STATE OF U.P. AND ANR. versus DINKAR SINHA

Citation: [2007] 6 S.C.R. 305 · Decided: 09-05-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Case Allowed

Judgment (excerpt)

} 
STATE OF U.P. AND ANR. 
A 
v. 
DINKAR SINHA 
MAY 9, 2007 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
B 
Constitution of India, 1950-Article 309-U.P. Non-Technical (Class-
II) Services (Reservation of Vacancies for the Demobilized Services) Rules, 
1968-Rule 4-U.P. Non-Technical (Class-fl) Services (Reservation of c 
Vacancies for the Demobilized Services) Rules, 1973-Rule 3-U.P. Non 
Technical (Class II/Group B Services) Appointment of Demobilized Officers 
Rules, 1980-Rules 4 & 5-Employee commissioned as an Army Officer after 
the expiry of 1973 Rules-1980 Rules were framed to regularize the 
appointments of demobilized officers under 1968 and 1973 Rules-Employee 
D 
claiming the benefit of seniority under the 1980 Rules-State rejected the 
claim on the ground that he was commissioned after the expiry of 1973 
..;.. 
Rules-Writ Petition before High Court was allowed-Correctness of-Held, 
> 
claim of seniority is not a fundame.1tal right but a civil right which can be 
made only under a Service Rule framed under a statute-On facts, the benefit 
of seniority and pay under the 1980 Rules is not applicable to the employee E 
as he is not a demobilized officer under the 1980 Rules-Hence, the claim 
of seniority rejected 
U.P. Non-Technical (Class-II) Services (Reservation of Vacancies for the 
Demobilized Services) Rules, 1968 was framed for a period of five years 
providing reservation to the vacant posts for demobilized officers, who were F 
commissioned in Armed Forces at the time of Chinese aggression in 1962. 
l 
Similarly, U.P. Non-Technical (Class-II) Services (Reservation of Vacancies 
for the Demobilized Services) Rules, 1973 were framed for a period of five 
years providing reservation of the vacant posts for the demobilized officers, 
whO 'were commissioned during the Chinese aggression and lndo-Pak war. In G 
1977, the State issued a Government Order reducing the percentage of 
reservation. Thereafter, U.P. Non Technical (Class II/Group B Services) 
Appointment of Demobilized Officers Rules, 1980 was framed for the limited 
purpose of regularizing the appointments of the demobilized officers. The 
1980 Rules were subsequently amended providing a benefit of an additional 
305 
H 
306 
SUPREME COURT REPORTS 
(2007] 6 S.C.R. 
A three years' maximum seniority to a candidate over and above the period served 
by him in the Armed Forces. 
Respondent was commissioned as an Army officer in March 1979 but 
was discharged in May 1988. Thereafter, he joined State Police Service 
against reserved vacancies for ex-Army persons in terms of the Government 
B Order of 1977. A representation made by the respondent to grant him the 
benefit of additional seniority under the amended 1980 Rules was rejected by 
the State on the ground that he cannot be considered as a demobilized officer 
under 1973 Rules since he was commissioned as an Army Officer after the 
expiry of the 1973 Rules and hence the 1980 Rules were not applicable to 
C him. A Writ Petition filed by the respondent was allowed by High Court. 
In appeal to this Court, the State contended that the respondent has been 
commissioned as an Army Officer only in 1979 i.e. after the expiry of the 
1973 Rules and hence the 1973 Rules were not applicable to him; and that 
the 1980 Rules were also inapplicable to the respondent as they were framed 
D for the limited purpose of regularizing the appointments of demobilized 
officers under the 1973 Rules. 
The respondent contended that he was selected in 1976 and having been 
given seniority during the period of Emergency, the 1973 Rules and the 1980 
E Rules were applicable to him; and that Rule 5 of the 1980 Rules has a wider 
application and covers cases where the 1973 Rules would apply. 
Allowing the appeals, the Court 
HELD: 1.1. Seniority may not be a fundamental right but is a civil right. 
F Infringement of the said right would be permissible only if there exists any 
rules validly framed under a statute and/or the proviso appended to Article 
309 of the Constitution oflndia. It cannot act in a vacuum. Any rule taking 
away such rights would deserve strict interpretation. (Para 17] (315-E, Fl 
lndu Shekhar Singh & Ors. v. State of U.P. & Ors., (2006] 8 SCC 129; 
G Bim/esh Tanwar v. State of Haryana & Ors., [2003] 5 SCC 604 and Prafulla 
Kumar Das v. State of Orissa, [2003] 11 SCC 614, referred to. 
1.2. The contention of the respondent that having joined the pre-
commissioned training in 1976 he would be entitled to the b

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