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Allahabad High Court · body

2017 DIGILAW 1519 (ALL)

Ravindra Kumar Patel v. State of U. P.

2017-06-13

DEVENDRA KUMAR ARORA

body2017
JUDGMENT Dr. Devendra Kumar Arora, J. 1. Heard Mr. Amit Bose, learned Counsel for the petitioners, Sri Vivek Shukla, learned Additional Chief Standing Counsel and Sri I.M. Pandey, learned Counsel for the private opposite parties No. 6 to 10. 2. By means of the present writ petition, petitioners, who are working as Radio Maintenance Officers in U.P. Police Radio Branch of the U.P. Police Force, have questioned the validity of the final seniority list of Radio Maintenance Officers as on 1.1.2015 published vide order dated 4.2.2015 issued by the Inspector General of Police/Director (Police Telecommunications), U.P. Police Radio Headquarters, Lucknow. 3. Submission of the learned Counsel for the petitioners Mr. Amit Bose is that the State Government, while exercising the powers vested under Section 15 of the U.P. Provincial Armed Constabulary Act, 1948, promulgated the U.P. Police Radio Subordinate Service Rules, 1982 [hereinafter referred to as ‘1982 Service Rules’] vide notification dated 24.7.1982, wherein the recruitment and condition of service of the persons holding the posts under the U.P. Police Radio Subordinate Service have been provided. As per Rule 2 of the 1982 Service Rules, the U.P. Police Radio Subordinate Service comprises of two posts viz. Group ‘C’ and ‘D’, in the U.P. Police Radio Service. Rule 3 (k) of the 1982 Service Rules defined the term ‘year of recruitment’ to mean the period of 12 months in a calender year beginning from 1st of July. According to Rule 4 (2) of the 1982 Service Rules, the posts in the U.P. Police Radio Subordinate Service would comprise of Workshop Hand, Assistant Operators, Head Operators, Radio Station Officers, Radio Maintenance Officers and Radio Inspectors in that hierarchical order. According to Rule 5 (5) of 1982 Service Rules, the posts of Radio Maintenance Officers are to be filled up by direct recruitment in the manner as laid down in Rule 15 of 1982 Service Rules and through promotion from amongst the permanent Radio Station Officers. According to proviso to Rule 5 (5) of the 1982 Service Rules, the quota prescribed for the two sources of recruitment was 75% by promotion and 25% by direct recruitment. The manner of direct recruitment has been laid down in Rule 15 of the 1982 Service Rules, whereas manner of promotion has been laid down in Rule 16 of the 1982 Service Rules. The manner of direct recruitment has been laid down in Rule 15 of the 1982 Service Rules, whereas manner of promotion has been laid down in Rule 16 of the 1982 Service Rules. According to Rule 17 of 1982 Service Rules, if the recruitment from both the sources i.e. by direct recruitment and promotion, in a particular year of recruitment, a combined select list has to be prepared and the officers recruited have to be rotated in the select list as per the quota prescribed for both the sources of recruitment. 4. According to petitioners, as per Rule 22 (1) of the 1982 Service Rules, the seniority of the members of the service has to be determined according to the date of substantive appointment and if more than one candidate has been appointed on the same date, the seniority of the candidates are to be determined in the same order in which their names appear in the order of appointment. Rule 22 (2) of 1982 Service Rules provides that the seniority of candidates appointed as a result of direct recruitment would be determined in accordance with the merit as determined at the time of selection. Rule 22 (3) of the 1982 Rules provides that the inter se seniority of persons appointed by promotion would be the same as it was in the feeder cadre, whereas Rule 22 (4) provides that where recruitment to the posts of Radio Maintenance Officer are to be made both by direct recruitment as well as promotion and quota is fixed for recruitment from both the sources, then, the names of the candidates are to be placed in accordance with the roster as laid down in Rule 17 of the 1982 Rules in such a manner that the prescribed quota is maintained between both the sources of recruitment. Rule 22 (4) also provides that if recruitment is made on the post of Radio Maintenance Officer through one of the two sources of recruitment viz. direct recruitment and promotion, in excess of the prescribed quota, the candidates recruited in excess of the prescribed quota would be adjusted against the vacancies occurring in a particular quota in the following years and, therefore, the candidates recruited in excess of the quota would be placed at the bottom of the seniority list in accordance with the vacancies in the quota. The second proviso to Rule 22 (4) provides that in case recruitment to the post of Radio Maintenance Officer is made through a particular source of recruitment in less numbers than the prescribed quota, such persons would not be entitled to seniority from an earlier year than the year of their appointment and they would be placed in the year of their appointment in such a manner that they would be placed above the candidates recruited in accordance with the quota against the two sources of recruitment of a particular year of recruitment. 5. It has been stated by the petitioners that pursuant to the advertisement published in the year 1997 in Hindi Newspaper for filling up 38 posts of Radio Maintenance Officers in the U.P. Police Radio Branch by direct recruitment, petitioners and several other candidates had applied but the process of selection in pursuance to the said advertisement never took place. Subsequently, another advertisement dated 7.12.2004 was published in the Hindi newspaper for filling up 47 posts of Radio Maintenance Officers in the U.P. Police Radio by direct recruitment. It was mentioned in the note appended to the advertisement dated 7.12.2004 that an advertisement was published inviting applications for filling up 38 posts of Radio Maintenance Officers by direct recruitment in the year 1997 and applications had also been submitted by eligible candidates in pursuance of the said advertisement. It was also mentioned in the note that the number of posts of Radio Maintenance Officer advertised through the aforesaid advertisement, namely, 47 included the 38 posts advertised in the year 1997 and further those candidates who had applied in pursuance of the advertisement published in the year 1997 need not apply again and the recruitment process would include those persons who had applied in pursuance of the advertisement of the year 1997 on the basis of their applications submitted in the year 1997. 6. In pursuance to the advertisement published on 7.12.2014, eligible candidates applied. After considering the applications received in response to the advertisement published in the year 1997 including petitioners as well as the advertisement published on 7.12.2014, the selections for the post of Radio Maintenance Officers in the U.P. Police Radio were held. After due selection, 45 candidates, including petitioners, were declared selected for filling up 47 posts of Radio Maintenance Officer. After considering the applications received in response to the advertisement published in the year 1997 including petitioners as well as the advertisement published on 7.12.2014, the selections for the post of Radio Maintenance Officers in the U.P. Police Radio were held. After due selection, 45 candidates, including petitioners, were declared selected for filling up 47 posts of Radio Maintenance Officer. On 25.11.2006, all the 45 candidates were appointed as Radio Maintenance Officer by direct recruitment and since then, they are working on the post in question without any break. 7. Submission of the learned Counsel for the petitioners is that vide order dated 14.11.2014, the Deputy Inspector General of Police (Police Telecommunications), U.P. Police Radio Headquarters, Lucknow, issued a tentative seniority list of Radio Maintenance Officers serving in the U.P. Police Radio inviting objections together with documentary evidence in support thereof against the tentative seniority list within fifteen days from the date of passing of the order with a clear stipulation that the objections received beyond the period of fifteen days would not be considered. In the said tentative seniority list, the names of petitioners and respondents No. 8, 9 and 10, were shown as direct recruitee and promotee, respectively. 8. Counsel for the petitioners has submitted that perusal of the tentative seniority list reveals that the promotee Radio Maintenance Officers including respondents No. 8, 9 and 10, who were promoted as such in the year 2000, 2001 and 2003, were en bloc placed over and above the direct recruitee including petitioners, who were appointed as such in the year 2006. His submission is that the aforesaid placement in the tentative seniority list was apparently contrary to the quota fixed for direct recruitment and promotion both on the post of Radio Maintenance Officers because while doing so, the direct recruit Radio Maintenance Officers including petitioners were recruited against the vacancies which had occurred in the year 1997, whereas the promotee Radio Maintenance Officers had been promoted against the vacancies occurred in the year 2000. In these backgrounds, petitioners and other direct recruit Radio Maintenance Officers had submitted their objections dated 28.11.2014 pointing out the fact that under Rule 5 (5) of the Rules, a quota of 75% and 25% has been fixed for filling up the posts of Radio Maintenance Officers by promotion and direct recruitment and according to Rule 22 (4) read with second proviso to Rule 8(3) of the U.P. Government Servants Seniority Rules, 1991, the seniority of Radio Maintenance Officers has to be determined in such a manner as the prescribed quota of promotion and direct recruitment is maintained, therefore, the seniority of the Radio Maintenance Officers has to be determined in the rotation of three promotee Radio Maintenance Officers followed by one direct recruit Radio Maintenance. 9. Counsel for the petitioners has submitted that after taking into consideration the objections of the petitioners as well as similarly placed direct recruit, final seniority list of Radio Maintenance Officers was published on 4.2.2015, wherein the promotee Radio Maintenance Officers, including the respondents No. 8, 9 and 10, who were promoted as such in the years 2000, 2001 and 2003, were en bloc placed over and above the direct recruit Radio Maintenance Officers, including petitioners, who were appointed as such in the year 2006. 10. Hence the present writ petition. 11. While challenging the impugned order, learned Counsel for the petitioners has submitted that the objections so raised by the petitioners and similarly placed direct recruit Radio Maintenance Officers have been overruled in the impugned final seniority list/order dated 4.2.2015 inter alia on the ground that the rotation as laid down in Rule 17 has to be maintained only if selections for direct recruitment and promotion both are made in the same year of recruitment and the aforesaid rotation did not apply in cases of selections in different years of direct recruitment. His submission is that Rule 22 (4) clearly provides that in case where a quota is prescribed for recruitment by promotion and direct recruitment and both are made from the said two sources of recruitment, then, the seniority of persons appointed as such would be determined in rotation as provided in Rule 17 in such a manner that the quota between the two sources of recruitment is maintained. Thus the names of promotee and direct recruit Radio Maintenance Officer has to be placed in the impugned seniority list in rotation of 3: 1 i.e. three promotee Radio Maintenance Officers followed by one direct recruit Radio Maintenance Officers and so on. In these backgrounds, submission of the counsel of the learned Counsel for the petitioners is that the placement of the en bloc names of the promotee Radio Maintenance Officers over and above the direct recruit Radio Maintenance Officers in the impugned seniority list/order is contrary to the seniority rules and is liable to be quashed and the official respondents be directed to reconsider it afresh after taking into consideration the objections so raised by the petitioners against the tentative seniority list. 12. Per contra, Mr. I.M. Pandey, learned Counsel appearing on behalf of respondents No. 6 to 10 has raised a preliminary objection that petitioners and respondents No. 6 to 10 are government servant and the present matter relates to the dispute of inter se seniority between direct recruits and promotees, therefore, petitioners have got equally efficacious alternative remedy to approach the U.P. State Public Services Tribunal in view of Section 4 of the U.P. State Public Services Tribunal Act, 1976 as has been held by the Apex Court in L. Chandra Kumar v. Union of India and others : 1997 (2) SCR 1186. 13. As regard the assertion of the petitioners with regard to defect in the final seniority list, Mr. I.M. Pandey, learned Counsel for the respondents No. 6 to 10 has submitted that respondents No. 6 to 10 were initially selected and appointed on the post of Radio Station Officer under direct recruitment quota in the year 1995 against the substantive vacancy in accordance with the provisions of Rule 5 of the 1982 Rules. In pursuance therefore, they had joined their duties and continued to perform the duties and responsibilities of the post sincerely and efficiently to the satisfaction of the authorities. On completion of two years probation period on the post of Radio Station Officer satisfactorily, their services were made confirmed in the year 1997. Thereafter, they became eligible for further promotion to the next higher post i.e. Radio Maintenance Officer under the promotion quota as provided under Rule 5 (4) of 1982 Rules. 14. Counsel for the respondents Nos. On completion of two years probation period on the post of Radio Station Officer satisfactorily, their services were made confirmed in the year 1997. Thereafter, they became eligible for further promotion to the next higher post i.e. Radio Maintenance Officer under the promotion quota as provided under Rule 5 (4) of 1982 Rules. 14. Counsel for the respondents Nos. 6 to 10 has submitted that in the year 2000, total 114 vacancies of Radio Maintenance Officer to be filled up by promotion were determined and in order to fill up these vacancies, the departmental authorities constituted the Selection Committee to fill up these vacancies by promotion under Rule 16 of 1982 Rules in the year 2000. Thereafter, on the recommendation of the Selection Committee, the respondents No. 6 to 10 were selected and promoted to the post of Radio Maintenance Officer vide order dated 7.4.2000, November 2000, 22.6.2001, respectively. In pursuance thereof, the respondents No. 6 to 10 joined on the promoted post of Radio Maintenance Officer and continued to perform the duties and responsibilities with sincerity. 15. Mr. I.M. Pandey has submitted that proviso (a) of sub rule (2) of Rule 4 of 1982 Rules empowers the appointing authority to keep any vacancy in abeyance or to leave it unfilled and no one is entitled for any compensation against the same. The procedure for direct recruitment and for promotion are different as the direct recruitment is made by following the procedure prescribed under Rule 15 of 1982 Rules, whereas the promotion is made by following the procedure of Rule 16 of 1982 Rules. In the year 1997, the departmental authorities advertised 38 vacancies of Radio Maintenance Officer to be filled up by direct recruitment but later on authorities postponed the same and did not conduct any selection. After enforcement of U.P. Reorganization Act, 2000, certain posts were transferred/allocated to the State of Uttaranchal out of total sanctioned posts. Accordingly, the vacancy of Radio Maintenance Officer were re-determined and as such, the departmental authorities advertised 47 vacancies of Radio Maintenance Officer to be filled up by direct recruitment vide advertisement dated 11.12.2004. 16. Submission of the learned Counsel for the respondents No. 7 to 10 is that in pursuance of the advertisement dated 11.12.2004, petitioners were selected and appointed in the year 2006 as shown in the impugned order/seniority list. 16. Submission of the learned Counsel for the respondents No. 7 to 10 is that in pursuance of the advertisement dated 11.12.2004, petitioners were selected and appointed in the year 2006 as shown in the impugned order/seniority list. Later on, the State Government, on looking into the large number of irregularities in the selection, cancelled the entire selection vide Government Order dated 30.9.2007. Therefore, the appointment of the petitioners on the post in question were also cancelled. However, the said cancellation order dated 30.9.2007 was challenged before this Court in a bunch of writ petitions and this Court, vide judgment and order dated 8.12.2008, allowed the writ petition and quashed the order dated 30.9.2007. Not being satisfied with the order dated 8.12.2008, the State Government filed Special Appeal No. 244 of 2009 : State of U.P. v. Pawan Kumar Singh and others, which was dismissed vide judgment and order dated 4.3.2009. Feeling aggrieved, the State Government filed Special Leave Petition (Civil) No. 12586 of 2009 : State of U.P. and others v. Pawan Kumar Singh and others, before the Apex Court, in which the Apex Court had passed an ad interim order on 25.5.2009, requiring the State Government to reinstate the selected candidates provisionally. In compliance of the ad interim order dated 25.5.2009, the direct recruit Radio Maintenance Officer including petitioners were reinstated provisionally in the year 2009 and since then, they have been continuing in service. In the meantime, the State Government withdrew the Special Leave Petition, as a result thereof the Special Leave to Appeal was dismissed as withdrawn by the Apex Court vide judgment and order dated 8.3.2013. 17. Mr. Pandey has submitted that after dismissal of the special leave to appeal vide judgment and order dated 8.3.2013, the petitioners and similarly situated persons have been allowed to continue but the period from 1.10.2007 to the date of joining of petitioners i.e. June, 2009 during which petitioners remained out of service is yet to be regularized and no salary for the said period has been paid to the petitioners. Furthermore, petitioners have not been made confirmed as yet and they are still working as temporary employee. In these backgrounds, submission is that petitioners have no right to claim parity or preference against the respondents Nos. Furthermore, petitioners have not been made confirmed as yet and they are still working as temporary employee. In these backgrounds, submission is that petitioners have no right to claim parity or preference against the respondents Nos. 7 to 10, who are duly selected and promoted against the substantive vacancy of promotion quota and continuing on the post of Radio Maintenance Officer since the year 2000 and 2001. 18. Lastly, Mr. Pandey has submitted that petitioners have filed the present writ petition for grant of the benefit of Rule 17 read with Rule 22(4) of 1982 Rules, which is not permissible at all insofar as Rule 17 and Rule 22(4) is applicable only when the selection of direct recruitment and promotion both are made in one selection year and in that situation, the appointments are required to be made after preparing the combined select list under Rule 17 in accordance with prescribed quota of both sources of recruitment. His submission is that admittedly, the appointment of the respondents No. 7 to 10 have been made in the year 2000 and 2001, whereas the selection and appointment of petitioners have been made in the year 2006 pursuant to the advertisement published in December, 2004, therefore, there is no occasion to prepare the select list under Rule 17 and to determine the seniority under Rule 22 (4) 1982 Rules. Thus, the claim of the petitioners relating to seniority over and above the respondent Nos. 7 to 10 amounts to claiming seniority from a retrospective date from the date of occurrence of vacancies which is not permissible as per law laid down by the Apex Court in catena of judgment to the effect that an employee cannot be given seniority from the date of vacancy when the said employee is not even born in service. Therefore, the present writ petition is misconceived and is liable to be dismissed. 19. To strengthen his submission, Mr. Pandey has placed reliance upon the judgment of the Apex Court in Union of India v. S.S. Uppal and another : 1996 (1) LBESR 805 (SC), State of Uttaranchal and another v. Dinesh Kumar Sharma : 2007 (2) LBESR 151 (SC), Pawan Pratap Singh and others v. Reevan Singh & others : 2011 (2) LBESR 770 (SC), and State of U.P. and others v. Ashok Kumar Srivastava & another : 2013 (3) LBESR 957 (SC). 20. 20. Learned Standing Counsel, while supporting the impugned order and refuting the submissions of the learned Counsel for the petitioners, has submitted that petitioners were appointed as Radio Maintenance Officers through direct recruitment. The impugned seniority list has been prepared in terms of the provisions of 1982 Service Rules. In view of the provisions prescribed under 1982 Service Rules, on appointment of a person by direct recruitment, any person promoted subsequent to such appointment by direct recruitment, cannot be made senior to him. In the present case, the year of recruitment for the post of Radio Maintenance Officers have been made by promotion in the year 2000, 2001 and 2003, while in the recruitment year 2006, the appointments on the post of Radio Maintenance Officers were made only by direct recruitment. The provisions of Rule 22 (4) and Rule 17 of the 1982 Rules would have been applicable if the appointments would have made by direct recruitment as well as by promotion in the same year of recruitment and the same are not applicable to the appointments made in different years of recruitment. Thus, petitioners have rightly been placed below those persons who have been appointed in the previous years of recruitment. 21. I have heard learned Counsel for the parties and gone through the record. 22. The stand of the petitioners in the present case is that petitioners were recruited against the vacancies to be filled by direct recruitment in the year 1997, whereas the promotees including the private respondents were recruited by promotion against the vacancies to be filled by promotion in the year 2000 and onwards and, therefore, petitioners and other direct recruits who were recruited against the vacancies for the year 1997, have to be placed en bloc over and above the promotees who have been recruited by promotion against the vacancies to be filled up by promotion in the year 2000 and onwards. 23. 23. On the contrary, the stand of the private respondents and the official respondents is that it is only if the selections by the two sources of recruitment, i.e. direct recruitment and promotion, are made in the same year of selection, then, the seniority list has to be prepared by rotating the candidates recruited through two sources and if the selections from the two sources are not made in the same year, the quota rule is irrelevant, therefore, the contention of the petitioners while challenging the impugned select list is baseless and is liable to be rejected. 24. Rule 5 of 1982 Service Rules deals with the source of recruitment of different category including Radio Maintenance Officer. Rule 5 (5) indicates that the source of recruitment of Radio Maintenance Officer is to be carried out (1) through direct recruitment as indicated in Rule 15; and (2) through promotion from permanent Radio Station Officer, but 75% post in question is to be filled up by promotion and rest of the post in question i.e. 25% is to be filled up by direct recruitment. 25. Rule 15 of 1982 Service Rules deals with the process of recruitment. Rule 17 of 1982 Rules deals with the combined select list, which provides that in any year of recruitment, if appointments are made both by direct recruitment and by promotion, a combined select list shall be prepared by taking the names of the candidates from the relevant lists, in such a manner that the prescribed percentage is maintained, first name in this list being of the person appointed by promotion. Rule 22 of 1982 Rules deals with seniority, which provides that the seniority of persons in any category or posts shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together by an order in which their names are arranged in the appointment order. It was also 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 mean the date of issue of the order. It was also 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 mean the date of issue of the order. Further, it was provided that if more than one orders of appointment are issued in respect of any one selection, the seniority shall be as mentioned in the combined order of appointment issued under sub-rule (3) of rule 18. The inter se seniority of persons directly appointed to the service shall be as determined by the selection committee at the time of selection. It has also been provided 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 reason shall be final. Rule 22 enjoins that the inter se seniority of the persons appointed to the service by promotion shall be the same as it was in the substantive post in the feeder cadre held by them at the time of promotion and where appointments are made both by promotion and direct recruitment or from more than one source and the quota for each such source is prescribed, the inter se seniority shall be determined by arranging the names in a cyclic order, in a combined select list prepared in accordance with Rule 17, in such a manner so that the prescribed percentage is maintained. 26. In the instant case, it is an admitted fact that in the year 1997, an advertisement for filling up Radio Maintenance Officer through direct recruitment was published by the departmental authority but later on, the departmental authorities had postponed the same and did not conduct any selection in pursuance to the aforesaid advertisement. Subsequently, on 7.12.2004, 47 posts of direct recruit Radio Maintenance Officer was advertised. In the advertisement so published on 7.12.2004, it was clearly mentioned in the note that those candidates who had applied in pursuance to the advertisement published in the year 1997 need not apply again and the recruitment process would include those persons who had applied in pursuance of the advertisement of the year 1997 on the basis of their applications submitted in the year 1997. In pursuance to the advertisement dated 7.12.2004, petitioners were selected and appointed in the year 2006. Later on, vide order dated 30.9.2007, the State Government cancelled the entire selection made in pursuance to the advertisement dated 7.12.2004. The said cancellation order dated 30.9.2007 was challenged before this Court in a bunch of writ petitions, which were allowed vide judgment and order dated 8.12.2008 and the order of cancellation of the selection process dated 30.9.2007 was quashed. Feeling aggrieved, the State Government filed Special Appeal No. 244 of 2009, which was dismissed vide order dated 4.3.2009. Subsequently, the State Government has approached the Apex Court by filing Special Leave Petition (Civil) No. 12586 of 2009, challenging the order dated 4.3.2009. The Apex Court, vide ad interim order dated 25.5.2009, provided the State Government to reinstate the selected candidates provisionally. In compliance of the order dated 25.5.2009, petitioners were reinstated provisionally in the year 2009 and since then they are continuing in service. Later on, the aforesaid special leave petition was withdrawn by the State Government and accordingly, special leave petition was dismissed as withdrawn by the Apex Court vide order dated 8.3.2013. 27. After dismissal of the special leave petition as withdrawn on 8.3.2013, the State Government, vide Government Order dated 21.1.2016, provided that the period from 2005-2006 to 26.5.2009, in which period the police personnel whose services were terminated on 30.9.2007 were out of employment as a result of the orders of their termination of service, are regularized by granting them as extraordinary leave and the said period would count for all purposes including continuity in service, but, the police personnel would not be entitled to any pay and allowances for the said period. In these backgrounds, the contention of the petitioners that petitioners are in regular service since the year 2006, is incorrect. 28. On examining the submission of the learned Counsel for the parties and perusing the record, this Court finds that private respondents were promoted from the post of Radio Station Officer to the post of Radio Maintenance Officer on different dates sometimes in the year 2000, 2001, 2004, whereas petitioners were selected and appointed as Radio Maintenance Officer in the year 2006 in pursuance to the advertisement published in the year 2004. 29. 29. The Apex Court in the case of Pawan Pratap Singh (supra), has summarized the legal position with regard to determination of seniority, which are as under : “(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 the 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 back date 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 born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time.” 30. In Ram Janam Singh v. State of U.P. and another : (1994) 2 SCC 622 , the Apex 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 the different sources. It was observed that this is in consonance with the requirement of Articles 14 and 16 of the Constitution. It was observed that this is in consonance 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. 31. In light of the legal position summed up above and Rule 5, 17 and 22 of the 1982 Service Rules, it is crystal clear that year of recruitment of private respondents to the post of Radio Maintenance Officer by promotion was 2000, 2001 and 2003, in accordance with the 1982 Service Rules hence they cannot be made junior to the 2006 appointees appointed through direct recruitment even if it is assumed that the selection and appointment of 2006 appointees was for earlier vacancies. The private respondents having been promoted/appointed substantively much prior in point of time, they are entitled to rank senior to 2006 appointees. In the present factual situation, it must be held that 2006 appointees including petitioners cannot legitimately claim their seniority over private respondents, who were promoted prior to the selection of petitioners. The aforesaid view of mine is strengthened by the decision of the Apex Court in the case of Dinesh Kumar Sharma (supra), wherein it has been clearly stated that seniority has to be decided on the basis of rules in force on the date of appointment and no retrospective promotion or seniority can be granted from a date when an employee has not even been born in the cadre. More so, in the case of Nirmal Chandra Singh v. Union of India : 2009 (14) SCC 292 , the Apex Court has held that promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of post. It has also been laid down therein that it is settled in law that date of occurrence of vacancy is not relevant for the determination of seniority. 32. It has also been laid down therein that it is settled in law that date of occurrence of vacancy is not relevant for the determination of seniority. 32. From the aforesaid discussion, it is crystal clear that the seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectivity unless it is so expressly provided by the relevant service rules 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 interest of employees who have been appointed validly in the meantime. 33. In the present case, learned Counsel for the petitioners have not raised any grievance with respect to irregularity in promotion of the private respondents but only grievance of the learned Counsel for the petitioners is that since the petitioners had filled their form for the post in question in pursuance to the advertisement published in the year 1997, which was subsequently got postponed for the reason best known to the department concerned, however, in pursuance to the advertisement published in the year 2004, petitioners applied and after due process of law, they were selected and appointed on the post of Radio Maintenance Officer through direct recruitment sometime in the year 2006, therefore, their seniority ought to have been reckoned from the date when the first vacancy for the post in question was advertised i.e. in the year 1997. This submission of the learned Counsel for the petitioners is not sustainable in view of the law laid down by the Apex Court in Pawan Pratap Singh (supra), Ram Janam Singh (supra), Dinesh Kumar Sharma (supra) and Nirmal Chandra Singh (Supra). 34. In view of the above, it is not necessary to deal with the objection raised by the respondents with regard to filing writ petition directly before the High Court bypassing the remedy before the State Service Tribunal. 35. For the foregoing reasons, this Court is of the view that there is no illegality and infirmity in the impugned order fixing the final seniority of the candidates working on the post of Radio Maintenance Officer. 36. The writ petition lacks merit and is, accordingly, dismissed. Parties shall bear their own costs. 37. The writ petition is dismissed vide order of date passed on separate sheets.