidananda Nath & Ors.,
E [1991] Suppl. 1SCC334; Vinodanand Yadav & Ors. v. State of Bihar & Ors.,
[1994) Suppl. 2 SCC 44 and Jagdish Ch. Patnaik & Ors. v. State of Orissa &
t
Ors., [1998) 4 SCC 456, referred to.

3. The representations of the respondent dated 17.07.2001 and
27.05.2002 had been decided by the appellant by a well reasoned and speaking
F
order vide its office memo dated 01.10.2002. It is pertinent to mention here
that the respondent had concealed this fact Thus, the respondent by misleading
the Court has obtained the order from the High Court that the appellant shall
.4
decide the representation which has been already decided by the appellant on
01.10.2002. The High Court should not have interfered with the finding of
G the Appellants and directed them to "consider" the representation of the
respondent, which in effect will amount to the reconsideration of the claim
made by the respondent [11-F; 14-Fl

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5573 of2006.

H From the final Judgment and Order dated 29.3.2005 of the High Court
.....
.., . STATE OF UTTARANCHAL v. DINESH KUMAR SHARMA [LAKSHMANAN, J.] 3

of Uttaranchal at Nainital in W.P. No. 369 (S/B) of 2004. A
Gaurav Banerjee, T.M. Singh and D. Bharathi Reddy for the Appellants.

Satyajit A. Desai, Anagha S. Desai and Venkateswara Rao Anumolu for
the Respondent.
B
The Judgment of the Court was delivered by

DR. AR. LAKSHMANAN, J. Leave granted.

This civil appeal is preferred against the final order and judgment of the
High Court of Uttaranchal at Nainital, which held that, it was appropriate to c
consider the grant of discretionary relief to the Respondent in his promotion
and consequential benefits.

The brief facts of the present matter are enumerated below.

On 25.10.1977, the respondent, Mr. Dinesh Kumar Sharma was appointed D
as Subordinate Agriculture Services Group-I on the post of Senior Chemical
Assistant, Research (Chemistry) Branch through the Public Service Commission,
U.P. Allahabad. Fifteen years service in Subordinate Agriculture Service
Group-I is the eligibility criteria for being considered for next higher promotion.
In the year 1992-93, respondent became eligible for the said promotion.
E
On 31.03.1995, the Governor of Uttar Pradesh promulgated U.P.
Agricultural Group II Service Rules 1995 providing for the selection,
appointments, probation, seniority, promotion etc. Rule 21 states that the date
of substantive appointment will be the basis of promotion. On 01.04.1996 and
01.05.1996, two class-II posts in the Hill sub cadre became vacant due to
retirement of two officers. These appointments were to be made by Direct
F
Recruitment as well as Promotion. Rule 17 states that, if in any year of
recruitment appointments are made both by direct recruitment and promotion
a combined select list be prepared by taking the names from the relevant list
and "the first name in the list will be of the person appointed by promotion".
G
On 19.11. I 999, the Secretary to Government of Uttar Pradesh of the
Agriculture Department issued an order conveying that the respondent has
been selected for subordinate Agriculture Service Class-I (Chemistry) in the
substantive vacancy for the year I 997-98 in the scale of Rs.8000-275-13500,
after consultation with the State Public Service Commission.
H

•
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
4
.... ""'-

A On 04.04.2001, the U.P. Government Agriculture Department issued an
order directing that those employees who were already members of the Hill
Sub Cadre and posted at Uttaranchal have been finally allocated to Uttaranchal
Government in which the name of the respondent was shown at serial No.30.

Thereafter on 17.07.2001 & 27.05.2002, the respondent made two
B representations to the Department contending that his seniority may be counted
from the year 1995-96 with all the consequential benefits as the vacancies fell
vacant in that year. Further on 12.06.2002, the respondent made another ....
representation stating that his earlier two representations were not decided
upon and that he should be promoted with effect from the date of occurrence
of vacancy.
c
On 01.10.2002, the Government of Uttaranchal issued Office Memorandum
conveying its decision of rejecting the claim made by the respondent.

The respondent filed Writ petition No.369/2004 on 21.11.2004 praying
the High Court to issue a writ of Mandamus to promote him with effect from
D
1995-96 with all consequential benefits. However, the respondent in his writ
petition has suppressed the fact that the Government had denied the claim the
respondent had made by way of representations dated 17.07.2001, 27.05.2002
and 12.06.2002. The appellants filed their counter affidavit stating the rejection
of the claim of the respondent in the High Court on 23.03.2005.
E
The Division Bench of the High Court ofUttaranchal vide its final order
and judgment dated 29.03.2005 held that, "the Government is directed to re-
consider the matter and send it back to the Commissioner for appropriate
orders suitable in the facts and circumstances of the case."

F It is against this order of the High Court the appellants are before this
Court by way of special leave.

After a perusal of the facts involved here, we feel that the issues that
need to be addressed by us in this case are: .....

G (i) Whether the respondent has the right to claim promotion and
seniority from 1995-96 when the vacancy arose or whether his
seniority will be reckoned from the date of substantive appointment
which is in the year 1999.

(ii) Whether the High Court was justified in overlooking and ignoring
H the provisions of the U .P. Government Servants Seniority Rules,
>-

'
STA TE OF UTTARANCHAL v. DINESH KUMAR SHARMA (LAKSHMANAN, J.] 5

I 991 and grant a relief in favour of the respondents. A
We heard Mr. Gaurav Banerjee, learned Addi. Advocate General,
appearing for the appellant the State of Uttaranchal, and Mr. Satyajit A. Desai,
learned counsel appearing for the respondent.

Learned Addi. Advocate General submitted on behalf of the appellants B
_,,. that the promotion and seniority are determined by applying the U.P.
Government Servants Seniority Rules, 1991 and the Uttar Pradesh Agri<;ulture
Group "B" Service Rules, I 995. According to these Rules and settled legal
position by way of decisions of this Court it is clear that, to claim proq1otion
and seniority from the years I 995-96 when the vacancy arose is unreas<1mable
and unsustainable. C
It was submitted by the appellants that the High Court was not ju~tified
in overlooking and ignoring the U.P. State Agriculture Group II provf o to
Article 309 of the Constitution of India which have been held to be bi ding
by a decision of this court in the case of K. V Subba Rao & Ors. v. Gover~ ment D
of Andhra Pradesh & Ors .. [ 1988] 2 SCC 20 I, where this Court hel4 that,
promotion and seniority shall be reckoned from the date of appointmeht not
I
retrospectively from the date when the vacancy arose. I
i
It was further submitted that the decision to promote the respondent
was taken by the appellants in accordance with the Service Regulations E
present in U.P. and that no interference could be made to such orders .. Also
that, the High Court was not justified in overlooking the Statute Law asi well
as the case laws where it is stated in clear terms that, seniority is determi~able
with reference to the date of substantive appointment. This was the ~iew
taken by this Court in K. V. Subba Rao & ·Ors. v. Government of Antfhra
Pradesh & Ors., (supra) Smt. M Nirmala & Ors. v. State ofAndhra Prddesh F
& Ors., [1986] 3 SCC 647, and Sa1~iay K. Sinha-If & Ors. v. State of ~ihar
& Ors., [2004] l 0 SCC 734. In all these cases this Court has categoricall;\held
that seniority must be reckoned from the date of substantive appointment
under the relevant rules and also that the right to frame rules for the
determination of inter-se seniority is the prerogative of the State.
G
Concluding his arguments Learned Addi. Advocate General stated that
the High Court was not justified in overlooking and ignoring the provisions
of the U.P. Government Servants Seniority Rules, 1991 and various decisions
of this Court in the subject and grant a relief in favour of the respond¢nts.
It was also contended that the High Court was not justified in overloo~ing H
6 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. "' -
A the fact of suppression of material facts indulged by the respondent when he
approached the High Court.

Mr. Satyajit. A. Desai, learned counsel appearing for the respondent
submitted that the High Court rightly noticed that the appellant authority had
failed to appreciate that the vacancy arose in the year 1995-96 i.e. on 01.05.1996
B and second vacancy on 01.06.1996 and this fact had come to the knowledge
of the Commission, the Commission could have given promotion to the . '--

respondent w .e.f. those dates as the respondent was entitled for the same,
since the Commission has found him suitable for the post which is evident
from the promotion order dated 19.11.1999. Thus the said lapse on the part
c of the appellant authority in communicating the authentic and correct date of
vacancy to the Commission has a serious effect on the consequential benefits
of the respondent. Therefore, it was rightly held by the High Court that, 'the
order dated 01.10.2002 clearly suffers from the non-application of mind and
is hereby liable to be ignored. This is more so in view of the fact that the
vacancy had fallen on 01.05 .1996 and 01.06.1996 in the recruitment year 1995-
D 1996 for two posts in Hill Sub-cadre II are not disputed by the respondents.
Thus in that eventuality the respondent cannot be made to suffer on account
of delay in recommendation bv the Director of Agriculture for promotion of
the respondent.'

It was then submitted that, the approach of the appellant authority in
E holding that "there would be no change in the ranking since the order of
substantive appointment was communicated on 19.11.1999 and therefore the
promotion can be granted only from the date of substantive appointment" is
basically wrong and illegal and dehors the established principles of service
jurisprudence and that the said reasoning goes without any support from the
F concerned se.rvice rules as well.

The respondents argued that, it was admitted by the appellant/State
before the High Court that the post on promotion quota had become vacant
in April 1996 and another post had become vacant in May 1996 on the
...
respective retirement of Shri Mohan Prakash Joshi and Sri Krishna Pandey
G and the respondent being the senior-most employee and belonging to the hill-
cadre ought to have been appointed against the first available vacancy i.e.
April, 1996. However, Shri Shyam Singh who was from the plain cadre came
to be appointed wrongly out of turn. Since the promotion of the respondent
has been recommended on these vacancies, it becomes all the more necessary
that promotion and seniority has to be given effect to from the year 1995-96
H

"
-"· STATE OF UTTARANCJIAL v. DINESH KUMAR SHARMA ILAKSJIMANAN, J.] 7

----- A
when the vacancy actually arose. Rule· 17 of the Uttar Pradesh Agriculture
Group "B" Service Rules, 1995 and Rule 8 of the U.P. Government Servants
Seniority Rules, 1991, specifically provide that the vacancy should be counted
from the year when it is created. It further emphasises that in case of direct
selection and selection by promotion if created in the same year in that
situation the person coming through promotion quota should be treated as
senior. B
,I .
It was submitted that the denial of the effect to the promotion from
1995-96 affects the overall seniority of the appellant as well as his seniority
in Class II for all purposes including pension. This is more so in view of the
fact that the respondent has been already officiated on the said promotional
post from 28.05.1994 itself as per the directions of the Additional Director,
c
Uttaranchal. Moreover, it is an admitted fact that the record of the respondent
has throughout been absolutely clean and unblemished and thus in the
absence of any adverse remarks against him there is no justification to deny
him promotion w.e.f. May 1996.
D
It was submitted that the contentions regarding suppression of facts by
l the respondent before the High Court, as raised by the appellant authority
t in the present appeal are completely unjustified, baseless, unfair and
inconsequential and that the substantive prayer of the respondent before the I
High Court was regarding the issuance of a writ of mandamus thereby directing '
E ''
the appellant to promote the respondent w.e.f. 1995-96 when the vacancies
actually arose and to give all the consequential benefits· therein. It was' '
submitted that the order dated I. I 0.2002 was before the High Court and it had ...
given sufficient consideration by discussing it thread-bare while passing the
impugned order in question. Thus it is clear that the respondent was not
acting malafide or suppressing vital facts from the High Court. F
We heard the parties in detail and have perused all the records placed
before us in this Court and we are of the view that the arguments of the
•· appellants merit acceptance.

With regard to the issue as to whether the respondent has the right to G
claim promotion and seniority from 1995-96 when the vacancy arose or whether
seniority will be reckoned from the date of substantive appointment which is
1999, it can be observed that an employee will be considered member of a
cadre from the date of his/her substantive appointment in the cadre after
_. selection.
H

..
A
8 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

Substantive appointment is defined under Rule 3(k) of the Uttar Pradesh
-
Agriculture Group "B'' Service Rules, I 995 where:

"Substantive appointment" means the appointment not being an ad-
hoc appointment, on a post in the cadre of the service, made after
selection in accordance with the rules and if there are no rules, in
B accordance with the procedure prescribed for the time being by
executive instructions issued by the Government.
. '-

Therefore it is clear that unless a selection is made in accordance with
the rules and in the absence of rules, in accordance with the procedure
prescribed for the time being by executive instructions issued by the
C Government and there can be no automatic promotion or appointment to any
post on the recommendation of the Public Service Commission, unless the
Government sanctions such promotion and appointment.

The perusal of Rule 17 of the Uttar Pradesh Agriculture Group "B"
D Service Rules, 1995 and Rule 8 of the U.P. Government Servants Seniority
Rules, I 991, deserves importance at this stage. Rule 17 states that:

If in any year of recruitment appointments are made both by direct
~.

recruitment and by promotion, a combined select list in respect of the
concerned selection shall be prepared by taking the names of
candidates from the relevant lists, in such manner that the prescribed
E
percentage is maintained, the first name in the list being of the person
appointed by promotion.

This being so, Rule 2 I states that:

Seniority- The seniority of persons substantively appointed in any
F category of posts shall be determined in accordance with the Uttar
Pradesh Government Servants Seniority Rules, 1991, as amended from
time to time.

Rule 8 of the 1991 Rules state that:
..
G 8. Seniority where appointments by promotion and direct recruitment:

(I)... .

(2)... .

H (3) ... .
STATE OF UTTARANCHAL v. DINESH KUMAR SHARMA [LAKSHMANAN, J.] 9

Provided that A
(i)...

(ii) where appointment from any source fall short of the prescribed
quota and appointment against such unfilled vacancies are made in
subsequent year or years, the persons so appointed shall not get · B
seniority of any earlier year but shall get the seniority of the year in
which their appointments are made, so however, that their names shall
be placed at the top followed by the names in the cyclic order of the
other appointees;

(iii).... c
It is clear from the above that a person appointed on promotion shall
not get seniority of any earlier year but shall get the seniority of the year in
which his/her appointment is made. Therefore, in the present fact situation the
respondent cannot claim promotion from the date of occurrence of the vacancy
which is l 995-96 but can only get promotion and seniority from the time he D
has been substantively appointed i.e. from 1999. Likewise, the seniority also
will be counted against the promotion/appointment in the cadre from the date
of issuance of order of substantive appointment in the said cadre, i.e. from
19.11.1999.

In a recent judgment of this court in Uttaranchal Forest Rangers E
Association (Direct Recruit) & Ors. v. State of UP.& Ors., [2006] 9 Scale 577,
(Dr. AR. Lakshmanan and Tarun Chatterjee) this Court was of the view that
seniority has to be decided on the basis of Rules in force on the date of
appointment, no retrospective promotion or seniority can be granted from a
date when an employee has not even been borne in the cadre. Similar view F
was taken by this Court in the ~ase of KC.Joshi v. Union of India, [1992]
Suppl 1 sec 272.

In State of Bihar & Ors. v. Akhouri Sachidananda Nath and Ors.,
[I 991] Suppl. I SCC 334, this Court observed that:

"I 2. In the instant case, the promotee respondents 6 to 23 were not
G
borne in the cadre of Assistant Engineer in the Bihar Engineering
Service, Class II at the time when the respondents I to 5 were directly
recruited to the post of Assistant Engineer and as such they cannot
be given seniority in the service of Assistant Engineers over the
respondents l to 5. It is well settled that no person can be promoted H
10 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A with retrospective effect from a date when he was not borne in the
cadre so as to adversely affect others. It is well settled by several
decisions of this Court that amongst members of the same grade
seniority is reckoned from the date of their initial entry into the
service. In other words, seniority inter-se amongst the Assistant
Engineers in Bihar Engineering Service, Class II will be considered
B from the date of the length of service rendered as Assistant Engineers.
This being the position in law the respondents 6 to 23 cannot be made
senior to the respondents l to 5 by the impugned Government orders
as they entered into the said Service by promotion after the respondents
l to 5 were directly recruited in the quota of direct recruits. The
c judgment of the High Court quashing the impugned Government
orders made in annexures, 8, 9 and l 0 is unexceptionable."

This court in Vinodanand Yadav & Ors. v. State of Bihar & Ors., [ 1994]
Suppl. 2 sec 44, held:

D "On an issue regarding the inter se seniority among the direct recruits
and promotees the Court applying the ratio of State of Bihar v.
Akhouri Sachindananda Nath held that the appellants who were
direct recruits shall be considered senior over the promotees not
borne on the cadre when the direct rec!"uits were appointed in service.
Hence the gradation list drawn under which promotees were given
E seniority over direct recruits could not be sustained and was thereby
set aside".

We are also of the view that the right to constitute the selection
committee against the vacancy is vested in the Government, and after adopting
the due procedure of selection, the respondent had been substantively
F appointed by an order issued by the Secretary, Agriculture, Government of
U. P dated 19.11.1999 and this decision of the Government in our view does
not call for interference. The order is reproduced as under:
"Government ofU.P
Agriculture: Section-I
G No. 5653/12-1-99-232/96

Lucknow,
19.l l.1999

H
STATE OF UTT ARANCHAL v. DIN ESH KUMAR SHARMA [LAKSHMANAN, J.] 11

OFFICE- MEMO A
Regarding promotions of Sub-ordinate-Agricultural Services Class-I
(Chemistry Branch) as reserved for temporary posts and also for the
appointments to regular posts in Agricultural Services Group 'B'
Service Rules 1995 as provided therein and according to the provision
of U.P. Public Service Commission Advisory Committee for the B
promotions of selected candidates (Procedure & Rules of 1970) and
according to the advice and on the basis of the circumstantial
provisions of U.P. Public Service Commission, Allahabad, regarding
the selection procedural basis the Hon 'ble Governor had recommended
the name of Shri. Dinesh Kumar Sharma of Sub-ordinate Agricultural C
Services Class-I (Chemistry Branch) for being filled against the vacancy
so created and existed in the year 1997-98 to the post of Assistant
Mrida Chemist to the pay scale of Rs.8000/-275/-13,500/- being
Regular Temporary appointment is hereby being recommended.

2. Accordingly Shri Sharma is being appointed to the vacant post of D
Asst. Mrida Chemist at Haldwani, Nainital.

Sd/-

Kesav Desh Raju ·

Secretary" E
The representations of the respondent dated 17.07.2001 and 27.05.2002
were received by the office of respondent No. I. The said representations of
the respondent had been decided by the appellant by a well reasoned and
speaking order vide its office memo dated 01.10.2002. It is pertinent to mention F
here that the respondent had concealed this fact, that his representation has
been decided. by respondent No. I long before filing of this writ petition. Thus,
the respondent by misleading the Court has obtained the order dated 25.11.2004
from the High Court that the appellant shall decide the representation which
has been already decided by the appellant on Ol.10.2002.
G
Another issue that deserves consideration is whether the year in which
the vacancy accrues can have any relevance for the purpose of determining
the seniority irrespective of the fact when the persons are recruited. Here the
respondent's contention is that since the vacancy arose in 1995-96 he should
be given promotion and seniority from that year and not from 1999, when his
actual appointment letter was issued by the appellant. This cannot be allowed H
12 SUPREME COURT REPORTS [2006) SUPP. JO S.C.R.

A as no retrospective effect can be given to the order of appointment order
under the Rules nor is such contention reasonable to normal parlance. This
was the view taken by this Court in the case of Jagdish Ch. Patnaik & Ors.
v. State ofOrissa & Ors., [1998] 4 SCC 456.

Coming to the question of whether the High Court was justified in
B overlooking and ignoring the provisions of the U.P. Government Servants
Seniority Rules, 1991 and grant a relief in favour of the respondents, it will
be helpful to reproduce the High Court's order:

"From the perusal of the aforesaid order, it is clear that the authority
has not applied its mind on the facts of the case as stated by the
c petitioner, in the representation, and has rejected the representation
on the ground that since the appointment letter was issued to the
petitioner on 19.11.1999, therefore he is entitled to his seniority from
that date. Even if the recruitment year is changed the order of
appointment cannot be made with retrospective effect. The authority
D has failed to appreciate that if the fact of vacancy being accrued in
the recruitment year 1995-96 i.e. on I st May, 1996 and second vacancy
on I st June 1996 had come to the knowledge of the Commission the
Commission could have given the promotion to the petitioner w.e.f.
these dates, as the petitioner was entitled for the same and the
Commission has found him suitable, which is evident from the
E promotion order dated I 9.11. I 999. Therefore, this could have
consequently affected the consequential benefits available to the
petitioner had his promotion being made w.e.f. the date of promotion,
...
of falling of vacancy. Therefore, the order dated I st October, 2002
suffers from non application of mind and is hereby liable to be ignored."
F "The fact that the vacancy had fallen on 1st May, 1996 and 1st June,
1996 in the recruitment year 1995-96 are not disputed by the
respondents. The petitioner cannot be made to suffer on account of
delay in recommendation by the Director of Agriculture for promotion
of the petitioner. The petitioner cannot be held responsible and cannot
G be made to suffer as such became entitled to be con.sidered for
promotion on I st May, 1996. Therefore, the Government is directed to
re-consider the matter and send it back to the Commission for
appropriate orders suitable in the facts and circumstances of the case.
Subject to the above, the writ petition is disposed off finally."

H This observation of the High Court in our view is erroneous. The High
STATEOFUTTARANCHAL v. DINESH KUMAR SHARMA [LAKSHMANAN,J.] 13
Court while observing that, "the appellants rejected the representation of the A
respondents on the ground that since the appointment letter was issued to
the respondent on 19.11.1999, he is entitled to his seniority from that date.
The authority has failed to appreciate that if the fact of vacancy being
accrued in the recruitment year 1995-96 i.e. on /st May, 1996 and second
vacancy on /st June 1996 had come to the knowledge of the Commission B
the Commission could have given the promotion to the petitioner w.ej these
dates, as the petitioner was entitled for the same and the Commission has
found him suitable, which is evident from the promotion order dated
19.11.1999 ", has committed an error in understanding and appreciating Rules
17 and 21 of the Uttar Pradesh Agriculture Group "B" Service Rules, 1995 and
Rule 8 of the U.P. Government Servants Seniority Rules, 1991, which C
categorically states that the date of 'substantive appointment' will be the date
that shall be t~ken for determining promotion, seniority and other benefits.

It is also to be noted that the representation of the respondent dated
17 .07.200 I and 27.05.2002 were received by the office of appellant. The said
representations of the respondent have been already decided by the appellant D
by its well reasoned and speaking order vide its office memo dated. 01.10.2002.
It will be of benefit to reproduce the office memo here:
"Government of Uttaranchal
Agricultural and Agricultural Marketing Section
No. 133N.I.P/Aagri/232/96 E
Dehradun: Dated: 1 October 2002.
OFFICE MEMO

Shri D.K. Sharma Asstt. Director (Soil Testing and Exhibition
Centre) Regional Land Testing Laboratory, Rudrapur, Udhamsingh
Nagar, in his applications dated 17.07.2001and27.05.2002 has stated F
that vacancies had arisen on the retirement of Shri Mohan Prakash
Joshi and Shri Krishna Pandey, Agricultural Service, Grade-II,
Department of chemistry, from Government Service on 30.04.1996 and
since the vacancies existed prior to July 1996 in accordance with the
UP Agricultural Services Group B Rules, his promotion should have G
been effected in the vacancy arising in the selection year 1995-96 from
1.05.1996, while he was promoted against the vacancies arising out of
the selection year 1997-98 and therefore his promotion should be
made against the vacancy arising in the year 1995-96 and Addi.
Director Agricultural and Land Preservation in his letter No. Estab-1/ H
14 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A Class Il/2001-02/1648 dated 15.09.2001 had recommended the same.

2. In regard to the application of Shri Sharma, whose promotion was
made in consultation by the UP Public Service Commission, Allahabad,
in accordance with the Public Service (Procedure) Rules, 1970, towards
the vacancies for the Recruitment year 1997-98 vide Office Memo No.
B 5653 dated 19. i 1.1991; I am to state that even ifthe recruitment year
of Shri Sharma is to be taken as 1995-96 rather than 1997-98 even then
the date of substantive appointment would remain the same being the
date the order had been issued. Since Shri Sharma's promotion in
respect of the vacancies of the Recruitment year 1997-98 was issued
on 19.11.99, therefore the date on which the said order of promotion
c has been issued being 19.11.1999 it shall remain the date of Shri
Shanna's substantive appointment after promotion. As regards the
question of entitlement of Shri Sharma to the benefit of the selection
grade salary upon selection against the vacancies of 1995-96, the
benefit of selection grade salary is available only in the promoted post
D if the officer is working in the said post for the stipulated period. The
• grant of promotion pay is for the service after the date of the promotion
and not from the date the vacancy arose in the recruitment year.

3. In the light of the above, the applications ofShri D.K. Sharma dated
17.07.2001 and 25.05.2002 are hereby disposed off.
E
B.P. Pandey
Secretary."

In our opinion, the High Court should not have interfered with this
finding of the Appellants and directed them to "consider" the re.presentation
F of the respondent, which in effect will amount to the reconsideration of the
claim made by the respondent.

In the result, we allow the civil appeal filed in this court by the Appellant,
the Stc.te of Uttaranchal and set aside the judgment dated 29.03.2005 of the
G High Court of Uttaranchal. However, we are not ordering costs.

B.B.B. Appeal allowed.