Ramesh Ranganathan, CJ
1. Heard Mr. Rakesh Thapliyal, learned Senior counsel assisted by Mr. Mukesh Kaparwan, learned Advocate for the petitioner, Mr. J.C. Pande,
learned Brief Holder for the State of Uttarakhand-respondent nos. 1 to 3, Mr. Alok Mehra, learned counsel for the fourth respondent and Mr. K.P.
Upadhyay, learned Senior counsel assisted by Mr. Sandeep Kothari, learned Advocate for the sixth respondent.
2. This writ petition is filed seeking a writ of certiorari to quash the order passed by the Public Services Tribunal in claim petition No.23/DB/2014
dated 29.09.2015; and for a writ of writ of certiorari to quash the final seniority list dated 28.02.2016.
3. Before examining the rival contentions, urged by learned counsel on either side, it is useful to take note of the relevant facts. The petitioner herein is
a member of the Scheduled Castes. He was appointed by direct recruitment as a Technical Assistant, Geology on 08.01.1991. He was promoted,
under the Accelerated Promotion Scheme, as an Assistant Geologist on 03.07.1997, and was thereafter promoted as a Geologist on 23.03.2004. He
was later promoted as a joint Director on 28.03.2013. Both respondent Nos. 4 & 5 belong to the General Category. While the fifth respondent was
appointed as a Technical Assistant, Geology by direct recruitment on 07.03.1983, the fourth respondent was appointed, as a Technical Assistant
Geology, by direct recruitment on 21.10.1983. Both respondent nos. 4 & 5 were promoted as Assistant Geologists on 15.06.2004, and later as
Geologists on 28.04.2010. While respondent no. 6 belongs to the Scheduled Caste Category, respondent No.7 belongs to the Other Backward Classes.
They were both appointed, by direct recruitment, as Assistant Geologists on 10.02.1999, and were promoted as Geologists on 15.10.2004. The
Seniority list of Assistant Geologists was prepared on 11.03.2014 wherein the petitioner was placed above respondent nos. 4 to 7.
4. Questioning the validity of the said seniority list, both respondent nos. 4 & 5 invoked the jurisdiction of the Public Services Tribunal by filing claim
petition No. 23/DB/2014 wherein the petitioner herein, and respondent nos. 6 & 7, were arrayed as respondent nos.3 to 5 respectively.
5. In the order, impugned in this Writ Petition dated 29.09.2015, the Tribunal observed that Rule 8 and its sub-rules, and Rule 6 and its explanation,
when read together, made the position clear; Rule 8(1) dealt with determination of seniority when appointments are made both by promotion and by
direct recruitment; Rule 8(1) also makes it clear that fixation of seniority was subject to Sub-rules (2) and (3) of Rule 8; Sub-rule 2(a) provides for the
inter-se seniority of persons appointed by direct recruitment; Sub-rule 2(b) provides for inter-se seniority of persons appointed by promotion; Sub-rule
2(b) clearly provides that inter-se seniority of those appointed by promotion is to be determined in accordance with the principles laid down in Rule 6
or Rule 7, as the case may be, and accordingly the promotions are to be made from a single feeding cadre or several feeding cadres; in the present
case, promotions were to be made from a single cadre and, therefore, the seniority was to be determined as per the principles laid down under Rule 6;
and, therefore, it could not be said the Rule 6 of the 2002 Rules was not applicable. The Tribunal opined that Rule 6, the explanation to Rule 6, Rule
8(1), and Rule 8(2)(b) of the 2002 Seniority Rules combined together, led to conclusion that Rule 6 and its Explanation in the 2002 Seniority Rules was
applicable to the case on hand.
6. Thereafter, relying on the judgments of the Supreme Court in Ajit Singh and Ors vs. State of Punjab and Ors. : (1999) 7 SCC, 209 ;Union of
India and others Vs. Virpal Singh Chauhan :1995 (6) SCC, 684 ;Ajit Singh Januja and others vs. State of Punjab and others : AIR 1996
SC 1189; and S. Panneer Salevam & others vs. Government of Tamil Nadu & others (order in Civil Appeal No. 6631-6632 of 2015 dated
27.08.2015); and the judgment of this Court, in Bhajan Singh vs. State of Uttarakhand and others (order in WPSB No. 153 of 2012 dated
09.08.2012), the Tribunal held that the impugned seniority list had not been prepared in accordance with the Uttarakhand Government Servant
Seniority Rules, 2002; it could not, therefore, be upheld, and was liable to be quashed; and respondent nos. 1 & 2 should re-draw a fresh seniority list
in accordance with the observations made in the judgment.
7. After the order of the Tribunal was subjected to challenge, and during the pendency of the present writ petition, the State Government prepared a
fresh seniority list dated 22.08.2016 wherein respondent nos. 6 & 7 were shown above respondent nos. 4 & 5 who, in turn, were shown above the
petitioner herein. Questioning both the order of the Tribunal dated 29.09.2015; and the seniority list dated 22.08.2016, the petitioner has invoked the
jurisdiction of this Court.
8. Mr. Rakesh Thapliyal, learned Senior Counsel appearing on behalf of the petitioner, would submit that, though respondent nos. 4 & 5 were senior to
the petitioner in post of Technical Assistant, Geology, he was promoted as Assistant Geologist, under the Accelerated Promotion Scheme, on
03.07.1997 long before respondent nos. 4 & 5 were promoted as Assistant Geologists on 16.04.2004; more than one and half years, after the petitioner
was promoted as an Assistant Geologist, on 03.07.1997, respondent nos. 6 & 7 were directly recruited as Assistant Geologists on 10.02.1999; even
before respondent nos. 4 & 5 were promoted as Assistant Geologists on 15.06.2004, the petitioner was promoted as Geologists on 23.03.2004; it is
only after respondent nos. 6 & 7 were promoted as Geologist on 15.10.2004 were respondent nos. 4 & 5 promoted as Geologists on 28.04.2010; and
the petitioner has, thereafter, been promoted as a Joint Director on 28.02.2013. Learned Senior Counsel would submit that, even if Rule 6 and its
Explanation are held to apply, the catch up rule, prescribed in the Explanation, would only have entitled respondent nos. 4 & 5 to be placed above the
petitioner in the cadre of the Assistant Geologist on their promotion to the said post, provided the petitioner still remained in the cadre of Assistant
Geologists; even before respondent nos. 4 & 5 were promoted as Assistant Geologists on 15.06.2004, the petitioner had been promoted as a Geologist
on 23.03.2004; and the catch up rule cannot be applied even in the cadre of Geologists, since, even before the claim petition was filed by respondent
nos. 4 & 5, the petitioner had been promoted as a Joint Director.
9. Learned Senior Counsel would further state that the 2016 seniority list, whereby respondent Nos.6 & 7 were both placed above respondent nos. 4
& 5, and the petitioner herein, is illegal; the said seniority list of the year 2016 was prepared on the premise that respondent nos. 4 & 5 were to be
placed above the petitioner in the cadre of Assistant Geologists in view of the Explanation to Rule 6; and respondent nos. 6 & 7, having been
appointed as Assistant Geologists before respondent nos.4 & 5 were promoted to the said post, should be placed above them in the 2016 seniority list;
what the Tribunal and the respondent-officials have failed to consider is that catch up rule would apply only to cases where the reserved category
candidate continued to remain in the cadre to which the General Category candidates were, subsequently, promoted; and since the petitioner was not
in the same cadre, of Assistant Geologists, when respondents 4 & 5 were promoted to the said post, the Explanation to Rule 6 has no application.
10. On the other hand Mr. Alok Mehra, learned counsel for the respondent nos. 4 & 5, would submit that what was under challenge before the
Tribunal was the 2014 seniority list of Assistant Geologists; the feeder cadre, for the post of Assistant Geologists, is Technical Assistants-Geology;
admittedly, both respondent nos. 4 & 5 were senior to the petitioner in the cadre of Technical Assistant-Geology; and even though the petitioner was
promoted earlier as an Assistant Geologist, the Explanation to Rule 6 obligated the official respondents to place respondent nos. 4 & 5 above the
petitioner in the seniority list of Assistant Geologists; and, consequently, it is they who should have been promoted as Geologists, and thereafter to the
higher post of Joint-Director, before the petitioner was promoted to these posts.
11. Mr. K.P. Updhaya, learned Senior Counsel appearing on behalf of respondent no. 6, would submit that it is only because of Section 3 (7) of the
Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short the “1994
Actâ€) was reservation provided in promotion in favour of the Scheduled Castes; in the light of the judgment of the Supreme Court inM .Nagaraj vs.
Union of India & others : 2006 (8) SCC 212, the validity of Section 3(7) of the 1994 Act was subjected to the challenge before this Court; a
Division Bench of this Court, in Vinod Prakash Nautiyal & others vs. State of Uttarakhand & others (order in WPSB No.45 of 2011 dated
10.07.2012), had struck down Section 3(7) of the 1994 Act as being null and void; since promotion of the petitioner, to the post of Assistant Geologist,
was effected only because there was a provision for reservation in promotion under Section 3(7) of the 1994 Act, the consequence, of said provision
being struck down and being declared a nullity, would be that his very promotion, as an Assistant Geologist, has been rendered void ab initio; and,
consequently, the petitioner cannot challenge the validity of the seniority list of Assistant Geologists prepared on 28.02.2016.
12. Before examining the rival contentions, it is necessary to take note of Rule 6 of the 2002 Rules and its Explanation, which read as under :-
“Rule 6- Seniority where appointment by promotion from single feeding cadre- Where according to the service rules, appointments are to be made
only by promotion from a singly feeding cadre, the senior inter se of persons so appointed shall be the same as it was in the feeding cadre.
Explanation:- A person senior in the feeding cadre shall even though promoted after the promotion of a person junior to him in the feeding cadre shall,
in the cadre to which they are promoted, regain the seniority as it was in the feeding cadre.â€
13. The Explanation to Rule 6 is a ""catch up Rule. In terms thereof, a person senior in the feeder cadre, shall, even though he has been promoted after
a person junior to him is promoted to a senior cadre, regain his seniority, in the senior cadre to which he is promoted, in terms of his seniority in the
feeder cadre. Consequently, even though the petitioner was promoted as an Assistant Geologist on 03.07.1997 long before respondent Nos.4 and 5
were promoted to the said post on 15.06.2004, respondents 4 & 5 would have regained their seniority in the cadre of Assistant Geologists, in the light
of the Explanation to Rule 6, since they were senior to the petitioner in the feeder cadre of Technical Assistants-Geology.
14. The difficulty which they face, however, is that, by the time they were promoted as Assistant Geologists on 15.06.2004, the petitioner was no
longer in the cadre of Assistant Geologists as he had already been promoted as a Geologist on 23.03.2004. It is in this context that the law declared by
the Supreme Court, regarding application of the catch up rule, should be considered. In Union of India and others vs. Virpal Singh Chauhan:
1995 (6) SCC 684, the Supreme Court observed :-
“…….Now let us see how does the above principle operates in practice. Selection is made for direct recruitment to Grade ‘C’
Guards. A panel is prepared by the selecting authority on the basis of and in the order of merit. Appointments have to be made from
out of this list/panel. But appointment orders will not be issued in the order in which the candidates are arranged in this select
list/panel; they will be issued following the roster. Suppose the forty-point roster is being operated afresh, then the first vacancy in the
roster would go to a Scheduled Caste candidate though he may be down below in the select list/panel. The candidate at Sl. No. 1 in the
said select list â€" a general candidate â€" will be appointed in the second vacancy. But once appointed, the general candidate (at Sl.
No. 1 in the select list) will rank senior to the Scheduled Caste candidate though he (general candidate) is appointed subsequent to the
Scheduled Caste candidate. Now take the case of promotions (based on seniority-cum-suitability, i.e., non-selection posts) to Grade
‘B’. Roster applies even to promotions to Grade ‘B’. Again assume that the forty-point roster is opening now in Grade
‘B’. The first vacancy has again got to go to a Scheduled Caste candidate though he may not be the senior most in Grade
‘C’. The senior most candidate in Grade ‘C’ (the general candidate, who was at Sl. No. 1 in the select list/panel and who
regained his seniority on appointment to Grade ‘C’ as aforestated) will be promoted in the next vacancy. But once promoted, the
general candidate again becomes senior to the Scheduled Caste candidate though promoted subsequent to the Scheduled Caste
candidate. And so on and so forth. It is in this manner that the rule of reservation (and the roster) merely enables a reserved category
candidate to obtain an appointment or promotion, as the case may be â€" which he may not have obtained otherwise or would not have
obtained at the time he is now getting â€" but it does not give him the seniority. In this sense, the rule confers a limited benefit â€" a
qualified benefit. We have already stated that such a rule of reservation does not fall foul of Article 16(4)…..†(emphasis supplied).
15. Following the judgment of the Division Bench of the Supreme Court in Virpal Singh Chauhan, a Constitution Bench of the Supreme Court in Ajit
Singh and others (II) vs. State of Punjab and others : (1999) 7 SCC 209, observed :-
“……In the light of the above discussion, the proper balancing of the rights, in our view, will be as follows:-
The general candidates who are senior at Assistants’ level (Level 2) and who have reached Superintendent Grade II (Level 3)
before the reserved candidate moved to Level 4 (Superintendent Grade I), will have to be treated as senior at Level 3 also
(Superintendent Grade II) and it is on that basis that promotion to the post of Level 4 must be made, upon first considering the cases
of the senior general candidates at Level 3. If the cases of the senior general candidates who have reached Level 3 though at a later
point of time, are not first considered for promotion to Level 4, and if the roster-point promotee at Level 3 is treated senior and
promoted to Level 4, there will be violation of Articles 14 and 16(1) of the Constitution of India. Such a promotion and the seniority at
Level 4 has to be reviewed after the decision of Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715. But if a reserved category
candidate is otherwise eligible and posts are available for promotion to Level 4, they cannot be denied right to be considered for
promotion to Level 4, merely because erstwhile seniors at the entry levels have not reached Level 3. What we have stated above
accords, in fact, with what was actually stated in Ajit Singh Januja v. State of Punjab, (1996) 2 SCC 715. In that case, N.P. Singh, J. observed.
“It also cannot be overlooked that at the first promotion from the basic grade, there was no occasion to examine their merit and suitability for
purpose of their promotion.â€
…..That, in our view, is the correct approach for balancing the fundamental rights under Article 14 and Article 16(1) on the one hand and the
provisions relating to reservation in Article 16(4) and Article 16(4-A) on the other……
……We, therefore, hold that the roster-point promotees (reserved category) cannot count their seniority in the promoted category from the date of
their continuous officiation in the promoted post, â€" vis-à -vis the general candidates who were senior to them in the lower category and who were
later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before
the further promotion of the reserved candidate â€" he will have to be treated as senior, at the promotional level, to the reserved
candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point 3. We also hold
that Virpal2 and Ajit Singh1 have been correctly decided and that Jagdish Lal is not correctly decided. Points 1 and 2 are decided
accordingly…….
……..As accepted in Virpal (see SCC at p. 702) and Ajit Singh (see SCC at p. 729)w, e hold that in case any senior general candidate at
Level 2 (Assistant) reaches Level 3 (Superintendent Grade II) before the reserved candidate (roster-point promotee) at Level 3 goes
further up to Level 4 in that case the seniority at Level 3 has to be modified by placing such a general candidate above the roster
promotee, reflecting their inter se seniority at Level 2. Further promotion to Level 4 must be on the basis of such a modified seniority
at Level 3, namely, that the senior general candidate of Level 2 will remain senior also at Level 3 to the reserved candidate, even if the
latter had reached Level 3 earlier and remained there when the senior general candidate reached that Level 3. In cases where the
reserved candidate has gone up to Level 4 ignoring the seniority of the senior general candidate at Level 3, seniority at Level 4 has to be
refixed (when the senior general candidate is promoted to Level 4) on the basis of when the time of reserved candidate for promotion to Level 4
would have come, if the case of the senior general candidates was considered at Level 3 in due time. To the above extent, we accept the first
part of the contention of the learned counsel for the general candidates. Such a procedure in our view will properly balance the rights of the reserved
candidates and the fundamental rights guaranteed under Article 16(1) to the general candidates.
…….One of the objections raised before us and which appealed to the Full Bench in Jaswant Singh case was that this “catch-up†principle
would lead to frequent alteration of the seniority list at Level 3. We do not find any difficulty in this behalf. The seniority list at Level 3 would have
only to be merely amended whenever the senior general candidate reaches Level 3……â€
(emphasis supplied)
16. In the light of the law, declared in the aforesaid judgments, the catch up rule would apply only when the Scheduled Caste candidate, promoted
earlier, remains in the cadre to which a General Category Candidate, senior to him in the feeder cadre, is subsequently promoted to. In the present
case, the catch up rule would have been applicable in case the petitioner continued to remain in the cadre of Assistant Geologists when respondent
Nos.4 & 5 were promoted to the said post. The fact, however, remains that, in light of the judgment of the Supreme Court in Virpal Singh Chauhan
and Ajit Singh, the catch up rule is inapplicable since, by the time respondent Nos.4 & 5 were promoted as Assistant Geologists on 15.06.2004, the
petitioner had already been promoted as a Geologist on 23.03.2004.
17. The petitioner and respondent Nos.4 & 5 worked, for a certain period, together as Geologists, and it is long after respondent Nos.4 & 5 were
promoted as Geologists on 28.04.2010 was the petitioner promoted as Joint Director on 28.03.2013. While the catch up rule may have been applicable
in the cadre of Geologist, it is unnecessary for us to dwell on this issue, since what was challenge before the Tribunal, by respondent Nos.4 & 5
herein, was only the seniority list of Assistant Geologists; and application of the catch up rule, to the cadre of Geologists, was not put in issue by them.
In any event, respondent Nos.4 & 5 have since retired from service and it is wholly unnecessary for us therefore to now examine whether the catch
up rule, in the Explanation to Rule 6, would have required respondent Nos.4 & 5 to be placed above the petitioner in the cadre of Geologists. While
Mr. Rakesh Thapliyal, learned Senior Counsel appearing on behalf of the petitioner, would submit that the Explanation to Rule 6 would apply only on
one occasion, and not for promotions made to the next higher cadre thereafter, we leave this question open for examination, if need be, in appropriate
legal proceedings.
18. In so far as respondent Nos. 6 & 7 are concerned, the entire basis of their claim that the order of Tribunal is valid, and does not necessitate
interference, is that the very promotion of the petitioner, as Assistant Geologists on 03.07.1997, is a nullity, since Section 3(7) of the 1994 Act has been
struck down by the Division Bench of this Court in Vinod Prakash Nautiyal, following the judgment of the Supreme Court in M. Nagraj.
19. While it is true that the Division Bench of this Court, in Vinod Prakash Nautiyal, struck down Section 3(7) of the 1994 Act, following the
judgment of the Supreme Court in M. Nagraj, the fact remains that the petitioner’s promotion, as Assistant Geologist on 03.07.1997, has not been
subjected to challenge either before the Tribunal or before this Court. The claim petition, before the Tribunal, was filed not by respondent Nos.6 & 7
herein but by respondent Nos.4 & 5; and, in said proceedings, they had only challenged the seniority list of Assistant Geologists dated 11.03.2014, and
not the promotion of the petitioner as an Assistant Geologist on 03.07.1997.
20. The writ petition now filed before this Court, questioning the order of the Tribunal, is again not by respondent Nos.6 & 7 herein, but by the
petitioner. In the absence of any challenge to the promotion of the petitioner, as an Assistant Geologist more than 12 years ago on 03.07.1997, it would
wholly inappropriate for this Court to now pronounce on whether or not the petitioner’s promotion, to the said post, is valid.
21. In this context, it must be borne in mind that an order, even if not made in good faith, is still capable of legal consequences. Unless the necessary
proceedings are taken at law to establish the cause of invalidity, and to get it quashed or otherwise upset, it will remain as effective for its ostensible
purpose as the most impeccable of orders. This is equally true even where the brand of invalidity is plainly visible: for there also the order can
effectively be resisted in law only by obtaining the decision of the court. (Board of Trustees of Port of Kandla Port v. Hargovind Jasraj; Smith
v. East Elloe Rural District Council).
22. Even if the order is void/voidable, the party aggrieved thereby cannot decide that the said order is not binding upon them. They must approach the
Court and seek such a declaration. The order may hypothetically be a nullity and yet, even if its invalidity is challenged before the court in a given
circumstance, the Court may refuse to quash the same on various grounds including the standing of the Petitioner or on the ground of delay or on the
doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or
another person. Exercise of power under Article 226 of the Constitution is discretionary, and the Court may, in appropriate cases, refuse to exercise
its discretionary jurisdiction for good and valid reasons. (Krishnadevi Malchand Kamathaia v. Bombay Environmental Action Group; Board of
Trustees of Port of Kandla Port v. Hargovind Jasraj; Pune Municipal Corporation v. State of Maharashtra; State of Punjab v. Gurdev
Singh; R. Thiruvirkolam v. Presiding Officer; State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) and
Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd. etc).
23. As the validity of petitioner’s promotion, as an Assistant Geologist on 03.07.1997, cannot be examined in the present writ proceedings, we are
satisfied that the petitioner cannot be treated as junior to respondent Nos.4 to 7.
24. In the aforesaid circumstances, the order of Tribunal, holding that the seniority list dated 11.03.2014 is not in accordance with law, is set aside.
Likewise, the seniority list dated 22.02.2016 is also set aside. The writ petition is allowed. However, in the circumstances, without costs.
