AI Insights
The case involves a series of writ petitions filed by various petitioners challenging the final Gradation List of Assistant Section Officers (ASOs) in the Odisha Secretariat Service, published on 11.6.2020. The petitions primarily contested the inter-se seniority as reflected in the Gradation List, arguing that it did not adhere to the seniority rules stipulated in the Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010. The court examined the recruitment processes and the applicable rules over different years, particularly focusing on the rules in effect at the time of each petitioner's appointment. The judgment emphasized the importance of adhering to the rules governing seniority as they stood at the time of appointment, rejecting any retrospective application of newer rules or principles.
Appeal Details
Counselvise Citation
[2025] 140 COUNSELVISE.COM (IT) 669665 (HC-ORISSA)
Assessee PAN
Bench
Appeal Number
CRN Number
Appellant
Respondent
Appeal Type
High Court cases
Pronouncement Date
03-06-2025
Assessment Year
misc
Judgement Text
" W.P.(C) No.37471 of 2020 and batch Page 1 of 68 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.37471, 17311, 24191, 24192, 24193, 24194, 26739, 29089, 36444 and 36496 of 2020 (In the matter of an application under Articles 226 and 227 of the Constitution of India) In W.P.(C) No.37471 of 2020 Charan Singh Hembram and others …. Petitioners -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Ms. Pami Rath, Senior Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. S.K. Das, Advocate for private Opposite Parties In W.P.(C) No.17311 of 2020 A.Rama Krishna and others …. Petitioners -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr. S.D. Das, Senior Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. B. Routray, Senior Advocate for intervenor Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 2 of 68 In W.P.(C) No.24191 of 2020 Arjun Murmu …. Petitioner -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. S. Roy, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. B. Routray, Senior Advocate Mr. J.K. Rath, Senior Advocate In W.P.(C) No.24192 of 2020 Sarmila Murmu …. Petitioner -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. S. Roy, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. B. Routray, Senior Advocate In W.P.(C) No.24193 of 2020 Ajit Kumar Murmu …. Petitioner -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. S. Roy, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. B. Routray, Senior Advocate Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 3 of 68 In W.P.(C) No.24194 of 2020 Sanjay Kumar Soren@Sanjay Soren …. Petitioner -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. S. Roy, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. B. Routray, Senior Advocate In W.P.(C) No.26739 of 2020 Lasaban Mallick and others …. Petitioners -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr. S. Roy, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. S.K. Das, Advocate for private Opposite Parties In W.P.(C) No.29089 of 2020 Abhaya Kumar Padhi and others …. Petitioners -versus- State of Odisha and others …. Opposite Parties Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 4 of 68 Advocate(s) appeared in this case:- For Petitioners : Mr. B.B. Mohanty, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. S.K. Das, Advocate for private Opposite Parties In W.P.(C) No.36444 of 2020 Satchidananda Sethi and others …. Petitioners -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr. B.B. Mohanty, Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. In W.P.(C) No.36496 of 2020 Nishikant Tete and others …. Petitioners -versus- State of Odisha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr. G. Mishra, Senior Advocate For Opposite Parties : Mr. G. Tripathy, A.G.A. Mr. S.B. Jena, Advocate for private Opposite Parties Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 5 of 68 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 3rd June, 2025 B.P. Routray, J. 1. All the above 10 (ten) writ petitions are involving the same issue of inter-se seniority in the ministerial cadre of Assistant Section Officer (in short, “ASO”) in Odisha Secretariat Service. These writ petitions can be broadly divided into two categories. First category consisting of 7 (seven) writ petitions, i.e. W.P.(C) Nos.24191, 24192, 24193, 24194, 26739 and 36496 of 2020 involve the dispute of inter-se seniority among two batch of direct recruits, and Second category comprising 3(three) writ petitions, i.e. W.P.(C) Nos.17311, 29089 and 36444 of 2020 involve dispute of inter-se seniority between the promotees and inductee appointees versus direct recruits. 2. To deal with the first category, the facts described succinctly are that, two advertisements to fill up the posts of ASO were issued in the year 2012-13 and the year 2015-16. Advertisement No.08 dated 6.10.2012 was issued by the Odisha Public Service Commission (in short, ‘OPSC’) inviting applications to fill up 811 vacancies for the post of ASO through direct recruitment. Since some dispute arose relating to number of reserved posts leading to filing of judicial proceedings, a corrigendum was issued on 21.8.2014 modifying category-wise vacancies and extending the last date of application with stipulation that the candidates, who had already applied, are not Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 6 of 68 required to reapply. Subsequently on 14.05.2015, Advertisement No.06 of 2015-16 was issued by the OPSC to conduct a recruitment drive for ST category candidates for 140 vacancies in total and all the posts were reserved for Scheduled Tribe candidates only. The recruitment process pursuant to Advertisement No.08, dated 6.10.2012 could not be completed due to some unavoidable reasons including filing of judicial proceedings and in the meantime, the recruitment process in respect of Advertisement No.06, dated 14.5.2014 was completed with recommendation of 139 candidates by the OPSC on 22.12.2015. Amongst said recommendees, 136 candidates were issued with appointment order vide Home Department Order No.3148/OSS dated 27.1.2016. Subsequently on 10.9.2016, the OPSC sent the list of 810 select candidates in respect of the vacancies in Advertisement No.08 of 2012-13. Amongst those recommendees, 787 candidates were issued with appointment order on 5.10.2016 vide Home Department Order No.35258/OSS. 3. It is to be mentioned here that prior to 30.9.2008 “Junior Assistant” was the entry level post in the ministerial service cadre in Odisha State Secretariat in terms of the Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Junior Assistants of Departments of Odisha Secretariat) Rules, 1951 (in short, ‘1951 Rules’). On 30.9.2008, Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 7 of 68 the positions of “Junior Assistant” and “Senior Assistant” in Odisha Secretariat Service was merged into one base level cadre and re-designated as Assistant Section Officer (ASO). On 6.4.2010, the Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010 (in short, “2010 Rules”) came into force repealing the earlier 1951 Rules. Again, the Odisha Secretariat Service (Method of Recruitment and Conditions of Service) Rules, 2016 (in short, “2016 Rules”) came into force on 11.1.2017 superseding 2010 Rules. On 12.4.2018, the tentative Gradation List of ASOs as on 1.1.2018 was published inviting objections and consequent thereto, the final Gradation List of ASOs as on 1.1.2018 was published on 11.6.2020 vide Letter No.20286/OSS of Home Department. Said final Gradation List dated 11.6.2020 is the subject matter of challenge in all the writ petitions with regard to placement of different candidates inter-se. 4. The Petitioners in 7(seven) writ petitions (hereinabove stated as first category) are the candidates appointed on 27.1.2016 (on 18.5.2016 for one more candidate) selected pursuant to Advertisement No.06, dated 14.5.2016. It is their submission that, they being appointed prior to those direct recruits of ASOs selected pursuant to Advertisement No.08 of 2012-13, they should be placed above in the Gradation List in terms of their seniority in service. Their further case is that, their Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 8 of 68 appointment being made under 2010 Rules, their seniority in service must be counted in terms of the provisions of 2010 Rules. Therefore, the placement of those direct recruits selected pursuant to Advertisement No.08 of 2012-13 and appointed on 5.10.2016 (on 9.11.2016, 13.12.2016 and 26.12.2016 in respect of 12 more candidates) above the candidates appointed earlier is completely illegal and against the prevalent provisions of 2010 Rules. Similar is the case of the promotes/inductees in other three writ petitions (hereinabove stated as second category) that, they being appointed much prior to the appointment of those direct recruits selected pursuant to the Advertisement No.08 of 2012-13 and 06 of 2015-16, they should be placed in higher position than those candidates. 5. The facts being complicated in nature are sorted chronologically below for better appreciation. On 30.9.2008 the erstwhile posts of Junior Assistant and Senior Assistant in Odisha Secretariat Service were merged into one base level cadre and re-designated as “ASO”. The Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010 came into force on 07.04.2010 repealing earlier 1951 Rules. Requisitions for regular recruitment to 811 vacant posts of ASO was sent by the Home Department vide Letter Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 9 of 68 No.41522/CC dated 26.9.2011 and Letter No.42011/CC dated 30.9.2011 to OPSC. The OPSC issued Advertisement No.08 of 2012-13 on 6.10.2012 inviting applications for direct recruitment to 811 vacant posts of ASOs. The Odisha Administrative Tribunal (OAT) issued a direction on 18.10.2012 in OA No.1417/2012 (Amar Chhatoi vs. State) not to exceed reserved category vacancies more than 50% in respect of Advertisement No.08 of 2012-13. The Home Department vide Letter No.13883/CC dated 6.4.2013 communicated revised category-wise vacancy of posts in respect of Advertisement No.08 of 2012-13. Further in another Letter No.13884/CC dated 6.4.2013 (on the same date) requested the OPSC to conduct another recruitment drive for Scheduled Tribe category candidates. The OAT in order dated 12.12.2013 while disposing of OA No.1417/2012 (Amar Chhatoi vs. State), quashed Notification dated 7.2.2009 of Odisha Government regarding the Odisha Reservation of Posts and Services Act, 2008 and directed the State and OPSC to modify Advertisement No.08 of 2012-13 to ensure total reservation for ST, SC and SEBC categories not exceeding 50% in total. The Government of Odisha issued Resolution bearing No.17025 on 24.5.2014 mentioning the reservation of Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 10 of 68 posts and services in favour of SEBC to the extent of 11.25%. Pursuant to the request of Government in Home Department, the OPSC issued a corrigendum on 21.8.2014 modifying the category-wise vacancy for the posts of ASO in respect of Advertisement No.08 of 2012-13 while keeping all other conditions unaltered, but extending the last date of application with stipulation that the candidates already applied need not re-apply. The OPSC issued Advertisement No.06 of 2015-16 on 14.5.2015 to conduct recruitment drive for ST category of candidates only against 140 vacancies of ASO posts in total. The OPSC recommended the names of 139 ST candidates on 22.12.2015 selected pursuant to Advertisement No.06 of 2015-16. The Home Department issued appointment order in respect of 136 ST candidates on 27.1.2016 and in respect of another ST candidate subsequently. The OPSC recommended the names of 810 candidates on 10.9.2016 in respect of Advertisement No.08 of 2012-13. The State Government in Home Department issued appointment orders in respect of 787 candidates on 5.10.2015 selected pursuant to Advertisement No.08 of 2012-13 and further, issued three other appointment orders dated 9.11.2016, 13.12.2016 and 26.12.2016 in respect of one candidate, 10 candidates and one candidate Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 11 of 68 respectively selected pursuant to the Advertisement No.08 of 2012-13. The Odisha Secretariat Service (Method of Recruitment and Conditions of Service) Rules, 2016 came into force on 11.1.2017 superseding the Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010 saving in respect of things done or omitted to be done before such supersession. The tentative Gradation List of ASOs as on 1.1.2018 was published on 12.4.2018 inviting objections. The final Gradation List of ASOs as on 1.1.2018 was published on 11.6.2020. 6. In the conspectus of facts narrated above, the dispute relating inter se seniority in the cadre of ASO arose. Let us see first the provisions of 2010 Rules and 2017 Rules governing inter-se seniority among the employees in the cadre of ASO. The relevant provisions of both 2010 Rules and 2016 Rules are re- produced below. 2010 Rules The 6th April 2010 No.15678-CC-G-03/10/CC.—In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Orissa is pleased to make the following rules regulating the method of recruitment and conditions of service of the persons appointed to the cadre of Assistant Section Officer in the Departments of Government, namely : -- Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 12 of 68 PART – I PRELIMINARY 1.Short title and commencement (1) These rules may be called the Orissa Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010. (2) They shall come into force on the date of their publication in the Orissa Gazettee. xxx xxx xxx 3.Constitution of Service The service shall consist of the cadre of Assistant Section Officers in the Departments of Government. xxx xxx xxx PART – II METHOD OF RECRUITMENT 5. Methods of recruitment Subject to other provisions made in these rules recruitment to the cadre shall be made by following methods, namely :-- (a) by means of competitive examination to be held once in a year by the commission. (b) by induction from among Senior Grade Typists, Senior Grade Diarists, Recorders and Senior Data Entry Operators of the Departments of Government by way of Promotion/Selection and (c) by induction from among Group ‘D’ employees working in Departments of Government by way of Limited Departmental Examination. xxx xxx xxx PART-IV PROMOTION 12. Promotion of Group ‘C’ employees Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 13 of 68 10% of vacancies arising in a year subject to a maximum of 10 posts in the cadre of Assistant Section Officer in the Departments of Government shall be filled up by promotion/selection of Senior Grade Typist, Senior Grade Diarist, Recorders and Senior Data Entry Operators of the Departments of Government, provided they have rendered at least 10 years of continuous service inclusive of at least 3 years service in the respective rank and possess Bachelor’s Degree in any discipline with adequate knowledge in Computer Application. xxx xxx xxx PART-V LIMITED DEPARTMENT EXAMINATION 15. Limited Departmental Examination (1) 5% of the vacancies arising in a year subject to a maximum of five posts in the cadre of Assistant Section Officer in the Departments of Government in a particular year shall be filled up from among the Group ‘D’ employees working in different Departments of Government by way of Limited Departmental Examination. (2) No Group ‘D’ employee shall be eligible for consideration for selection unless he has given willingness to that effect in writing and has put in at least 10 (ten) years of continuous service, possessed a Bachelor Degree in any discipline and has adequate knowledge in computer application. (3) A Limited Departmental examination shall be conducted on the subjects specified in the Schedule by the committee constituted under rule 13. (4) The minimum qualifying marks in each subject shall be 33%. (5) The committee shall prepare a common list of successful candidates equal to the number of vacancies in order to merit. xxx xxx xxx 17. Inter-se seniority Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 14 of 68 (1) The inter-se seniority of the officers appointed to the service in a particular year shall be in the order in which their names appear in the select list. (2) Those appointed by promotion/selection under clause(b) of rule-5 shall en-bloc be senior to those appointed by limited departmental examination under clause (c) of rule-5, who shall in turn en-bloc be senior to those appointed by direct recruitment under clause (a) of rule-5. xxx xxx xxx 19. Other conditions of service The conditions of service in regard to matters not covered by these rules shall be the same as are or as may from time to time be prescribed by the Government. xxx xxx xxx 21. Repeal and Savings (1) The Odisha Ministerial Service (Method of Recruitment and Conditions of Service of Junior Assistants in the Offices of Departments of Secretariat) Rules, 1951, regulations, instructions or orders in force immediately before the commencement of these rules in respect of matters relating to the service and covered by these rules are hereby repealed: Provided that any order or appointment made, action taken or things done under the rules, regulations, instructions or orders so repealed shall be deemed to have been made, taken or done under these rules. 2016 Rules The 9th January, 2017 No.1009-HOME-OSS-RULES-0001/2016/HD.—In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in supersession of the Odisha Secretariat Service (Method of Recruitment and Conditions of Service of Assistant Section Officers) Rules, 2010, the Odisha Secretariat Service (Junior) Rules, 1981, the Odisha Secretariat Service (Group-B) Rules, 1986 and he Odisha Secretariat Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 15 of 68 Service Rules, 1980 except as respect of things done or omitted to be done before such supersession, the Governor of Odisha hereby makes the following rules regulating the method of recruitment and conditions of service of the persons appointed to the Odisha Secretariat Service, namely : -- PART – I GENERAL 1. Short title and commencement (1) These rules may be called the Odisha Secretariat Service (Method of Recruitment and Conditions of Service) Rules, 2016. (2) They shall come into force on the date of their publication in the Odisha Gazettee. xxx xxx xxx 3. Constitution of the Service:-The Service shall consist of the following posts, namely:-- (a) Assistant Section Officer, Group-B; (b) Section Officer, Group-B; (c) Desk Officer, Group-B; (d) Under Secretary, Group-A (Junior Branch); (e) Deputy Secretary, Group-A (Senior Branch); (f) Joint Secretary (Suppertime Scale) and (g) Additional Secretary (Superior Administrative Grade). PART – II METHOD OF RECRUITMENT 4. Method of recruitment:-Subject to other provisions made in these rules, recruitment to different grades in the service shall be made by the following methods, namely:- (a) in respect of the post of Assistant Section Officer in Group-B as specified in clause(a) of rule 3 – (i) by means of competitive examination to be held at least once in a year by the Commission in accordance with rule 6: Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 16 of 68 (ii) by selection from among the Senior Grade Typists, Senior Grade Diarists, Recorders and Senior Data Entry Operators of the Departments of Government and (b) in respect of the other posts by way of promotion in accordance with these rules. xxx xxx xxx PART-IV PROMOTION 11. Criteria for Selection-(1) 10% of vacancies arising in a year subject to a maximum of 10 posts of Assistant Section Officer in the Departments of Government shall be filled up by selection of eligible and willing Senior Grade Typist, Senior Grade Diarist, Recorders and Senior Data Entry Operators of the Departments of Government mentioned under clause (a)(ii) of rule 4, provided they have rendered at least 10 years of continuous service inclusive of at least 3 years service in the respective rank, are not above 45 years of age and possess Bachelor’s Degree in any discipline with adequate knowledge in Computer Application as specified in the schedule. (2) The willing candidates shall undergo a test in Computer Application as per the syllabus specified in the Schedule. xxx xxx xxx PART-V OTHER CONDITIONS OF SERVICE 17. Inter-se Seniority:- (1) The inter-se seniority of the Assistant Section Officers of the service in respect of a particular recruitment year shall be in the following manner, namely:- (i) the promote officers shall be ranked inter-se in the order in which their names appear in the select list. (ii) the direct Recruit officers shall be ranked inter-se in the order in which their names appear in the merit list prepared by the Commission. (iii) the officers appointed by selection under sub- clause(ii) of clause (a) of rule-4 shall en-bloc be senior to those Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 17 of 68 appointed by direct recruitment under sub-clause (i) of clause (a) of rule-4. (2) The inter-se seniority of the officers in grades other than the Assistant Section Officer in the service shall be in the order in which their names appear in the approved select list formed under rule 16. 18. Appointment to the Posts in the Service:--(1) Appointment to the posts in the service by direct recruitment shall be made in the order in which the names of the persons appear in the merit list furnished by the Commission. (2) Appointment to the posts in the service by promotion shall be made in accordance with the rules framed and procedure outlined by the Government from time to time. xxx xxx xxx 21. Other Conditions of Service:- The conditions of service in regard to matters not covered by these rules shall be the same as are or as may from time to time be prescribed by the Government.” 7. It is the contention of Petitioners, appointed pursuant to the selection in respect of Advertisement No.06 of 2015-16, that the Rules prevailing, i.e. 2010 Rules, on the date of their appointment has to be counted for determining their seniority in service. They further rely on the principles propounded with regard to inter-se seniority in the case of K. Meghachandra Singh and others vs. Ningam Siro and others, 2020 (5) SCC 689. Similar contentions are also advanced by the promotee- Petitioners to place their seniority above the direct recruits in the Gradation List. Conversely, it is submitted on behalf of the direct recruits selected pursuant to the Advertisement No.08 of 2012- 13 that, the provisions in 2010 Rules as well as 2017 Rules speak in their favour to determine their seniority above the promotes Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 18 of 68 and direct recruits selected pursuant to Advertisement No.06 of 2015-16. 8. Before delving into the factual aspects vis-à-vis the rival contentions of the parties, it is required to see the principles propounded in different judgements of Apex court governing inter-se seniority among the employees in the same cadre. 9. In Mervyn Coutindo and others vs. Collector of Customs, Bombay and others, 1966 SCC OnLine SC 13, it is held by the Supreme Court as follows:- “3. We shall first consider the question of Appraisers. As far back as 1936, an order was passed by the Board which laid down that recruitment to the Customs Appraisers' Service would be from two sources i.e. 50 per cent by promotion, 25 per cent directly from experts and 25 per cent by means of a competitive examination or selection by the Public Service Commission. It was also said in the said order that those percentages would be the maximum and the Collectors of Customs would not be bound to recruit up to the maximum particularly in the case of recruitment by promotion. In actual practice however this order has been acted upon as if it provides 50 per cent for promotees and 50 per cent for direct recruits, whether they are experts or come by competitive examination or selection by the Public Service Commission. In 1940, the Government of India issued a circular for the determination of relative seniority of candidates appointed by direct recruitment and by promotion. In that circular it was stated that “where in a department two permanent or quasi permanent vacancies occur, even simultaneously, and the first vacancy is in accordance with the rotation meant for a direct recruit, the direct recruit will rank in seniority above the promotee even though he joined his post after the promotee had been promoted and confirmed”. Reliance has been placed on behalf of the Union on this circular in the matter of fixation of seniority between direct recruits and promotees in a cadre in which rotational system prevails. The petitioners however rely in reply on a circular issued in June 1949. That circular dealt with the seniority of displaced government servants who had Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 19 of 68 been absorbed temporarily in service under the Central Government. The occasion for that circular was the division of India, and the creation of Pakistan resulting in displacement of a large number of public servants from the area which went to Pakistan. That circular provided for a change in the system due to displaced government servants having in most cases lost all their property and having to migrate in difficult circumstances. It was therefore thought fit to give some weightage in the matter of seniority to such persons on compassionate grounds. It was therefore decided that the seniority of persons appointed on permanent or quasi permanent basis before January 1, 1944 should not be disturbed, but thereafter displaced persons should be given consideration and their seniority counted on the basis of length of service in the particular grade as well as service in an equivalent grade. “Service in an equivalent grade” was defined as service on a rate of pay higher than the minimum of the time scale of the grade concerned. The principle of this circular was also applied to ex-government servants of Burma appointed under the Central Government and employees of the former Part B States taken over by the Centre as a result of federal financial integration. Naturally as this change could not be applied only to displaced persons etc. it was applied to the existing government servants of the Government of India also from January 1, 1944. But there is nothing in the circular to show that the seniority of the existing government servants inter se was to be disturbed on the basis of this circular. The real purpose of this circular appears to be to fix seniority for displaced persons etc. in accordance with it and for that purpose it applied the same principle to the existing central government servants from January 1, 1944. 4. It appears that by 1959, the circular of 1949 for absorption of displaced government servants etc., had worked itself out, therefore, on December 12, 1959, the Government of India issued another circular containing general principles for determining seniority of various categories of persons employed in central services. By this circular, the circular of 1949 and certain other circulars issued to deal with special types of recruitment like war service candidates were cancelled, and thereafter seniority was to be determined by the circular of 1959, which states that instructions contained in the said circulars had achieved their object and there was no longer any reason to apply those instructions in preference to the normal principles for determining seniority in future. For the future certain general principles were laid down for fixing the seniority in the circular of 1959. These principles were not to apply retrospectively but were given effect to from the date of Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 20 of 68 their issue, subject to certain reservations with which we are not concerned. xxx xxx xxx 7. This brings us back to the circular of 1959, and the main question in that connection is the meaning to be assigned to the words “seniority determined accordingly”, in the explanation to principle 6 relating to relative seniority of direct recruits and promotees. As we read these words, their plain meaning is that seniority as between direct recruits and promotees should be determined in accordance with the roster, which has also been specified, namely, one promotee followed by one direct recruit and so on. Where therefore recruitment to a cadre is from two sources, namely, direct recruits and promotees and rotational system is in force, seniority has to be fixed as provided in the explanation by alternately fixing a promotee and a direct recruit in the seniority list. We do not see any violation of the principle of equality of opportunity enshrined in Article 16(1) by following the rotational system of fixing seniority in a cadre half of which consists of direct recruits and the other half of promotees, and the rotational system by itself working in this way cannot be said to deny equality of opportunity in government service. The anomalies which have been referred to in the petition arise not on account of there being anything opposed to equality of opportunity in government service by the use of the rotational system; they arise out of the fortuitous circumstance that in this particular service of Appraisers, for one reason or another, direct recruitment has fallen short of the quota fixed for it. It is merely because of this fortuitous circumstance that anomalies to which reference has been made in the petition have arisen. There is no doubt that if direct recruitment had kept pace with the quota fixed therefor there would have been no anomalies in fixing the seniority list. The question therefore narrows down to this : Can it be said that there is denial of equality of opportunity which arises out of this fortuitous circumstance and which is not a vice inherent in the rotational system? We are not prepared to say that the rotational system of fixing seniority itself offends equality of opportunity in government service. Any anomalies which may have resulted on account of insufficient recruitment of direct recruits in the past cannot in our opinion be a ground for striking down the rotational system, which, as we have said, does not itself amount to denial of equality of opportunity in the matter of employment in government service. It is regrettable that some anomalies have appeared because of Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 21 of 68 insufficient recruitment of direct recruits in the past in this particular service. But that in our opinion can be no reason for striking down the seniority list prepared in 1963 which is undoubtedly in strict accordance with the rotational system based on the fixed quotas for recruitment of direct recruits and promotees. The order of the Board of 1963 on the basis of which the impugned seniority list of Appraisers has been prepared clearly lays down that “the principle of determination of seniority of the direct recruits and the promotees inter se in the prescribed ratio of 1 : 1 should be worked out”. This order is in accordance with the circular of 1959 and as we have said already, there is no inherent vice in the principle of fixing seniority by rotation in a case where a service is composed in fixed proportion of direct recruits and promotees. Nor do we think that this system is on a par with the carry-forward Rule which was struck down by this Court in T. Devadasan v. Union of India1 and on which strong reliance is placed on behalf of the petitioners. In the case of the carry forward Rule certain quota is fixed annually for a certain class of persons and it is carried forward from year to year. This is very different from a case where a service is divided into two parts and there are two sources of recruitment, one of promotion and the other by direct recruitment. In such a case, the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the matter of annual intake. The basis on which the carry-forward Rule was struck down by this Court does not therefore apply to a case where the whole cadre of a service is divided in certain fixed proportions between promotees and direct recruits. The petitioners therefore can get no assistance from Devdasan’s case. The petition must therefore fail so far as seniority of Appraisers is concerned. 8. This brings us to the question of Principal Appraisers. We are of opinion that the petitioners have a legitimate grievance in this respect. The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is therefore no question of any quota being reserved from two sources in their cases. The rotational system cannot therefore apply when there is only one source of recruitment and not two sources of recruitment. In a case therefore where there is only one source of recruitment, the normal Rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a case it is continuous appointment in the higher grade which determines Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 22 of 68 seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade. Insofar therefore as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers' grade when they are promoted to the Principal Appraisers' grade, it is clearly denying equality of opportunity to Appraisers which is the only source of recruitment to the Principal Appraisers' grade. There is only one source from which the Principal Appraisers are drawn, namely, Appraisers, the promotion being by selection and five years' experience as Appraiser is the minimum qualification. Subject to the above all Appraisers selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers' grade subject of course to the right of the Government to revert any of them who have not been found fit during the period of probation. But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they are promotees or direct recruits. The present method by which the respondent puts a direct recruit from the grade of Appraiser, though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely, from the grade of Appraisers. In such a case the seniority in the grade of Principal Appraisers must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers' grade is a direct recruit or a promotee. This will as we have already said be subject to the Government's right to revert any one promoted as a Principal Appraiser if he is not found fit for the post during the period of probation. The petition therefore will have to be allowed with respect to the method by which seniority is fixed in the grade of Principal Appraisers. That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to the grade of Principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one.” Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 23 of 68 10. In Direct Recruit Class II Engineering Officers’ Association vs. State of Maharashtra and others, (1990) 2 SCC 715, it is held as follows:- “47. To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.” 11. In Jagadish Ch. Patnaik and others vs. State of Orissa and others, (1998) 4 SCC 456, it is held as follows:- “2.This appeal is directed against the order dated 25-10-1994 of the Orissa Administrative Tribunal in Miscellaneous Petition No. 3229 of 1992, arising out of Original Application No. 73 of 1989. The appellants are graduates in civil engineering and had been recruited as Assistant Engineers in the Irrigation Wing in the Irrigation and Power Department in the State of Orissa after being duly selected by Orissa Public Service Commission in accordance with Orissa Service of Engineers Rule, 1941 (hereinafter referred to as “the Rules”). The respondents are promotees to the post of Assistant Engineers from amongst the Junior Engineers and Sub- Assistant Engineers. OA No. 78 of 1979 had been filed by the direct recruited Assistant Engineers claiming inter alia that the appointments of such direct recruits having been made against vacancies of the year 1978 they should be treated as appointees of the year 1978 and consequently their seniority should be determined on that basis under the promotee Assistant Engineers of that year notwithstanding the fact that they were factually appointed as Assistant Engineers in the year 1980. The Tribunal allowed the said application by order dated 29-6- 1992. It may be stated that the promotee Assistant Engineers of the years 1979 and 1980 had not been arrayed as party to the said proceedings. As the order of the Tribunal dated 29-6-1992 adversely affected the seniority of the promotee Assistant Engineers who had been promoted in the years 1979 and 1980 they filed a miscellaneous petition which was registered as Miscellaneous Petition No. 3229 of 1992 for reviewing the Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 24 of 68 order dated 29-6-1992. They also filed a direct petition before the Tribunal which was registered as OA No. 2325 of 1992. The Tribunal disposed of both the original application as well as the miscellaneous petition by the impugned judgment and came to hold that the original application would not be maintainable since the question of inter se seniority has been decided in OA No. 73 of 1989 by order dated 29-6-1992. It, however, came to the conclusion that the review of the said order is maintainable particularly when the affected persons had not been arrayed as parties to the earlier decision. Thereafter by interpreting the rule of seniority, particularly Rule 26 of the Rules, it came to hold that the direct recruits cannot be held to be recruits of the year 1978 and on the other hand, must be held to be recruits of the year 1980 when the State Government by notification appointed those direct recruits as Assistant Engineers in March 1980. It further came to hold that such direct recruits, therefore, cannot be held to be senior to the promotees of the year 1979 and will be juniors to promotees of the year 1980. The aforesaid order of the Tribunal reviewing the earlier order dated 29-6-1992 is the subject-matter of challenge in this appeal. The promotees whose Original Application No. 2325 of 1992 was dismissed as not maintainable also filed a special leave petition by way of abundant caution and that special leave petition was also taken on board and was heard along with the present appeal. 3. The brief facts culminating in the impugned order of the Tribunal may be stated as hereunder: That in the year 1978 forty vacancies were available in the post of Assistant Engineer in the Irrigation Wing of the Irrigation Department of the State of Orissa out of which 10 posts were to be filled up by direct recruitment in accordance with Rule 7 of the Rules. Orissa Public Service Commission issued an advertisement inviting applications from the candidates eligible for appointments to the service in the year 1979 and after completing the process of selection prepared a list of selected candidates in accordance with Rule 13 of the Rules and submitted the same to the State Government sometime in November 1979. The State Government finally made the final selection in accordance with Rule 15 and required the selected candidates to undergo medical examination and issued letters of appointment in March 1980. Thereafter the appointees joined as Assistant Engineers. The respondents who are Junior Engineers had been promoted as Assistant Engineers in accordance with Rules on different dates in 1979 and 1980, namely, 27-8-1979, 27-11-1979, 4-2- Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 25 of 68 1980, 4-11-1980 and 27-12-1980. Jagdish Patnaik, Appellant 1, who was a direct recruit to the post of Assistant Engineer filed Original Application No. 78 of 1989 in the State Administrative Tribunal seeking the relief that he should be given the seniority in the rank of Assistant Engineer below the promoted Assistant Engineers in the year 1978 since he has been recruited to the said post against a vacancy which has arisen for the year 1978 and for the delay caused by the department he should not be made to suffer. The Tribunal was persuaded to accept the said contention raised on behalf of Shri Patnaik and it came to hold that since he has been selected against a vacancy of the year 1978 his seniority in the cadre of Assistant Engineer should be determined treating him to be a recruit of the year 1978 notwithstanding the fact that he was appointed as an Assistant Engineer by notification dated 29-3- 1980. The Tribunal, therefore directed the State Government to fix the seniority of the said Shri Patnaik below the promoted Assistant Engineers of the year 1978. It may be stated at this stage that under Rule 26 of the Rules which deals with the inter se seniority of the Assistant Engineers as between direct recruits and promotees, the promoted officers recruited during the year would be considered senior to the officers directly recruited during the year. Since the implementation of the aforesaid direction of the Tribunal adversely affected the seniority of the promotee Assistant Engineers who had been promoted during the year 1979-80 they approached the Tribunal both by filing an application for review and by filing an original application, as already stated, and the Tribunal disposed of the same by the impugned order. xxx xxx xxx 6. Mr Raju Ramachandran, learned counsel appearing for some of the interveners who are direct recruits, supported the submissions made by Mr Banerjee, learned Senior Counsel and contended that there is a distinction between the expressions “recruitment” and “appointment” in service jurisprudence. The expression “recruitment” signifies a stage prior to the issuance of an actual appointment order, therefore, when the seniority rule contained in Rule 26 uses the expression “direct recruitment” there is no justification to construe that it is the actual year of appointment that would govern the seniority and in this view of the matter the impugned order of the Tribunal is erroneous in law. According to Mr Ramachandran, learned Senior Counsel the expression “direct recruitment” in Rule 26 of the Rules refers to the commencement of the process of recruitment which is fixed and ascertainable and not the date of Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 26 of 68 actual appointment which for several reasons can be indefinitely delayed in a given case and there is no justification for construing Rule 26 in that manner. xxx xxx xxx 8. Mr P.N. Mishra, learned counsel appearing for the State of Orissa, supported the submissions made by Mr Sanghi and contended that the actual year during which the appointment is made to the cadre of Assistant Engineer, be it on promotion or be it on the basis of direct recruitment is the governing factor for determination of inter se seniority as is apparent from the language used in Rule 26 of the Rules. Mr Mishra, learned counsel further contended that under the scheme of the Rule, it is the State Government who has the final power of selection both for an appointment under direct recruitment as well as appointment under promotion and until that power is exercised no person can claim to have been recruited to the service and that being the position the year in which the vacancies arose and against which the recruitment made is irrelevant for the purpose of determining the seniority. Mr Mishra, learned counsel further submitted that Rule 5 which deals with recruitment to service is also indicative of the fact that a person can be said to be recruited only on being appointed to the rank of Assistant Engineer and therefore it is not possible to construe that for the purpose of determining the seniority any date anterior to the said appointment can at all be a germane consideration. Mr Mishra, learned counsel also submitted that the word “year” having been defined to mean a calendar year under Rule 3(f) of the Rules and Rule 26 being categorical to the effect that among the officers recruited by promotion and by direct recruitment during the same calendar year the promoted officers would be considered senior to the direct recruited officers, it is only logical to hold that when they are appointed to the post of Assistant Engineer which would be taken into account for the purpose of seniority and not otherwise. xxx xxx xxx 24. Rule 26 with which we are really concerned in the present case is the rule of seniority. It would be appropriate to extract the said Rule 26 in extenso: “26. Seniority.—(1) When officers are recruited by promotion and by direct recruitment during the same year, the promoted officers shall be considered senior Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 27 of 68 to the officers directly recruited irrespective of their dates of joining the appointment. (2) Between the two groups of promoted officers, those promoted from the rank of Sub-Assistant Engineers shall en bloc be senior to those promoted from the rank of Junior Engineers. (3) Subject to provision of sub-rules (1) and (2) seniority of officers shall be determined in accordance with the order in which their names appear in the lists prepared by the Commission.” The very scheme of recruitment under the Rules, as indicated above, unequivocally indicates that in the case of direct recruits the final authority lies with the State Government who issues appointment orders from amongst the persons found eligible by the Public Service Commission and further who have been found medically fit by the Medical Board. Even such an appointee is also required to undergo probation for two years and thereafter he can be confirmed in the service. Under Rule 26, which is the Rule for determining inter se seniority between promotees and direct recruits when the expression used is “officers are recruited by promotion and by direct recruitment” necessarily it means that when they are appointed as Assistant Engineers by the State Government. To import something else into the Rule will neither be in the interest of justice nor is it necessary in any manner and it would tantamount to legislation by the Court. It is a well-known principle of construction of a statute that when the language used in the statute is unambiguous and on a plain grammatical meaning being given to the words in the statute, the end result is neither arbitrary, irrational or contrary to the object of the statute, then it is the duty of the court to give effect to the words used in the statute as the words declare the intention of the law-making authority best. In that view of the matter we do not see any justification to go into the question of quota meant for direct recruits and promotees nor is it necessary to find out as to the year in which the vacancy arose against which the recruitment is made. On an analysis of the scheme of the Rules, as narrated earlier, we are of the considered opinion that the expression “recruited” would mean appointed and the expression “during the same year” in Rule 26 would mean during the calendar year and, therefore, direct recruits recruited during the calendar year would be junior to the promotee recruits recruited during the said calendar year. Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 28 of 68 x xx xxx xxx 32. The next question for 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? 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 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 decision, it would be 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 procedure prescribed but that would not give a handle to the Court to include something which is not there in the rules of seniority 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 determination 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 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.” 12. In M. Subba Reddy and others vs. A.P. State Road Transport Corporation and others, (2004) 6 SCC 729, it is held as follows:- “38. As regards Point 3, the Division Bench in Suraj Parkash [(2000) 7 SCC 561 : 2000 SCC (L&S) 977] took into consideration a large number of earlier decisions of this Court and held that services of ad hoc/stopgap service of promotees Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 29 of 68 can be regularised. The Court noticing the decisions relating to the employees governed by the Service Regulations framed by the State of Andhra Pradesh (which are in pari materia with the rules in question) in no uncertain terms held that services of an employee can be regularised with retrospective effect. This Court while arriving at the said conclusion also relied upon a large number of decisions arising from other States which also support the legal principle that the regularisation of the promotees with retrospective effect is permissible in law. It was categorically held: (SCC p. 598, para 79) “Service of the promotees which is regularised with retrospective effect from the date of vacancies within the quota counts for seniority.” 13. In Pawan Pratap Singh and others vs. Reevan Singh and others, (2011) 3 SCC 267, it is held as follows:- “1. In this group of three appeals, by special leave, the question presented for consideration before this Court relates to determination of seniority between two groups of direct recruits to the posts of Deputy Jailor (Group C post), one appointed in 1991 through the selection made by the Uttar Pradesh Subordinate Services Selection Commission (for short “the Selection Commission”) and the other in 1994 by the Uttar Pradesh Public Service Commission (for short “U.P. PSC”). xxx xxx xxx 5. On 26-12-1987, U.P. PSC published an advertisement (No. A-5/E-4/87-88) for holding the Combined Lower Subordinate Services Examination, 1987. It was mentioned in the advertisement that the number of vacancies to be filled on the result of the examination is expected to be approximately 600 which included the vacancies in the cadre of Deputy Jailor. There is dispute of fact about actual number of vacancies in the cadre of Deputy Jailor notified by U.P. PSC in the above advertisement but the stand of the first respondent that 114 vacancies of Deputy Jailors were notified may be assumed as a fact for the purpose of these appeals. xxx xxx xxx 14. On 29-8-1995, a tentative seniority list of Deputy Jailors was notified by the Inspector General (Prisons), the appointing Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 30 of 68 authority, and objections were called for from the officers concerned. In that list, the candidates appointed in 1991 were shown senior to the candidates appointed in 1994. The litigation between the two groups started with this list. The tentative seniority list dated 29-8-1995 came to be challenged before the Allahabad High Court in three writ petitions; one by Bholanath Mishra (Writ Petition No. 26560 of 1996), the other by Samar Bahadur Singh (Writ Petition No. 13138 of 2000) and the third by the first respondent herein Reevan Singh (Writ Petition No. 22919 of 2001). The writ petition filed by Samar Bahadur Singh was dismissed by the High Court on the ground of availability of alternative remedy before the State Service Tribunal. The writ petition filed by the first respondent herein was allowed on 2-12-2002 and the High Court directed the State of Uttar Pradesh and the Director General (Prisons), Lucknow to treat the appointees of 1994 senior to the 1991 appointees. 15. The contention raised by the writ petitioner (the first respondent herein) before the High Court was that in view of the second proviso to Rule 5 of the 1991 Rules, the Deputy Jailors who were selected in the selection which commenced in 1987 must be treated senior to those selected pursuant to the selection that commenced in 1990. The Division Bench agreed with this contention and held as follows: “… In our opinion the correct interpretation of the proviso to Rule 5 of the U.P. Government Servants Seniority Rules, 1991 is that persons like the petitioner who were selected in the selection process which commenced in 1987 should be treated as senior to there (sic) selected in selection process which commenced in 1990.” xxx xxx xxx 33. Rule 4(h) defines “substantive appointment” as an appointment, not being an ad hoc appointment, on a post in the cadre of service, made after selection in accordance with the service rules relating to that service. It, thus, becomes abundantly clear that for determination of inter se seniority between the two rival groups (the 1991 and the 1994 appointees by direct recruitment) what is relevant is the date of the order of their substantive appointment and since the substantive appointment of the 1991 appointees is much prior in point of time, they must rank senior to the 1994 appointees. Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 31 of 68 xxx xxx xxx 37. In Ram Janam Singh v. State of U.P. [(1994) 2 SCC 622 : 1994 SCC (L&S) 716 : (1994) 27 ATC 166] this Court reiterated that the date of entry into a service is the safest rule to follow while determining the inter se seniority between one officer or the other or between one group of officers and the other recruited from different sources. It was observed that this is consistent with the requirement of Articles 14 and 16 of the Constitution. It was, however, observed that if the circumstances so require, a group of persons can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority, but, normally such classification should be by statutory rule or rules framed under Article 309. 38. A two-Judge Bench of this Court in Jagdish Ch. Patnaik [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] while construing the word “recruited” occurring in the Orissa Service of Engineers Rules, 1941, held that a direct recruit is recruited when formal appointment order is issued and not when recruitment process is initiated. This is what this Court said: (SCC p. 469, para 34) “34. The only other contention which requires consideration is the one raised by Mr Raju Ramachandran, learned Senior Counsel appearing for the intervenors, to the effect that the expressions ‘recruitment’ and ‘appointment’ have two different concepts in the service jurisprudence and, therefore, when Rule 26 uses the expression ‘recruited’ it must be a stage earlier to the issuance of appointment letter and logically should mean when the selection process started and that appears to be the intendment of the rule-makers in Rule 26. We are, however, not persuaded to accept this contention since under the scheme of rules a person can be said to be recruited into service only on being appointed to the rank of Assistant Engineer, as would appear from Rule 5 and Rule 6. Then again in case of direct recruits though the process of recruitment starts when the Public Service Commission invites applications under Rule 10 but until and unless the Government makes the final selection under Rule 15 and issues appropriate orders after the selected candidates are examined by the Medical Board, it cannot be said that a Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 32 of 68 person has been recruited to the service. That being the position it is difficult for us to hold that in the seniority rule the expression ‘recruited’ should be interpreted to mean when the selection process really started. That apart the said expression ‘recruited’ applies not only to the direct recruits but also to the promotees. In case of direct recruits the process of recruitment starts with the invitation of application by the Commission and in case of promotees it starts with the nomination made by the Chief Engineer under Rule 16. But both in the case of direct recruits as well as in the case of promotees the final selection vests with the State Government under Rules 15 and 18 respectively and until such final selection is made and appropriate orders passed thereon no person can be said to have been recruited to the service. In this view of the matter the only appropriate and logical construction that can be made of Rule 26 is the date of the order under which the persons are appointed to the post of Assistant Engineer, is the crucial date for determination of seniority under the said Rule.” xxx xxx xxx 40. In Ajit Kumar Rath [(1999) 9 SCC 596 : 2000 SCC (L&S) 192] this Court followed Jagdish Ch. Patnaik [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] and did not accept the contention that those who were appointed against the vacancies of the earlier years although, appointed later in point of time, must rank senior to the appointees of the vacancies of the subsequent years though appointed in prior point of time. 41. This Court emphasised in Uttaranchal Forest Rangers' Assn. [(2006) 10 SCC 346 : (2007) 1 SCC (L&S) 116] that no retrospective promotion can be granted nor can any seniority be given on retrospective basis from a date when an employee has not even been borne in the cadre. In this regard, the Court relied upon the earlier decisions of this Court in State of Bihar v. Akhouri Sachindra Nath [1991 Supp (1) SCC 334 : 1991 SCC (L&S) 1070 : (1991) 16 ATC 936] and Jagdish Ch. Patnaik [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] . 42. In Dinesh Kumar Sharma [(2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594] this Court was concerned with the U.P. Agriculture Group B Service Rules, 1995 and the 1991 Rules. Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 33 of 68 With reference to Rule 8 of the 1991 Rules, this Court held that seniority cannot be reckoned from the date of occurrence of the vacancy and should be reckoned only from the date of substantive appointment to the vacant post under the Rules and not retrospectively from the date of occurrence of vacancy. xxx xxx xxx 45. From the above, the legal position with regard to determination of seniority in service can be summarised as follows: (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.” Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 34 of 68 14. In Union of India and others vs. N.R. Parmar and others, (2012) 13 SCC 340, it is held as follows:- “1. The present controversy is a dispute of inter se seniority between Income Tax Inspectors of the Income Tax Department. The direct recruits and promotees are pitted on opposite sides. xxx xxx xxx 22. During the course of hearing, the learned counsel for the rival parties agreed, that the seniority dispute between the promotee and direct recruit Income Tax Inspectors of the Income Tax Department was liable to be determined on the basis of Office Memoranda dated 7-2-1986 and 3-7-1986, read with the clarificatory office memoranda and office notes. It is important to notice, before embarking upon the claim of the rival parties, that none of the parties have assailed the vires of the Office Memoranda dated 7-2-1986 and 3-7-1986 (or for that matter, the clarificatory office memoranda/office notes). It is therefore apparent, that the dispute between the rival parties is nothing but, the true and correct interpretation of the Office Memoranda dated 7-2-1986 and 3-7-1986, read with clarificatory office memoranda and office notes. It is therefore, that the matter in hand is being examined in the light of the aforesaid office memoranda. xxx xxx xxx 24. The aforesaid prescription of the manner of determining inter se seniority between the direct recruits and promotees, determined through the OM dated 22-12-1959, was modified by an Office Memorandum dated 7-2-1986, issued by the Government of India, Department of Personnel and Training (hereinafter referred to as “the OM dated 7-2-1986”). The modification introduced through the OM dated 7-2-1986 was to redress a situation wherein, vacancies of one of the sources were kept (or remained) unfilled during the process of selection, and the unfilled vacancies, had to be filled up through “later” examinations or selections. For the determination of seniority, in the contingency wherein the process of recruitment resulted in filling the vacancies earmarked for the two sources of recruitment, the manner of determining inter se seniority between promotees and direct recruits, expressed in the OM dated 22-12-1959 remained unaltered. But where the vacancies could not be filled up, and Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 35 of 68 unfilled vacancies had to be filled up “later” through a subsequent process of selection, the manner of determining inter se seniority between promotees and direct recruits, was modified. xxx xxx xxx 28.3. The unfilled direct recruitment quota vacancies for a recruitment year, would be carried forward to the corresponding direct recruitment vacancies of the next year (and to subsequent years, where necessary) and vice versa. In this behalf, it is necessary to understand two distinct phrases used in the OM dated 3-7-1986. Firstly, the phrase “in that year” which connotes the recruitment year for which specific vacancies are earmarked. And secondly, the phrase “in the subsequent year”, which connotes carried-forward vacancies, filled in addition to, vacancies earmarked for a subsequent recruitment year. xxx xxx xxx 34.2. The words “initiation of action for recruitment”, and the words “initiation of recruitment process”, were explained to mean, the date of sending the requisition to the recruiting authority. xxx xxx xxx 43. We shall now endeavour to examine the effect of OM dated 3-3-2008 on the subject of inter se seniority between direct recruits and promotees: 43.1. Would the OM dated 3-3-2008 supersede the earlier OMs dated 7-2-1986 and/or 3-7-1986? 43.2. And, would the OMs dated 7-2-1986 and 3-7-1986 negate the OM dated 3-3-2008, to the extent that the same is repugnant to the earlier OMs (dated 7-2-1986 and 3-7-1986)? xxx xxx xxx 50. The seniority rule applied in Jagdish Ch. Patnaik case [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] has been extracted in para 24 of the said judgment. The seniority rule in question, inter alia expressed, that seniority would be determined with reference to the date of recruitment. In Suraj Parkash Gupta case [(2000) 7 SCC 561 : 2000 SCC (L&S) Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 36 of 68 977] , the relevant seniority rule was extracted in para 53 which provided, that seniority would be determined with reference to the date of first appointment. The rule itself expressed that the words “date of first appointment” would mean the date of first substantive appointment against a clear vacancy. In Pawan Pratap Singh case [(2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] the question which arose for consideration, related to determination of inter se seniority between two sets of direct recruits. The first set comprised of vacancies advertised in 1987 which came to be filled up in 1994, and the second set comprised of vacancies of the year 1990 which came to be filled up in the year 1991. The controversy in Pawan Pratap Singh case [(2011) 3 SCC 267: (2011) 1 SCC (L&S) 481] was conspicuously different from the controversy in hand. In view of the fact that the seniority rules, as also the factual matrix in the cases relied upon was substantially at variance with the relevant OMs dated 7-2-1986 and 3-7-1986 (which are the subject of interpretation insofar as the present case is concerned), as also the facts of the cases in hand, it is apparent, that the judgments relied upon by the learned counsel are inapplicable to determine the present controversy. xxx xxx xxx 52. Having interpreted the effect of the OMs dated 7-2-1986 and 3-7-1986 (in paras 25 to 29 hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitment was issued by SSC in the recruitment year in which direct recruit vacancies had arisen. The said factual position, as confirmed by the rival parties, is common in all matters being collectively disposed of. In all these cases the advertised vacancies were filled up in the original/first examination/selection conducted for the same. None of the direct recruit Income Tax Inspectors herein can be stated to be occupying carried-forward vacancies, or vacancies which came to be filled up by a “later” examination/selection process. The facts only reveal that the examination and the selection process of direct recruits could not be completed within the recruitment year itself. For this, the modification/amendment in the manner of determining the inter se seniority between the direct recruits and promotees, carried out through the OM dated 7-2-1986, and the compilation of the instructions pertaining to seniority in the OM dated 3-7-1986, leave no room for any doubt, that the “rotation of quotas” principle would be fully applicable to the direct recruits in the present controversy. The direct Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 37 of 68 recruits herein will therefore have to be interspaced with promotees of the same recruitment year.” 15. In P. Sudhakar Rao and others vs. U. Govinda Rao and others, (2013) 8 SCC 693, it is held as follows:- “3. It appears to us that this question ought not to be answered in the narrow confines in which it is framed, nor should it be answered on the basis of the limited submission noted in the reference order relating to “the validity of the rule by which retrospective seniority benefit was given to the Junior Engineers by GOMs No. 54 Irrigation (Service IV-2) dated 15-2-1983”. (U. Govinda Rao case [(2007) 12 SCC 148 : (2008) 2 SCC (L&S) 467] , SCC p. 150, para 2) The question has larger implications and we propose to answer it keeping the broad canvas in mind. We also propose, in this light, to answer the question on merits of these appeals, namely, whether, on appointment as a Junior Engineer, weightage of service given to a Supervisor can be taken into account for fixing his seniority as a Junior Engineer, thereby effectively refixing the seniority with retrospective effect. xxx xxx xxx 44. As far as the impact of the retrospective operation of the executive instructions or statutory rules on the seniority of employees is concerned (including the Junior Engineers before us), this issue is now settled by a few recent decisions of this Court. There is no doubt that retrospective operation can be given to statutory rules such as the Andhra Pradesh Engineering Service Rules. But, the retroactivity must still meet the test of Article 14 and Article 16 of the Constitution and must not adversely trench upon the entitlement of seniority of others. 45. Without intending to multiply precedents on this subject, reference may be made to a decision rendered by this Court more than two decades ago. In State of Bihar v. Akhouri Sachindra Nath [1991 Supp (1) SCC 334 : 1991 SCC (L&S) 1070 : (1991) 16 ATC 936] it was held that retrospective Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 38 of 68 seniority cannot be given to an employee from a date when he was not even borne in the cadre. So also, seniority cannot be given with retrospective effect so as to adversely affect others. Seniority amongst members of the same grade must be counted from the date of their initial entry into the grade. It was held: (SCC pp. 342-43, para 12) “12. In the instant case, the promotee Respondents 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when Respondents 1 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 Respondents 1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not borne 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 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. This being the position in law Respondents 6 to 23 cannot be made senior to Respondents 1 to 5 by the impugned government orders as they entered into the said service by promotion after Respondents 1 to 5 were directly recruited in the quota of direct recruits. The judgment of the High Court quashing the impugned government orders made in Annexures 8, 9 and 10 is unexceptionable.” xxx xxx xxx 47. However, the mere existence of a vacancy is not enough to enable an employee to claim seniority. The date of actual appointment in accordance with the required procedure becomes important in such a case. This was so held in State of Uttaranchal v. Dinesh Kumar Sharma [(2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594] (followed in Nani Sha v. State of Arunachal Pradesh [(2007) 15 SCC 406 : (2010) 1 SCC (L&S) 719] , SCC p. 414, para 15) wherein it was said: (SCC pp. 691- 92, para 34) Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 39 of 68 “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- 1996 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter 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. This was the view taken by this Court in Jagdish Ch. Patnaik v. State of Orissa [(1998) 4 SCC 456 : 1998 SCC (L&S) 1156] .” 48. More recently, and finally, in Pawan Pratap Singh v. Reevan Singh [(2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] all relevant precedents on the subject were considered, including the Constitution Bench decision in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] and the legal position summarised (by Lodha, J.) as follows: (Reevan Singh case [(2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] , SCC pp. 281-82, para 45) “(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 40 of 68 (iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.” 49. In a separate but concurring opinion, Aftab Alam, J. reiterated the position but referred to some more precedents on the subject. It was then said: (Reevan Singh case [(2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] , SCC p. 286, para 63) “63. To the decisions referred to on this point in the main judgment I may add just one more in Suraj Parkash Gupta v. State of J&K [(2000) 7 SCC 561 : 2000 SCC (L&S) 977] . The decision relates to a dispute of seniority between direct recruits and promotees but in that case the Court considered the question of antedating the date of recruitment on the ground that the vacancy against which the appointment was made had arisen long ago. In SCC para 18 of the decision the Court framed one of the points arising for consideration in the case as follows: (SCC p. 578) ‘18. … (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 not appointed by that date and was appointed long thereafter?’ This Court answered the question in the following terms: (Suraj Parkash Gupta case [(2000) 7 SCC 561 : 2000 SCC (L&S) 977] , SCC p. 599, paras 80-81) ‘Point 4 Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 41 of 68 Direct recruits cannot claim appointment from the date of vacancy in quota before their selection 80. We have next to refer to one other contention raised by the respondent direct recruits. They claimed that the direct recruitment appointment can be antedated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not directly recruited. It was submitted that if the promotees occupied the quota belonging to direct recruits they had to be pushed down, whenever direct recruitment was made. Once they were so pushed down, even if the direct recruit came later, he should be put in the direct recruit slot from the date on which such a slot was available under the direct recruitment quota. 81. This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not borne in the service. This principle is well settled. In N.K. Chauhan v. State of Gujarat [(1977) 1 SCC 308 : 1977 SCC (L&S) 127] , Krishna Iyer, J. stated: (SCC p. 325, para 32) Later direct recruit cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service. Again, in A. Janardhana v. Union of India [(1983) 3 SCC 601 : 1983 SCC (L&S) 467] it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarly it was pointed out in A.N. Pathak v. Ministry of Defence [1987 Supp SCC 763 : 1988 SCC (L&S) 370 : (1988) 6 ATC 626] that slots cannot be kept reserved for direct recruits for retrospective appointments.’” 50. The facts of the appeals before us show that at least some of the Supervisors were given retrospective seniority on the date when they were not even eligible for appointment as Junior Engineers. The precedents referred to above show that this is impermissible. In addition as pointed out by the High Court, there is no indication of the vacancy position, that is, whether the Supervisors could be adjusted in the grade of Junior Engineers from the date on which they were given Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 42 of 68 notional retrospective seniority. There is also no indication whether the quota of vacancies for Supervisors was adhered to as on the date on which they were given notional retrospective seniority. The case law suggests that this is an important factor to be considered. Finally, it is quite clear that the grant of retrospective seniority to the Supervisors has adversely impacted on the promotion chances of the Junior Engineers by bringing them down in seniority. This too is impermissible. 51. From the various decisions referred to and from the facts of the case, it is clear that to pass the scrutiny of Article 14 of the Constitution, the seniority of the Supervisors should be reckoned only from the date on which they satisfied all the real and objective procedural requirements of the Andhra Pradesh Engineering Service Rules and the law laid down by this Court. This has not happened in the present appeals creating a situation of unreasonableness and unfairness.” 16. In Bhupendra Nath Hazarika and others vs. State of Assam and others, (2013) 2 SCC 516, it is held as follows:- “5. The facts, as further uncurtained, are that the determination of seniority came to the notice of the recruits of the regular batch at the time of their confirmation of service in the year 1999. Being dissatisfied with the action of the authorities, they immediately submitted a representation. When the representation was pending consideration, a provisional gradation list showing the inter se seniority as on 31-12-1992 was published on 12-3-1999. In the said provisional gradation list, the recruits of the special batch were shown as senior to the recruits of the regular batch. As warranted, the recruits belonging to the regular batch filed their objections to the fixation of seniority on 24-9-1999, but without publishing the final gradation list, Respondent 3, namely, the Secretary in the Department of Home, promoted 14 officers belonging to the special batch and 16 officers belonging to the regular batch to the Senior Scale of APS (Grade II). In the promotional order, the officers belonging to the regular batch were shown below the officers belonging to the special batch. Because of the aforesaid situation, the direct recruits invoked the jurisdiction of the Tribunal for the apposite determination of seniority claiming to be senior to Respondents 6 to 24. xxx xxx xxx Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 43 of 68 55. The aforesaid authorities clearly lay down the principle that when there is violation of the recruitment rules, the recruitment is unsustainable. Whether any active part is played by a selectee or not has nothing to do with the appointment made in contravention of the rules. In the case at hand, the special batch recruits have encroached into the quota of the direct recruits. The whole selection process is in violation of the rules and, therefore, we are inclined to concur with the opinion expressed by the learned Single Judge that the selection was made dehors the rules. The Division Bench was not justified in stating that the selection could not be said to be dehors the rules. However, we accept the conclusion of the Tribunal as well as the High Court that as there had been long delay in challenging the selection of the special batch recruits and some of them have already retired, it would not be apposite to annul their appointments. xxx xxx xxx 57. The two facets which emerge from the scanning of the aforesaid Rule are that the seniority of a member of the service is to be determined on the basis of the date of appointment to the service and the seniority has to follow a particular order as has been stipulated therein. The other significant aspect is that power has been conferred on the Governor to consider the previous service of an incumbent and fix a deemed date of appointment for the purpose of seniority by adopting a specific method. As far as the first part is concerned, the Tribunal as well as the High Court have not accepted the stipulation that in the present case the seniority should be determined on the basis of the date of appointment as the same has been made in flagrant violation of the rules and we have already concurred with the same. As far as the computation of the previous service is concerned, the learned Single Judge as well as the Division Bench, after adequate ratiocination, have expressed the view that the appointments had been made in contravention of the rules, the question of conferment of the benefit under the second proviso to Rule 18(1) did not arise. In our considered view, the said conclusion is absolutely defensible for the simon-pure reason that when the infrastructure is founded on total illegal edifice, the endeavour to put forth a claim for counting the previous service to build a pyramid is bound to founder. xxx xxx xxx Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 44 of 68 59. As has been observed by the learned Single Judge which has been accepted by the Division Bench, there was no decision to relax the rules in favour of the special batch recruits. That apart, whenever there has to be relaxation about the operation of any of the rules, regard has to be given to the test of causation of undue hardship in any particular case. That apart, the authority is required to record satisfaction while dispensing or relaxing the requirements of any rule to such an extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner. The language of the Rule really casts a number of conditions. It provides guidance. It cannot be exercised in an arbitrary manner so as to dispense with the procedure of selection in entirety in respect of a particular class, for it has to be strictly construed and there has to be apposite foundation for exercise of such power. It is to be borne in mind that if a particular rule empowers the authority to throw all the rules overboard in all possibility, it may not withstand close scrutiny of Article 14 of the Constitution. Be that it may, no decision was taken to relax the rules and, the concept of deemed relaxation is not attracted and, therefore, the relief claimed by the special batch recruits has no legs to stand upon. 60. From the aforesaid analysis, there can be no scintilla of doubt that the selection of the special batch recruits was totally dehors the Rules; that there was a maladroit effort to go for a special drive when there was no need for the same by the State which is supposed to be a model employer; that neither the concept of relaxation nor the conception of benefit of Rule 18 would be attracted for grant on conferring any privilege to the special batch recruits; that their seniority has to be pushed down and, hence, the directions given by the Tribunal and the High Court in that regard are absolutely flawless; and that regard being had to the delayed challenge and long rendering of service in the posts and further promotions having been effected, it would be inapposite to quash their appointments.” 17. In Ganga Vishan Gujrati and others vs. State of Rajasthan and others, (2019) 16 SCC 28, it is held as follows:- “45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 45 of 68 counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339] . The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath [State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 : 1991 SCC (L&S) 1070] and State of Uttaranchal v. Dinesh Kumar Sharma [State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594] . In Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] , this Court revisited the precedents on the subject and observed : (SCC pp. 281-82, para 45) “45. … (i) The effective date of selection has to be understood in the context of the Service Rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the Service Rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 46 of 68 when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.” This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao [P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693 : (2014) 1 SCC (L&S) 690]”. 18. In K. Meghachandra Singh and others vs. Ningam Siro and others, (2020) 5 SCC 689, it is held as follows:- “28. Before proceeding to deal with the contention of the appellants' counsel vis-à-vis the judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] , it is necessary to observe that the law is fairly well settled in a series of cases, that a person is disentitled to claim seniority from a date he was not borne in service. For example, in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] the Court considered the question whether the year in which the vacancy accrues can have any bearing for the purpose of determining the seniority irrespective of the fact when the person is actually recruited. The Court observed that there could be time-lag between the year when the vacancy accrues and the year when the final recruitment is made. Referring to the word “recruited” occurring in the Orissa Service of Engineers Rules, 1941 the Supreme Court held in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] that person cannot be said to have been recruited to the service only on the basis of initiation of process of recruitment but he is borne in the post only when, formal appointment order is issued. xxx xxx xxx 30. We may also benefit by referring to the judgment in State of U.P. v. Ashok Kumar Srivastava [State of U.P. v. Ashok Kumar Srivastava, (2014) 14 SCC 720 : (2015) 3 SCC (L&S) 536] . This judgment is significant since this is rendered after the N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] decision. Here the Court approved the ratio in Pawan Pratap Singh v. Reevan Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 47 of 68 Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] , and concurred with the view that seniority should not be reckoned retrospectively unless it is so expressly provided by the relevant Service Rules. The Supreme Court held that seniority cannot be given to an employee who is yet to be borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. The law so declared in Ashok Kumar Srivastava [State of U.P. v. Ashok Kumar Srivastava, (2014) 14 SCC 720 : (2015) 3 SCC (L&S) 536] being the one appealing to us, is profitably extracted as follows : (SCC p. 730, para 24) “24. The learned Senior Counsel for the appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are produced below : (SCC pp. 281-82, para 45) ‘45. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. xxx xxx xxx (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.’ ” Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 48 of 68 Xxx xxx xxx 32. As can be seen from the above, the MPS Rules, 1965 never provided that seniority should be counted from the date of vacancy. For those covered by the MPS Rules, 1965 the seniority for them will be reckoned only from the date of appointment and not from the stage when requisition for appointment was given. xxx xxx xxx 34. The judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] is now to be considered in some detail as this is heavily relied on by the appellants' counsel. At the outset, it must however be cleared that the cited case had nothing to do with the MPS Rules, 1965 and that litigation related to the Income Tax Inspectors who were claiming benefits of various Central Government OMs (dated 22-12-1959, 7-2-1986, 3-7-1986 and 3-3-2008). The judgment was rendered in respect of the Central Government employees having their own Service Rules. The applicable Rules for the litigants in the present case however provide that the seniority in the service shall be determined by the order in which appointments are made to the service. Therefore, the memorandums concerned referred to in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] which deal with general principles for determination of seniority of persons in the Central Government service, should not according to us, have any overriding effect for the police officers serving in the State of Manipur. 35. After the judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] was delivered, the Union of India issued the Office Memorandum on 4-3-2014 defining the recruitment year to be the year of initiating the recruitment process against the vacancy year and that the rotation of quota, would continue to operate for determination of inter se seniority between direct recruits and promotees. This Memo was not made applicable to the State of Manipur till the issuance of the OM dated 21-12-2017, adopting the OM dated 4-3-2014 prospectively with effect from 1-1-2018. Significantly, the said OM specifically provided that “ … appointments/promotions made before the issue of this OM will not be covered by this OM. The seniority already fixed as per existing rules followed earlier in the State prior to the issue of this OM may not be reopened.” It was also Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 49 of 68 specifically stated therein that “this OM will come into effect from 1-1-2018 with the publication in the Gazette.…” 36. From the above, it is not only apparent that the above OM was only to be given prospective effect from 1-1-2018 but it contains an express acknowledgment that this was not the position prior to the issuance of the OM and that a different rule was followed earlier in the State. The conclusion is, therefore, inevitable that at least prior to 1-1-2018, direct recruits cannot claim that their seniority should be reckoned from the date of initiation of recruitment proceedings and not from the date of actual appointment. 37. When we carefully read the judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] , it appears to us that the referred OMs (dated 7-2-1986 and 3-7-1986) were not properly construed in the judgment. Contrary to the eventual finding, the said two OMs had made it clear that seniority of the direct recruits be declared only from the date of appointment and not from the date of initiation of recruitment process. But surprisingly, the judgment while referring to the illustration given in the OM in fact overlooks the effect of the said illustration. According to us, the illustration extracted in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] itself, makes it clear that the vacancies which were intended for direct recruitment in a particular year (1986) which were filled in the next year (1987) could be taken into consideration only in the subsequent year's seniority list but not in the seniority list of 1986. In fact, this was indicated in the two OMs dated 7-2-1986 and 3-7-1986 and that is why the Government issued the subsequent OM on 3-3-2008 by way of clarification of the two earlier OMs. 38. At this stage, we must also emphasise that the Court in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] need not have observed that the selected candidate cannot be blamed for administrative delay and the gap between initiation of process and appointment. Such observation is fallacious inasmuch as none can be identified as being a selected candidate on the date when the process of recruitment had commenced. On that day, a body of persons aspiring to be appointed to the vacancy intended for direct recruits was not in existence. The persons who might respond to an advertisement cannot have any service-related rights, not to talk of right to have their seniority counted from the date of the advertisement. In other words, Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 50 of 68 only on completion of the process, the applicant morphs into a selected candidate and, therefore, unnecessary observation was made in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] to the effect that the selected candidate cannot be blamed for the administrative delay. In the same context, we may usefully refer to the ratio in Shankarsan Dash v. Union of India [Shankarsan Dash v. Union of India, (1991) 3 SCC 47 : 1991 SCC (L&S) 800] , where it was held that even upon empanelment, an appointee does not acquire any right. 39. The judgment in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] relating to the Central Government employees cannot in our opinion, automatically apply to the Manipur State Police Officers, governed by the MPS Rules, 1965. We also feel that N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] had incorrectly distinguished the long-standing seniority determination principles propounded in, inter alia, Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] , Suraj Parkash Gupta v. State of J&K [Suraj Parkash Gupta v. State of J&K, (2000) 7 SCC 561 : 2000 SCC (L&S) 977] and Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] . These three judgments and several others with like enunciation on the law for determination of seniority makes it abundantly clear that under service jurisprudence, seniority cannot be claimed from a date when the incumbent is yet to be borne in the cadre. In our considered opinion, the law on the issue is correctly declared in Jagdish Ch. Patnaik [Jagdish Ch. Patnaik v. State of Orissa, (1998) 4 SCC 456 : 1998 SCC (L&S) 1156] and consequently we disapprove the norms on assessment of inter se seniority, suggested in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] . Accordingly, the decision in N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] is overruled. However, it is made clear that this decision will not affect the inter se seniority already based on N.R. Parmar [Union of India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S) 711] and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant rules from the date of vacancy/the date of advertisement.” Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 51 of 68 19. In State of Bihar and others vs. Arbind Jee, 2021 SCC OnLine SC 821, it is held as follows:- “7. The issue to be answered here is whether the respondent is entitled to claim seniority in service from a retrospective date i.e. 20.11.1985 as was ordered by the High Court or whether he is entitled for seniority from the date he entered service. xxx xxx xxx 10. As earlier noted, the respondent entered service only on 10.2.1996 and yet under the impugned judgment, the High Court directed counting of his seniority from 20.11.1985 when he was not borne in service. The jurisprudence in the field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted. xxx xxx xxx 12. The principles enunciated in Shitla Prasad Shukla (supra) are applicable to the case at hand. The compassionate appointment of the respondent is not being questioned here but importantly he is claiming seniority benefit for 10 years without working for a single day during that period. In other words, precedence is being claimed over other regular employees who have entered service between 1985 to 1996. In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous. Such view was expressed in many cases and most recently in Ganga Vishan Gujrati v. State of Rajasthan, (2019) 16 SCC 28, Justice Dr. D.Y. Chandrachud speaking for the Court opined as under:- “45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 52 of 68 the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, (1990) 2 SCC 715. The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 and State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683.” 20. In Ajay Kumar Shukla vs. Arvind Rai, (2022) 12 SCC 579, it is held as follows:- “19.2. As the challenge was to the decision-making process in making the seniority list contrary to the 1991 Seniority Rules and the 2009 Rules, it was submitted that it was not necessary to implead all the affected Engineers. In fact 18 of such affected Engineers were already impleaded in the writ petition and therefore, for all the affected Junior Engineers, their interests were already represented. xxx xxx xxx 45. The other ground taken by the High Court for non-suiting the appellants were that they had not impleaded all the affected Junior Engineers. For the said proposition, the Division Bench [Rajesh Kumar Singh v. Rajeev Nain Upadhyay, 2019 SCC OnLine All 4782] of the High Court has placed reliance upon the judgment of this Court in Ranjan Kumar v. State of Bihar [Ranjan Kumar v. State of Bihar, (2014) 16 SCC 187 : (2015) 2 SCC (L&S) 532] . The above case was in respect of selection and appointment on the ground that the same had been made only on the basis of interview without holding any written test. The High Court had quashed [Vinay Kumar v. State of Bihar, 2003 SCC OnLine Pat 960] such selection and appointments even of those appointees who were not even parties to the petition. It was in these circumstances that this Court held that the appointments of non-parties could not be quashed. Facts of the said case are clearly distinguishable. 46. The Division Bench of the High Court also relied upon another judgment of this Court in Prabodh Verma v. State of U.P. [Prabodh Verma v. State of U.P., (1984) 4 SCC 251 : 1984 SCC (L&S) 704] This case again related to challenge to appointments and in the said case there was no impleadment even in the representative capacity. In such circumstances, this Court said that the petition was liable to be dismissed for non- Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 53 of 68 joinder of necessary parties. In fact, this judgment helps the appellants. Para 50 thereof is reproduced below : (SCC pp. 288-89) “50. … (1) A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as the respondents or at least some of them being before it as the respondents in a representative capacity if their number is too large to join them as the respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties.” (emphasis supplied) 47. The third case relied upon by the Division Bench for the above proposition, namely, State of Uttaranchal v. Madan Mohan Joshi [State of Uttaranchal v. Madan Mohan Joshi, (2008) 6 SCC 797 : (2008) 2 SCC (L&S) 197] was again a case where none of the affected parties were impleaded not even in the representative capacity. In such circumstances, this Court remanded the matter to the High Court leaving it open to the original petitioners therein to move an appropriate application for impleading some of the affected teachers in their representative capacity. 48. The fourth case relied upon by the Division Bench on the above proposition is Indu Shekhar Singh v. State of U.P. [Indu Shekhar Singh v. State of U.P., (2006) 8 SCC 129 : 2006 SCC (L&S) 1916] In this case also, the affected parties were not impleaded and this Court relied upon the judgment of this Court in Prabodh Verma [Prabodh Verma v. State of U.P., (1984) 4 SCC 251 : 1984 SCC (L&S) 704] . 49. In Tridip Kumar Dingal v. State of W.B. [Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768 : (2009) 2 SCC (L&S) 119] , C.K. Thakker, J., held that the case falls within the ambit of non-joinder of necessary parties as none of the 66 candidates against whom the complaint was made, were made parties. It further held that some of the respondents should have been arrayed in representative capacity. Para 41 is reproduced below : (SCC p. 780) Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 54 of 68 “41. Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the employment exchange and they were selected and appointed in 1998-1999. The candidates who were unable to get themselves selected and who raised a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (selected candidates) as the respondents in the original application, which was not done. In any case, some of them ought to have been arrayed as the respondents in a “representative capacity”. That was also not done. The Tribunal was, therefore, wholly right in holding that in absence of selected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set aside.” (emphasis supplied) xxx xxx xxx 51. The present case is a case of preparation of seniority list and that too in a situation where the appellants (original writ petitioners) did not even know the marks obtained by them or their proficiency in the examination conducted by the Commission. The challenge was on the ground that the Rules on the preparation of seniority list had not been followed. There were 18 private respondents arrayed to the writ petition. The original petitioners could not have known who all would be affected. They had thus broadly impleaded 18 of such Junior Engineers who could be adversely affected. In matters relating to service jurisprudence, time and again it has been held that it is not essential to implead each and every one who could be affected but if a section of such affected employees is impleaded then the interest of all is represented and protected. In view of the above, it is well settled that impleadment of a few of the affected employees would be sufficient compliance of the principle of joinder of parties and they could defend the interest of all affected persons in their representative capacity. Non-joining of all the parties cannot be held to be fatal. 52. The Division Bench has also dealt with an issue which according to us was totally irrelevant and alien to the adjudication of the present appeals. In para 45 of the judgment [Rajesh Kumar Singh v. Rajeev Nain Upadhyay, 2019 SCC OnLine All 4782] of the Division Bench there is a reference to an issue where a party takes calculated chances of participating Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 55 of 68 in selection/appointment process and later turns around after being unsuccessful would be hit by doctrine of estoppel. For the said proposition, the Division Bench made detailed discussions in paras 46, 47, 48 and 49 of the judgment [Rajesh Kumar Singh v. Rajeev Nain Upadhyay, 2019 SCC OnLine All 4782] and relied upon a number of case laws. In our considered view, this issue was not at all relevant. The said issue does not arise in the present case. The appellants/original writ petitioners had never challenged the selection process. The challenge was only to preparation of the seniority list. As such, this discussion by the Division Bench is totally irrelevant.” 21. In Hariharan and others vs. Harsh Vardhan Singh Rao and others, (2022) SCC OnLine SC 1717, it is held as follows:- “3. Few factual details will have to be noted. The dispute is a typical dispute between promotees and direct appointees over inter-se-seniority. Here, the dispute is about the posts of Inspectors in the Income Tax Department in the State of Gujarat. On 7th February 1986 and 3rd July 1986, Office Memoranda (for short, ‘OM’) were issued by the Ministry of Personnel, Public Grievances and Pension. Both the OMs record that the principle of rotation of quota will be followed for determining the inter-se-seniority of promotees and direct recruits. It is mentioned therein that when direct recruits are not available, the promotees would be bunched together at the bottom of the seniority list below the last position up to which it is possible to determine seniority on the basis of rotation of quota with reference to the actual number of direct recruits who become available. It is provided therein that the unfilled direct recruitment quota vacancies would be carried forward and added to the corresponding direct recruitment vacancies of the next year. It is also provided that these additional direct recruits selected against the carried forward vacancies of the previous year, should be placed en bloc below the last promotee or direct recruit, as the case may be, in the seniority list based on the rotation of quota for that year. Prior to these two OMs, there was an OM dated 22nd November 1959, which provided for fixing the seniority of direct recruits and promotees based on the rotation of quota. xxx xxx xxx Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 56 of 68 19. We have carefully considered the submissions. The first issue which arises for consideration is whether the decision of this Court in K. Meghachandra's case2 is per incuriam or in the alternative, whether it requires reconsideration being in conflict with the decision of the Constitution Bench in the case of Mervyn Coutindo3 and the decision of a Bench of three Hon'ble Judges in the case of M. Subba Reddy v. A.P. State Road Transport Corporation6. The next issue will be assuming that the decision of this Court in N.R. Parmar's case1 stands overruled, in view of its prospective overruling, whether the inter-se-seniority of the direct recruits and the promotees in the facts of this case could be determined as per the decision in N.R. Parmar's case1. This is in the context of the fact that the seniority was fixed after the decision in the case of N.R. Parmar1 and before 19th November 2019 i.e. when the decision in K. Meghachandra's case2 was rendered. The third issue to be decided is whether the recruitment year is a financial year or a calendar year. Lastly, a factual issue will have to be decided whether, in the facts of this case, the process of recruitment of direct recruits commenced in the very recruitment year in which the vacancies arose. 20. In the facts of the case, there is no dispute that as far as the posts of Income Tax Inspectors are concerned, the principle of rota and quota or rotation of quota will apply. The posts of Income Tax Inspectors are being filled in by direct recruits and promotees in the proportion already fixed. Therefore, a roster will apply where the points will be for direct recruits and promotees as per the proportion fixed. Before we go into various legal issues, which we have flagged above, it will be appropriate if we discuss the factual issues first. For the decision on the factual issues, it is necessary to decide whether the recruitment/requisition/vacancy year is the same as the financial year. The appellants have tried to contend that a recruitment year will be a calendar year. We must note here that no such case has been made out in the Civil Appeal arising out of Special Leave Petition (C) No. 16161 of 2018. In the synopsis on pages F and G, the appellants themselves have referred to the financial year while referring to the vacancies available in a particular year. The appellants made a representation dated 25th November 2016 in which they described the recruitment years as the financial years i.e 2009- 2010 and 2010-2011. The letter dated 3rd August 2016 addressed by the Directorate of Income Tax, New Delhi to the Principal Chief Commissioner of Income Tax, Ahmedabad treats a recruitment year as a financial year. In fact, it Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 57 of 68 incorporates a clarification issued by ITGOA which in turn, refers to the recruitment year on the footing that it is a financial year. The appellants have annexed as ‘Annexure P-12’ to reply affidavit in I.A. No. 161060 of 2019, a clarification dated 7th November 2014 issued by the CBDT to All Principal Chief Commissioners of Income Tax, which refers to vacancy years as financial years right from 1986-1987 till 2013-2014. Along with the letter dated 3rd August 2010, the Office of the Chief Commissioner of Income Tax forwarded to the CBDT, the details of the confirmed vacancies in the post of Income Tax Inspectors as on 31st March 2011 in the prescribed proforma. In the prescribed proforma, under the column ‘year’ (year of vacancies), financial years 2009-2010 and 2011-2012 have been mentioned. 35 vacancies of Income Tax Inspectors have been shown against the year 2009-2010. In the counter affidavit of private respondents, reliance has been placed on the OM dated 8th May 2017 issued by the DoPT. Paragraph 5 of the said OM specifically records that in partial modification of the OMs issued on 10th April 1989, 16th June 2000 and 20th May 2014, the vacancy year may be shifted to a calendar year from the year 2018, wherever the vacancy year based on financial year was being followed. The documents on record clearly show that as far as the posts of Income Tax Inspectors are concerned, the vacancy or recruitment year was always reckoned as the financial year. xx … …xx .. .. .. 28. With the greatest respect to the Hon’ble Bench which dealt with K.Meghachandra’s case2, we find that the attention of the Bench was not invited to the binding decision of the Coordinate Bench in the case of M. Subba Reddy6. This decision was rendered by a Bench of three Hon’ble Judges. This Court in the case of M. Subba Reddy6 dealt with the issue of the fitment of the promotees to the posts of Assistant Traffic Manager and Assistant Mechanical Engineer in the integrated seniority list. The majority judgment refers to the relevant Service Regulations which provide that seniority is reckonable from the date of appointment to service or grade. Paragraphs 6 and 7 of the said decision read thus: xxx xxx xxx 30. The argument made before us is that the decision in the case of K. Meghachandra will have to be ignored on the ground that it is per incuriam as the attention of the Bench which decided the case was not invited to the binding decisions of the Constitution Bench in the case of Mervyn Coutindo and a Coordinate Bench in the case of M. Subba Reddy. Prima facie, we find substance in the argument that the attention of Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 58 of 68 the Bench which decided the case of K. Meghachandra was not invited to the aforesaid binding precedents. Therefore, we are of the view that the appropriate course of action will be to refer the question to a larger Bench. We are dealing with a case where the ‘rotation of quota’ or rota and quota system is being followed. If the promotees are recruited in the relevant recruitment year, but the process of recruitment of the direct recruits which commenced in the same recruitment year could not be completed in the same year, the direct recruits appointed subsequently will have to be interspaced between the promotees of the same recruitment year. In such a case, it cannot be said that direct recruits were not available during the recruitment year. Their appointment could not be made during the same year, though the process of appointment commenced in the same year. But, if the process of recruitment of the direct recruits is completed in the same recruitment year but an adequate number of candidates could not be selected, the shortfall should be carried forward to the next recruitment year. In such cases, the candidates who are selected against shortfall vacancies will have to be bunched below the promotees of the earlier years. Unless such a procedure is followed, the rotation of quota system will be defeated. 31. Coming to the facts of the case, though process of recruitment of direct recruits to the post of Income Tax Inspectors commenced in the recruitment year 2009-10, the same could not be completed in the same recruitment year. This is not a case where an adequate number of direct recruits could not be recruited even though the recruitment was done in the recruitment year itself. In this case, those who were eligible for direct recruitment were deprived of the opportunity as the process of recruitment could not be completed during the same recruitment year 2009-10 due to no fault on their part. The documents annexed to the counter affidavit show that the segregation of vacancies for 2009-10 and 2010-11 has been properly made. 32. In any event, the decision in the case of K. Meghachandra has a prospective operation. The seniority list of 7th September 2016 was made in terms of the decision in the case of N. R. Parmar1. Hence, the same could not have been altered on 13th February 2018 when the said decision was in force. 33. Thus, our conclusion can be summarised as under: i. The decision in the case of K. Meghachandra requires reconsideration by a larger Bench in view of the fact that the Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 59 of 68 binding decision of a Constitution Bench in the case of Mervyn Coutindo and another binding decision of a Coordinate Bench in the case of M. Subba Reddy were not placed for consideration before the Bench which decided the case of K. Meghachandra ; ii. Even assuming that the case of K. Meghachandra was correctly decided, paragraph 39 of the decision shows that the decision in the case of N.R. Parmar has been prospectively overruled by observing that the decision will not affect the inter-se-seniority already fixed on the basis of the case of N.R. Parmar and the same was protected. It is also held that the decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy / the date of advertisement. In this case, as on the date when the case of N.R. Parmar was decided, there was no rule which required that the inter-se-seniority of direct recruits and promotees to the post of Income Tax Inspectors should be fixed from the date on which a person is born in the cadre. In the facts of the case, the seniority list was correctly published on 7th September 2016 in terms of the decision in the case of N.R. Parmar by interspacing those direct recruits who were eligible in the recruitment year 2009-10 and were appointed against the vacancies of the said year with 53 promotees who were promoted vide DPC dated 29th June 2009. The seniority list was later on modified on 13th February 2018 without giving an opportunity of being heard to the affected direct recruits. 34. At this stage, we may note here the factual aspects stated in the affidavit dated 12th October 2022 filed by Shri Anurag Chandra, Deputy Commissioner of Income Tax in the Office of the Principal Chief Commissioner of Income Tax, Gujarat. The affidavit refers to the interim order dated 13th July 2018 in the Civil Appeal arising out of S.L.P. (C) No.16161 of 2018, by which status quo as of that date with respect to the posts held, was ordered to be maintained. The affidavit notes that as a result of the interim order, the promotion to the cadre of Income Tax Officers from the cadre of Income Tax Inspectors could not take place. As a result, 33.33% of posts in the cadre of Income Tax Officers are vacant as the same cannot be filled in. As noted earlier, the decision in the case of K.Meghachandra applies prospectively i.e. from 19th November 2019. Prima facie, the seniority fixed based on the decision in the case of N.R. Parmar has to be given effect. Therefore, while we are recommending a reference to a larger Bench, interim relief will have to be vacated and seniority will have to be fixed on the basis of the impugned judgment, Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 60 of 68 subject to the final outcome of the appeal or the decision of the larger Bench, as the case may be. 35. Hence, we pass the following order: i. We are of the considered view that the following questions need to be decided by a larger Bench of five Hon’ble Judges: a. Whether the decision in the case of K. Meghachandra can be said to be a binding precedent in the light of the law laid down by the Constitution Bench in the case of Mervyn Coutindo3 and the law laid down by a Coordinate Bench in the case of M. Subba Reddy? b. In absence of specific statutory rules to the contrary, when the ‘rotation of quota’ rule is applicable, whether the seniority of direct recruits who were recruited in the recruitment process which commenced in the relevant recruitment year but ended thereafter, can be fixed by following ‘rotation of quota’ by interspacing them with the direct recruits of the same recruitment year who were promoted earlier during the same year? ii. We direct the Registry to place this petition before Hon’ble the Chief Justice of India for appropriate orders. iii. The interim relief granted on 13th July 2018 stands vacated. Effect shall be given to the impugned judgment subject to the final outcome of this appeal or reference, as the case may be. We also clarify that the seniority of promotees and direct recruits who may be appointed hereafter will be subject to the final outcome of the decision of this appeal or the decision in reference, as the case may be. Accordingly, concerned persons shall be informed in writing by the Income Tax Department.” 22. In Amit Singh vs. Ravindra Nath Pandey and others, (2022) 20 SCC 559, it is held as follows:- “19. It will also be relevant to note that, in the 1991 Rules, the term recruitment/selection year is not defined. xxx xxx xxx 27. This Court in Pawan Pratap Singh case [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] held that the effective date of selection has to be understood in the context of the service rules under which the Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 61 of 68 appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. This Court further held that the inter se seniority in a particular service has to be determined as per the service rules. It held that the date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. It further held that any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution of India. It further held that the seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It held that the seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. 28. A Bench of three learned Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao [P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693 : (2014) 1 SCC (L&S) 690] has approved the law as laid down by this Court in Pawan Pratap Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481]” 23. In Bihar State Electricity Board and others vs. Dharamdeo Das, AIR 2024 SC 4609, it is held as follows:- “23. The view that seniority can neither be reckoned from the date when a vacancy arises, nor can it be granted retrospectively unless the service rules specifically provide for such a situation, is fortified by the decision of this Court in K.K. Vadera (supra) which has emphasised in no uncertain terms the settled position in law that promotion to a post should only be granted from the date of the promotion and not from the date on which a vacancy may have arisen. In Ganga Vishan Gujarati vs State of Rajasthan, this Court had reiterated the principle that retrospective seniority cannot be granted to an employee from the date when she was not even borne on the cadre. This principle has been built upon by a line of precedents starting with the decision of the Constitution Bench Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 62 of 68 of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, followed in Akhouri Sachindra Nath (supra), Dinesh Kumar Sharma (supra) and several other cases.” 24. As seen from the aforesaid rulings, the picture still leaves with some grey spots particularly when the decision in K. Meghachandra Singh and others (supra) has been referred to a larger Bench in Hariharan and others (supra). However it is found settled, without further quarrel, that in the matters of inter- se seniority the provisions of concerned service rules are to be looked into first. What is there in the service rule fixing seniority inter-se the employees in the cadre has to be followed scrupulously. In this regard, looking to the relevant rule for the cases at hand, there are two sets of rules, one 2010 Rules and the other, 2016 Rules superseding 2010 Rules. It is also the submission of the State in Home Department that the impugned Gradation List dated 11.6.2020 has been prepared in terms of the provisions contained in 2016 Rules. It is the specific stand of State-Opposite Parties, common in all the cases, that by conjoint reading of Rule 2(1)(m), Rule 6(2) and Rule 17 of 2016 Rules as well as the principles decided by the apex Court in the case of N.R. Parmar and others (supra), the inter-se seniority have been determined with reference to the recruitment years 2011 and 2015. But the thing does not stand as simple as answered by the State-Opposite Parties. 25. It is the accepted principle that for determining inter-se seniority in the cadre, the relevant provisions of the concerned Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 63 of 68 service rule will hold the field. In the instance case, as stated earlier, 2010 Rules came into force w.e.f. 07.04.2010 and continued to govern the field till 10.01.2017. 2016 Rules was brought in supersession of 2010 Rules w.e.f. 11.01.2017. All the parties were appointed prior to coming into force of 2016 Rules. Here the specific case of all the Petitioners is that, their service seniority is governed under the provisions of 2016 Rules that was in force on the date of their appointments and they further contend that, the cadre Rule came into force after their appointments cannot be made applicable to determine their service seniority retrospectively. So it becomes imperative to answer the applicability of respective rules at the first instance. 26. Seniority in service has to be reckoned from the date of first appointment. An employee gains his seniority by the length of service he renders. Therefore, the Rule prevailing on the date of initial appointment of an employee is relevant to count his seniority in service and not that the Rule that come in force from a prospective date than the initial appointment date because by gaining every date in service an employee stocks each date of seniority in his favour to reckon for. Undoubtedly in the present cases, every party has already gained service seniority by the date of coming into force of 2016 Rules on 11.1.2017. So the action of State-Opposite Parties to count the service seniority of the parties as on 1.1.2018 in terms of the provisions of 2016 Rules that was in force on 1.1.2018, by ignoring the provisions of 2010 Rules which was prevalent on the date of initial Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 64 of 68 appointment of each party, is completely on faulty side. So in my humble opinion, the relevant rules applicable to determine service seniority of each ASO appointed prior to 11.1.2017 and after 7.4.2010 has to be reckoned in terms of the provisions contained in 2010 Rules. 27. Next is to see the relevant provisions under 2010 Rules relating to inter-se seniority of ASOs. Rule 17 of 2010 Rules, as quoted above, prescribes that the inter-se seniority of the officers appointed to the service in a particular year shall be in the order in which their names appear in the select list, and those appointed by promotion/selection under clause (b) of rule-5 shall be en-bloc senior to those appointed by limited departmental examination under clause (c) of rule-5, who shall in turn en-bloc be senior to those appointed by direct recruitment under clause (a) of rule-5. Here the relevant words are ‘appointed to service in a particular year’ and “year” means a calendar year (as per the definition in Section 2(1)(j)). The difference in the meaning of word ‘recruitment’ and ‘appointment’ has been explained in Prafulla Kumar Swain vs. Prakash Chandra Misra and others, (1993) Suppl 3 SCC 181, as recruitment is not the actual appointment. It is held as follows:- “28. At this stage, we will proceed to decide as to the meaning and effect of the words “recruitment” and “appointment”. The term “recruitment” connotes and clearly signifies enlistments, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 65 of 68 the word “appointment” means an actual act of posting a person to a particular office. 29. Recruitment is just an initial process. That may lead to eventual appointment in the service. But, that cannot tantamount to an appointment. No doubt, Rule 5 talks of recruitment to Class II service. We consider these are two sources of recruitment. Nowhere in the Recruitment Rules of 1959 it is specified that the services of a direct recruit under the Government shall be reckoned from the date of selection in the competitive examination. On the contrary, Regulation 12(c) is very clear that the period of training is not to be reckoned as Government service. It is admitted before us that after the successful completion of training when the appointment order is issued the direct recruits are put on probation. Similar is in the case of the promotes. Both of them undergo probation. Therefore, in the light of these provisions it is not possible for us to accept the contention advanced on behalf of the direct recruits that their seniority must be reckoned from the date of their recruitment.” Further, in In K. Narayanan and others vs. State of Karnataka and others, 1994 Supp (1) SCC 44, it is stated that :- “6. Article 309 of the Constitution empowers the appropriate Legislature to frame rules to regulate recruitment to public services and the post. ‘Recruitment’ according to the dictionary means ‘enlist’. It is a comprehensive term and includes any method provided for inducting a person in public service. Appointment, selections, promotion, deputation are all well-known methods of recruitment. Even appointment by transfer is not unknown. But any rule framed is subject to other provisions of the Constitution. Therefore it has to be tested on rule of equality. .. …. xx .. xx.” Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 66 of 68 So all the Petitioners in second category of cases, i.e. W.P.(C) Nos.17311, 29089 and 36444 of 2020, who were appointed by promotion/induction in terms of clause (b)(c) of rule-5 shall be treated en-bloc senior to those appointed by direct recruitment. Therefore, the case of those Petitioners in second category is as simple as it is in Rule 17 to treat them senior over the direct recruits for being they (promotees/inductees) were appointed earlier to the direct recruits. As such, the Petitioners in three writ petitions, i.e. W.P.(C) No. 17311, 29089 and 36444 of 2020 are treated senior to the direct recruits appointed subsequently to their appointments and their seniority in the Gradation List are required to be modified accordingly. 28. So far as the dispute of inter-se seniority between the Petitioners in other seven writ petitions inter-se with those other direct recruits are concerned, the provisions of Rule 17 are not as much clear as in respect of promotees/inductees vis-à-vis direct recruits. Here is the case of inter-se seniority between two batches of direct recruits. It is stated by the State in their reply that the appointees selected pursuant to the Advertisement No.6 of 2015-16 are Special Drive recruits and the appointees selected pursuant to the Advertisement No.08 of 2012-13 are General Recruits. It is of course for the reason that, Advertisement No.6 of 2015-16 was meant for recruitment of ST category candidates only, whereas the Advertisement No.08 of 2012-13 was meant for all categories of candidates, i.e. both un-reserved and Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 67 of 68 reserved categories. But it is never stated in the reply of the State that the vacancies notified for the Advertisement No.6 of 2015- 16 are all such vacancies fall after the vacancies notified for the Advertisement No.08 of 2012-13. However, I am not the said aspect of date of vacancies. What is mentioned in Rule 17 of 2010 Rules is that, ‘appointed to the service in a particular year’ where “year” means a calendar year. The provisions of Rule 17 of 2010 Rules is restated here that inter-se seniority of the officers appointed to the service in a particular year shall be in the order in which their names appear in the select list. Of course here are two select lists prevailing for two sets of direct recruits. Here is a case where two select lists are there and the question is which select list is to be treated first in order ? The answer would be, in my humble opinion, the select list first came into existence. In other words, the select list which was acted first has to be reckoned first in order and in the instant case it is the select list dated 22.12.2015 of the OPSC pursuant to which the appointment orders dated 27.1.2016 was issued first. The select list pursuant to the Advertisement No.08 of 2012-13 is dated 10.9.2016 based on which the appointment orders dated 5.10.2016 was issued. 29. It is true that, the principles in K. Meghachandra Singh and others (supra) has not been unsettled in Hariharan and others (supra) despite the matter is referred for adjudication to a larger Bench. Nonetheless, the question is of two sets of employees in the same cadre when appointed in the same calendar year, their Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified W.P.(C) No.37471 of 2020 and batch Page 68 of 68 merit has to be ascertained in order of their appointments made in the same year. So the conclusion is whoever saw the light of day earlier came into existence early than the other who came later and accordingly, the persons appointed earlier are treated as senior to those appointed later. The submissions of private Opposite Parties to stretch the meaning of the word ‘year’ as a ‘recruitment year’ other than the meaning defined in Section 2(1)(j) of the Rules is not found acceptable. So the seniority of the persons appointed to the cadre earlier on 27.1.2016 and 18.5.2016 are treated to be senior to the persons appointed subsequently in the same year. Thus the impugned Gradation List dated 11.6.2020, which is the subject matter of challenge in all the writ petitions, needs to be revised accordingly. 30. In terms of the observations stated above, all the writ petitions are thus allowed and the seniority of all such Petitioners are to be re-fixed in the Gradation List above the private Opposite Parties in the order that the Promotees/Inductees be placed en-bloc senior to the direct recruits of the particular year and among the direct recruits, the Petitioners appointed on 27.1.2016 and 18.5.2016 are to be placed above the persons appointed subsequently. (B.P. Routray) Judge B.K. Barik/Secretary Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: A.R.-Cum-Sr.Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 03-Jun-2025 15:45:15 Signature Not Verified "
Other Referred Cases
K. Meghachandra Singh and others vs. Ningam Siro and others, Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra, Jagadish Ch. Patnaik and others vs. State of Orissa and others, Mervyn Coutindo and others vs. Collector of Customs, Bombay and others, M. Subba Reddy and others vs. A.P. State Road Transport Corporation and others, Pawan Pratap Singh and others vs. Reevan Singh and others, Bhupendra Nath Hazarika and others vs. State of Assam and others, State of Bihar and others vs. Akhouri Sachindra Nath, State of Uttaranchal vs. Dinesh Kumar Sharma, Ajay Kumar Shukla vs. Arvind Rai, Hariharan and others vs. Harsh Vardhan Singh Rao and others
Laws Referred To
Articles 226 and 227 of the Constitution of India
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