Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 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 KASHMIR & ORS. [DEEPAK GUPTA, J.] this Court in State of Bihar Vs. Akhouri Sachindra Nath & Ors.2 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 Education3 this Court held as follows:- "S. The claim of seniority of the eri1ployee is always determined 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. Sharma4 this Court held as follows:- "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 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." 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:- ' (1991) Supp.I sec 334 ' (2002) 9 sec 634 ' c2001) 1 sec 683 ' (2008) 1 sec 122 ' c2014) t4 sec no c [2017) 10 S.C.R. "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."
9. The respondents have relied upon two judgments in U.D. L"ma tmd Others vs. State of Sikldm 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 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 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 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 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 '(20I4l 10 sec 357 SUNAINA SHARMA & ORS. v. STATE OF JAMMU AND KASHMIR & ORS. [DEEPAK GUPTA, J.] because for almost two years the promotion process had been stalled. 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 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 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 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 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 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 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 c 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 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. 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 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 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 KASHMIR & ORS. [DEEPAK GUPTA, J.] to be detennined by the date of first appointment 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 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 c Rules and Rule 23 and 24 of the Civil Services Rules, we are clearly of 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 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 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 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.