SUSHIL PANDEY & ANR versus STATE OF U.P.THR. PRINCIPAL SECRETARY (HOME) & ORS

Citation: [2023] 3 S.C.R. 207 · Decided: 16-01-2023 · Supreme Court of India · Bench: AJAY RASTOGI · Disposal: Disposed off

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Judgment (excerpt)

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207
   [2023] 3 S.C.R. 207
207
SUSHIL PANDEY & ANR
v.
STATE OF U.P.THR. PRINCIPAL SECRETARY (HOME) & ORS.
(Civil Appeal No. 1838 of 2018)
JANUARY 16, 2023
[AJAY RASTOGI AND ANIRUDDHA BOSE, JJ.]
Uttar Pradesh Police Radio Service Rules, 1979 – rr. 17, 22
– 50% vacancies for the post of Assistant Radio Officers to be filled
through direct recruitment and 50% by promotion from the feeder
cadre (Radio Inspectors)– Appointments from both the streams were
made on different dates– Combined selection list, quashed by High
Court for being in violation of r.17 and r.22 – Fresh selection list
was prepared, challenged by appellants-candidates from the feeder
cadre – List sustained by High Court – Held: Manner in which
appointment orders were issued was found to be in breach of the
provisions of r.17 in the first judgment –However, neither the first
judgment nor the impugned judgment stipulated in what manner
the dates of birth into the cadre for individual candidates from the
two streams were be determined – Since main reasoning of the High
Court for deciding the matter was that selection from both streams
was made from a common recruitment process,the dates of
appointment orders of both the streamsought to be treated from a
particular date and 30th January 1996 being the date on which the
appointment letters of the promotee candidates were issued, would
be such date – Thus, the seniority of the candidates including the
appellants be determined treating the entry into the cadre of both
sets of candidates (promotees and direct recruits) on 30th January
1996 and the seniority position be recast on that basis – On the
question of intra-stream seniority, r.22 shall be followed – Impugned
judgment modified – U.P Government Servant Seniority Rules,
1991– Constitution of India – Art. 142– Service Law.
Disposing of the appeal, the Court
HELD: 1.1 The argument of the appellant that birth in the
cadre first would automatically accord the seniority over and
above those who are appointed at a later date is agreed with.
This principle, however, is to apply in absence of any contrary
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208
SUPREME COURT REPORTS
[2023] 3 S.C.R.
provision in the applicable service rule. In the present case this
aspect has been addressed by the Division Bench in the judgment
delivered on 12th September 2012. The opinion of the High Court
in this judgment was that since there was a common requisition,
the appointments should have been made only after preparing
the combined select list and seniority ought to have been
determined in accordance with Rule 22. This part of the judgment
has remained unaltered. Admitted position is that a review petition
in relation to this judgment was filed but the review judgment did
not upset this finding of the Division Bench. In the decision under
appeal, the Division Bench has relied on these two paragraphs of
the earlier judgment and come to its finding. Thus, so far as the
appellants and other parties to this appeal are concerned, the
said finding has attained finality and this question cannot be
reopened in an appeal arising out of a subsequent proceeding on
near identical factual background. The High Court, in the earlier
judgment found that compliance of Rule 17 was not made in
preparing the seniority list of 1999. The subsequent selection
list was made in terms of decision of the High Court delivered on
12th September 2012. The general principle of service
jurisprudence that seniority is required to be computed from the
date of actual entry into a particular cadre cannot operate in a
case where there is an undisturbed judicial finding that
appointments were made on different dates in breach of the
applicable Rules. Moreover, selection list per se does not
determine seniority as the said list is only to contain names of
persons who are to be part of a particular cadre. In the 1979
Rules also, selection list is to be prepared as per Rule 17 whereas
seniority is to be determined in terms of Rule 22. What the
authorities have done in finalising the 2013 selection list is that
positioning of incumbents in this list have been made on the basis
of their seniority. Thus, it has become a combined selection and
seniority list.[Paras 11 and 13][220-F-H; 221-A-B]
State of Uttar Pradesh v. Ashok Kumar Srivastava &Anr.
(2014) 14 SCC 720 : [2013] 11 SCR 846 – referred
to.
1.2 The selection list stipulated how the vacancy positions
shall be filled but for determination of seniority, the dates of
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