Holding

Promotion beyond the statutory quota renders the promotee an ad‑hoc employee and seniority can only be counted from the date of substantive appointment, so the High Court's order granting promotees seniority over direct recruits is set aside.

Summary

The appellants, directly recruited Forest Rangers in Uttar Pradesh (now Uttaranchal), challenged a High Court order that gave seniority to promotee Forest Rangers who had been elevated beyond the statutory promotion quota. The Court examined the U.P. Government Servants Seniority Rules, 1991, particularly Rule 8, and held that promotions made in excess of the quota render the promotees ad‑hoc employees whose seniority can only be counted from the date of their substantive appointment, not retrospectively. The High Court had granted seniority based on vacancies that arose in 1987‑88, but the Supreme Court found no vacancy existed for such promotions and that granting seniority would violate the quota rule and constitutional equality. Consequently, the High Court’s orders were set aside and the seniority list was directed to be revised in favour of the direct recruits. The appeals were allowed.

Issues considered

Whether promotion of Deputy Forest Rangers to Forest Rangers in excess of the statutory promotee quota makes them ad‑hoc employees for seniority purposes.
Whether seniority can be granted retrospectively based on the year vacancies arose, contrary to Rule 8 of the U.P. Government Servants Seniority Rules, 1991.
Whether the High Court had jurisdiction to alter the seniority list without proper parties and in contravention of the seniority rules.
Whether the seniority of direct recruits should be determined from the date of their substantive appointment.

Legislation cited

U.P. Reorganisation Act, 2000

Subjects

senioritypromotion quotaad hoc promotionservice lawforest rangersUttaranchalUttar PradeshRule 8retrospective promotionequalityArticle 14Article 16

Judgment

UTTARANCHAL FOREST RANGERS' ASSON. A
(DIRECT RECRUIT) AND ORS.
v.
STATE OF U.P. AND ORS.

SEPTEMBER 25, 2006
B
[DR. AR. LAKSHMANAN AND TARUN CHATTERJEE, JJ.]

Service Law:

U.P. Government Servants Seniority Rules, 1991: Rule 8.
c
Seniority-Forest Rangers-Direct recruits vis-a-vis Promotees-
Appointments against prescribed quota-Unfilled vacancies-Ad hoc
. promotion-Seniority on basis of-Permissibility of-Jn the State forest
department, during the period 1969-1979, there was no direct appointment D
to the post of Forest Rangers-Government kept promoting Deputy Forest
Rangers on ad hoc basis to the post ofForest Rangers, if any vacancy arose-
However, as on 30. //.1989, there were not enough vacancies in the promotee
quota to accommodate all the regularized Forest Rangers-By the year
1991, all the 124 regularized Forest Rangers were accommodated-Jn 1991,
there was only one vacancy in the promotep quota-Some candidates, were E
substantively appointed on the post of Forest Rangers by direct recruitment
on various dates in 1990-However, some promotee-Deputy Forest Rangers
were promoted to the post ofForest Rangers 'from the date oftaking charge'-
In the seniority list, the direct recruits were placed senior to the promotees-
But the High Court directed that the said seniority list be corrected by F
showing the promotees as senior to the direct recruits-Correctness of-
Held: Promotion in excess of quota makes an employee an ad hoc employee
and seniority cannot be given to such employees on the basis of ad hoc
promotion-Seniority can be given only from 'the date of substantive
. appointment '--Seniority has to be decided on the basis of Rules in force on
the date of appointment-Moreover, no retrospective promotion or seniority G
can be granted from a date when an employee has not even been borne in
the cadre particularly when this would adversely affect the direct recruits
who have been appointed validly in the mean time-High Court judgment set
aside-State Government directed to revise seniority list.
609 H
610 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A In the State forest department, during the period 1969-1979, there was
no direct appointment to the post of Forest Rangers. The State Government
kept promoting Deputy Forest Rangers on ad hoc basis to the post of Forest
Rangers, if any vacancy arose. However, as on 30.11.1989, there were not
enough vacancies in the promotee quota to accommodate all the regularized
B Forest Rangers. By the year 1991, all the 124 regularized Forest Rangers
were accommodated. In 1991, there was only one vacancy in the promotee
quota. However, the State sent a requisition to the Public Service Commission
to recommend 410 persons for promotion to the post of Deputy Forest Rangers.
The appellants were substantively appointed on the post of Forest Rangers by
direct recruitment on various dates in 1990. 356 Deputy Forest Rangers were
C promoted to the post of Forest Rangers 'from the date of taking charge'. In
the seniority list, the appellants were placed senior to the respondents-
promotees. On challenge, the High Court directed that the seniority list be
corrected by showing the respondents-promotees as senior to the appellants-
direct recruits. Hence the appeal.

D Allowing the appeal, the Court

HELD: 1. The High Court has correctly appreciated that vacancies arose
in tl;e year 1987-88, but has failed to appreciate that these vacancies were
filled by regularizing 124 persons who were carrying on as Forest Rangers
on an ad hoc basis. If the orders of the High Court are to be given effect to,
E then 356 Deputy Forest Rangers would become entitled to promotion in excess
of quota. It is well settled that promotion in excess of quota makes an employee
an ad hoc employee and seniority cannot be given to such employees on the
basis of ad hoc promotion. (623-F-H[

F Keshav Chandra Joshi v. Union of India, (1992[ Supp. 1 SCC 272,
Sanjay Kumar Sinha v. State of Bihar, (2004J 10 SCC 734 and D. Ganesh
Rao Patnaik v. State of Jharkhand, (2005( 8 SCC 454, relied on.

P.N. Premachandran v. State of Kera/a, (20041 I SCC 245 and A.
Janardhana v. Union of India, [1983[ 3 SCC 601, referred to.
G Rudra Kumar Sain v. Union of India, [20001 8 SCC 25, cited.

2.1. The High Court has granted seniority without reference to Rule 8
of the U.P. Government Servant Seniority Rules, 1991, and in particular the
proviso thereto has not been taken into consideration. The said Rules have
H overriding effect and hence seniority has to be consistent with the Rules. By
UTT ARANCHAL FOREST RANGERS' ASSON. (DIRECT RECRUIT) v. STATE OF U.P. 611

virtue of Rule 8, seniority can be given only from 'the date of substantive A
· appointment'. In this case, the promotees were appointed prior in point of time
i.e. in 1990.1627-D-EI

2.2. These Rules were in force in 1991 when the Deputy Forest Rangers
were promoted to the post of Forest Rangers on 17.07.1991. Also it is well
settled that seniority has to be decided on the basis of Rules in force on the B
date of appointment.1627-FI

State of Karnataka v. C. Lalitha, [2006[ 2 SCC 747 and Union ofIndia
v. S.S. Uppal, [1996[ 2 SCC 168, relied on.

2.3. The High Court order granting promotees seniority from 1987-88 C
suffers from infirmity and is liable to be set aside. [628-E]

3.1. When promotion is outside the quota, seniority would be reckoned
from the date of the vacancy within the quota rendering the previous service
fortuitous. The previous promotion would be regular only from the date of
vacancy within the quota and seniority shall be counted from that date and not D
from the date of the earlier promotion or subsequent confirmation. In order
to do justice to the promotees, it would not be proper to rlo injustice to the
direct recruits. The rule of quota being 2 statutory one, it must be strictly
implemented and it is impermissible for the authorities concerned to deviate
from the rule due to administrative exigencies or expediency. The result of E
pushing down the promotees appointed in excess of the quota may work out
hardship, but it is unavoidable and any construction otherwise would he illegal,
nullifying the force of statutory rules and would offend Articles 14 and 16(1)
of the Constitution. 1628-F-H; 629-AI

K.C. Joshi v. Union of India, [19921 Supp. (1) SCC 272, relied on. F
3.2. No retrospective promotion or seniority can be granted from a date
when an employee has not even been borne in the cadre particularly when
this would adversely affect the direct recruits who have been appointed validly
in the mean time. (629-8(
G
K.C. Joshi v. Union of India, [1992) Supp. (1) SCC 272 State of Bihar
v. Akhouri Sachidananda Nath, (19911Supp.1SCC334 Vinodanand Yadav
v. State of Bihar, (1994) Supp. 2 SCC 44 and Jagdish Ch Patnaik v. State of
Orissa, [1998) 4 SCC 456, relied on.
H
612 SUPREME COURT REPORTS [2006) SUPP. 6 S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4249 of2006.

From the Final Judgment and Order dated 12.4.2004 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No.
366. SB of2002.

B WITH

C.A. No. 4250 of2006.

Jaideep Gupta, Pranay Ranjan and Praneet Ranjan for the Appellants.

C A.S. Rawat, A.A.G. (State ofUttaranchal), N.N. Goswami, Dr. R.G. Padiya,
K.S. Rana, Ram Kishore Singh Yadav, Kamlendra Mishra, Jatinder Kumar
Bhatia and Gaurav Agrawal for the Respondents.

The Judgment of the Court was delivered by

0 DR. AR. LAKSHl\IANAN, J. Delay condoned.

Leave granted.

These appeals were filed against the final judgment and order dated
12.4.2004 passed by the High Court of Judicature at Allahabad, Lucknow
E Bench, Lucknow in Writ Petition No. 366(S/B) of2002 whereby the High Court
allowed the writ petition filed by Shri C.B. Chhimwal, respondent No.5 herein
in S.L.P. (C) No. 7375 of2005 and against the final judgment and order dated
26.11.2001 in W.P. (C) No. 610(S/B) of 1996 whereby the High Court allowed
the writ petition filed by Shri Suresh Chandra Sharma and Shri Vijay Kumar
Mishra, respondent Nos. 5 & 6 herein in S.L.P. (C) No. 1860/2006.
F
The appellants in these matters are direct recruits to the post of Forest
Rangers in the State of U.P, now Uttaranchal. The respondents are the State
of U.P, State of Uttamchal and Ors.

The brief facts are as follows:
G
In the state of U.P. during the period 1969-1979, there was no direct
appointment to the post of Forest Rangers. The Government kept promoting
Deputy Forest Rangers on ad hoc basis to the post of Forest Rangers if any
vacancy arose.
H
UTTARANCHAL FOREST RANGERS' ASSON. (DIRECT RECRUIT)"· STATE OF U.P. [LAKSHMANAN, J.] 6 JJ
On 30.11.1989, by a Government Resolution, 124 persons who were A
promoted on ad hoc basis to the post of Forest Rangers were regularized in
1972 -1979. However, as of 30.11.1989, there were not enough vacancies in the
promotee quota to accommodate all the regularized Forest Rangers. Hence,
some of the regularized 124 Forest Rangers were pushed down and
accommodated in 1990 and 1991. By the year 1991, all the 124 regularised
Forest Rangers were accommodated. In 1991, there was only one vacancy in. B
the promotee quota.

Later in 1989-1990, the members of the appellants Association were
appointed in the year 1990 as Forest Rangers on the basis of competitive exam
held by the U.P. Public Service Commission in 1989. They were substantively C
appointed on the post of Forest Rangers by direct recruitmeilt'on various
dates in 1990 e.g. the President of the Appellants Association was appointed
on 01.03.1990. Appellant No.3 was appointed on 01.11.1990. The appointments
were within the direct recruitment quota.

On 30.01.1991, without realizing that there was no vacaricy in the D
promotee quota of Forest Rangers the State of U.P. sent a requisition to the
Public Service Commission to recommend 410 persons for promotion to the
post of Deputy Forest Rangers. This mistake has been admitted by the State
of U.P. in their counter affidavit before the High Court as also in this Court.

On 06.07.1991, the State PSC vide its letter dated 06.07.1991 sent the E
names of Forest Rangers as if there were _vacancies from the period 1979 to
1989 in the promotee quota. The UPPSC allotted the officers on the basis of
the selection year. Needless to mention there is no provision in the Service
Rules for allocation on the basis of year of selection. In any event, there were.
no vacancies and, therefore, the basis of this recommendation was incorrect. F

On the basis of this recommendation on 17.07.1991, 356 Deputy Forest
Rangers were promoted to the post of Forest Rangers 'from the date of taking
charge'. They were not given any back-dated promotion. The respondents
have not challenged their promotion order which promoted them w.e.f. the day
they took charge. . G
On 31.05.1996, when the State of U.P. was preparing the seniority. list
of Forest Rangers, it went 'strictly by the Seniority Rules. Since the appellants
were substantively appointed within their quota in the year 1990, they were
placed senior to the respondents. However, as of 17.07.1991, since there was
only one vacancy in the promotee quota of Forest Rangers, the respondents H
614 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.
A herein were notionally pushed down for the purposes of the seniority alone
and were adjusted till 1996. Needless to mention the respondents get all the
benefits of a Forest Ranger though there was no vacancy when they were
promoted, except seniority. Since, there was no direct recruitment after 1990;
the respondents do not suffer at all.

B In July 1996, two of the Promotee Forest Rangers namely, Shri Suresh
Chandra Sharma and Shri Vijay Kumar Mishra figuring at SI. Nos. 286 and 277
in the promotion order of 17.07.1991 challenged the seniority list dated
31.05.1996 by way of a Writ Petition No.610 of 1996 in the High Court of
Allahabad, claiming seniority.
c The State of Uttaranchal came into being on 8th of November, 2000.

On 30.04.2001, the respondent Suresh Chandra Sharma opted for the
State of Uttaranchal and started working in the State of Uttaranchal w.e.f.
30.04.200 I. However, he did not implead the state of Uttaranchal or the
D present appellants as a party to the writ petition.

In 20.07.2001, the pending Writ petition was allowed by the High Court
and the High Court directed that the seniority list on challenge be corrected
by showing the promotees as senior to the direct recruits by an order dated
26.112001.
E
On 12.06.2002, the new State of Uttaranchal notified in its own seniority
list of Forest Rangers in which the appellants were shown as seniors to the
promotees.

Another promotee Shri C.B. Chhimwal respondent no.5 filed a writ
F petition challenging the seniority list in the High Court of Allahabad. The
High Court by an order dated 12.04.2004 allowed Chhimwal's claim following
its previous order in the case of Suresh Chandra Sharma.

The appellants were unaware of the said order of the Allahabad High
Court at Lucknow. It was only when the said order was produced before the
G officers of the State of Uttaranchal, by respondent no.5, the appellants came
to know about the order which was passed by the High Court without making
them a party.

Following the Chhimwal case, 44 others moved the Allahabad High
Court challenging the said seniority list. The High Court of Allahabad disposed
H off all the writ petitions and allowed the claim of all the writ petitioners and
UTTARANCHAL FOREST RANGERS' ASSON. (DIRECT RECRUIT) v. STATE OF U.P. (LAKSHMANAN, J.) 6 J5
ordered retrospective application of the order. A
By an order dated 18.01.2005, the State of U.P. issued an amended
promotion order by which 45 persons have been granted retrospective seniority,
some from 01.01.1979 i.e. from a period of 12 years prior to their actual date
of promotion, even though, admittedly, there was no vacancy in the promotee
quota, the effect of this order would be in the state of Uttaranchal as well. B
The appellants thereafter approached this Court on 20.02.2005 seeking
a stay on the application of the order of the High Court of Allahabad. This
Court ordered stay of the operation of the order of the High Court on
04.042005.
c
The issue now before us is whether the seniority list published in 1996
is to be interfered with due to the order of the High Court of Allahabad dated
12.112001.

We heard Mr. Jaideep Gupta, learned senior counsel appearing for the
appellants and Mr. N.N. Goswami, learned senior counsel, Dr. R.G. Padia, D
learned senior counsel, Mr. A.S. Rawat, learned Additional Advocate General
and Mr. Gaurav Agrawal, learned counsel for the respondents.

Mr. Jaideep Gupta, learned senior counsel appearing for the appellants
submitted that:
E
* That there were no vacancies in the promotee quota prior to 199 I
and hence the High Court should not .have directed the State to
grant retrospective promotion and seniority.

* That the vacancies arose in the promotee quota of Forest Rangers
for the first time in I987-88. However, against the said vacancies, F
I24 Forest Rangers, who had been promoted to the post of
Forest Rangers on an ad hoc basis between I 973-77, were
regularized and adjusted on 30th November, 1989. Therefore, 124
vacancies arising between I987 and I990 in the promotee quota
had been filled up on a regular basis by the order dated 30.11.1989. G
Therefore, it is only in the year I 99 I that a clear vacancy arose
in the promotee quota. As a result of this, even the persons who
are promoted in I99 I could not be given seniority from I99 I, but
had to be pushed down and received their seniority on different
dates between I99 I and I996 as and when the vacancy arose.
Further it was submitted that, if the High Court orders are given H
616 SUPREME COURT REPORTS [2006) SUPP. 6 S.C.R.

A effect to, then 356 Deputy Forest Rangers wou'i become entitled
to promotion ahead of the direct recruits far in excess of the
quota .
• That no retrospective promotion or seniority can be granted from
a date when an employee has not even been borne in the cadre
B so as to be adversely appointed validly in the meantime, as
decided by this court in the case of K.C. Joshi v. Union of India,
[1992] Suppl 1 sec 221.
• That the Seniority Rules of 1991 were not taken into consideration
by the High Court. Rule 8 of the Seniority Rules, states that,
c "Section 8 - Where appointments 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 seniority of any earlier year, but shall get the seniority of the year
in which their appointments are made."
D The above stated Rules have overriding effect and hence seniority has to be
consistent with the Rules :

• That the High Court has proceeded on the basis that vacancies
arose in 1987-88 and therefore, the promotion should be given
retrospective effect. It was submitted that the date on which
E
vacancies arise cannot, without more, be made a basis of giving
retrospective promotion and seniority. Also the High Court did
not give deserved amount of importance to the recommendations
of the Public Service Commission and the Rules laid down under
the Public Service Commission (Procedure) Rules, 1970.
F • That even if the High Court was of the opinion that the seniority
and promotion should be reworked, the same should have referred
back to the Public Service Commission to ascertain who would
be the relevant person(s) entitled to promotion. More crucially,
in the second impugned order dated 12.04.2004, 45 persons were
G directed to be promoted without taking into consideration their
relative position in the list prepared by the Public Service
Commission. By not referring the matter to the PSC, incorrect
persons were chosen by the High Court for the purpose of
promotion.

H • Concluding his submissions, the learned senior counsel submitted
UTTARANCHAL FOREST RANGERS' ASSON. (DIRECT RECRUIT)'· STATE OF U.P. [LAKSHMANAN. J.] 6\ 7

that the seniority list under challenge in the second writ petition A
was the seniority list of the Uttaranchal State Government of
2002. Such challenge could not have been made before the
Lucknow Bench of the Allahabad High Court. He further submitted
that none of the direct recruits, who would be directly affected
by an order, were made parties to the writ petition. Therefore, the B
High Court did not have the benefit of competing arguments in
the matter. Even though the Principal Secretary of the State of
Uttaranchal was made a party, and that the said party was never
served.

Learned senior counsel, Dr. Padiya, appearing for respondent Nos. I & C
2 submitted as under:

* That in the State of U.P. promotion from the post of Dy. Forest
Ranger to the post of Forest Ranger was held up between 1976-
77 to 1987-88 on regular basis. 124 Dy. Forest Rangers were
promoted to the post of Forest Ranger in the years D
1973, 1974, 1975, 1976, 1977 & 1979 on ad hoc basis beyond the
prescribed limit for promotion.

* That these ad hoc Forest Rangers were regularised in the year
30. 11.1988 and a requisition was sent for regular promotion to the
post of Forest Range Officer through Public Service Commission, E
U.P., Allahabad vide letter no. E-1851/1-2-4 dated 30.01.1991 for
410 vacancies. The Forest Department issued the promotion order
vide F.O. No.E-23/2-2-4 dated 17 .07.1991 for 356 posts and
subsequently for 3 posts again.

* That all the promotion orders were made prospective to the date
of joining. It was further submitted that promoted Range Officers F
were given their due seniority under quota fixed for promotion,
as is evident from para-2 of Order No. E-3211/10-72, dated
08.06.1995. It was further submitted that when the said seniority
list dated 08.06.1995 was under preparation a mistake was
discovered that there was no vacancy of Rangers in promotion G
quota and that there was no direct recruitment of Forest Rangers
from 1969-70 to 1976-77 and these vacancies were utilized in
favour of promotees thus adjusting the promotees against the
vacancies of quota of Direct Recruit, in excess of the quota
available for promotees under Rules. While preparing the final
H
618 SUPREME COURT REPORTS (20061 SUPP. 6 S.C.R.

A seniority list in question the promotees occupying vacancies in
excess of their quota has been pushed down and the year wise
vacancies of Direct Recruits have been carried forward and upon
the availability of Direct Recruit they have been placed en bloc
in the vacancies available in the quota for Direct Recruits.

B • That U.P. Govt. Servant Seniority Rules 1991 was in force when
"'
the promotion order of above 359 Dy. Forest Ranger to the post
of forest Ranger was passed on 17.07.1991. The rule 8(3) proviso
allows vacancies of back years to be counted in the promotion
but specifically does not permit any promotion from back year.
Consequently the order dated 17 .07 .1991 was from the prospective
c date of joining.
• That an inadvertent error, oversight, made in the year 1991 came
into the notice of department on 03.12.1994 and the same was
referred to the State Govt. for directions. The State Govt. gave
guidelines vide letterno. 715/14-3-95-700 (236)194 dated 11.09.1995
D to give promotees the benefit for seniority after following the
respective quota for promotion strictly.
• That accordingly a final seniority list was published in 1995 and
it was updated in 1996 by deleting the name of retired/promoted
persons only. The original seniority list was published in 1995
E and it was maintained in other respects as it is.
• That the appointing authority of the petitioner in the Writ petition
is PCCF, U.P., Lucknow who was served with the judgment dated
26.11.200 I which found it fit to comply with the judgment as it
was passed with the respect to petitioners of the writ petition.
F Only the judgment was complied with vide E-120/2-2-4(1) dated
30.01.2002 by the PCCF, U.P., Lucknow.
• That after the compliance of the judgment a set of new writ
petitions and some pending writ petition were clubbed by the
High Court, Lucknow under Case No.366 (SB) 2002 and was
G decided on 12.04.2004 on the same line.
• That a set of contempt petition was moved by the petitioners of
the above bunch case specifically Contempt Petition No. 1617 (C)
of 2004 C.B. Chhimwal v. Smt. Surjit Kaur Sandhu & Ors. and
Contempt Petition No. ( 1897) C of 2004 Chandra Shekhar Kargeti
H v. K. Prasad and the date of personal appearance of officials was
UTTARANCHAL FOREST RANGERS' ASSON. (DIRECT RECRUIT) I'. STATE OF U.P. [LAKSHMANAN. J.) 6 \9
fixed. Under these circumstances Principal chief Conservator of A
Forest, U.P. Lucknow passed F.O. No. E-11412-2-4 dated 18.01.2005
and judgment dated 12.04.2004 was complied with under pressure
of Court order; giving notional promotions to the appellants.
Thereafter, a report was produced before the High Court in
Contempt Case No. 1617/C/2004 C.B. Chhimwal v. Smt. Surjit
Kaur Sandhu by an affidavit dated 19.01.2005. The High Court B
was not satisfied with the compliance and passed further direction
on 28.02.2005 in the aforesaid contempt petition. The operative
part of the order dated 28.02.2005 is reproduced below:-
"The apprehension genuinely appears to be sustainable as the
consequential benefit may be kept confined to the seniority alone. c
It is also not understood as to why the phrase, 'notional
promotion' has been used by Chief Conservator Officer in his
order of January 18, 2005 in the circumstances of there being
uncertainty on both the counts, the Principal Chief Conservator
of Forests is directed to issue a corrigendum of the aforesaid D
order giving details of the benefit that would be extended to the
petitioner in compliance of the judgment referred to above."
"Accordingly, he is directed to file his supplementary counter
affidavit and a copy of the modified order within fifteen days, list
on 21.04.2005 for orders. In case the uncertainty still remains, the E
court would consider the petitioners request for presence of the
Principal Chief Conservator Officer before this Court."

* That Dy. Rangers who were promoted to the post of Range
Officers vide F.O. No. E-23/2-2-4 dated 17.07.1991 cannot be
promoted with retrospective effect from a date when they were
F
not borne in the cadre. Although in compliance of the judgment
and order passed by the High Court on 12.04.2004 the respondent
no.6 along with other 44 Dy. Rangers has been notionally promoted
with effect from 01.07.1987. A copy of the above promotion order
was produced before the High Court in Contempt Case No. 1617/
C/2004 C.B. Chhimwal v. Smt. Sur)it Kaur Sandhu and Anr. But G
the Court was not satisfied with the above compliance made by
the department and on· 28.02.2005 passed the above orders as
mentioned above.

* That the High Court granted the benefit of seniority to respondent
No. 5 and other similarly situated persons through connected H
620 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A writ petition with ~ffect from retrospective year 1979 to 1988 as
the case may be, while their actual promotions have been done
in the year 1991 to the post of Forest Rangers. It is further stated
that service rules do not provide any time bound period for such
promotion.

B * That the Commission might have selected the respondent No.5
along with other similarly situated persons against the vacancy
of a particular year but fixation of seniority has to be made in
accordance with the statutory provision of U.P. Govt. Servant
Seniority Rules 1991 framed under proviso to Art 309 of the
Constitution which strictly prohibits giving back year seniority.
c
* That no direct recruitment between the year 1969-70 to 1976-77,
the then existing vacancies of Forest Rangers were filled up by
promotees of the department. As the vacancies belonging to the
direct recruit was occupied by promotees between this period,
the required number of post of promotees exceeded. Out of
D certain oversight the number of vacancies shown as year wise
vacancies sent to the Public Service Commission against the
vacancies of earlier years was wrongly indicated. At a later date
at the time of preparation of seniority list this inadvertent mistake
was noticed at the time of preparation of list on 08.06.1995 and
E immediately exercise was carried out to check the inadvertent
mistake/oversight. The excess number of promotees against the
Forest Rangers was later adjusted and carried forward as per
provisions. As per the above facts it is crystal clear that there
was no vacancy existing for the promotees after the year 1973-
74 till 1986-87. In the year 1987-88, 9 vacancies were available
F after a long gap. Similarly, the vacancies available during the year
1988-89, 1989-90 and 1990-91 are 31, 54 and 84 respectively. It was
out of these vacancies, the adjustment of 124 Forest Rangers
regularized on 30.11.1989 were adjusted. The name of respondent
no. 5 namely C.B. Chhimwal is much below and therefore he was
G not included in the above list.

* That in view of the facts and circumstances stated abo~e and as
per provisions of Law the respondent no.5 along with other -
similarly situated 353 persons are not entitled for back date
;eniority as well as consequential benefit as they have not actually
worked on the post of Range Officer, therefore this Court may
H
UTT ARANCHAL FOREST RANGERS' ASSON. (DIRECT RECRUIT)"· STATE OF U.P. [LAKSHMANAN, J.) 62 J

very kindly .be pleased to quash the judgment and order dated A
12.04.2004 passed by the High Court of Allahabad, Lucknow
Bench, Lucknow in Writ Petition 366/SB/2002.

Learned AAG, (State of Uttaranchal) appeared for the state of Uttaranchal,
II!' and submitted as under:-
B
* Rule 8( 1) of the Uttar Pradesh Government Servant Seniority
Rules, 1991 provides confennent of seniority to an employee from
a pervious date provided that the date of such confennent along
with substantive appointment is mentioned in the order of
substantive appointment. Similar provision also exists in the
Uttaranchal Government Servant Seniority Rules, 2002. Hence it c
is clear that a person can be promoted with retrospective effect.
It is also obvious that a person cannot be borne in a cadre till
he is promoted to that cadre.

* A vacancy to any source of appointment can be ascertained only
when that source of appointment has a well defined share of D
posts in ratio with other sources of appointment. In the present
case, as per Rule 5(a) of Uttaranchal Subordinate Services Rules,
1951, it is quite clear that there is no fixed/well defined quota for
the promoted source of appointment. Hence, allocation of year-
wise vacancies against promotion quota is not possible.
Consequently, the question raised by the appellant that the E
seniority is reckoned from the date when appointment was done
to the post in substantive capacity or from the date when the
vacancy accrued for the post in the cadre is irrelevant.

* Though the State of Uttaranchal came into existence on 9.11.2000
but the final allotment/distribution of Forest Rangers' between F
Uttar Pradesh and Uttaranchal was done in February, 2004 with
effect from 9.11.2004 by the Government of India under Section
73(1) of U.P. Reorganisation Act, 2000 till the stage of this final
allotment, any dispute pertaining to their seniority was obviously
the matter of jurisdiction of the State of Uttar Pradesh. G
* Rule 8(3) of the Rules is not applicable in this case because the
appointments were not made by both the direct and promoted
sources of recruitment as a result of one selection. Moreover,
definite quota is not prescribed for the two sources of appointment.
H
622 SUPREME COURT REPORTS [2006) SUPP. 6 S.C.R.

A • As per Rule 8 of the Seniority Rules, there is a provision 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 be the date of order of substantive appointment and
in other cases, it will mean the date of issuance of the order. This
implies that there is a provision of vacancies of being carried
B over. Moreover, it is also in the interest of natural justice that
employees are promoted from the date they become eligible and
the vacancy exits. Otherwise, it would result in denying promotion
to them for no fault of theirs and only because of not holding
selection procedure on time for which they cannot be held
responsible. As far as Rule 8(3) is concerned, it applies to one
selection made both for promotion and direct recruitment, which
is not the case under consideration.

Mr. N.N. Goswami, learned senior Counsel appearing for respondent
no.5, Chhimwal, largely adopted the arguments of the state counsel. It was
D submitted that, this is a simple case of promotion of permanent Deputy
Rangers against the vacancies as and when it occurred and the respondent
was entitled for promotion. The High Court has correctly decided the issue
in question in W.P. No. 610 (S/B) of 1996, which the petitioners have accepted
and did not prefer a petition for Special Leave to appeal then, and the same
issue cannot be agitated after four years and after compliance has already
E been done. The present petition against impugned order was not decided on
merit but was decided on the basis of parity. The learned counsel submitted
further that, the present case squarely is covered by the judgment of this
court in the case of P.N. Premachandran v. State of Kera/a & Ors., [2004] I
sec 245, where it was held that,
F
"We do not find any irregularity in the matter of grant to promote the
respondents with effect from 1964 onwards ... in view, of the
administrative lapse, the Departmental Promotion Committee did not
hold a sitting from 1964 to 1980. The respondents cannot suffer owing
to such administrative lapse on the part of the State of Kerala for no
G fault on their, part. It is also not disputed, that in ordinary course they
were entitled to be promoted to the post of Assistant Director, in the
event, a Departmental Promotion Committee had been constituted in
due time. In that view of the matter, it must be held that the State of
Kerala took a conscious decision to the effect that those who have
been acting in a higher post for a long time although on a temporary
H
UTTARANCHAL FOREST RANGERS' ASSON. (DIRECT RECRUIT)'" STATE OF U.P. (LAKSHMANAN. J.J 623
basis, but were qualified at the time when they were so promoted and A
found to be eligible by the Departmental Promotion Committee at a
later date, should be promoted with retrospective effect Such exercise
of power on the part of the State is not unknown in service
jurisprudence. Even assuming that such a power did not exist in Rule
31 of the Rules the same can be traced to Rule 39 of the Rules, as B
noted hereinbefore ...."

He further relied on A. Janardhana v. Union of India, [1983] 3 SCC 601, where
it was held as under:

"But avoiding any humanitarian approach to the problem, we shall
strictly go by the relevant rules and precedents and the impact of the C
Rules on the members of the service and determine whether the
impugned seniority lists is valid or not. But, having done that we do
propose to examine and expose an extremely undesirable, unjust and
inequitable situation emerging in service jurisprudence from the
precedents namely, that a person already rendering service as a D
promotee has to go down below a person who comes into service
decades after the promotee enters the ·service and who may be a
schoolian, if not in embryo, when the promotee on being promoted on
account of the exigencies of service as required by the Government
started rendering service. A time has come to recast, service
jurisprudence on more just and equitable foundation by examining all E
precedents on the subject to retrieve this situation." •

We heard all the parties in detail and we have also perused through all
the materials on record before us. We feel that, the appellants hereh have a
case and their arguments merit favourable consideration.
F
We feel that the impugned judgment dated 26.11.2001 of the High Court
has correctly appreciated that vacancies arose in the year 1987-88, but have
failed to appreciate that these vacancies were filled by regularizing 124 persons
who were carrying on as Forest Rangers on an ad hoc basis. We also are of
the view that, if the orders of the High Court are to be given effect to, then G
356 Deputy Forest Rangers would become entitled to promotion in excess of
the quota. It is well settled that promotion in excess of quota makes an
employee an ad hoc employee and seniority cannot be given to such
employees on the basis of ad hoc promotion. This was observed by this court
in a series of cases. In the case of Keshav Chandra Joshi & Ors. v. Union
of India & Ors., [1992] Supp.I sec 272, this Court observed that, H
624 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A "It is notorious that confirmation of an employee in a 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 to reckon
B 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 was subsequently qualified to hold the post on a regular
c basis. To give benefit of such service would be contrary to equality
enshrined in Article I4 read with Article I6(1) of the Constitution as
unequals would be treated as equals. When promotion is out side the
quota, the seniority would be reckoned from the date of the vacancy
within the quota, rendering the previous service fortuitous. The '
previous promotion would be regular only from the date of the vacancy
D within the quota and seniority shall be counted from that date and not
from the date of his earlier promotion or sub-sequent confirmation. In
order to do justice to the promotees it would not be proper to do
injustice to the direct recruits. The rule of quota being a statutory one
it must be strictly implemented and it is impermissible for the authorities
E concerned to deviate from the rule due to administrative exigencies or
expediency. The result of pushing down the promotees appointed in
excess of the quota may work out hardship but it is unavoidable and
any construction otherwise would be illegal, nullifying the force of
statutory rules and would offend Articles 14 and 16(1). Therefore, the
rules must be carefully applied in such a manner as not to violate the
F rules or equality assured under Article 14 of the Constitution. This
Court interpreted that equity is an integral part of Article 14. So every
attempt would be made to minimise, as far as possible, inequity,
Disparity is inherent in the system of working out integration of the
employees drawn from different sources, who have legitimate aspiration
G to reach higher echelons of service. A feeling of hardship to one, or
heart burning to either would be avoided. At the same time equality
is accorded to all the employees."

In Sanjay Kumar Sinha & Ors. v. State of Bihar & Ors., [2004] I0 SCC
734, this court observed that,
H
UTT ARANCHAL FOREST RANGERS' ASSON. (DIRECT RECRUIT)'" STATE OF U.P. (LAKSHMANAN, J.] 625
"6. In our view the first point regarding alleged non-availability of A
posts of ACFs for appointment of promotees at the relevant time is
sufficient to decide this appeal. On the question of availability of
posts the case of the appellants is that posts were not available and
in the absence of the posts no appointments could be made. Still the
respondents had gone ahead with the appointments of the promotees. B
Such appointments are mere fortuitous and cannot confer the benefit
of seniority from the date of appointment. The first document relied
upon in support of this contention i3 a letter dated 23rd September,
1985 from the Chief Conservator, Forests and Environment Department,
Government ofBihar, Patna. The letter directly deals with the question
of promotion of Forest Range Officer (FRO) to the post of Assistant C
Conservator of Forests (ACF). The letter notes that under Rule 3 of
the Bihar Forest Service Rules, at least 50% of the total existing
vacancies have to be filled by promotion. It goes on to add: "Presently
there are 125 officers in the cadre in the Bihar Forest Service, out of
which 105 have been promoted from the post of Range Officer and
rest are appointed by way of direct recruitment." According to this D
letter as per the cadre strength of the posts of ACF in Bihar State
Forest Service, the promoted officers constituted 84%. The Chief
Conservator of Forests expressed his view in the said letter that filling
such large number of posts by way of promotions affects the quality
of service. The Chief Conservator of Forests also notes that the State E
Service Commission had already issued advertisement for filling 40
posts of ACFs by direct recruitment. He has opined that in these
circumstances it would not be proper to fill up the posts of ACF by
promotion. This letter highlights the imbalance already existing in the
service qua the posts of ACF so far as appointments of direct
recruitment and promotees are concerned." F
"12. It is clear from the admissions made on behalf of the respondents
by way of affidavits filed in judicial proceedings that sanctioned
number of posts were not available in the year 1987 when the
respondents were promoted as ACFs, rather the promotions were
made against non-existing posts. Can such promotions confer any G
right on the officers concerned particularly over and above the other
..;·.
duly appointed officers in the service like the appellants? In this
connection we hall.e_ to note that Rule 35 of the Bihar Forest Service
Rules provides that 'seniority of officers appointed to the service is
to be determined with reference to the date of their substantive H
626 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A appointment. In order to become a member of the service the person
concerned has to satisfy at least two conditions - first. appointment
must be in substantive capacity and (2) the appointment has to be to
the post in the service according to the Rules and within the quota
to a substantive vacancy."

B Further in the case of D.Ganesh Rao Patnaik & Ors. v. State of
Jharkhand & Ors, (2005) 8 SCC 454, this court opined that,

"...... that the appointment of the contesting respondents was not only
contrary to Rules but was fortuitous in nature and they can get no
advantage of such fortuitous appointment until a substantive vacancy
c was available in their quota, which in fact became available much later
some time in the year 1993-94, which is long after the appointment of
the appellants. What is a fortuitous appointment has been explained
in a Constitution Bench decision of this Court in Rudra Kumar Sain
v. Union of India, (2000] 8 SCC 25. After observing that the Rules in
D question did not define the terms 'ad hoc', 'stopgap' and 'fortuitous',
which are in frequent use in service jurisprudence, the Court referred
to several dictionaries. The meaning given to the expression 'fortuitous'
in Stroud's Judicial Dictionary is 'accident or fortuitous casualty'.
This should obviously connote that if an appointment is made
accidentally, because of a particular emergent situation, such
E appointment obviously would not continue for a reasonably long
period. In Black's Law Dictionary the expression 'fortuitous' means
'occurring by chance', 'a fortuitous event may be highly unfortunate'.
It thus indicates that it occurs only by chance or accident, which
could not have been reasonably foreseen. In Oxford dictionary the
meaning given to the word 'fortuitous' is - happening by accident or
F
chance rather than design. In our opinion it will not be proper to hold
that the promotion of the contesting respondents was fortuitous as
contended by learned counsel for the appellants. It cannot be said
that the contesting respondents were promoted by accident or by
chance. Their promotion order was passed as there were vacancies to
G the posts of Additional District and Sessions Judges, though in the
quota or direct recruits, but as no recruitment from the said channel
had been made for a long time and sufficient number of candidates
were not available, the vacancies were filled in by giving promotion
to members of Bihar Civil Service (Judicial Branch). If promotion
orders had not been passed and the posts had not been filled in, the
H
UTT ARANCHAL FOREST RANGERS' AS SON. (DIRECT RECRUIT) •... ST ATE OF u.r. [LAKSHMANAN, J.J 627
judicial work in the districts would have suffered. However, it is clear A
that having regard to the various orders passed on the judicial side
by the Patna High Court and the legal position being well settled that
the temporary posts have also to be counted for determining the one-
third quota of direct recruits, the promotion given to the contesting
respondents was not in accordance with law, Instead of taking the B
harsh step of rescinding their order of promotion the Patna High
Court, on the administrative side, took the decision to treat them
promoted against subsequent quota of promotees. Therefore, the
contesting respondents can under no circumstances claim seniority
over the appellants and the view to the contrary taken by the Jharkhand
High Court on 29th August, 2002 on administrative side and also in C
the judgment and order dated Ist April, 2003, which is the subject-
matter of challenge in the present appeal, is wholly erroneous in law."

We also observe that, the H.igh Court has granted seniority without
even reference to Seniority Rules of 8, and in particular the proviso thereto,
~ has not been taken into consideration. The said rules have overriding effect D
and hence seniority has to be consistent with the Rules. By virtue of Rule
8, Seniority can be given only from 'the date of substantive appointment'. In
this case, the promotees were appointed on 17.07,1991 and therefore cannot
be given seniority over the appellants who were substantively appointed
prior in point of time i.e. in 1990. It is specifically indicated in proviso to Rule E
8 that, "Where appointments 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 seniority
of any earlier year, but shall get seniority of the year in which their
appointments are made. "
F
These rules were in force in 1991 when the Deputy Forest Rangers were
promoted to the post of Forest Rangers on I7.07. I 99 I. Also it is well settled
that seniority has to be decided on the basis of Rules in force on the date
of appointment It was observed by this court in the case of State of Karnataka
& Ors. V, c. Lalitha, [2006] 2 sec 747, that,
G
"Service jurisprudence evolved by this Court from time to time
postulates that all persons similarly situated should be treated similarly.
Only because one person has approached the court that would not
mean that persons similarly situated should be treated differently, It
is furthennore well-settled that the question of seniority should be
H
628 SUPREME COURT REPORTS [2006) SUPP. 6 S.C.R.

A governed by the rules. It may be true that this Court took notice of
the subsequent events, namely, that in the meantime she had also
been promoted as Assistant Commissioner which was a Category I
Post but the direction to create a supernumerary post to adjust her
must be held to have been issued only with a view to accommodate
her therein as otherwise she might have been reverted and not for the
B purpose of conferring a benefit to which she was not otherwise
entitled to."

It was also observed in the case of Union of India v. S.S. Uppa/ & Anr.,
[1996] 2 sec 168 that,
c "12. We are of the view that the question of seniority of Uppal, the
respondent "No. 1, has to be determined by the rules in force on the
date of his appointment to IAS. The fixation of seniority in the IAS
follows appointment to the service. The Year of Allotment in the IAS
will have to be determined according to the provisions of seniority
D rules which are in force at the time of his appointment. The date of
occurrence of vacancy has really no relevance for the purpose of
fixation of seniority in the IAS. The fixation of seniority is done only
after an officer is appointed to IAS. The Central Government is
competent to amend the seniority rules from time to time keeping in
view the exigencies of administration."
E
Thus we feel that the High Court order granting promotees seniority
from 1987-88 suffers from infirmity and is liable to be set aside.

We are also of the view that no retrospective promotion or seniority can
be granted from a date when an employee has not even been borne in the
F cadre so as to be adversely appointed validly in the meantime, as decided by
this court in the case of K.C. Joshi & Ors. v. Union of India, [1992] Suppl
1 sec 272 held that when promotion is outside the quota, seniority would be
reckoned from the date of the vacancy within the quota rendering the previous
service fortuitous. The previous promotion would be regular only from the
G 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.
In order to do justice to the promotees, it would not be proper to do injustice
to the direct recruits. The rule of quota being a statutory one, it must be
strictly implemented and it is impermissible for the authorit!es concerned to
deviate from the rule due to administ·ative exigencies or expediency. The
H result of pushing down the promctees appointed in excess of the quota may
UTT ARANCHAL FOREST RANGERS. ASSON. (DIRECT RECRUIT).-. STATE OF U.P. [1.AKSHMANAN, J.) 629
work out hardship, but it is unavoidable and any construction otherwise A
' would be illegal, nullifying the force of statutory rules and would offend
Articles 14 and 16( I) of the Constitution.

This Court has consistently held that no retrospective promotion can
be granted nor any seniority can be given on retrospective basis from a date
when an employee has not even borne in the cadre particularly when this B
would adversely affect the direct recruits who have been appointed validly
in the meantime. In State of Bihar & Ors. v. Akhouri Sachidananda Nath &
Ors., [1991] Suppl. I SCC 334, this court observed that,

"12. In the instant case, the promotee respondents 6 to 23 were not
born in the cadre of Assistant Engineer in the Bihar Engineering C
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 I to 5. It is well settled that no person can be promoted
with retrospective effect from a date when he was not born in the D
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
from the date of the length of service rendered as Assistant Engineers. E
This being the position in law the respondents 6 to 23 can not be
made senior to the respondents I to 5 by the impugned Government
orders as they entered into the said Service by promotion after the
respondents I to 5 were directly recruited in the quota of direct
recruits. The judgment of the High Court quashing the impugned p
Government orders made in annexures, 8, 9 and I0 is unexceptionable."

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

"On an issue regarding the inter se seniority among the direct recruits G
and promotees the Court applying the ratio of State of Bihar v.
Akhouri Sachindranath held that the appellants who were direct
recruits shall be considered senior over the promotees not borne on
the cadre when the direct recruits were appointed in service. Hence
the gradation list drawn under which promotees where given seniority
over direct recruits could not be sustained and was thereby set H
630 SUPREME COURT REPORTS (2006) SUPP. 6 S.C.R.

A aside".

The High Court, in the impugned judgment dated 26.11.2001 has
proceeded on the basis that vacancies arose in 1987-88 and, therefore, should
be given retrospective effect. The said submission, in our opinion, has no
force and import. In our view, the date on which vacancies arose cannot
B without more be made a basis of giving retrospective promotion and seniority.
In Jagdish Ch. Patnaik & Ors. v. State of Orissa & Ors., (1998] 4 SCC 456,
this Court observed:

32. The next question for consideration is whether the year in which
the vacancy accrues can have any relevance for the purpose of
c detennining the seniority irrespective of the fact when the persons are
recruited? Mr. Banerjee's contention on this score is that since the
appellant was recruited to the cadre of Assistant Engineer in respect
of the vacancies that arose in the year 1978 though in fact the letter
of appointment was issued only in March 1980, he should be treated
D to be a recruit of the year 1978 and as such would be senior to the
promotees of the years 1979 and 1980 and would be junior to the
promotees of the year 1978. According to the learned Counsel since
the process of recruitment takes a fairly long period as the Public
Service Commission invites application, interviews and finally selects
them whereupon the Government takes the final decison, it would be
E illogical to ignore the year in which the vacancy arose and against
which the recruitment has been made. There is no dispute that there
will be some time lag between the year when the vacancy accrues and
the year when the final recruitment is made for complying with the
procedu~e prescribed but that would not give a handle to the Court
to include something which is not there in the Rules of Seniority
F
under Rule 26. Under Rule 26 the year in which vacancy arose and
against which vacancy the recruitment has been made is not at all to
be looked into for detennination of the inter se seniority between
direct recruits and the promotees. It merely states that during the
calendar year direct recruits to the cadre of Assistant Engineer would
G be junior to the promotee recruits to the said cadre. It is not possible
for the Court to import something which is not there in Rule 26 and
thereby legislate a new Rule of Seniority. We are, therefore, not in a
position to agree with the submission of Mr. Banerjee, the learned
senior counsel appearing for the appellants on this score.
H In the instant case, the High Court has relied upon the letter of the
UTT ARANCHAL FOREST RANGERS' ASSON. (DIRECT RECRUIT)"· STATE OF U.P. [LAKSHMANAN. J.] 63 \
Public Service Commission dated 06.07.1991 to come to the conclusion that A
the PSC recommended the appointments to be given to the promotees from
the date on which the vacancy arose. Even apart from the fact that it has now
been conclusively established that the vacancy position indicated to the PSC
'' was not correct, there is nothing in the said letter of the PSC which would
lead to the conclusion that it had recommended that appointment should date
back to the date of vacancies. All that the letter indicates is that the Commission B
had considered the fitness and suitability of the candidates year by year
taking into consideration the vacancies that had allegedly arisen in the
concerned year. This is only an exercise for the purpose of ar;riving at the
name of the employees to be recommended which had nothing to do with the
date on which the appointment was to be given. The reliance placed by the C
High Court on the U.P. promotion by selection in consultation with the Public
Service Commission (Procedure) Rules, 1970 and, in particular, Rules 13 and
21 also do not mandate that the appointment has to be made on the date on
which the vacancy arose. It confirms that while selecting the persons the
Government has to send requisition year-wise and the PSC to make its
recommendation year-wise. Again this does not lead to a conclusion as to the D
date on which appointment should take effect.

An alternative argument was made. by Mr. Gupta to the effect that even
if the High Court was of the opinion that the seniority and promotion should
be re-worked the same should have referred back to the PSC to ascertain who E
would be the relevant persons entitled to promotion. The High Court did not
accept that PSC' s recommendation in its entirety since in its view vacancies
only arose in 1987-88 and not in 1979-80 as indicated by the PSC.

Likewise, in the second impugned order dated 12.04.2004;·45 persons
were directed to be promoted without taking into consideration their relative F
position in the list prepared by the PSC. By not referring the matter to the
PSC, incorrect persons were chosen by the High Court for the purpose of
promotion. This submission was, however, made by learned senior counsel
without prejudice to the submission that the entire basis for directing
retrospective promotion and seniority was erroneous and there were no
vacancies at all. G
The second impugned order dated 12.04.2004 is further vitiated for the
following reasons:-
(a) Forum: The seniority list under challenge in the second writ
petition was the seniority list of the Uttaranchal State Government H
632 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A of 2002 and such challenge cou Id not have been made before the
Lucknow Bench of the Allahabad High Court.
(b) Parties: None of the direct recruits who would be directly affected
by order cannot were made parties to the writ petition. Therefore
the High Court did not have the benefit of competing arguments
B in the matter. Even though, the Principal Secretary of the State
of Uttaranchal was made a party, the said party was never served.
The only respondent which was heard was the State of U.P.
which had no stake in the matter at all since all of the writ
petitioners before the Lucknow Bench of the Allahabad High
Court where employees of the State of Uttaranchal on the relevant
c date. It is, therefore, evident that the relevant material was not
placed before the Allahabad High Court for the purpose of deciding
the writ petition. Accordingly, the permission had to be taken
from this Court by the present appellants to prefer the SLPs.

D We, therefore, have no hesitation in setting aside the final judgment and
order dated 12.04.2004 passed by the High Court of Judicature at Allahabad,
Lucknow Bench in Writ Petition No. 366 SB of2002 whereby the High Court
allowed the writ petition filed by C.B. Chhimwal and allow the Civil Appeal
No. 4249 of2006 arising out ofSLP (C) No. 7375 of2005.

Likewise, we allow the Civil Appeal No. 4250 of2006 arising out ofSLP
E
(C) No. 1860 of2006 and set aside the impugned judgment and order dated
26.11.2001 passed in Writ Petition No. 6 lO(S/B) of 1996 by the High Court of
Allahabad at Lucknow Bench.

However, we are making it clear that this judgment of ours will not
F adversely affect the benefits of the order which have been enjoyed by any
of the promotees .vho have retired from service. The division of seniority list,
however, has serious and lasting consequences insofar as the appellants are
concerned Which of crucial importance as far as the promotional prospects of
the appellants are concerned.

G We, therefore, direct the State of Uttaranchal through its Principal
Secretary (Forest) Dehradun, Uttaranchal to revise the seniority list of direct
recruits in line with the observations and conclusions made in this judgment
by us within 2 months from the date of receipt of this judgment. No costs.

vs. Appeal allowed.
H