2009 INSC 1751
                                 SUPREME COURT OF INDIA

                                 Amarjeet Singh & Ors

                                    Vs.

                                 Devi Ratan & Ors

                                 C.A.No.5790-92 of 2002

                                 (H.S. Bedi and Dr.B.S. Chauhan, JJ.)

                                 18.11.2009

                                    ORDER

H.S. Bedi, J.

1. These appeals have arisen from the judgment and order dated a 11-4-2002 passed by
the High Court of Allahabad (Lucknow Bench) by which it has allowed the writ petitions
filed by the respondents quashing the seniority list dated 12-7-2000 issued by the State
Government for the Excise Inspectors.

2. The facts and circumstances giving rise to these appeals are that the appellants and the

respondents in these cases were appointed as Excise Inspectors under the provisions of the

U.P. Excise Service (Class II) Rules, 1970 (hereinafter called as "the 1970 Rules"). The

parties became eligible for consideration for promotion to the post of Superintendent of

Excise under the said 1970 Rules. The criteria of promotion for the post of Superintendent of

Excise and for the higher post of Assistant Excise Commissioner (hereinafter called "AEC")

had been "merit" under the provisions of the U.R Assistant c Excise    Commissioners

Service Rules, 1992 (hereinafter called as "the 1992 Rules"). The said Rules stood amended

w.e.f. 10-10-1994 and the criteria for promotion was changed from "merit" to "seniority

subject to rejection of unfit'.

3. The appellant Amarjeet Singh along with some other Excise Inspectors filed Writ Petition
No. 1113 (SB) of 1994 before the Allahabad High Court challenging the selection process for
promotion under the 1992 Rules. The High Court vide judgment and order dated 1-2-1995
held that the vacancies which had come into existence prior to 10-10-1994 i.e. the date of
amendment, be filled up as per the unamended Rules i.e. on the basis of "merit" and not on
the basis of "seniority subject to rejection of unfit"
.
4. Being aggrieved, the State of U.P. preferred a special leave petition e before this Court and
this Court vide order dated 30-10-1995 passed an interim order permitting the State
authorities to make promotions as per the 1994 Amendment Rules but it was subject to the

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result of the petition as this Court made it clear that if the petition was dismissed, the
respondents would be reverted to the lower post from which they would be promoted. In
view of the said interim order of this Court, sixty-one Excise Inspectors stood f p r o m o t e d ,
subject to the final outcome of the special leave petition. This Court dismissed the said
special leave petition vide order dated 19-8-1998 in limine. However, the State authorities for
the reasons best known to them, did not revert the promoted officers and they continued to
hold the higher posts.

5. The Departmental Promotional Committee (hereinafter called "DPC") meant for filling up
forty-two vacancies, which came into existence prior to 10-10-1994, met on 19-12-1998.
After scanning the service records and determining the inter se merit of the candidates, the
Committee came to the conclusion that only thirty candidates were suitable for promotion to
the posts of AEC and they were to be promoted as per the availability of yearwise vacancies.
The respondents, herein, were found unsuitable for promotion in the said selection process.
After completing the aforesaid h exercise, twelve vacancies for the post of AEC remained
unfilled. Therefore, the twelve vacancies were carried forward to enable the State authorities
to fill up the same under the amended Rules on a different criterion i.e. "seniority subject to
rejection of unfit . Thus twelve officers/respondents were promoted under the amended Rules
by another DPC held on 22-1-1999.

6. The State Government issued the Order dated 15-5-1999 reverting all Excise Inspectors
promoted on 6-12-1995 under the interim order of this Court and gave notional promotions
with retrospective effect to the appellants as well as to all the reverted officers/respondents.
As a consequence, a seniority list dated 12-7-2000, was issued, wherein the appellants were
placed over and above the respondents.

7. Being aggrieved, the respondents approached the High Court challenging the said seniority
list dated 12-7-2000. The High Court vide impugned judgment and order dated 11-4-2002
held that as the postings to both sets of officers i.e. those who had been promoted by DPC
dated 19-12- 1998 and another DPC dated 22-1-1999 had been made on the same day and
had been given notional promotion from one and the same date, their inter se seniority was to
be fixed as it existed in the feeding cadre of Excise Inspectors and thus quashed the seniority
list dated 12-7-2000 and further directed the State to prepare a fresh seniority list placing the
appellants below the respondents. Hence these appeals.

8. In these appeals, as most of the appellants and respondents have already availed the benefit
of promotions and retired on attaining the age of superannuation, they lost interest in the
litigation. Only two appellants and two to four respondents are still in service and the said
appellants feel that they would be adversely affected, if the High Court judgment is given
effect to. In these matters, the learned counsel appearing for the respondents sought discharge
from the cases, as their clients did not respond. In spite of the service of notices to them, they
did not engage any counsel. Therefore, this Court on 26-8-2009 requested Shri Gaurav
Agrawal, learned advocate to assist the Court as amicus curiae who was served with the
paper book of the cases and appeared today for the respondents.

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9. Shri Rakesh Dwivedi, learned Senior Counsel appearing for the appellants has submitted
that the action of the State authorities has been in flagrant violation of the orders passed by
this Court as promotion of the respondents to the post of AEC had been subject to the
decision of the special leave petition, which stood dismissed. The said respondents ought to
have been reverted forthwith after dismissal of the said petition. The question of permitting
them to continue even after dismissal of the petition by this Court was not required and thus,
could not be justified. Promotions made by DPC under the unamended Rules on the basis of
"merit" could not be equated to the promotions made by another DPC under the amended
Rules on the basis of "seniority subject to rejection of unfit" held at a later stage. The High
Court erred in considering both the promotions to have been made notionally from one and
the same date. In such a fact situation, the question of interpreting the statutory rules was an
unwarranted exercise. The appellants had been promoted retrospectively, given notional
promotion from the date much earlier than the respondents. Therefore, direction to fix the
seniority in view of their inter se seniority as it existed in the feeding cadre was not
permissible. The appeals deserve to be allowed and the impugned judgment a and order is
liable to be set aside along with the consequential seniority list dated 26-7-2002. The
seniority list dated 12-7-2000 has to be upheld and remain intact.

10. On the other hand, Shri Ravi Prakash Mehrotra and Shri Gaurav Agrawal, learned
counsel appearing for the respondents vehemently opposed the appeals and made full efforts
to defend the judgment and order of the High Court and subsequent seniority list dated
26-7-2002 contending that in case the posting orders have been issued on the same date, inter
se seniority of the parties on the post of Excise Inspectors has to be given effect to.
Therefore, the appeals are liable to be dismissed.

11.We have considered the rival submissions made by the learned counsel for the parties and
perused the records. Indisputably, the High Court has decided the case interpreting the
provisions of Rule 6 of the U.P. Government Servants' Seniority Rules, 1991 (hereinafter
called as "the 1991 Rules"). The High Court has considered the Rules elaborately giving
effect to the said Rule 6 of the 1991 Rules and its proviso without examining its validity
which had been under challenge before it in the connected writ petition. The High Court
observed that there was no occasion for the ^ petitioners therein to challenge the validity
of Rule 6, as their seniority had already been fixed.

12. In Rule 3(1) of the 1992 Rules, the recruitment year is defined as under:

"3. (1) Year of recruitment means a period of twelve months commencing from the

first day of July of calendar year, e Therefore, we have to keep in mind that the year

of recruitment is to be considered for the purpose of fixing inter se seniority of the

officers taking into consideration the officers promoted within a period of twelve

months from the first day of July of the year. Therefore, if the promotions have

reiTospecUveW V,eerv <gwer\Ao a particular S>eX ol QttWtW \\v^ mes

,mhnm®«preta(i0n of  st^' ^ck. i,, fac, ,.f 14, Thic rc. . °r Its

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Explanation A     L. - ^ '  ,ln S'ttzte v. On&as- SSS&r/z

held that a auu.iu.ciie who is rejected in a common selection and superseded, lie

would not regain seniority upon being promoted subsequently. The High Court

wrongly distinguished the said judgment under the presumption that both sets of

officers had been given notional promotions from one and the same date."

15. The High Court has decided the earlier writ petition observing that vacancies which
occurred prior to the date of amendment of the Rules i.e. 13-10-1994, had to be filled up as
per the unamended Rules. The State Government filed a special leave petition, challenging
the said order. This Court on 30-10-1995 passed the following order:

"During the pendency of the special leave petition appointments may b be made as per
the existing Rules, but all the appointees will be informed that appointments are
subject to the result of the petition and if the Court rules that the revised rule has no
application insofar as the respondent claimants are concerned, they will be liable to be
reverted to the present post from which they would be promoted."

In view of the above, the respondents had been promoted and allowed to c continue. This
Court, ultimately dismissed the said petition vide order dated 19-8-1998:

"We have heard Shri A.B. Rohtagi, the learned Senior Counsel appearing for the
petitioners in support of the special leave petition and Shri G.L. Sanghi, the learned
Senior Counsel appearing for Respondent 5 and Shri Parag P. Tripathi, the learned
counsel appearing for Respondents ^ 1 to 4 and 6 and we have perused the impugned
judgment of the High Court as well as the record. Having regard to the facts of this
case, we do not think that a case is made out for interference by this Court under
Article 136 of the Constitution of India. The special leave petition is, therefore,
dismissed."

In view of the above, the State Government ought to have reverted the respondents as their
promotions were subject to the decisions of the said petition.

16. In view of the fact that the respondents continued on a higher post under the orders of
this Court for years together and even after dismissal of the petition filed by the State, and the
exercise for making promotions was ^ not undertaken by the State authorities, the appellants
should not suffer for no fault of theirs. It has fairly been conceded by the learned counsel
appearing for the respondents that had the exercise of making promotions been undertaken
immediately after the order of this Court dated 19-8-1998, the appellants could have been
promoted much earlier and they could have been senior to the respondents. Thus the question
does arise as to whether the appellants should be asked to suffer for the interim order passed
by this Court & in a case having no merits at all.

17. No litigant can derive any benefit from mere pendency of case in a court of law, as the
interim order always merges in the final order to be passed in the case and if the writ petition

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is ultimately dismissed, the interim order stands nullified automatically. A party cannot be
allowed to take any benefit of its own wrongs by getting an interim order and thereafter
blame the court. The fact that the writ is found, ultimately, devoid of any merit, shows
that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit,
which means that the act of the court shall prejudice no a one, becomes applicable in such a
case. In such a fact situation the court is under an obligation to undo the wrong done to a
party by the act of the court. Thus, any undeserved or unfair advantage gained by a party
invoking the jurisdiction of the court must be neutralised, as the institution of litigation
cannot be permitted to confer any advantage on a suitor from delayed action by the act of the

court. (Vide Shiv Shankar v. U.P. SRTC , GTC Industries lj Ltd. v. Union of India and Jaipur
Municipal Corpn. v. C.L. Mishra.)

18. In Ram Krishna Verma v. State of U.P. this Court examined the similar issue while
placing reliance upon its earlier judgment in Grindlays Bank Ltd. v. ITO and held that no
person can suffer from the act of the court and in case an interim order has been passed and
the petitioner takes advantage thereof and ultimately the petition is found to be without any
meritc and is dismissed, the interest of justice requires that any undeserved or unfair
advantage gained by a party invoking the jurisdiction of the court must be neutralised.

19. In Mahadeo Savlaram Shelke v. Pune Municipal Corpn. this Court observed that while
granting the interim relief, the court in exercise of its discretionary power should also adopt
the procedure of calling upon the plaintiff to file a bond to the satisfaction of the court that in
the event of his failing in the suit to obtain the relief asked for in the plaint, he would
adequately compensate the defendant for the loss ensued due to the order of injunction
granted in favour of the plaintiff. Even otherwise the court while exercising its equity
jurisdiction in granting injunction is also competent to grant adequate compensation to
mitigate the damages caused To the defendant by grant of injunction. The pecuniary award of
damages is consequential to the adjudication of the dispute and the result therein is incidental
to the determination of the case by the court. The court can do so in exercise of its inherent
jurisdiction in doing ex debito justitiae mitigating the damage suffered by the defendant by
the act of the court in granting injunction restraining the defendant from proceeding with the
action ^ complained of in the suit. Such a procedure is necessary as a check on abuse of
the process of the court and adequately compensate the damages or injury suffered by the
defendant by act of the court at the behest of the plaintiff.

20. In South Eastern Coalfields Ltd. v. State of M.P this Court examined this issue in detail
and held that no one shall suffer by an act of the court. The factor attracting applicability of
restitution is not the act of the court being wrongful or a mistake or error committed by the
court; the test is whether on account of an act of the party persuading the court to pass an
order held at the end as not sustainable, has resulted in one party gaming an advantage it
would not have otherwise earned, or the other party has suffered a an impoverishment which
it would not have suffered but for the order of the court and the act of such party. There is
nothing wrong in the parties demanding being placed in the same position in which they

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would have been had the court not intervened by its interim order when at the end of he
proceedings the court pronounces its judicial verdict which does not mate with and
countenance its own interim verdict. The injury, if any, caused by the act of the court shall be
undone and the gain which the party would have earned unless it was interdicted by the order
of the court would be restored to or conferred on the party by suitably commanding the party
liable to do so. Any opinion to the contrary would lead to unjust if not disastrous
consequences.

21. The Court further held: (South Eastern Coalfields case , bCC c pp. 664-65, para 28)

        "28. ... Litigation may turn into a fruitful industry. Though litigation is not gambling
        yet there is an element of chance in every litigation. Unscrupulous litigants may feel
        encouraged to approach the courts, persuading the court to pass interlocutory orders
        favourable to them by making out a prima facie case when the issues are yet to be
        heard and d determined on merits and if the concept of restitution is excluded from
        application to interim orders, then the litigant would stand to gain by swallowing the
        benefits yielding out of the interim order even though the battle has been lost at the
        end. This cannot be countenanced. We are, therefore, of the opinion that the
        successful party finally held entitled to a relief assessable in terms of money at the end
        of the litigation, is entitled e to be compensated...."

22. Similarly, in Karnataka Rare Earth v. Deptt. of Mines & Geology1 a similar view has
been reiterated by this Court observing that the party which succeeds ultimately is to be
placed in the same position in which it would have been if the court would not have passed
an interim order.

23.In A.R. Sircar (Dr.) v. State of U.P.2 a dispute arose regarding the f seniority of direct
recruits and promotees on the post of Professor of Medicine in a medical college. The
appellant therein faced the selection process for direct appointment along with the
respondents who had been working on the said post on ad hoc basis. The appellant was duly
selected, however, the private respondents could not succeed. The respondents filed the writ
petition before the High Court and precluded the appointment of the g appellant pursuant to
his selection, by obtaining an interim order and on the other hand they got their ad hoc
promotion to the post regularised under the Rules. The appellant could succeed in obtaining
the appointment only after dismissal of the writ petition against him after several years of his
selection. This Court held that in addition to the relief under the statutory provisions the
appellant was entitled in equity to get the seniority over the respondents as they succeeded in
precluding his appointment to the post by obtaining an a interim order in a case having no
merits whatsoever.

24. In Arya Nagar Inter College v. Sree Kumar Tiwary3 the services of the respondent
therein were terminated, however, he continued to be in service on the basis of an interim
order passed by the High Court in the writ petition filed by him. During the pendency of the

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writ petition, the rules for regularisation of ad hoc appointees were amended and in
pursuance there of his services also stood regularised. Ultimately, the writ petition filed by
the respondent was dismissed. This Court held that his continuity in service and
regularization had to be understood as it was subject to the result of the writ petition. As the
writ petition was dismissed the order regularizing his services, passed during the pendency of
the writ petition, became inoperative.

25. In view of the above, the appellants are entitled to the relief purely on c equitable grounds
without going into any other legal issue and the appeals deserve to be allowed and the
seniority list quashed by the High Court has to be restored.

26. There is another aspect of the matter. The appellants and the respondents have been
considered by DPC held on 19-12-1998 to fill up forty-two vacancies under the unamended
Rules. However, at the cost of repetition, it may be pertinent to mention here that only thirty
candidates/appellants were found suitable by DPC held on 19-12-1998 and had been
promoted under the unamended Rules on the criterion of "merit". The respondents had been
promoted under the amended Rules by carrying forward twelve vacancies by another DPC
held subsequently on 22-1-1999 on a different criterion i.e. "seniority subject to rejection of
unfit". e Indisputably, these twelve officers/respondents were found unsuitable for promotion
under the unamended Rules by DPC held on 19-12-1998. Subsequent thereto, both sets of
officers had been promoted notionally from the back dates. The appellants had been given
promotions as AEC against the vacancies for the year 1994-1995 while the respondents were
given notional promotions against the vacancies for the years 1996 and 1997. The seniority
list dated 12-7-2000 was prepared accordingly. As the appellants had been given notional
promotion w.e.f. 6-12-1995 and the respondents w.e.f. 28-2- 1997 and 13-8-1997, their inter
se seniority had rightly been determined while issuing the seniority list dated 12-7-2000.

27. The law permits promotion with retrospective effect only in exceptional circumstances
when there has been some legal impediment in making the promotions, like an intervention
by the court. An officer cannot be granted seniority prior to his birth in the cadre adversely
affecting the seniority of other officers who had been appointed prior to him. "The latecomers
to the regular stream cannot steal a march over the early arrivals in the regular queue." [Vide
S.P. Kapoor (Dr.) v. State of H.P4. ; Shitla Prasad Shukla v. State of U.P5. (SCC p. 190,
para 10) and Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State ofU.P.6]

28. In the instant case, promotions had been made by two different DPCs a held on
19-12-1998 and 22-1-1999. Both DPCs had made promotions under different Rules on
different criterion and their promotions had been made with retrospective effect with
different dates notionally. In the writ petition before the High Court, the promotion of the
appellants had not been under challenge. The seniority which is consequential to the
promotions could not

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be challenged without challenging the promotions. Challenging the £> consequential order
without challenging the basic order is not permissible. (Vide P. Chitharanja Menon v. A.
Balakrishnan7.)

29. In Roshan Lai v. International Airport Authority of India8 the petitions were primarily
confined to the seniority list and this Court held that challenge to appointment orders could
not be entertained because of inordinate delay and in absence of the same, validity of
consequential c seniority could not be examined. In such a case, a party is under a legal
obligation to challenge the basic order and if and only if the same is found to
be wrong, consequential orders may be examined.

30. In H.V. Pardasani v. Union of India9 this Court observed that: (SCC p. 473, para 9)
"9. ... If the petitioners are not able to establish that the d determination of their seniority is
wrong and they have been prejudiced by such adverse determination, their ultimate claim to
promotion would, indeed, not succeed." A similar view had been reiterated by this Court in
Govt, of Maharashtra v. Deokar's Distillery10.

31. These appeals are squarely covered by the aforesaid judgments. We e are of the
considered opinion that in absence of challenge to the promotion of the appellants, relief of
quashing the consequential seniority list could not have been granted.
To sum up

32. Admittedly, the respondents were over and above the appellants in the seniority list of
Excise Inspectors. The Rules of 1992 were amended in the f year 1994, changing the
criterion for promotion from "merit" to "seniority subject to rejection of unfit". Forty-two
posts of AEC were to be filled up from the Excise Inspectors, as no Excise Superintendent
was available for being considered for promotion to the post of AEC. The State Government
wanted to fill up the said vacancies by applying the amended Rules. On being challenged by
some of the appellants, the High Court held that the vacancies g which occurred prior to the
amendment of the 1992 Rules, namely, had to be filled up according to the unamended Rules.
The operation of the judgment and order of the High Court was stayed by this Court making
it crystal clear that promotions so made under the amended Rules would be subject to the
decision in the special leave petition. Accordingly, sixty-one officers/respondents were
promoted. Subsequently, this Court dismissed the special leave petition vide order dated
19-8-1998 in limine. The officers/ respondents so promoted were not reverted.

33. DPC was held on 19-12-1998 to fill up the said forty-two vacancies, but only thirty
candidates/appellants were found eligible to be promoted to the post of AEC. The
respondents were found unsuitable. In order to give the said respondents a second chance, the
State Government carried forward the remaining twelve vacancies and directed to fill up the
same under the amended Rules, and for that purpose another DPC was convened on
22-1-1999 and they were promoted on the basis of a different criterion. Promotions were
made with retrospective effect determining the year wise vacancies. The appellants had been

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given promotion notionally against the vacancies, which occurred in the recruitment year
1995 while the respondents were promoted notionally against the vacancies of the
recruitment years 1996 and 1997. Thus, the High Court committed an error while recording
the finding of fact that both sets of officers had been promoted notionally from one and the
same date.

34. Admittedly, promotions were not made with effect from one and the same date. The
appellants and the respondents were promoted against the vacancies which had occurred in
different recruitment years under different Rules and on different criteria. Thus, the
respondents would rank below the appellants in seniority. Therefore, there could be no
justification to hold that their inter se seniority in the feeding cadre would be relevant for
determining the seniority of AECs. More so, had the interim order not been passed by this
Court, the appellants could have been promoted under the unamended Rules much earlier.
Thus, they are entitled for equitable relief, as the effect of the interim order of this Court was
required to be neutralized. The appellants who had been promoted with an earlier date, thus,
are bound to be senior than the respondents who had been promoted with respect from a later
date. No employee can claim seniority prior to the date of his birth in the cadre.

35. In view of the above, the appeals succeed and are allowed. The impugned judgment and
order dated 11-4-2002 is set aside. The seniority list dated 12-7-2000 is directed to prevail
and fresh seniority list dated 26-7-2002 is hereby quashed. No orders as to costs.

36. Before parting with these cases, we would record our appreciation for the services
rendered by Shri Gaurav Agrawal, Amicus Curiae. SLP (C) No. 9615 of2002

37. This petition could not be dismissed by the High Court at the threshold without
examining the case on merit. However, no order is required in this case in view of the order
of this date passed in the connected Appeals Nos. 5790-92 of 2002. It is accordingly
disposed.

Cases Referred.

 1(2004) 2 SCC 783
 21993 Supp (2) SCC 734 : 1993 SCC (L&S) 896 : (1993) 24 ATC 832
 3 1986 Supp SCC 185 : 1986 SCC (L&S) 584 : (1986) 1 ATC 236 : AIR 1986 SC 1859
 4(2006) 10 SCC 346 : (2007) 1 SCC (L&S) 116
 5(1977) 3 SCC 255 : 1977 SCC (L&S) 378 : AIR 1977 SC 1720
 6 1980 Supp SCC 449 : 1981 SCC (L&S) 303 : AIR 1981 SC 597
 7 (1985) 2 SCC 468 : 1985 SCC (L&S) 482 : AIR 1985 SC 781
 8(2003) 5 SCC 669 1994
 9(1998) 3 SCC 376 : AIR 1998 SC 1566
 10(2003) 8 SCC 648 : AIR 2003 SC 4482

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