SUNAINA SHARMA & ORS.versusSTATE OF JAMMUAND KASHMIR & ORS.

                       [2017] 10 S.C.R. 261


                  SUNAINA SHARMA & ORS.                              A
                                v.
          STATE OF JAMMUAND KASHMIR & ORS.
               (Civil Appeal Nos. 4594-4595 of2017)
                       OCTOBER 26, 2017                               B
      [MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
       Service Law: Promotion - Retrospective promotion -
 Promotees-Excise and Tax Officers seeking retrospective promotion
from the dates when the vacancies occurred in promotion quoti1 -
Held: No person can be promoted with retrospective effect from a
                                                                       c
date when he was not born in the cadre - Seniority has to be
 reckoned only from the date the person entered into that sen,ice -
 However, on a· combined reading of r. 9 of the Excise Rules and rr.
23 and 24 of the Civil Services Rules, the promotion can be granted
 on retrospective basis to promotee officers from a date on which the D
 clear-cut vacancy in the promotional cadre has occurred subject
however to the conditions that the promotee should have worked
 against that post prior to his regular appointment - On facts, though
 vacancies may have been there in the quota, promotees having not
 worked against the post of ETO could not have been appointed E
 and granted seniority from an anterior date - Post of ETO is a
 gazetted post in a totally different cadre, and promotees were not
 members of the Service as ETOs, though they may have been holding
pensionable posts - Single Judge of the High Court was right in
 holding that the promotees could not have been given the benefit. of
 retrospective promotion and seniority from a date when they were F
 not even born in the cadre and not working against the post - This
 retrospective promotion also violates the provisions of r. 9 - J & K
 Civil Services (CCA Rules), 1956 - rr. 23 and 24 - J & K Excise
 Rules - r. 9
      Allowing the appeals, the Court                                 G
      HELD: 1.1 It is a settled principle of law that normally no
person can be promoted with retrospective effect from a date
when he was not born in the cadre. Seniority has to be reckoned
only from the date the person entered into that service. True it
is, that there are exceptions and sometimes "in service"              H
                                261
262          SUPREME COURT REPORTS                   (2017] 10 S.C.R.


A candidates can be granted promotion from a date anterior to their
  being regularly promoted/appointed. However, this can be done
  only if the rules enable retrospective appointment and on fulfilling
  the other requirement of the rules. [Paras 8, 11] [272-H; 275-D-
      E]
B       1.2 Rule 23 of the Civil Services Rules postulates the
  appointment of a probationer to the service on a date anterior to
  his regular appointment. However, this is subject to two
  conditions. The first, is that the vacancy in his category should
  have existed and no appointment can be made from a date prior
  to the date of existence of vacancy. The second condition is that
C the person must have been continuously on duty as member of
  service from the said date. As far as the first condition is
  concerned there is no doubt that the promotees have been
  appointed from the date when the vacancies existed in their
  promotional quota. [Para 12] [275-F-G]
D       1.3 Rule 9 of Excise Rules states that when a person is
  appointed to the post of ETO whether by promotion or by way of
  direct recruitment, he shall be on probation for a period of two
  years. The explanation to Rule 9 provides that appointment on
  probation shall be made against substantive vacancies only. The
E explanation also provides that any period of officiating service
  shall be reckoned as period spent on probation when a person is
  formally appointed to the service. This clearly envisages that the
  person should have been actually working on the post of ETO to
  be considered to be on probation. The whole concept of probation
  is to judge the suitability of the candidate appointed to the post.
F There can be no objective assessment if the person is not actually
  working on the post. The promotees never worked as ETos·prior
  to their formal promotion. Therefore, though vacancies may have
  been there in their quota, they having not worked against the
  post of ETO could not have been appointed and granted seniority
G from an anterior date. [Para 13] [276-B-D]
        1.4 It is well settled that retrospective promotion to a
  particular group can violate Article 14 and 16 of the Constitution
  of India. Even if the Rules enable the State to make retrospective
  promotion, such promotion cannot be granted at the cost of some
H other group. Therefore, the only reasonable interpretation can
   SUNAINA SHARMA & ORS. v. STATE OF JAMMU AND                        263
                KASHMIR & ORS.

be that the promotees can get promo~ion from .an anterior date        A
only if they have worked against the said post even if it be on
temporary or officiating, or ad-hoc basis etc. [Para 15] [276-G]
       1.5 On analysis of Rule 24 of the Civil Serwices Rules, it is
apparent that as per this Rule the seniority of a p1erson subject to
the said Rules is to be determined by the date of first appointment B
to such service, class, category or grade, as the, case may be.
Therefore, it is apparent that only the service :rendered in a
particular service, class, category or grade can be taken into
consideration and not the service rendered in some other service,
class , category or grade while determining the seniority. Note-1
to the Rules also makes it clear that the date of first appointment C
shall mean the date of permanent appointment or the first
appointment on probation on a clear vacancy. App,ointment on
probation obviously envisages that the person is working against
the said post in the particular service, class, category or grade.
Therefore, on a combined reading of Rule 9 of the Excise Rules D
and Rule 23 and 24 of the Civil Services Rules, the promotion
i;an be granted on retrospective basis to promotee officers from
a date on which the clear-cut vacancy in the promotional cadre
has occurred subject however to the conditions that the promotee
should have worked against that post prior to lids regular
appointment. [Paras 16, 17] [276-H; 277-A-D]                         E
      1.6 According to the Division Bench, since the promotees
were working against pensionable posts in the feeder category
they were members of the Service and thus they satisfied the
conditions of Rule 23. The said proposition cannot be accepted.
The post of ETO is a gazetted post in a totally difforent cadre.      F
The promotees were not members of the Service as ETOs. They
may have been holding pensionable posts but that do•es not mean
that they were members of the Service as ETOs. The Single
Judge was right in holding that the promotees could not have
been given the benefit of retrospective promotion 1and seniority      G
from a date when they were not even, born in the cadre and not
working against the post. This retrospective promotion also
violates the provisions of Rule 9 of the Excise Rules. The
judgment of the Division Bench is set aside and th1at of the Single
Judge is restored. [Paras 18, 19] [277-E-F]
                                                                      H
264            SUPREME COURT REPORTS                     [2017] IO S.C.R.


A           Suraj Praka.vh Gupta and Ors. I'S. State of J&K and
            Ors. (2000) 7 SCC 561 : [2000] 3 SCR 807; State of
            Bihar I'S. Akhouri Sachindra N,ath & Ors. (1991) Supp.
            1 SCC 334; Kaushal Kishore Singh I'S. Dy. Director of
            Education (2002) 9 SCC 634; State of Uttaranchal vs.
            Dinesh Kr. Sharma (2007) 1 SCC 683 : [2006] 10 Suppl.
B
            SCR l; Sheikh Abdul Rashid & Ors. vs. State (>f'J&K
            & Ors. (2008) 1 SCC 722 : [2007] 12 SCR 940; State
            of Uttar Pradesh and Ors. \IS. As/wk Kumar Srivastava
            and Anr. (2014) 14 SCC 720 : [2013] 11 SCR 846;
            U.D. Lama and Ors. vs. State of Sikkim and Ors. (1997)
C           1 SCC 111 : [1996] 9 Suppl. SCR 180; Asis Kumar
            Samanta and Ors. vs. State of West Bengal and Ors.
            (2014) 10 SCC 357 : [2014] 7 SCR 645 - referred to.
                           Case Law Reference
      [2000] 3 SCR 807                referred to       Para3
D     (1991) Supp.1 sec 334           referred to       Para 8
      (2002) 9 sec 634                referred to       Para 8
      [2006] 10 Suppl. SCR 1          referred to       Para 8
      [2007] 12 SCR 940               referred to       Paras
      [2013] 11 SCR S46               referred to       Paras
E     [1996] 9 Suppl. SCR lSO         referred to       Para 9
      [2014] 7 SCR 645                referred to       Para 9
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4594-
      4595 of2017
F           From the Judgment and Order dated 06.03.2014 of the High Court
      of Jammu and Kashmir (Jammu Bench) in LPA SW No. 91 and I00 of
      2013
                                     WITH
            C. A. NOS. 4596-4597 OF 2017
G
             Neha Sharma, D. Verma, M. Shoeb Alam, Ms. Purnima Bhat,
      Raj iv Tai war, Ms. Faisy Hannah, Advs. for the appearing parties-.
            The Judgment of the Court was delivered by
         DEEPAK GUPTA, J. 1. The issue that arises for determination
H in these appeals is whether the private respondents, who are promotee
    SUNAINA SHARMA & ORS. v. STATE OF JAMMU AND                         265
          KASHMIR & ORS. [DEEPAK GUPTA, J.]

Excise and Taxation Officers (ETOs for short) could be granted          A
retrospective promotion from the dates when the vacancies occurred in
the promotion quota.
       2. The undisputed facts are that appointment to the post ofETO
under the J&K Excise & Taxation (Gazetted) Recruitment Rules, 1977
(for short the 'Excise Rules') is made from two sources, promotion and B
direct recruitment. The appellants are the original writ petitioners. They
are direct recruits who were appointed as ETOs on the basis of J&K
Combined Competitive Examination. They were issued appointment letters
on 23.07.2004. The private respondents are promotees who were
promoted to the post of ETOs. The J&K Public Service Commission
proposed and cleared the names of the private respondents for promotion C
on 05.10.2004 and the private respondents were promoted as ETOs on
the recommendation of the Public Service Commission on 06.12.2004.
It is not disputed that the direct recruits and promotees have been
promoted within their quota and there is no violation of quota. However,·
the private respondents were given retrospective promotion/appointment D
in the cadre of ETOs on various dates between 01.05.2002 and
01.01.2004. Resultantly, they were deemed to have been appointed as
ETOs prior to the appellants who were appointed on 23.07.2004. As
such the private respondents were placed.senior to the appellants.
                                            '
       3. A seniority list of ETOs was issued on 03.01.2006 in which E
the promotee/respo11dents were shown senior to the appellants. The
appellants filed a writ petition before the J&K High Court challenging
the grant of retrospective appointment to the private respondents. It
was urged by the appellants that the private respondents were not even
born in the cadre ofETOs when the appellants were appointed as ETOs
on 23.07.2004. It was further averred that the private respondents, i.e., F
promotees had never worked as ETOs either on officiating or stop-gap
basis and, in fact, the promotees had worked under the direct recruits
for a few months before their pro:notion. It was further submitted that
the post ofETO was in a separate service being a gazetted service and,
therefore, the service rendered in the lower post could not be equated · G
with the service rendered in the higher post. The stand of the contesting
respondents was that in terms of Rule 23 of the J&K Civil Service
(CCA Rules), 1956 (hereinafter referred to as Civil Service Rules),
seniority could be assigned to the promotees from the date the vacancy
occurred in the quota ofpromotees. The learned Single Judge held that
                                                                          H
266                SUPREME COURT REPORTS                         [20!7] IO S.C.R.


A retrospective promotions could not be granted, and allowed the writ
  petition. Two Letters Patent Appeals were filed which were disposed of
  by a common judgment of06.03.2014 and the Division Bench hel<l that
  in terms of Rules 23 and 24 of the Civil Service Rules the promotees
  were entitled to get retrospective promotion. The Division Bench placed
  reliance on the judgment of this Court in Suraj Prakash Gupta and
B
  Others vs. State of J&K and Others1 to come to the conclusion that
  promotees were entitled to promotion from a date anterior to their
  appointment. This judgment is under challenge in these appeals.
             4. It may not be necessary to refer to the J&K Excise Rules in
      detail. Rule 9 of the Excise Rules provides that a person appointed to
c     the service whether by direct recruitment or by selection shall be placed
      on probation for a period of two years. The explanation to Rule 9 provides
      that appointment on probation will be made against substantive vacancies
      only. All other appointments will be on trial. It has been further provided
      that any period of officiating appointment shall be reckoned as period
D     spent on probation when a person appointed on trial is formally appointed
      to the service. The explanation reads as under :-
                "Explanation -Appointments on probation will be made against
                substantive vacancies only. All other appointments will be on
                trial; Provided that any period of officiating appointment s~all be
E               reckoned as period spent on probation when a person appointed
                on trial is formally appointed to the service."
      Rule 13 of the Excise Rules provides that seniority of members of the
      service shall be regulated under the Civil Service Rules. Rule 23 of the
      Civil Service Rules, reads as follows :-
F                "23. Appointments of members
                (l)Aprobationer shall, ifa substantive vacancy in the permanent
                    cadre of the category for which he was selected exists, be
                    appointed to the service at the earliest possible opportunity in
                    order of seniority, and if such vacancy existed from a date
G                 . previous to the issue of the order of appointment, he may be so
                    appointed from the date of retrospective effect from such date
                    or, as the case may be, from such subsequent date from which
                    he was continuously on duty as a member of the service.
                (2) Where recruitment to any service shall normally be both by
H     1
          (2000) 1 sec 561
    SUNAINA SHARMA & ORS. v. STATE OF JAMMU AND                              267
          KASHMIR & ORS. [DEEPAK GUPTA, J.]

          direct recruitment and by iransfer or promotion, the provision A
          of sub rule (1) shall apply separately as regards:
              (a) vacancies against which person have recruited direct;
                  and
              (b) other vacancies.
       (3)No probationer shall be required to produce a medical certificate B
          of physical fitness before appointment as member of service:
             Provided that in case of a probationer who is not a member
        of any other service, the appointing authority may, if it has reason
        to believe that the probationers physical fitness has seriously
        deteriorated since he satisfied the authority urider clause (c) of c
        rule 17 require him to undergo a fresh medical examination. If
        on such examination he is found to be physically unfit for the
        service for which he was selected the appointing authority shall
        discharge him from the service.
       (4) No person shall at the same time be a member of more than D
          one service."
Rule 24 lays down that seniority shall be determined by the date of first
appointment to such service, class, category or grade, as the case may
be and reads as follows :-
        "24. Se11iority - (I) The seniority of a person who is subject to    E
        these rules has reference to the service, class, category or grade
        with reference to which the question has arisen. Such seniority
        shall be determined by the date of his first appointment to such
        service, class category or grade as the case may be.
        Note:- The rule in this clause will not affect the seniority on
        the date on which these rules come into force of a member            F
      . of any service, class, category or grade as fixed in
        accordance with the rules and orders in force before the
        date 011 which these rules come into force.
        Interpretation-The words 'date of first appointment' occurring
        in the above rule will mean the date of first substantive G
        appointment, meaning thereby the date of permanent appointment
        or the date of first appointment on probation on a clear
        vacancy, confirmation in the latter case being subject to good
        work and conduct and/or passing of any examination or
        examinations and/or tests:                                     H
268            SUPREME COURT REPORTS                          f2017] 10 S.C.R.


A               Provided that the inter se-seniority of two or more persons
              appointed to the same service, class, category or grade
              simultaneously, will, notwithstanding the fact that they may
              assume the duties of their appointments on different dates by
              reason of being posted to different stations, be detennined:
B              (a) In the case of those pron;ioted by their relative seniority in
                   the lower service, class, category or grade;
               (b) In the case of those recruited direct except those who do
                   not join their duties when vacancies are offered to them
                   according to the positions attained by and assigned to them
C                  in order of merit at the time of competitive examination or
                   on the basis of merit ability and physical fitness etc. in case
                   no such examination is held for the purpose of making
                   selections;
               (c) As between those promoted and recruited direct by order
D                  in which appointments have to be allocated for promotion
                   and direct recruitment as prescribed by the rules."
      The interpretation of these Rules is the subject matter of this case.
         5. The judgment in Suraj Prakash Gupta (supra) has been relied
  upon by both the sides and has been referred to by both the learned
E Single Judge and the Division Bench of the High Court. In this case
  also, Rule 23 and 24 of the Civil Services Rules were in consideration.
  Therefore, it is necessary to refer to this case in detail. The facts of
  Suraj Prakash Gupta (supra) case are that as per the then existing
  rules 20% of the posts of Assistant Engineers had to be filled by direct
F recruitment, 60% by promotion from Junior Engineers having degree in
  Engineering or equivalent qualification and 20% from diploma holders
  with 10 years' service. The Government of Jammu and Kashmir
  upgraded a large number of posts of Assistant Engineers and re-
  designated them as Assistant Executive Engineers. Therefore, a large
  number of promotions were made on ad hoc basis, initially for a period
G of six months. As per the rules, the stop gap/ad hoc arrangement could
  be made by the State only for six months without consulting the
  Commission and if such arrangement was to continue beyond six months,
  it was necessary to consult the Commission. The State, in violation of
  the rules, continued the ad hoc promotions for a long time. Direct
H recruitment to the post of A.E. prior to 1997 was done in the year 1984.
    SUNAINA SHARMA & ORS. v. STATE OF JAMMU AND                            269
          KASHMIR & ORS. [DEEPAK GUPTA, J.]

Thereafter, no direct recruitment was done. As a result, the promotees A
worked on ad hoc basis against a large number of higher posts in excess
of their quota. The State after a gap of almost 4 years made a reference
to the Commission to fill up 10% of the posts by direct recruitment [as
against 20% provided in the rules]. The Commission issued
advertisements in this regard on 03.12.1987. The finally selected direct B
recruits applied for the posts and appeared in the test. However, the
Commission did not make any recommendations for almost 4 years.
Thereafter. the candidates who were successful in the written test were
interviewed during 1993-94 and the list of selected candidates of l 0% of
the posts was sent by the Commission to the State Government. Even
then, the appointments were not made and some persons had to approach c
the High Court of Jammu and Kashmir, which gave directions on
 22.02.1994. It was only after issuance of such directions that some of
the direct recruits were offered appointment on different dates in the
year 1994 and some direct recruits were offered appointment much
 later. The direct recruits filed writ petitions challenging the ad hoc D
 promotion of Assistant Engineers, made by the Government without
 consulting the Commission and continued for a period of six months.
 According to the direct recruits, the service rendered by the promotees
 became non-est and void and could not be recognised. They sought
 quashing of the seniority list and also contended that the seniority was in
 breach of the quota. The promolee officers filed writ petitions and E
 contended that they should be granted promotion from the date when
 they were working irrespective of the quota. The J&K Government
 constituted a high level committee to look into the matter and the
 committee recommended that the seniority of both the direct recruits
 and the promotecs were to be granted by placing them in the vacancies
                                                                             F
 reserved for them in their respective quotas. The committee also
 recommended that the ad hoc stop-gap appointees, who had continued
 in violation of the rules, could not be granted any benefit. Despite this
 recommendation of the committee, the State Government in relaxation
 of the rules, regularised the promotees from anterior dates. The direct
 recruits challenged this order. The High Court held that the appointment G
 could not be made to the promotional posts without consulting the
 Commission. The High Court also held that the promotees whose
 promotions were in excess of the quota had to be pushed down and
 those promotees had to be fitted in the subsequent vacancies in their
  quota in the later years. The High Court also held that the ad hoc
                                                                             H
270               SUPREME COURT REPORTS                      [2017] lOS.C.R.


A appointment can only be made initially for 6 months and where the ad
  hoc service had continued beyond this period without consultation with
  the Commission, the promotees were not entitled to seniority. It was
  held that an ad hoc promotee could not be treated to be a member of the
  service. The High Court also held that according to rule 24 of the Civil
  Service Rules, the seniority will have to be reckoned from the first
B
  appointment and, therefore, the order of the Government regularising ad
  hoc promotions was illegal and was accordingly set aside.
             6. Thereafter, the matter came to this Court and this Court framed
      4 issues. We are concerned with issue nos. 3 and 4, which read as
      under:
c
              "
              (3) Whether the ad hoc/stopgap promotion of Assistant Engineers
              (and Assistant Executive Engineers) could be made beyond six
              months and till regularization, by the Government without
D             consulting the Public Service Commission? Whether the
              Government could have regularized the ad hoc service by
              executive order dated 2.1.1998? Whether the direct recruits'
              contention that retrospective regularization could not be made in
              respect of the ad hoc/ stopgap service and could be made only if
              the initial appointment as Assistant Engineers or Assistant
E             Executive Engineers was "in accordance with rules'', was
              correct?
              (4) Whether the direct recruits could claim a retrospective date
              of recruitment from the date on which the post in direct
              recruitment was available, even though the direct recruit was
F             not appointed by that date and was appointed long thereafter?
                    "
      Dealing with Rule 23, this Court held as follows :-
             "52. Under Ruie 23, whenever probation is commenced in respect
G            of an officer, it is permissible to appoint him to the service with
             retrospective effect from such date from which the person was
             "continuously on duty as a member of the service". Read with
             Rule 2(e) which defines 'member of service' it means the time
             from which he was "continuously holding the pensionable post".
             Rule 23 does not make any distinction between different modes
H
SUNAINA SHARMA & ORS. v. STATE OF JAMMU AND                               271
      KASHMIR & ORS. [DEEPAK GUPTA, J.]

   of recruitment. It is well settled that in the case of a direct recruit. A
   the probation can commence only from a date after his selection
   and he can hold a permanent vacancy only after such selection.
   According to service jurisprudence (see in fact, discussion under
   Point 4), a direct recruit cannot claim appointment from a date
    much before his selection. So far as a promotee and also one
                                                                            B
   who is recruited by transfer, are concerned, before such persons
   are appointed as members of the service under Rule 23, first
    their probation must commence. Then such person becomes a
   probationer for purposes of Rule 23. Once he is on probation,
    and if a substantive vacancy in the permanent cadre existed in
    which the promotee or a recruitee by transfer can be c
  · accommodated, and if such a vacancy has arisen· from a date
    previous to the issue of the order of appointment (i.e. appointment
    by promotion or transfer) then under Rule 23 he may be appointed
    to the service (i.e. regularly) with retrospective effect from such
    anterior date (or, as the case may be, from such subsequent D
    date) from which (he has been continuing on duty on a non-
    pensionablc post (see 2(e) defining 'member of service']. This
    period can certainly be one that a person holds in a stop gap or
    ad hoc manner. The order of 'promoting a person in the service'
    regularly from an anterior date and the order of probation from
    an anterior date can be simultaneously passed. That is how E
     under Rule 23, a person holding a temporary, stopgap or ad hoc
     appointment beyond three months can become a probationer and
     get appointed regularly to the service with retrospective effect.
   xxx                        xxx               xxx
   56. It is true that while Rule 15 permits probation to be F
   commenced from an anterior date in the case of one "appointed"
   temporarily there is no such clause in rule 25 dealing with
   "promotions". That does not, in our opinion, mean that in respect
   of a person temporarily promoted or a person temporarily
   appointed by transfer, probation cannot be commenced from an G
   anterior date. In our view, this power is implicit in Ruic 23 itself
   when it speaks of a probationer being appointed as a member of
   a service with retrospective effect. Once a promotee or recmitee
   by transfer is appointed on probation, it is permissible to appoint
   him under Rule 23 as a member of the service .from an anterior
                                                                        H
272            SUPREME COURT REPORTS                           ['.!017] 10 S.C.R.



A             date when a substantive vacancy existed in his quota. It is then
              obvious that such power to make a retrospective appointment of
              a member implies a power to commence probation of such person
              from an anterior date when a clear vacancy existed in his quota.
              We cannot imagine that the rule-making authority did not visualize
              delays in regularization of ad hoc or stopgap or temporary service
B
              rendered by the promotees or those recruited by transfer and
              kept in mind delay only in cases of appointments under Rule 14.
              57. Thus, the stopgap/ad hoc or temporary service of a person
              appointed by transfer as an Assistant Engineer or by promotion
              as an Assistant Executive Engineer can be regularized through
c             PSC/DPC from an anterior date in a clear vacancy in his quota,
              if he is eligible and found suitable for such transfer or promotion,
              as the case may be, and his seniority will cu;.mt from that date."
             7. Since judgment in Suraj Prakash Gupta's case (supra) deals
      with very same Rules which fall for consideration in the present case, it
D     is relevant for decision of our case. There is however, one marked
      difference between this case and the case of Suraj Prakash Gupta
      (supra). In Suraj Prakash Gupta (supra) all the promotees had actually
      worked in the higher posts and the challenge was that they could not get
      the benefit of the higher posts since they had not worked as per the
E     rules. Jn the present case, the promotees have not worked even for a
      day in the hlzl1er post before being regularly promoted. In the present
      case, the learned Single Judge relied upon this judgment to hold that the
      promotees could not get benefit of anterior appointment under Rule 23.
      The Division Bench held otherwise. The difference of opinion is only
      because of one factor. According to the learned Single Judge, the
F     promotees should have actually worked either on ad hoc basis or
      officiating basis on the promotional post, whereas according to the
      Division Bench, regardless of the fact whether the employee had ai;tually
      worked on the promotional post or not,-he is entitled to claim promotion
      from the date the vacancy arises in the promotional cadre, as long as he
G     was working on a pensionable post and is a member of the service.
         8. At this stage, it would be pertinent to mention that it is a settled
  principle of law that normally no person can be promoted with
  retrospective effect from a date when he was not born in the cadre.
  Seniority has to be reckoned only from the date the person entered into
H that service. In this behalf reference may be made to the judgment of
     SUNAINA SHARMA & ORS. v. STATE OF JAMMU AND                                273
           KASHMIR & ORS. [DEEPAK GUPTA, J.]

this Court in State of Bihar Vs. Akhouri Sachindra Nath & Ors. 2 A
where this Court held as follows :-
        "12 ..... .It is well settled that no person can be promoted with
        retrospective effect from a date when he was not born in the
        cadre so as to adversely affect others. It is well settled by several
        decisions of this Court that amongst members of the same grade . B
        seniority is reckoned from the date of their initial entry into
        service ..... "
Thereafter, in Kaushal Kishore Singh vs. Dy. Director of Education 3
this Court held as follows:-
        "S. The claim of seniority of the eri1ployee is always determined       C
        in any particular grade or cadre and it is not the law that seniority
        in one grade or cadre would be dependent on the seniority in
        another grade or cadre ...... "
In State of Uttara11chal vs. Dinesh Kr. Sharma 4 this Court held as
follows:-                                                                       D
        "34. Another issue that deserves consideration is whether the
        year in which the vacancy accrues can have any relevance for
        the purpose of determining the seniority irrespective of the fact
        when the persons are recruited. Here the respondent's contention
        is that since the vacancy arose in 1995-96 he should be given
                                                                                E
        promotion and seniority from that year and not from 1999, when
        his actual appointment Jetter was issued by the appellant. This
        cannot be allowed as no retrospective effect can be given to the
        order of appointment order under the Rules nor is such contention
        reasonable to normal parlance. Tl~is was the view taken by this
        Court in Jagdish Ch. Patnaik vs. State of Orissa."                      F
This principle was followed in Sheikh Abdul Rashid & Ors. vs. State
of J&K & Ors. 5 again dealing with J&K Civil Service Rules. Again in
State of Uttar Pradesh and Others vs. Ashok Kumar Srivastava and
Another6 this Court held that the normal rule is that seniority should be
reckoned from the actual date of appointment. It was held thus:-                G

' (1991) Supp.I sec 334
' (2002) 9 sec 634
' c2001) 1 sec 683
' (2008) 1 sec 122
' c2014) t4 sec no                                                              H
274            SUPREME COURT REPORTS                         [2017) 10 S.C.R.


A            "25. In view of the aforesaid enunciation oflaw, the irresistible
             conclusion is that the claim of the first respondent for conferment
             of retrospective seniority is absolutely untenable and the High
             Court has fallen into error by granting him the said benefit and
             accordingly the impugned order deserves to be lancinatcd and
             we so do."
B
           9. The respondents have relied upon two judgments in U.D. L"ma
      tmd Others vs. State ofSikldm and Others7 andAsis Kumt1r Samt1nta
      and Others vs. State of West Bengt1/ and Otlrers8• In both the cases
   this Court upheld the grant of promotion from a retrospective date. The
   facts in U.D. Lama and Others case (supra) arc very peculiar. The
 c State of Sikkim was formed on 26'h April, 1975. The Sikkim State Civil
   Service Rules, 1977 came into force on 0 l .07 .1977 which provided for
   consultation with the State Public Service Commission. Surprisingly
   however, there was no Public Service Commission in the State and
   Chairman to the Public Service Commission was appointed for the first
 D time on 2o•h November, 1981 and he assumed office on 11.01.1982.
   Prior to the constitution of the Commission, the State Government took
    a decision to induct officers into the State Public Service on the basis of
    a written examination and interview. Certain officers were selected
    and so appointed. The second set of officers were those who had been
    selected by the Sikkim Public Service Commission. The first set of
 E officers were appointed in 1982 whereas the second set of officers were
    appointed in 1990 but the officers who were appointed in 1990 were
    given retrospective appointment from the date of vacancy. This Court
    held that the appointment of the first batch ofofficers though upheld by
    this Court in another case, having been made without consultation with
 F the Commission, these officers appointed in violation of the Rules cannot
    claim seniority over those who had been appointed strictly in accordance
    with the Rules and in consultation with the Commission. In Asis Kumar
    Samanta and Others case (supra) also the situation was very unusual.
    Vacancies in the promotion quota occurred in 01.01.1989 but the
    promotions could not be made because of interim stay granted by the
 G High Court. The stay order was vacated on 11.12.1990 and the selection
    process for promotions commenced only thereafter. In these
     circumstances the Public Service Commission recommended that the
     promotees be given retrospective seniority with effect from 31.12.1990
       1
         (1997) 1 sec 111
 H     '(20I4l 10 sec 357
    SUNAINA SHARMA & ORS. v. STATE OF JAMMU AND                           275
          KASHMIR & ORS. [DEEPAK GUPTA, J.]

because for almost two years the promotion process had been stalled. A
It would be pertinent to mention that in both these cases normal principle
that seniority should be considered from the date of appointment has not
been overruled but these judgments have been rendered in the peculiar
facts and circumstances of these cases.
        10. On behalfof the private respondents-promotees, it was urged B
that the promotees had passed the departmental exam many years back
and became eligible to be promoted much earlier. It is submitted that in
view of these peculiar fact5, the State was justified in granting permission
to the promotees retrospectively. We are not impressed with these
arguments because even the direct recruitment process took an
inordinately long time. The vacancies in the quota of direct recruits also C
occurred much earlier. The combined competitive examination was held
in the year 2002 and it took more than 2 years to finalise the process of
direct recruitment. Therefore, the delay has affected both the promotees
and the direct recruits.
       11. From the judgments referred to hereinabove it is apparent that D
the normal rule is that a person is entitled to seniority only from the date
when the said person actually joins the post. True it is, that there are
exceptions and sometimes "in service" candidates can be granted
promotion from a date anterior to their being regularly promoted/appointed.
However, this can be done only if the rules enable retrospective E
appointment and on fulfilling the other requirement of the rules.
        12. As far as the present case is concerned, Rule 23 of the Civil
Services Rules has been extracted hereinabove. It, no doubt, postulates
the appointment of a probationer to the service on a date anterior to his
regular appointment. However, this is subject to two conditions. The F
first, is that the vacancy in his category should have existed and no
appointment can be made from a date prior to the date of existence· of
vacancy. The second condition is that the person must have been
continuously on duty as member of service from the said date. As far as
the first condition is concerned there is no doubt that the promotees
have been appointed from the date when the vacancies existed in their G
promotional quota. It is the second aspect of the matter which needs to
be analysed in detail.
       13. In Suraj Prakash Gupta's case (supra) this Court held that
direct recruits could not claim seniority from a date anterior to their
appointment. The reason is simple. The direct recruits were not even      H
276            SUPREME COURT REPORTS                         [2017] 10 S.C.R.


A born in the cadre and were not holding any post in the service. There
  can be no manner of doubt that direct recruits cannot get seniority from
  a date prior to their appointment. While interpreting Rule 23, we must
  also take note of Rule 9 of Excise Rules which deals with probation.
  When a person is appointed to the post of ETO whether by promotion or
  by way of direct recruitment, he shall be on probation for a period of two
B
  years. The explanation to Rule 9 provides that appointment on probation
  shall be made against substantive vacancies only. The explanation also
  provides that any period of officiating service shall be reckoned as period
  spent on probation when a person is formally appointed to the service.
  This clearly envisages that the person should have been actually working
c on the post of ETO to be considered to be on probation. The whole
  concept of probation is to judge the suitability of the candidate appointed
  to the post. There can be no objective assessment if the person is not
  actually working on the post. The promotees never worked as ETOs
  prior to their formal promotion. Therefore, though vacancies may have
D been there in their quota, they having not worked against the post of
  ETO could not have been appointed and granted seniority from an anterior
  date.
         14. In our view the rules in question clearly provide that not only
  vacancies should have been existing from an earlier date but the person
  to be granted retrospective promotion should have also been working
E against the post. To give an example in the context of the present Rules,
  a vacancy in the promotional cadre existed on 01.01.10. However, a
  person from the feeder category is promoted on temporary/officiating/
  adhoc/or on any other basis to work against the post on 01.01.11. He is
  thereafter regularly appointed on 01.01.12. Though the vacancy may
F have existed from 01.01.10 the employee can get promotion only from
  01.01.11 when he actually started working against the said post.
         15. It is well settled that retrospective promotion to a particular
   group can violate Article 14 and 16 of the Constitution of India. Even if
   the Rules enable the State to make ·retrospective promotion, such
 G promotion cannot be granted at the cost of some other group. Therefore,
   the only reµsonable interpretation can be that the promotees can get
   promotion from an anterior elate only if they have worked against the
   said post ev!!n if it be on temporary or officiating, or ad-hoc basis etc.
           16. On analysis of Rule 24 of the Civil Services Rules, it is apparent
 H that as per this Rule the seniority of a person subject to the said Rules is
      SUNAINA SHARMA & ORS. v. STATE OF JAMMU AND                             277
            KASHMIR & ORS. [DEEPAK GUPTA, J.]

to be detennined by the date of first appointment to such service, class,     A
category or grade, as the case may be. Therefore, it is apparent that
only the service rendered in a particular service, class, category or grade
can be taken into consideration and not the service rendered in some
other service, class , category or grade while determining the seniority.
Note-1 to the Rules also makes it clear that the date of first appointment    B
shall mean the date of permanent appointment or the first appointment
on probation on a clear vacancy. We have already held above that
appointment on probation obviously envisages that the person is working
against the said post in the particular service, class, category or grade.
       17. Therefore, on a combined reading of Rule 9 of the Excise
Rules and Rule 23 and 24 of the Civil Services Rules, we are clearly of       c
the view that promotion can be granted on retrospective basis to promotee
officers from a date on which the clear-cut vacancy in the promotional
cadre has occurred subject however to the conditions that the promotee
should have worked against that post prior to his regular appointment.
        18. The Division Bench relied upon.the definition of the 'member D
of service' as defined in Section 2(e) of the Civil Service Rules, according
to which the 'member of service' is a person who holds a pensionable
post. According to the Division Bench, since the promotees were working ·
against pensionable posts in the feeder category they were members of
the Service and thus they satisfied the conditions of Rule:' I. \\'e cannot E
agree with this proposition. The post of ETO is a gazc11ed post in a
totally different cadre. The promotees were not members ufthe Service
as ETOs. They may have been holding pensionable posts but that does
not mean that they were members of the Service as ETOs. The learned
Single Judge was right in holding that the promotees could not have been
given the benefit of retrospective promotion and seniority from a date F
when they were not even born in the cadre and not working against the
post. We are also of the view that this retrospective promotion also
violates the provisions of Rule 9 of the Excise Rules.
       19. In view of lthe above discussion we set aside the judgment of
the Division Bench dlated 06.03.2014 and restore the judgment of the G
learned Single Judge dated 07 .05.2013 in S.W.P. No.2356 of 2009.
       20. The appeals are accordingly allowed.


Nidhi Jain                                                Appeals allowed.