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Allahabad High Court · body

2008 DIGILAW 549 (ALL)

ARUN KUMAR SAXENA v. STATE OF U. P

2008-03-10

ARUN TANDON, B.S.CHAUHAN

body2008
JUDGMENT Hon’ble Arun Tandon, J.—This bunch of special appeals is directed against the common judgment and order of the Hon’ble Single Judge dated 24.10.2003 passed in a bunch of writ petitions, leading being Writ Petition No. 32066 of 2001. 2. We have heard Sri R. N. Singh and Ashok Khare Senior Advocates assisted by Sri V.K. Singh and G.K. Malviya Advocates as well as Sri A.K. Gupta Advocate on behalf of the appellant-promotees. Sri Shashi Nandan Senior Advocate assisted by Sri Anoop Trivedi Advocate on behalf of the private respondents-direct recruits as well as Standing Counsel on behalf of the State respondents. 3. The dispute in the present special appeals basically revolves around the determination of the dispute of seniority between the direct recruits, appointed on the post of Excise Inspector vis-a-vis the departmental candidates, who had been promoted on the same post of Excise Inspector under the U.P. Subordinate Service Rules, 1992. 4. Facts giving rise to the present special appeals are as follows : State of U.P. for the purposes of regulating the service conditions including appointment/promotion on the post of Excise Inspector in the Excise Department of the State of U.P. promulgated U.P. Subordinate Excise Service Rules, 1967 (hereinafter referred to as 1967 Rules). Under Rule 5 of the 1967 Rules, three sources of recruitment to the post of Excise Inspector were contemplated (a) by direct recruitment, (b) by promotion from permanent Clerks and (c) by promotion from permanent Tari Supervisors. 5. Schedule ‘A’ to the 1967 Rules discloses the sanctioned strength in the cadre of Excise Inspector as 205. Rule 7 of the 1967 Rules conferred a power upon the Excise Commissioner to determine the number of candidates to be recruited from each of the 3 sources specified in Rule 5. In deciding the number regard was to be had to the relative number of promoted and directly appointed persons in the cadre of the service and in any case not more than 10 per cent of the candidates to be recruited in any one year were to be recruited by promotion each from sources (b) and (c) respectively, if suitable candidates were available. 6. 6. The aforesaid 1967 Rules were, however, substituted by subsequent rules framed by the State of U.P., being U.P. Subordinate Excise Service Rules, 1983 (hereinafter referred to as ‘1983 Rules’), These rules contemplate appointment on the post of Excise Inspector in the following manner (a) 90% by direct recruitment, (b) 10% by promotion from permanent Deputy Excise Inspectors. The provision for promotion from the Ministerial Cadre and Tari Supervisor Cadre was done away. 7. Appendix-A of 1983 Rules discloses the sanctioned strength of the cadre of Excise Inspectors to be 478 and that 31 permanent post of Excise Inspectors were to be kept in abeyance. With reference to the aforesaid Rules 100 posts of Excise Inspectors were requisitioned to the U.P. Public Service Commission for direct recruitment. Thereafter for 18 posts and finally another requisition dated 10.4.1991 for additional 29 posts was made. 8. In the meantime U.P. Subordinate Excise Service Rules, 1992 (hereinafter referred to as ‘1992 Rules’) were notified. Under Rule 5 of the 1992 Rules following sources for recruitment on the post of Excise Inspector are provided for (a) 80% by direct recruitment, (b) 10% by promotion from amongst the permanent Deputy Excise Inspectors and (c) 10% by promotion from amongst substantively appointed Senior Assistants and Stenographers. Rule 5(2) of 1992 Rules provides that the cadre of Tari Supervisor would now be one of the feeding cadres for promotion to the post of Sub Excise Inspectors. Therefore, with the enforcement of 1992 Rules the cadre of Tari Supervisor has been made a feeding cadre for promotion on the post of Sub-Excise Inspector. 9. Appendix-A to the 1992 Rules records that the total sanctioned strength in the cadre of Excise Inspectors is 461 and that 120 permanent posts of Excise Inspector were to be kept in abeyance. 10. As on 30th June, 1992, 53 Excise Inspectors, said to be promoted from the post of Deputy Excise Inspectors, were actually working in the department. Similarly, prior to the appointment of Excise Inspector by direct recruitment in the year 1994, 24 persons belonging to ministerial cadre had been promoted and were working on the post of Excise Inspector. 11. From the records it appears that 30 posts of Excise Inspector within the promotional quota earmarked for Tari Supervisor as per 1967 Rules were lying vacant on the date 1992 Rules were enforced. 11. From the records it appears that 30 posts of Excise Inspector within the promotional quota earmarked for Tari Supervisor as per 1967 Rules were lying vacant on the date 1992 Rules were enforced. The Excise Commissioner sought permission to fill these 30 posts from the cadre of Sub Excise Inspectors and employees belonging to ministerial cadre. 12. The State Government vide letter dated 13th October, 1992 permitted the Excise Commissioner to take action in accordance with the provisions of 1992 Rules. The Excise Department constituted a selection committee which recommended 15 persons from the cadre of Sub Excise Inspector and 15 persons from the cadre of Clerk to be promoted against the said 30 posts. Recommendations of the selection committee were accepted. On 17th November, 1992 the Excise Commissioner passed orders for promotion of persons belonging to the cadre of Sub Excise Inspector and the ministerial cadre as Excise Inspector against the posts which were to be filled under sub quota of promotion of Tari Supervisor, as per 1967 Rules. 13. Qua vacancies, which were requisitioned earlier for being filled by direct recruitment, recommendations were made by the Public Service Commission and appointments were offered on the post of Excise Inspector on 16.2.1994 within the quota prescribed. 14. The Excise Commissioner published a seniority list in the year 1994 wherein the promotee Excise Inspectors appointed on 17.11.1992 were placed above the direct recruits appointed on 16.2.1994. This seniority was maintained in the subsequent list which was published on 27.2.2002 and lastly in list dated 25.1.2003. 15. One Lal Bahadur Misra, who was appointed by direct recruitment in the year 1994 filed objections against the seniority list dated 25.1.2003 and claimed seniority over the persons who were appointed by way of promotion under order dated 17.11.1992. The objections were rejected by the Excise Commissioner vide order dated 29.2.2003. The Excise Commissioner, however, asked for a clarification from the State Government qua the issue of inter se seniority between the promotees of 1992 and direct recruits of 1994. The State Government clarified the position vide order dated 19.4.2003 and maintained that since the promotions granted under the order dated 17.11.1992 were on substantive basis, such promotees were entitled to be placed above the direct recruits appointed in the year, 1994. 16. The State Government clarified the position vide order dated 19.4.2003 and maintained that since the promotions granted under the order dated 17.11.1992 were on substantive basis, such promotees were entitled to be placed above the direct recruits appointed in the year, 1994. 16. The Excise Commissioner, however, circulated a seniority list on 20th June, 2003 wherein for the first time the promotee Excise Inspectors appointed on 17.11.1992, were placed below the direct recruits of 1994 as also below the other direct recruits of subsequent years. 17. This led to the filing of the writ petitions, before the Hon’ble Single Judge by the promotees, being Writ Petition No. 32066 of 2003 alongwith other similar petitions, challenging the seniority list as published by the Excise Commissioner under order dated 20th June, 2003. 18. In order to keep the record straight it may be noticed that one Ravindra Kumar Nigam, a direct recruit of 1994, filed Writ Petition No. 31185 of 2003 challenging the promotion granted in favour of Clerks and Sub Excise Inspectors against 30 vacancies which were within the sub quota for promotion of the feeding cadre of Tari Supervisors as per 1967 Rules. 19. All these writ petitions have been decided under the common judgment and order of this Court dated 24.10.2003 giving rise to the present Special Appeals. 20. The dispute of seniority in the facts of the present case is between the persons who had been granted promotion under order dated 13.10.1992 as Excise Inspectors against 30 posts (which were within the sub quota for Tari Supervisors as per 1967 Rules) from the cadre of Sub Excise Inspectors and Ministerial Cadre vis-a-vis the direct recruits, who were appointed on the recommendation of the Public Service Commission as Excise Inspectors on 16.2.1994 within the quota for direct recruitment. 21. On record is a letter of the State Government dated 31.7.2002 calling for an explanation from the Excise Commissioner as to how promotion has been made under the order dated 17.11.1992, as against 30 posts of Excise Inspector, which were earmarked for promotion from the cadre of Tari Supervisor. 22. It is not in dispute between the parties that the inter se seniority between the direct recruitees and promotees is liable to be determined with reference to the provisions of the U.P. Government Servant Seniority Rules, 1991 (hereinafter referred to as ‘Seniority Rules, 1991’). 22. It is not in dispute between the parties that the inter se seniority between the direct recruitees and promotees is liable to be determined with reference to the provisions of the U.P. Government Servant Seniority Rules, 1991 (hereinafter referred to as ‘Seniority Rules, 1991’). It may be noticed that Rule 21 of the 1992 Rules specifically provides that the seniority of the employees shall be determined in accordance with the U.P. Government Servant Seniority Rules, 1991. 23. On behalf of the direct recruitees it was contended before the Hon’ble Single Judge that the promotion offered to the persons working in the cadre of Sub Excise Inspector and Ministerial Cadre, against the vacancies which were earmarked to be filled from the cadre of Tari Supervisor, was in excess of the sub-quota prescribed for them under the relevant service rules and, therefore, in accordance with the sub-rule (3) of Rule 8 of Rules 1991 they are liable to be assigned a place in the seniority list of the year against the vacancies of their respective quota. 24. The Hon’ble Single Judge, after hearing Counsel for the parties and with specific reference to the provisions of Rule 8(3) of Seniority Rules, 1991, held that since the promotion of Sub Excise Inspectors and Ministerial Cadre employees on the post of Excise Inspectors under order dated 13.10.1992 was made against the vacancies, which under statutory Rules, 1967 were required to be filled from Tari Supervisor and were therefore in excess of their respective sub-quota prescribed. Their seniority is liable to be determined in accordance with Rule 8(3) proviso (i) of the Seniority Rules, 1991 and has, accordingly, proceeded to direct the State Government to revise the seniority list in light of the findings so recorded. 25. On behalf of the appellant it is contended that permission was obtained by the Excise Commissioner from the State Government for making promotion against the 30 posts, which were required to be filled from sub cadre of Tari Supervisor. The permission was granted which in turn amount to exercise of power of relaxation conferred upon the State Government under Rule 27 of the 1992 Rules, which reads as follows : “27. The permission was granted which in turn amount to exercise of power of relaxation conferred upon the State Government under Rule 27 of the 1992 Rules, which reads as follows : “27. Relaxation from the condition of service.—Where the State Government is satisfied that the operation of any rule regulating the conditions of service of persons appointed to the service causes undue hardship in any particular case, it may, notwithstanding anything contained in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.” 26. Therefore in the facts of the case Rule 8(3) Proviso (iii) of Rules 1991 would be attracted and the appellants would be entitled to seniority from the date of promotion i.e. 13.10.1992. 27. On behalf of the appellants it is further contended that the Hon’ble Single Judge has failed to read the Rule 8 of the Seniority Rules, 1991 as a whole and has proceeded to rely upon Rule 8(3) Proviso (i) in isolation, without examining the impact of such interpretation on other provisions of Rule 1991. 28. It is contended before us on behalf of the promotees that even if their promotion is taken to be in excess of the sub quota provided for promotion qua their cadre, it is not in excess of the total quota prescribed for promotion vis-a-vis the quota for direct recruitment and therefore Rule 8 (3) proviso (i) will not be attracted in the facts of the present case. Reading of entire Rule 8 as a whole would establish that so far as the dispute of inter se seniority between the promotees and direct recruitees is concerned, the fact as to whether promotions have been made from various feeding cadres for promotion in excess of their respective sub quotas cannot be taken into consideration specifically when the total quota prescribed for direct recruitment has not been breached. It is not open to the direct recruits to question the appointments made by promotion in excess of sub quota fixed for different feeding cadres when the same has not been made in excess of the total quota prescribed for promotion nor the quota for direct recruitment has been usurped. 29. It is not open to the direct recruits to question the appointments made by promotion in excess of sub quota fixed for different feeding cadres when the same has not been made in excess of the total quota prescribed for promotion nor the quota for direct recruitment has been usurped. 29. On behalf of the direct recruits it has been contended that as on 30th June, 1992, 53 persons belonging to the feeding cadre of Sub Excise Inspector had already been promoted and were working. Therefore, 10% quota provided for promotion in their favour under the 1991 Rules, as against the total cadre strength i.e. 461 was already filled and as a matter of fact 7 Sub Excise Inspectors had been promoted and were working in excess of the sub-quota prescribed for promotion in their favour under the 1991 Rules. 30. Similarly it is pointed out that between 1983 to 1992 there was no provision for promotion of ministerial cadre employees to the post of Excise Inspector and therefore the vacancies which had occurred during these years i.e. between 1983 to 1992 could not be filled by promotion from the feeding cadre of Ministerial Clerks/Stenographers. 31. Lastly it is contended that the judgment and order of the Hon’ble Single Judge is based on true and correct interpretation of Rule 8(3) Proviso (i) of the Seniority Rules, 1991, as it is an admitted position that the appointment offered to the Sub Excise Inspectors and Ministerial Cadre employees on the post of Excise Inspector under order dated 13.10.1992 was in excess of the quota provided for promotion from the respective feeding cadres. The Hon’ble Single Judge was justified in applying Proviso (i) to sub-rule (3) of Rule 8 of the Seniority Rules, 1991 to the facts of the present case. 32. We have heard Counsel for the parties and have gone through the records of the special appeal. 33. From the records of the present proceedings following facts emerge : There were 30 existing vacancies within the promotion quota required to be filled from the feeding sub-cadre of Tari Supervisor in accordance with 1967 Rules. These vacancies, which were earmarked for promotion from the feeding sub-cadre of Tari Supervisors, were in fact filled by promotion from other feeding sub cadres for promotion namely Sub Excise Inspector and Ministerial Cadre. These vacancies, which were earmarked for promotion from the feeding sub-cadre of Tari Supervisors, were in fact filled by promotion from other feeding sub cadres for promotion namely Sub Excise Inspector and Ministerial Cadre. The promotion of the appellants so made is in excess of the sub quota provided for their respective feeding cadres under the rules but within the total quota provided for promotion through various feeding cadres under the Rules. Appointment of direct recruits has taken place within their quota subsequent to the appointment offered by promotion to the persons referred to above. It is also apparent from the records that the vacancies available within the feeding sub quota of Tari Supervisor were directed to be filled from other feeding cadres by way of promotion specifically in the circumstances that no Tari Supervisor was available within the eligibility zone for promotion against the available vacancies. 34. The issue up for consideration before us is as to how the Seniority Rules, 1991 are to be applied in these set of facts. For appreciating the aforesaid controversy, it is worthwhile to reproduce Rule 7 and Rule 8 of the Seniority Rules, 1991, which read as follows : “7. Seniority where appointments by promotion only from several feeding cadres.—Where according to the service rules, appointments are to be made only by promotion but from more than one feeding cadres the seniority inter se of persons appointed on the result of any one selection shall be determined according to the date of the order of their substantive appointment in their respective feeding cadres : Provided that where the pay scales of the feeding cadres are different, the persons promoted from the feeding cadre having higher pay scale shall be senior to the persons promoted from the feeding cadre having lower pay scale : Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection. “8. “8. Seniority where appointments made by promotion and direct recruit.—(1) Where according to the service rules appointments are made both by promotion and by direct recruitment the seniority of persons appointed shall, subject to the provisions of the following sub-rules, be determined from the date of the order of their substantive appointments, and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order : Provided that if the appointment order specifies a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases, it will means the date of issuance of the order : Provided further that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons, when vacancy is offered to him the decision of the appointing authority as to the validity of reasons, shall be final. (2) The seniority inter se of persons appointed on the result of any one selection— (a) through direct recruitment shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be; (b) by promotion, shall be as determined in accordance with the principles laid down in Rules 6 or Rule 7, as the case may be, accordingly as the promotion are to be made from a single feeding cadre or several feeding cadres. (3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotees vis-a-vis direct recruits shall be determined in a cyclic order (the first being a promotee) so far as may be, in accordance with the quota prescribed for the two sources. Illustrations.—(1) Where the quota of promotion and direct recruits is in the proportion of 1 : 1 the seniority shall be in the following order : First .. .. ..Promotee Second .. .. ..Direct recruits and so on : (2) Where the said quota is in the proportion of 1 :3 the seniority shall be in the following order : First .. .. ..Promotee Second to fourth .. .. .. Direct recruits Fifth .. .. ..Promotee Sixth to eight .. .. .. ..Promotee Second .. .. ..Direct recruits and so on : (2) Where the said quota is in the proportion of 1 :3 the seniority shall be in the following order : First .. .. ..Promotee Second to fourth .. .. .. Direct recruits Fifth .. .. ..Promotee Sixth to eight .. .. ..Direct recruits and so on : Provided that— (i) where appointments from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year or years in which there are vacancies in accordance with the quota : (ii) where appointments from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees; (iii) where, in accordance with the service rules the unfilled vacancies from any source could, in the circumstances mentioned in the relevant service rules be filled from the other source and appointment in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they are appointed against the vacancies of their quota. (Emphasis added) 35. Although Rule 7 of the Rules, 1991 will not be applicable in the facts of the present case directly. However, it does provide a guiding factor for determination of inter se seniority between the persons promoted in excess of the sub quota provided for the respective feeding cadres. 36. From Rule 7 it is apparently clear that persons promoted from different feeding cadres as a result of one selection are entitled to be allotted place in the seniority with reference to the date of the order of there substantive appointment in their respective feeding cadres. However, proviso to the aforesaid Rule 7 clarifies that persons appointed as a result of subsequent selection shall be junior to the persons appointed on the basis of result of previous selection. However, proviso to the aforesaid Rule 7 clarifies that persons appointed as a result of subsequent selection shall be junior to the persons appointed on the basis of result of previous selection. It logically follows that inter se seniority between the persons promoted from different feeding cadre, on the basis of the one and the same selection, is to be determined with reference to their seniority in the feeding cadre and in case promotions are made as a result of two different selections, the persons appointed on the basis of the earlier selection are liable to be treated senior to the subsequent selectees. Thus, even if there has been a breach of the sub quota provided for different feeding cadres for promotion and even if appointment in excess of such quota provided is made, inter se seniority is to be determined with reference to the date of the order of the appointment irrespective of the fact that sub quota for the feeding cadre has been breached. Therefore, breach of the sub quota provided for the different feeding cadre is of no legal consequence so far as the inter se seniority amongst the promotees under the 1991 Rules is concerned. 37. On reading of Rule 8 of 1991 Rules, which squarely applies to the facts of the present case for determining the inter se seniority between the promotees and direct recruits, it will be seen that where appointments are made both by promotion and direct recruitment, the seniority of persons appointed shall, subject to the provisions of the sub-rules, be determined from the date of the order of their substantive appointments. The first proviso to Rule 8(1) of Rules 1991, however, provides that if the appointment order itself specifies a particular back date, with effect from which a person is to be treated to be substantively appointed, the said date would be the date of substantive appointment and in other cases date of the issuance of the order would be the date of substantive appointment. The other proviso is not relevant for our purposes. 38. Rule 8(2)(a) provides for the inter se seniority of direct recruits and Rule 8(2)(b) provides for the inter se seniority of promotees appointed as a result of one selection. 39. The other proviso is not relevant for our purposes. 38. Rule 8(2)(a) provides for the inter se seniority of direct recruits and Rule 8(2)(b) provides for the inter se seniority of promotees appointed as a result of one selection. 39. Clause (3) of Rule 8 of 1991 Rules provides for the inter se seniority of direct recruits and promotees to be appointed on the basis of one selection and illustrations 1 and 2 thereto provide for the manner in which the direct recruits and the promotees are to be adjusted. Thereafter there are three provisos (i) to (iii) to the sub-rule (3) of Rule 8. However, it must be remembered that the provisos are to be read in a manner to suggest that something is being carved out from the main clause. As already noticed above, Rule 8(3) itself contemplates determination of seniority between the promotees and direct recruits as a result of any one selection, meaning thereby that the aforesaid rule will have application only where appointments both by direct recruitments and promotions are being made as a result of one selection. If selections are made in different years, Rule 8 (3) will have no application, as a result whereof the proviso to the aforesaid Rule would also not apply. 40. In view of the aforesaid, in the facts of this case Rule 8(1) of Rules of 1991 will be applicable alone qua determination of inter se seniority of promotees and direct recruits which means that such inter se seniority dispute would be decided with reference to the date of their substantive appointment only. 41. Even if it is accepted for a moment that provisos (i) to (iii) to sub-rule (3) of Rule 8 would be applicable, it would be seen that the said provisos contemplate three different situations. Proviso (i) deals with a situation where appointments from any source have been made in excess of the prescribed quota. The persons appointed in excess of the quota are liable to be pushed down in the seniority against posts of subsequent year or years in which the vacancies in accordance with the quota becomes available. Proviso (i) deals with a situation where appointments from any source have been made in excess of the prescribed quota. The persons appointed in excess of the quota are liable to be pushed down in the seniority against posts of subsequent year or years in which the vacancies in accordance with the quota becomes available. Proviso (ii) contemplates a situation where appointments from one source fall short of the prescribed quota and appointments are made against such unfilled vacancies in the subsequent year or years, the persons so appointed shall not get seniority of the earlier year but would be entitled to the seniority of the year in which they are appointed in their quota. Proviso (iii) deals with a situation where appointments in excess of the quota prescribed for a particular source are made in respect of the vacancies within the quota for the source in accordance with the statutory rules, which permit such appointments from the other source. Persons appointed in excess of the quota would be entitled to the seniority of that every year as if they had been appointed against the vacancies of their quota. 42. In the opinion of the Court the quota referred to in Rule 8(3) and its sub-clause necessarily means the quota provided for direct recruits and for the promotees as a whole. The quota referred to in Rule 8(3) does not deal with the cases where promotions are made within the over all quota provided therefore from different feeding cadre but in excess of the sub quota provided for different feeding cadres. 43. In the opinion of the Court, the Rule framing authority was conscious of the sub quota provided for promotion to different feeding cadres as would be apparent from Rule 7 of the Rules, 1991, quoted herein above. Breach of this sub quota for promotion has no adverse impact on the seniority. It, therefore, logically follows that so far as the quota for direct recruits and promotees are concerned, the same shall be the guiding factor for the application of Rule 8(3) proviso (i). In case promotions are made within the overall quota provided for promotion but in excess of the sub quota provided for different feeding cadres without infringing upon overall quota for direct recruitment, the said Rule 8(3) proviso (i) will have no application. 44. In case promotions are made within the overall quota provided for promotion but in excess of the sub quota provided for different feeding cadres without infringing upon overall quota for direct recruitment, the said Rule 8(3) proviso (i) will have no application. 44. If 30 posts which were within the promotional quota available for feeding sub cadre of Tari Supervisor are permitted to be either filled by direct recruitment or permitted to lapse, it would only result in overall quota for direct recruitment being exceeded beyond that provided under the Rules. 45. In view of the aforesaid, we are satisfied that even if the appointments of Sub Inspector/Clerk has been made in excess of the quota provided for feeding cadre for promotion on the post of Excise Inspector, their seniority has to be determined with reference to their date of substantive appointment only and therefore the Hon’ble Single Judge was not justified in holding otherwise. 46. The aforesaid issue may also be examined from a different angle. Rule 27 of the 1992 Rules confer a power upon the State Government to dispense with or relax the requirements of the 1992 Rules to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. 47. From the rules pertaining to the appointment on the post of Excise Inspector, as amended from time to time, it would be seen that with the enforcement of Rules 1983 and 1992 Rules the cadre of Tari Supervisor ceased to be a feeding cadre for promotion to the post of Excise Inspector. As a matter of fact under the 1992 Rules the cadre of Tari Supervisor has been made a feeding cadre for the post of Sub Excise Inspector, which in turn has been made the feeding cadre for the post of Excise Inspector. Therefore, under 1992 Rules no Tari Supervisor can be appointed on the post of Excise Inspector, inasmuch as under the channel of promotion provided he can only be promoted on the post of Sub Excise Inspector. 48. Therefore, under 1992 Rules no Tari Supervisor can be appointed on the post of Excise Inspector, inasmuch as under the channel of promotion provided he can only be promoted on the post of Sub Excise Inspector. 48. In these set of circumstances, when the Excise Commissioner requested the State Government to permit the promotions of the Sub Excise Inspector and other ministerial staff on the vacant 30 posts, which were earlier within the quota of Tari Supervisor, the State Government rightly granted permission to the Excise Commissioner to act in accordance with 1992 Rules, meaning thereby that promotion of Sub Excise Inspector and Ministerial Staff against the said post, which was earlier to be filled from the cadre of Tari Supervisor, was permitted. This relaxation has been provided by the State Government on a conscious decision on the facts, which were reported from the office of the Excise Commissioner, necessarily referable to Rule 27 of 1992 Rules and therefore the promotion granted to the Sub Excise Inspector and Ministerial Staff cannot be said to be in violation of the 1992 Rules or the sub quota provided thereto for the feeding cadre for promotion. We further record that there has been no illegality in the promotions to the post of Excise Inspector under order dated 17.11.1992 in view of the order of the State Government referable to Section 27 of the 1992 Rules. 49. Even otherwise it has rightly been held by Hon’ble Single Judge that the promotions effected in the year 1992 shall not be reopened nor can be permitted to be questioned at such a belated stage. 50. Thus in the facts of this case Rule 8(3) proviso (iii) of the Seniority Rules 1991 would apply with full force and seniority of the promotees of 1992 has to be determined with reference to their date of substantive appointment i.e. 17.11.1992. 51. Counsel for the respondent direct recruits has relied upon the judgment of the Hon’ble Supreme Court in the case of Gonal Bihimappa v. State of Karnataka and others, 1987(Supp) SCC 207; Surendra Narain Singh and others v. State of Bihar and others, (1998) 5 SCC 246 ; V.B. Badami etc. 51. Counsel for the respondent direct recruits has relied upon the judgment of the Hon’ble Supreme Court in the case of Gonal Bihimappa v. State of Karnataka and others, 1987(Supp) SCC 207; Surendra Narain Singh and others v. State of Bihar and others, (1998) 5 SCC 246 ; V.B. Badami etc. v. State of Mysore and others, AIR 1980 SC 1561 ; Keshav Chandra Joshi and others v. Union of India and others, 1992 Supp (1) SCC 272; T.N. Saxena and others v. State of U.P. and others, AIR 1991 SC 235 as well as Ajit Kumar Rath v. State of Orissa and others, (1999) 9 SCC 596 . 52. In our opinion the judgment relied upon by the Counsel for the respondents are clearly distinguishable in the facts of the present case more specifically when the seniority of the promotees and the direct recruits is required to be determined with reference to the statutory Rules of 1991, which were not subject matter of consideration in any of the judgments referred to above. 53. In view of the aforesaid special appeals are allowed. The order of the Hon’ble Single Judge dated 24.10.2003 is hereby set aside. The State Government is directed to determine the seniority of the persons appointed by way of direct recruitment in the year 1994 and the persons appointed by promotion in the year 1992 as Excise Inspector with reference to their date of substantive appointments only. ————