Skip to content


Narayana Rao Battu Deputy Legislative Counsel New Delhi Vs. Union of India Through the Secretary, New Delhi and Another - Court Judgment

LegalCrystal Citation
CourtCentral Administrative Tribunal CAT Principal Bench New Delhi
Decided On
Case NumberO.A. No. 3594 of 2011 & M.A. No. 2410 of 2012
Judge
AppellantNarayana Rao Battu Deputy Legislative Counsel New Delhi
RespondentUnion of India Through the Secretary, New Delhi and Another
Excerpt:
g. george paracken, j. 1. applicants grievance in this original application is that his position in the seniority list of deputy legislative counsel (“dlc” for short) has been altered to his disadvantage after several years, that too, without any notice. 2. the brief facts of the case are that in the recruitment year 2002-03, there were 2 vacancies for the post of dlcs, i.e., 1 under direct recruitment quota and other under the promotion quota. for recruitment of the direct recruit quota candidate, the upsc issued advertisement on 26.04.2003. from amongst the candidates applied for the aforesaid post, the upsc, on 25.09.2003, recommended one shri ashok g. pawade for appointment and he accordingly joined the said post on 19.08.2000. however, the vacancy earmarked under the.....
Judgment:

G. George Paracken, J.

1. Applicants grievance in this Original Application is that his position in the seniority list of Deputy Legislative Counsel (“DLC” for short) has been altered to his disadvantage after several years, that too, without any notice.

2. The brief facts of the case are that in the recruitment year 2002-03, there were 2 vacancies for the post of DLCs, i.e., 1 under direct recruitment quota and other under the promotion quota. For recruitment of the Direct Recruit quota candidate, the UPSC issued advertisement on 26.04.2003. From amongst the candidates applied for the aforesaid post, the UPSC, on 25.09.2003, recommended one Shri Ashok G. Pawade for appointment and he accordingly joined the said post on 19.08.2000. However, the vacancy earmarked under the Promotion Quota could not be filled due to non-availability of eligible candidates. Later on, one Shri N.K. Ambastha was promoted as DLC against the aforesaid carried forward vacancy of 2003-04. The Private Respondent No.2, Shri Saji Kumar, Assistant Legislative Counsel (“ALC” for short), was also promoted as DLC against the Direct Recruit vacancy for the year 2003-04 converted into the promotee quota vacancy. Shri Ashok G. Pawade, later on resigned from the post on 09.11.2004 and the Ist Respondent, vide its letter dated 16.11.2004, informed the aforesaid position to the UPSC and requested them to provide a substitute in his place from the reserved list of candidates. Thereafter, the UPSC informed the Applicant, vide their letter dated 27.12.2004, that the Commission found it possible to recommend his name to the Secretary, Ministry of Law and Justice for appointment to the aforesaid post on the basis of his interview held on 25.09.2003. Further, the UPSC informed him that the offer of appointment will be made to him only after the Respondent No.1 is satisfied themselves after such enquiry, as may be considered necessary that he is suitable in all respects for appointment to the service and he has good mental and bodily health and also subject to such other conditions prescribed by the Government. The Applicant accepted the aforesaid offer and joined the Respondent No.1 as DLC on 25.02.2005.

3. Thereafter, the Respondent No.1 issued the provisional seniority list dated 8.8.2005 of DLCs as on 01.08.2005. While the Applicant was shown at Sl.No.6 of the said list, the Respondent No.2 was shown at Sl.No.8. Their respective dates of appointment to the grade of DLC in the Indian Legal Service were also shown as 25.02.2005 and 04.12.2003 respectively. The aforesaid seniority list was finalised in accordance with the rules and instructions vide final seniority list on 29.12.2005. Again, the Respondent No.1 issued the provisional seniority list of DLCs dated 30.01.2008 as on 01.01.2008. The Applicant was again shown senior to the Respondent No.2 at Sl.No.4 and at Sl.No.5 respectively.

4. In the meanwhile, the Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training issued Office Memorandum dated 3.03.2008 consolidating the instructions on seniority contained in their earlier OM No.22011/7/1986-Estt.(D) dated 3-7-1986 and the clarifications issued there on. In para 3 of the said OM, they have clarified that while the inter-se seniority of direct recruits and promotees is to be fixed on the basis of the rotation of quota of vacancies, the year of availability, both in the case of direct recruits as well as the promotees, for the purpose of rotation and fixation of seniority, shall be the actual year of appointment after declaration of results/selection and completion of pre-appointment formalities as prescribed. They have also clarified that when appointments against unfilled vacancies are made in subsequent year or years either by direct recruitment or promotion, the persons who are so appointed shall not get seniority of any earlier year (viz. year of Vacancy/panel or year in which recruitment process is initiated) but should get the seniority of the year in which they are appointed on substantive basis. Further, they have stated that the year of availability will be the vacancy year in which a candidate of a particular batch of selected direct recruits or an officer of the particular batch of promotees joins the post/service. However, they have also stated in the aforesaid OM that the cases of seniority already decided with reference to any other interpretation of the term “available” as contained in OM dated 3.7.1986 need not be reopened. For the sake of ready reference, the said OM dated 3.03.2008 is reproduced here as under:

“No.20011/1/2006-Estt.(D)

Government of India

Ministry of Personnel, Public Grievances and Pension

Department of Personnel and Training

New Delhi, dated the 3rd March, 2008

OFFICE MEMORANDUM

Subject: Consolidated instructions on seniority contained in

DOPandT O.M. No.22011/7/1986-Estt.(D) dated 3.7.1986

- Clarification regarding

The undersigned is directed to refer to this Department's consolidated instructions contained in O.M. No.22011/7/1986-Estt.(D) dated 3.7.1986 laying down the principles on determination of seniority of persons appointed to services/posts under the Central Government.

2. Para 2.4.1 and 2.4.2 of the O.M. dated 3.7.1986 contains the following provisions:

2.4.1 The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees, which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.

2.4.2 If adequate number of direct recruits does not become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of available direct recruits and the promotees.

3. Some references have been received seeking clarifications regarding the term 'available' used in the preceding para of the OM dated 3.7.1986. It is hereby clarified that while the inter-se seniority of direct recruits and promotees is to be fixed on the basis of the rotation of quota of vacancies, the year of availability, both in the case of direct recruits as well as the promotees, for the purpose of rotation and fixation of seniority, shall be the actual year of appointment after declaration of results/selection and completion of pre-appointment formalities as prescribed. It is further clarified that when appointments against unfilled vacancies are made in subsequent year or years, either by direct recruitment or promotion, the persons so appointed shall not get seniority of any earlier year (viz. year of vacancy/panel or year in which recruitment process is initiated) but should get the seniority of the year in which they are appointed on substantive basis. The year of availability will be the vacancy year in which a candidate of the particular batch of selected direct recruits or an officer of the particular batch of promotees joins the post/service.

4. Cases of seniority already decided with reference to any other interpretation of the term 'available' as contained in O.M. dated 3.7.1986 need not be reopened.

5. Hindi version will follow.

Sd/-

(Smita Kumar)

Director (Estt.I)

To

All Ministries/Departments of the Government of India.

5. Thereafter also, Respondent No.1 updated the seniority of DLCs as on 01.01.2010 and forwarded the provisional seniority list to all concerned vide its note dated 15.02.2010 maintaining the seniority position of the Applicant as well as the Respondent No.2 in tact, as in the earlier lists. The Applicants name was shown above the name of Respondent No.2 at Sl. No.2 and that of the Respondent No.2 at Sl.No.3. However, in the meanwhile, the Respondent No.2 had made a representation on 18.01.2010 to the Respondent No.1 pointing out that in terms of DOPandT OM dated 3.3.2008 (supra), his position in seniority list of DLCs, should have been refixed and shown above the Applicant considering the respective dates of their joining as DLCs under the Promotee Quota and Direct Recruitment quota respectively. Therefore, while issuing the aforesaid provisional seniority, vide note dated 15.02.2010, there was asterisk against the name of Respondent 2 and remarks at the bottom of the list that *Representation on seniority above Shri N.R. Battu is under consideration. As the Respondent No.2 made a subsequent representation, the Respondent No.1 decided to seek the opinion of the Department of Personnel and Training before a decision on it is taken and communicated to him. However, the DOPandT vide its note dated 11.06.2010, advised the Respondent  Legislative Department, Ministry of Law to meticulously follow the provisions contained in para 3 of the aforesaid OM dated 3.3.2008. Accordingly, the Additional Secretary in the Legislative Department recommended that the Respondent No.2 shall be shown senior to the Applicant and the said recommendation was accepted by the Secretary, Ministry of Law and Justice as well as the Honble Minister concerned. Thereafter, the Respondent No.1 without any notice to the Applicant, issued the impugned seniority list dated 25.10.2010 showing the Applicant at Sl.No.3 and the Respondent No.2 at Sl.No.2.

6. Thereafter, the Applicant made a representation on 07.01.2011 to restore his seniority as in the earlier seniority lists. The aforesaid representation was examined in the Department and the factual position was noted. According to copy of the departmental note made available to the Applicant under Right to Information Act, 2005, it is observed that the Respondent No.1 has re-considered the seniority position of the Applicant as well as Respondent No.2. It has been observed in the said note that the Respondent No.2 was appointed to the post of DLC by promotion with effect from 04.12.2003 and the Applicant joined the said post only on 25.02.2005 against the vacancy which occurred due to resignation of Shri Ashok G. Pawade who was Direct Recruit in the grade of DLC and thus the second or subsequent incumbent cannot claim the same seniority as that opportunity had already been exhausted by the first incumbent. It was also mentioned therein that the Applicant inadvertently could not be given opportunity to show cause before issuing of final seniority list and the issue is now being revisited in view of his representation. They have considered submission of the Applicant in his representation that the DOPandT, vide its OM dated 13.06.2000, issued instructions regarding operation of the reserved panels made on the basis of selections made by the UPSC, SSC etc. etc. and the procedure to be followed as under:-

“.In future, where a selection has been made through UPSC, a request for nomination from the reserve list, if any, may be made to the UPSC in the event of occurrence of a vacancy caused by non-joining of the candidate within the stipulated time allowed for joining the post or where a candidate joins but he resigns or dies within a period of one year from the date of his joining, if a fresh panel is not available by then. Such a vacancy should not be treated as fresh vacancy.”

Therefore, the observation made in the said office note was that against the direct recruit vacancy of the year 2002-03, Shri Ashok G. Pawade was selected through UPSC and he was appointed as DLC in the Legislative Department. He joined the department on 19.08.2004 and tendered his resignation and left the department on 09.11.2004, i.e., within a span of less than 3 months from the date of joining. Against the said vacancy, Applicant was appointed against the reserved panel prepared by the UPSC. Applicant joined the Legislative Department on 25.02.2005. In view of the above position, Applicant's appointment should not be treated against any fresh vacancy and he should occupy the same position in the seniority list to which Shri Pawade was entitled to in the recruitment year 2002-03. Since the Respondent No.2 was appointed as DLC against the vacancy year 2003-04, he cannot be shown senior to the incumbent of the recruitment year 2002-03. However, after detailed examination, the Respondent No.1 decided to grant seniority to the Respondent No.2 above the Applicant and by the impugned note dated 27.06.2011, the Respondent No.1 has also informed the Applicant that his representation dated 07.06.2011 has been examined but it has not been found that there was any specific point in his representation which necessitates any change in the decision already taken by the Department with the approval of the competent authority, after obtaining specific opinion of the DOPandT in the matter.

7. The applicant has challenged the aforesaid decision of the Respondent No.1 on the ground that the settled seniority position which has been in operation for several years cannot be unsettled. In this regard, he has relied upon the judgment of the Apex Court in Rajendra Pratap Singh Yadav and Others Vs. State of U.P. and Others 2011 (7) SCC 743. The relevant part of the said order reads as under:-

“52. We deem it appropriate to reiterate that in service jurisprudence there is immense sanctity of a final seniority list. The seniority list once published cannot be disturbed at the behest of person who chose not to challenge it for four years. The sanctity of the seniority list must be maintained unless there are very compelling reasons to do so in order to do substantial justice. This is imperative to avoid avoidable litigation and unrest and chaos in the services.”

He has also relied upon the DOPandTs own OM dated 03.03.2008 based on which the impugned seniority list has been issued. In the said OM, it has been clearly stated that “cases of seniority already decided with reference to any other interpretation of the term ‘available as contained in OM dated 3.7.1986 need not be reopened.”

8. The other submission of the learned counsel for the Applicant is that the interpretation of the aforesaid OM dated 03.03.2008 has already been clarified by the Apex Court in the judgment of Union of India and Others Vs. N.R. Parmar and Others JT 2012 (12) SC 99. The relevant part of the said order reads as under:-

20. Since it is the case of the rival parties before us, that the OM dated 7.2.1986 is the principal instruction, on the basis whereof the present controversy is to be settled, the same is being extracted hereunder in its entirety.

The 7 February, 1986.

Office Memorandum

Subject: General Principles for determining the seniority of various categories of persons employed in Central Services.

As the Ministry of Finance etc. are aware, the General Principles for determination of seniority in the Central Services are contained in the Annexure to Ministry of Home Affairs O.M. No. 9/11/55-RPS dated 22nd December 1959. According to Paragraph-6 of the said Annexure, the relative seniority of direct recruits and promotees shall be determined according to rotation of vacancies between the direct recruits and the promotees, which will be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules. In the Explanatory Memorandum to these Principles, it has been stated that a roster is required to be maintained based on the reservation of vacancies for direct recruitment and promotion in the Recruitment Rules. Thus where appointment to a grade is to be made 50% by direct recruitment and 50% by promotion from a lower grade, the inter-se seniority of direct recruits and promotees is determined on 1:1 basis.

2. While the above mentioned principle was working satisfactorily in cases where direct recruitment and promotion kept pace with each other and recruitment could also be made to the full extent of the quotas as prescribed, in cases where there was delay in direct recruitment or promotion, or where enough number of direct recruits or promotees did not become available, there was difficulty in determining seniority. In such cases, the practice followed at present is that the slots meant for direct recruits or promotees, which could not be filled up, were left vacant, and when direct recruits or promotees became available through later examinations or selections, such persons occupied the vacant slots, thereby became senior to persons who were already working in the grade on regular basis. In some cases, where there was short-fall in direct recruitment in two or more consecutive years, this resulted in direct recruits of later years taking seniority over some of the promotees with fairly long years of regular service already to their credit. This matter had also come up for consideration in various Court Cases both before the High Courts and the Supreme Court and in several cases the relevant judgement had brought out the inappropriateness of direct recruits of later years becoming senior to promotees with long years of service.

3. This matter, which was also discussed in the National Council has been engaging the attention of the Government for quite some time and it has been decided that in future, while the principle of rotation of quotas will still be followed for determining the inter-se seniority of direct recruits and promotees, the present practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unitended seniority over promotees who are already in position, would be dispensed with. Thus, if adequate number of direct recruits do not become available in any particular year, rotation of quotas for purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees. In other words, to the extent direct recruits are not available, the promotees will be bunched together at the bottom of the seniority list, below the last position upto which it is possible to determine seniority on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the corresponding direct recruitment vacancies of the next year (and to subsequent years where necessary) for taking action for direct recruitment for the total number according to the usual practice. Thereafter, in that year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional direct recruits selected against the carried forward vacancies of the previous year would be placed en-bloc below the last promotee (or direct recruit as the case may be) in the seniority list based on the rotation of vacancies for that year. The same principle holds good in determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies (as the case may be) in the subsequent years.

Illustration:

Where the Recruitment Rules provide 50% of the vacancies in a grade to be filled by promotion and the remaining 50% by direct recruitment, and assuming there are 10 vacancies in the grade arising in each of the years 1986 and 1987 and that 2 vacancies intended for direct recruitment remained unfilled during 1986 and they could be filled during 1987, the seniority position of the promotees and direct recruits of these two years will be as under:

1986         1987 1. P1         9. P1 2. D1        10. D1

3. P2         11. P2

4. D2        12. D2

5. P3         13. P3

6. D3        14. D3

7. P4         15. P4

8. P5         16. D4

                17. P5

                18. D5

                19. D6

                20. D7

4. In order to help the appointing authorities in determining the number of vacancies to be filled during a year under each of the methods of recruitment prescribed, a Vacancy Register giving a running account of the vacancies arising and being filled from year to year may be maintained in the proforma enclosed.

5. With a view to curbing any tendency of under-reporting/suppressing the vacancies to be notified to the concerned authorities for direct recruitment, it is clarified that promotees will be treated as regular only to the extent to which direct recruitment vacancies are reported to the recruiting authorities on the basis of the quotas prescribed in the relevant recruitment rules. Excess promotees, if any, exceeding the share falling to the promotion quota based on the corresponding figure, notified for direct recruitment would be treated only as ad- hoc promotees.

6. The General Principles of seniority issued on 22nd December, 1959 referred to above, may be deemed to have been modified to that extent.

7. These orders shall take effect from 1st March 1986. Seniority already determined in accordance with the existing principles on the date of issue of these orders will not be reopened. In respect of vacancies for which recruitment action has already been taken, on the date of issue of these orders either by way of direct recruitment or promotion, seniority will continue to be determined in accordance with the principle in force prior to the issue of this O.M.

8. Ministry of Finance etc. are requested to bring these instructions to the notice of all the Attached/Subordinate Offices under them to whom the General Principles of Seniority contained in O.M. dated 22.12.1959 are applicable within 2 week as these orders will be effective from the next month.

Sd/-

Joint Secretary to the Govt. of India

(emphasis is ours)

20.1. Since the OM dated 7.2.1986 would primarily constitute the determination of the present controversy, it is considered just and appropriate to render an analysis thereof. The following conclusions are apparent to us, from a close examination of the OM dated 7.2.1986:

(a) Paragraph 2 of the OM dated 7.2.1986 first records the existing manner of determining inter se seniority between direct recruits and promotees (i.e., as contemplated by the OM dated 22.11.1959), namely, the slots meant for direct recruits or promotees, which could not be filled up, were left vacant, and when direct recruits or promotees become available through later examinations or selections, such persons occupied the vacant slots, (and) thereby became senior to persons who were already working in the grade on regular basis. In some cases, where there was shortfall in direct recruitment in two or more consecutive years, this resulted in direct recruits of later years taking seniority over some of the promotees with fairly long years of regular service to their credit. The words, “when direct recruits or promotees become available through later examination or selections”, clearly connotes, that the situation contemplated is one where, there has been an earlier examination or selection, and is then followed by a “later” examination or selection. It is implicit, that in the earlier examination or selection there was a shortfall, in as much as, the available vacancies for the concerned recruitment year could not all be filled up, whereupon, further examination(s) or selection(s) had to be conducted to make up for the shortfall. In the instant situation, the earlier OM dated 22.11.1959 contemplated/provided, that slots allotted to a prescribed source of recruitment which remained vacant, would be filled up only from the source for which the vacancy was reserved, irrespective of the fact that a candidate from the source in question became available in the next process of examination or selection, or even thereafter. In other words the 'rotation of quotas' principle was given effect to in letter and spirit under the OM dated 22.11.1959, without any scope of relaxation.

(b) The position expressed in the sub-paragraph (a) above, was sought to be modified by the OM dated 7.2.1986, by providing in paragraph 3 thereof, that the earlier “principle of rotation of quotas would still be followed for determining the inter se seniority of direct recruits and promotes” except when the direct recruit vacancies were being filled up by direct recruits of later years. Read in conjunction with paragraph 2 of the OM dated 7.2.1986, the words direct recruits of later years must be understood to mean, direct recruits who became available through “later” examination(s) or selection(s). Essentially the “later” examination(s) or selection(s) should be perceived as those conducted to fill up the carried forward vacancies, i.e., vacancies which could not be filled up, when the examination or selection for the concerned recruitment year was originally/ first conducted. This change it was clarified, was made to stop direct recruits of “later” years, from gaining “unintended seniority over promotees who are already in position”, as High Courts and the Supreme Court had brought out the inappropriateness thereof. It is therefore apparent, that the OM dated 7.2.1986 partially modified the rotation of quotas principle in the determination of inter se seniority originally expressed in the OM dated 22.11.1959. The OM dated 7.2.1986, provided that the rota (rotation of quotas) would be adhered to “only to the extent of available direct recruits and promotes”, i.e., for promotee and direct recruit vacancies which could be filled up through the original/first process of examination or selection conducted for the recruitment year in which the vacancies had arisen.

(c) For the vacancies remaining unfilled when the same were originally/first sought to be filled up, the slots available under the “rota” principle under the OM dated 22.11.1959, would be lost to the extent of the shortfall. In other words, the “rotation of quotas” principle would stop operating after, the last position upto which it is (was) possible to determine seniority on the basis of rotation of quotas, for the concerned recruitment year.

(d) Paragraph 3 of the OM dated 7.2.1986 provided, the manner of assigning seniority to vacancies carried forward on account of their having remained unfilled in the original/first examination or selection process. The change contemplated in the OM dated 7.2.1986, referred to hereinabove, was made absolutely unambiguous by expressing that, “The unfilled direct quota vacancies would be carried forwarded and added to the corresponding direct recruitment vacancies of the next year.” It is therefore apparent, that seniority of carried forward vacancies would be determined with reference to vacancies of the recruitment year wherein their selection was made, i.e., for which the “later” examination or selection was conducted.

(e) The OM dated 7.2.1986 formulated the stratagem to be followed, where adequate number of vacancies in a recruitment year could not be filled up, through the examination or selection conducted therefor. The OM provided, “to the extent direct recruits are not available, the promotees will be bunched together at the bottom of the seniority list, below the last position upto which it is (was) possible to determine the seniority on the basis of rotation of quotas with reference to the actual number of direct recruits who become available....”

(f) Paragraph 3 of the OM dated 7.2.1986 further postulated, that the modification contemplated therein would be applied prospectively, and that, “the present practice of keeping vacant slots for being filled up by direct recruits of later years, over promotees who are (were) already in position, would be dispensed with”. It is therefore apparent, that the slots assigned to a particular source of recruitment, would be relevant for determining inter se seniority between promotees and direct recruits, to the extent the vacancies could successfully be filled up (and the unfilled slots would be lost) only for vacancies which arose after the OM dated 7.2.1986, came to be issued.

(g) The illustration provided in paragraph 3 of the OM dated 7.2.1986 fully substantiates the analysis of the OM dated 7.2.1986 recorded in the foregoing sub-paragraphs. In fact, the conclusions drawn in the foregoing sub-paragraphs have been drawn, keeping in mind the explanatory illustration narrated in paragraph 3 of the OM dated 7.2.1986.

(h) In paragraph 6 of the OM dated 7.2.1986 it was asserted, that the general principles for determining seniority in the OM dated 22.11.1959 were being “modified” to the extent expressed (in the OM dated 7.2.1986). The extent of modification contemplated by the OM dated 7.2.1986 has already been delineated in the foregoing sub-paragraphs. Para 6 therefore leaves no room for any doubt, that the OM dated 22.11.1959 stood “amended” by the OM dated 7.2.1986 on the issue of determination of inter se seniority between direct recruits and promotees, to the extent mentioned in the preceding sub-paragraphs. The said amendment was consciously carried out by the Department of Personnel and Training, with the object of remedying the inappropriateness of direct recruits of “later” examination(s) or selection(s) becoming senior to promotees with long years of service, in terms of the OM dated 22.11.1959.

21. The O.M. dated 7.2.1986, was followed by another Office Memorandum issued by the Government of India, Department of Personnel and Training, dated 3.7.1986 (hereinafter referred to as, “the O.M. dated 3.7.1986”). The purpose of the instant O.M., as the subject thereof suggests, was to “consolidate” existing governmental orders on the subject of seniority. Paragraphs 2.4.1 to 2.4.4 of the O.M. dated 3.7.1986 dealt with the issue of inter se seniority between the direct recruits and promotees. The same are accordingly being reproduced hereunder:-

2.4.1 The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.

2.4.2 If adequate number of direct recruits do not become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees.

In other words, to the extent direct recruits are not available the promotees will be bunched together at the bottom of the seniority list below the last position upto which it is possible to determine seniority, on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the corresponding direct recruitment vacancies of the next year (and to subsequent years where necessary) for taking action for direct recruitment for the total number according to the usual practice. Thereafter in that year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional, direct recruits selected against the carried forward vacancies of the previous year would be placed en-bloc below the last promotee (or direct recruit as the case may be), in the seniority list based on the rotation of vacancies for that year. The same principle holds good for determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies (as the case may be) in the subsequent year.

ILLUSTRATION: Where the Recruitment Rules provide 50% of the vacancies of a grade to be filled by promotion and the remaining 50% by direct recruitment, and a assuming there are ten vacancies in the grade arising in each of the year 1986 and 1987 and that two vacancies intended for direct recruitment remain unfilled during 1986 and they could be filled during 1987, the seniority position of the promotees and direct recruits of these two years will be as under:

1986         1987 1. P1         9. P1 2. D1        10. D1

3. P2         11. P2

4. D2        12. D2

5. P3         13. P3

6. D3        14. D3

7. P4         15. P4

8. P5         16. D4

                17. P5

                18. D5

                19. D6

                20. D7

2.4.3. In order to help the appointing authorities in determining the number of vacancies to be filled during a year under each of the methods of recruitment prescribed, a Vacancy Register giving a running account of the vacancies arising and being filled from year to year may be maintained in the proforma enclosed.

2.4.4 With a view to curbing any tendency of under- reporting/suppressing the vacancies to be notified to the concerned authorities for direct recruitment, it is clarified that promotees will be treated as regular only to the extent to which direct recruitment vacancies are reported to the recruiting authorities on the basis of the quotas prescribed in the relevant recruitment rules. Excess promotees, if any, exceeding the share failing to the promotion quota based on the corresponding figure, notified for direct recruitment would be treated only as ad-hoc promotees.

21.1. The following conclusions have been drawn by us from the O.M. dated 3.7.1986:-

(a) If adequate number of direct recruits (or promotees) do not become available in any particular year, “rotation of quotas” for the purpose of determining seniority, would stop after the available direct recruits and promotees are assigned their slots for the concerned recruitment year.

(b) To the extent direct recruits were not available for the concerned recruitment year, the promotees would be bunched together at the bottom of the seniority list, below the last position upto which it was possible to determine seniority, on the basis of rotation of quotas. And vice versa.

(c) The unfilled direct recruitment quota vacancies for a recruitment year, would be carried forward to the corresponding direct recruitment vacancies of the next year (and to subsequent years, where necessary). And vice versa. In this behalf, it is necessary to understand two distinct phrases used in the OM dated 3.7.1986. Firstly, the phrase “in that year” which connotes the recruitment year for which specific vacancies are earmarked. And secondly, the phrase in the subsequent year, which connotes carried forward vacancies, filled in addition to, vacancies earmarked for a subsequent recruitment year.

(d) The additional direct recruits selected, against the carried forward vacancies of the previous year, would be placed en-bloc below the last promotee. And vice versa.

21.2. It is, therefore, apparent, that the position expressed in the O.Ms. dated 7.2.1986 and 3.7.1986, on the subject of inter se seniority between direct recruits and promotees, was absolutely identical. This is indeed how it was intended, because the OM dated 3.7.1986 was only meant to “consolidate” existing governmental instructions, on the subject of seniority.

22. Chronologically, it is necessary, at the present juncture to refer to an Office Note of the Department of Personnel and Training, Establishment (D) Section, dated 20.12.1999 (hereinafter referred to as, the O.N. dated 20.12.1999). Undoubtedly, an office note has no legal sanction, and as such, is not enforceable in law. Yet an office note is certainly relevant for determining the logic and process of reasoning which prevailed at the relevant point of time. These would aid in the interpretation of the binding office memoranda, only when the language of the office memoranda is ambiguous. Ofcourse, only where there is no conflict between the two i.e., the office note and the office memoranda sought to be interpreted. In the aforesaid background, and for the aforesaid limited purpose, reference is being made to the O.N. dated 20.12.1999. The same is being reproduced hereunder:-

xxxx                            xxxx                      xxxx

23.1. The logic and process of reasoning emerging from the OM dated 2.2.2000, as is apparent to us, is being analysed below:

(a) If the process of recruitment has been initiated during the recruitment year (in which the vacancies have arisen) itself, even if the examination for the said recruitment is held in a subsequent year, and the result is declared in a year later (than the one in which the examination was held), and the selected candidates joined in a further later year (than the one in which the result was declared), the selected candidates will be entitled to be assigned seniority, with reference to the recruitment year (in which the requisition of vacancies was made). The logic and reasoning for the aforesaid conclusion (expressed in the ON dated 2.2.2000) is, if the process of direct recruitment is initiated in the recruitment year itself, the selected candidate(s) cannot be blamed for the administrative delay, in completing the process of selection.

(b) The words “initiation of action for recruitment”, and the words “initiation of recruitment process”, were explained to mean, the date of sending the requisition to the recruiting authority.

xxxx                   xxxx                      xxxx

25.1. The following conclusions, in our view, can be drawn from the OM dated 3.3.2008:

(a) The OM dated 3.3.2008 is in the nature of a “clarification”, to the earlier consolidated instructions on seniority, contained in the OM dated 3.7.1986 (referred to and analysed, in paragraph 21 above).

 (b) The term “available” used in para 2.4.2 in the OM dated 3.7.1986 has been “clarified” to mean, both in case of direct recruits as well as promotees, for the purpose of fixation of seniority, would be the actual year of appointment after the declaration of the result/selection, i.e., after the conclusion of the selection process, and after the “completion of the pre-appointment formalities” (medical fitness, police verification, etc.).

(c) As per the OM dated 3.7.1986, when appointments are made against unfilled vacancies in subsequent year(s), the persons appointed would "not" get seniority with reference to the year in which the vacancy arose, or the year in which the recruitment process was initiated, or the year in which the selection process was conducted.

(d) As per the OM dated 3.3.2008, when appointments are made against unfilled vacancies in subsequent year(s), the persons appointed would get seniority of the year in which they are appointed on substantive basis.

XXX XXX XXX

26.1. In view of the above, it is not possible for us to accept that the OM dated 3.3.2008, would only apply prospectively. We are also satisfied, that the OM dated 3.3.2008 which is only a “clarification” of the earlier OM dated 3.7.1986, would relate back to the original instrument, namely, the OM dated 3.7.1986.

 “..the OM dated 7.2.1986 is in the nature of an amendment/modification. The Department of Personnel and Training consciously “amended” the earlier OM dated 22.11.1959, by the later OM dated 7.2.1986. The said amendment was consciously carried out, with the object of remedying the inappropriateness of direct recruits of later years becoming senior to promotees with long years of service. It is not the case of any of the parties before us, that the OM dated 7.2.1986, has ever been “amended” or "modified”. It is therefore imperative to conclude, that the OM dated 7.2.1986 is binding for the determination of the issues expressed therein, and that, the same has the force of law. The OM dated 3.7.1986 is in the nature of consolidatory instruction, whereby, all earlier instructions issued from time to time were compiled together. This is apparent, not only from the subject of the aforesaid OM dated 3.7.1986, but also, the contents of paragraph 1 thereof. Paragraph 1 of the OM dated 3.7.1986, is being reproduced hereunder:

Dated 3.7.86

OFFICE MEMORANDUM

Subject: SENIORITY - consolidated orders on

The undersigned is directed to say that instructions have been issued by this Department from time to time laying down the principles for determining seniority of persons appointed to services and posts under the Central Government. For facility of reference, the important orders on the subject have been consolidated in this office memorandum. The number and date of the original communication has been quoted in the margin so that the users may refer to it to understand fully the context in which the order in question was issued.” (emphasis is ours)

27.1. It is therefore clear, that the OM dated 3.3.2008 is neither in the nature of an “amendment” nor in the nature of a “modification”. Since the OM dated 3.3.2008, is a mere “consolidation” or compilation of earlier instructions on the subject of seniority, it is not prudent to draw any inferences therefrom which could not be drawn from the earlier instruction/office memoranda being “consolidated” or compiled therein, or which is contrary thereto.

28. It is relevant to notice, that there is a marginal note against paragraph 2.4.2 in the OM dated 3.7.1986. The aforesaid marginal note is being extracted hereunder:

“DOPT No.35014/2/80-Estt(D) dt.7.2.86”

28.1. Therefore, paragraph 2.4.2 must be deemed to have been recorded in the consolidating OM, on the basis of the OM dated 7.2.1986. The instant assertion has been made on account of it having been expressly mentioned in the opening paragraph of the OM dated 3.7.1986 (extracted above), that the number and date of the original communication has been quoted in the margin, so that the user may refer to it, to understand fully the context in which the order in question was issued. Therefore, for all intents and purposes the OM dated 3.3.2008 is with reference to the OM dated 7.2.1986. It is for this reason, that while debating the exact purport of the OM dated 3.3.2008, it has been our endeavour to examine the same, with reference to the earlier OMs dated 7.2.1986 and 3.7.1986, which were inter alia “consolidated” in the OM dated 3.3.2008.

29. A perusal of the OM dated 3.3.2008, would reveal, that a reference to paragraphs 2.4.1 and 2.4.2 of the OM dated 3.7.1986, has been made therein. Thereupon, the meaning of the term “available” used in paragraph 2.4.2 of the OM dated 3.7.1986, is statedly “clarified”. In view of the conclusion drawn in the foregoing paragraph, the said clarification must be deemed to be with reference, not only to the OM dated 3.7.1986 but also the OM dated 7.2.1986. We have already noticed, in an earlier part of the instant judgment, the essential ingredients of a “clarification” are, that it seeks to explain an unclear, doubtful, inexplicit or ambiguous aspect of an instrument, which is sought to be clarified or resolved through the “clarification”. And that, it should not be in conflict with the instrument sought to be explained. It is in the aforesaid background, that we will examine the two queries posed in the preceding paragraph. We have already analysed the true purport of the OM dated 7.2.1986 (in paragraph 20 hereinabove). We have also recorded our conclusions with reference to the OM dated 3.7.1986 wherein we have duly taken into consideration the true purport of paragraph 2.4.2 contained in the OM dated 3.7.1986 (in paragraph 21 hereinabove). The aforesaid conclusions are not being repeated again for reasons of brevity. We have separately analysed the effect of the OM dated 3.3.2008 (in paragraph 26 of the instant judgment). It is not possible for us to conclude that the position expressed in the earlier office memoranda is unclear, doubtful, inexplicit or ambiguous. Certainly not on the subject sought to be clarified by the OM dated 3.3.2008. A comparison of the conclusions recorded in paragraph 20 (with reference to the OM dated 7.2.1986) and paragraph 21 (with reference to OM dated 3.7.1986) on the one hand, as against, the conclusions drawn in paragraph 26 (with reference to OM dated 3.3.2008) on the other, would lead to inevitable conclusion, that the OM dated 3.3.2008 clearly propounds, a manner of determining inter se seniority between direct recruits and promotees, by a method which is indisputably in conflict with the OMs dated 7.2.1986 and 3.7.1986. Ofcourse, it was possible for the Department of Personnel and Training to “amend” or “modify” the earlier office memoranda, in the same manner as the OM dated 7.2.1986 had modified/amended the earlier OM dated 22.11.1959. A perusal of the OM dated 3.3.2008, however reveals, that it was not the intention of the Department of Personnel and Training to alter the manner of determining inter se seniority between promotees and direct recruits, as had been expressed in the OMs dated 7.2.1986 and 3.7.1986. The intention was only to “clarify” the earlier OM dated 3.7.1986 (which would implicitly include the OM dated 7.2.1986). The OM dated 3.3.2008 has clearly breached the parameters and the ingredients of a “clarification”. Therefore, for all intents and purposes the OM dated 3.3.2008, must be deemed to be non-est to the extent that the same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. Having so concluded, it is natural to record, that as the position presently stands, the OMs dated 7.2.1986 and 3.7.1986 would have an overriding effect over the OM dated 3.3.2008 (to the extent of conflict between them). And the OM dated 3.3.2008 has to be ignored/omitted to the extent that the same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. In the light of the conclusions recorded hereinabove, we are satisfied that the OM dated 3.3.2008 is not relevant for the determination of the present controversy.

XXX XXX XXX

33. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paragraphs 20 and 21 hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitment was issued by the SSC in the recruitment year in which direct recruit vacancies had arisen. The said factual position, as confirmed by the rival parties, is common in all matters being collectively disposed of. In all these cases the advertised vacancies were filled up in the original/first examination/selection conducted for the same. None of the direct recruit Income Tax Inspectors herein can be stated to be occupying carried forward vacancies, or vacancies which came to be filled up by a “later” examination/selection process. The facts only reveal, that the examination and the selection process of direct recruits could not be completed within the recruitment year itself. For this, the modification/amendment in the manner of determining the inter-se seniority between the direct recruits and promotees, carried out through the OM dated 7.2.1986, and the compilation of the instructions pertaining to seniority in the OM dated 3.7.1986, leave no room for any doubt, that the “rotation of quotas” principle, would be fully applicable to the direct recruits in the present controversy. The direct recruits herein will therefore have to be interspaced with promotees of the same recruitment year.

34. In view of the above, the Civil Appeals, the Transferred Case, as well as, the Transfer Case (filed by the direct recruits and the Union of India) are hereby allowed. The claim of the promotees, that the direct recruit Income Tax Inspectors, in the instant case should be assigned seniority with reference to the date of their actual appointment in the Income Tax Department is declined.

9. The Official Respondents No.1, i.e. Union of India have filed their reply. The factual position has not been disputed. However, they have submitted that in terms of provisions contained in DOPandT OM dated 03.03.2008 they were required to revise the seniority of the Applicant and the Respondent No.2. In this regard, they have specifically referred to para 3 of the said OM which reads as under:-

“3. Some references have been received seeking clarifications regarding the term “available” used in the preceding para of the OM dated 3.7.1986. It is hereby clarified that while the inter-se seniority of direct recruits and promotees is to be fixed on the basis of the rotation of quota of vacancies, the year of availability, both in the case of direct recruits as well as the promotees, for the purpose of rotation and fixation of seniority, shall be the actual year of appointment after declaration of results/ selection and completion of pre-appointment formalities as prescribed. It is further clarified that when appointments against unfilled vacancies are made in subsequent year or years either by direct recruitment or promotion, the persons so appointed shall not get seniority of any earlier year (viz. year of Vacancy/panel or year in which recruitment process is initiated) but should get the seniority of the year in which they are appointed on substantive basis. DoPandTs O.M. No.20011/1/2008-Estt.(D) Dated 11th November 2010 The year of availability will be the vacancy year in which a candidate of the particular batch of selected direct recruits or an officer of the particular batch of promotees joins the post/service.

10. They have also stated that the Applicant has made a representation against the refixation of the seniority but the same has been examined in the light of decision taken by this department and it was found he has not made any specific point which warranted a revisit to the decision taken by the Department.

11. The Respondent No.2 has also filed his reply stating that the present Original Application is misconceived and misplaced. He had referred to the advice of the DOPandT in its noting dated 08.06.2010 which reads as under:-

“This stipulation simply means that the Department concerned on its own would take up an exercise of recasting the seniority until there is any grievance/complaint of the officer against his/her placement in the seniority list brought out by the Department on the basis of its interpretation of the term ‘available as opening up a Pandoras box could only lead to administrative chaos.

“On receipt of a reference involving a controversy/dispute from the officer concerned, within a reasonable period of 2 years from the date of issue of his/her first seniority placement on the substantive issue of seniority or on the direction of CAT/Court or any other public authority concerned in the matter, the Department concerned may take necessary action about revising his/her seniority and further incidental action, if necessary, if it is in tune with the principles of relative seniority between Direct Recruits and Promotees as enunciated in the OM dated 3.7.1986 as stands clarified by OM dated 3.3.2008. Para 3 of the OM dated 3.3.2008 may, therefore, be meticulously followed in the matter.”

Therefore, the first respondent is justified in revising the seniority and assigning his due seniority. He has also pointed that the sanctioned strength of Deputy Legislative Counsel (DLC-Grade III of Indian Legal Service) in the Legislative Department of the Ministry of Law and Justice is ten. In the year 2003, four vacancies existed out of the total ten vacancies and out of which, one was reported to UPSC for direct recruitment and the other three were filled up by promotion on 04-12-2003 from the feeder grade (Assistant Legislative Counsel- Grade IV of ILS), including Respondent No.2. The direct recruitment vacancy was filled up by the selection and appointment of Shri Ashok Pawade on 19-04-2004. Thus all the ten sanctioned posts of DLC were filled up as on 19-04-2004. That means, the posts were filled up according to the rotation of vacancies as 50% by promotion and 50% by way of direct recruitment. Accordingly, there were five Promotees and five Direct Recruits as per the seniority list dated 21-09-2004. Thus the rota quota was complete with regard to the posts of DLCs as on the said date. While so, after serving for about three months, Shri Pawade resigned on 08-11-2004, thereby creating a new vacancy of DLC in the year 2004. When the direct recruitment vacancy arose in 2004, out of the nine filled up posts, five were already filled up by promotees and four were by direct recruits. The Department had the option to fill up the vacancy created owing to his resignation, either by promotion or by direct recruitment. However, no person was eligible to be promoted as DLC from the feeder grade of ALC. Hence, the Department decided to fill up the vacancy by way of direct recruitment again, and, consequently, the Applicant was appointed on 25-02-2005 from the wait list.

12. He has further submitted that vacancy to which the Applicant was appointed arose only on 08-11-2004, the date on which Shri Ashok Pawade resigned. That means, the vacancy meant for the Applicant actually arose only after 14 months of the actual substantive appointment of the Respondent No.2 on 04-12-2003. The Applicant who was appointed against a vacancy which actually arose only 14 months later than the date of substantive appointment of the Respondent No.2 cannot in any way claim seniority over the Respondent No.2.

13. He has also stated that the facts, law and the circumstances in the case of N.R. Parmar and Ors. are different from the case on hand. In Parmars case the inter-se seniority between a bunch of promotees and a group of direct recruits was involved. It was a case where vacancies by way of promotion and direct recruitment existed at the same time and were referred to the Departmental Promotion Committee and the Staff Selection Commission simultaneously for selection whereas in the instant case, the vacancy to which the Applicant was recruited arose only after 14 months of substantive appointment of the Respondent No.2. Further, in Parmars case, the Honble Supreme Court was considering as to whether clarification OM dated 03/03/2008 was in conflict with OM dated 03/07/1986 and OM dated 07/02/1986. Parties to the instant case never challenged, disputed the OM dated 03/07/1986, OM dated 03/03/2008 or OM dated 07/02/1986. The instant case is not one that challenges the rotation of quotas between direct recruits and promotees but only seeks to clarify the inter-se seniority between the Applicant and Respondent No.2. As far as the instant case is concerned, OM dated 03/03/2008 is not in derogation of OM dated 03/07/1986 as even according to OM dated 03/07/1986 and OM dated 07/02/1986, the Respondent No. 2 is entitled to be held senior to the Applicant. The instant case is distinguishable from N.R. Parmars case wherein examination and other selection processes for a group of direct recruits and promotees were initiated simultaneously. In the instant case, the recruitment processes were completed within time and the person who was offered appointment (Shri Ashok Pawad) did join and occupy the post and hence the post in question was already filled up and the vacancy was already exhausted. In N.R. Parmars case, the slots meant for direct recruits were not filled in by way of any appointment. But in the instant case, the slot was consumed by the appointment and by the joining of Shri Ashok G. Pawade it has been exhausted. Once the slot has been exhausted by the joining of the direct and subsequently vacated the same, the rota was changed and the next slot could only have gone to the Respondent No.2. The date of vacancy or recruitment year has no relevance after the resignation of Shri Ashok G Pawade as retrospective seniority cannot be given to a person who would not otherwise get appointed, had the person who consumed the slot not resigned. Once the slot is filled up by rotation, it cannot be claimed again by another person in the reserve list. When the Respondent No.2 was already appointed in 2003 and Shri Pawade who joined in 2004 subsequently resigned, the vacancy position of the year 2004 cannot be considered as the same vacancy position as of 2003. The rotation for a direct recruit would be available only after the promotee, and, in this case, after the Respondent No.2. In fact, the judgment in Parmars case (supra) did not change the pith and substance of the intention behind OM dated 07/02/1986. Further, it only cements the earlier position held by various High Courts and the Honble Supreme Court that a person who joined later should not be given seniority over the promotees having long standing service. Seniority is based on continuous substantive service held by a person on the post. A direct recruit cannot be assigned seniority when he is never born in any service. In short, seniority cannot be reserved for a person who was still in school or college. In Parmars case (supra), the Honble Supreme Court only distinguished the effect of OM dated 03/03/2008 vis-`-vis OM dated 03/07/1986 and also OM dated 07/02/1986 and it did not unsettle the settled position that whoever joins first is senior to all others.

14. However, in this case, the Applicant challenged the seniority of Respondent No.2, who was promoted as DLC (Grade III of Indian Legal Service) on 04/12/2003, whereas the Applicant was born in the service only on 25/02/2005 as a direct recruit against a vacancy which arose owing to the resignation of Shri Ashok G. Pawade who was appointed and who subsequently resigned. There is no rule that a person who joins a post as a reserve list candidate in place of another who had occupied and exhausted the slot and subsequently vacates the slot, should also be assigned the same seniority position assignable to the person who first occupied it. In other words, a reserve list cannot determine seniority but it is the actually vacancy arising in each year and the principles of rota quota that would decide the seniority. The lawful seniority position of Respondent No. 2 cannot be violated merely for the reason that the Department made use of a reserve list to appoint a wait listed candidate. Since the existing vacancy was already filled up by the joining of Shri Ashok Pawade, the Applicant was not actually available in that year. His slot would have been `available only after the due seniority of Respondent No.2 was fixed as on the date of vacation of the slot meant for direct recruits after the resignation of Shri Ashok Pawade on 08/11/2004. Hence, it can be seen that the rotation of the Applicant, who joined after exhausting the rota meant for Shri Pawade, would begin only after the rotation of Respondent No. 2 in the seniority list. OM dated 07/02/1986 clearly mandates that principle of rotation of quotas will still be followed for determining the inter se seniority of direct recruits and promotees In view of the above, it is seen that as the slot meant for direct recruit was consumed by Shri Ashok Pawade, the next slot in the rota system should naturally be assigned to the Respondent No.2. After the slot meant for Shri Ashok Pawade was exhausted by his occupying the slot, the appointment of the Applicant should be treated as fresh selection.

15. The Respondent No.2 has also relied upon the following settled legal positions by the Honble Supreme Court:

Seniority is to be accorded from the date of substantive appointment and not from the accrual of vacancies (State of UP v/s Dinesh Kumar Sharma, 2006 (13) SCALE 248).

Date of entry in a particular service or date of substantive appointment is the safest criterion for fixing seniority (Pawan Pratap Singh and Ors. v/s Reevan Singh and Ors. (2011 (3) SCC 267).

The State cannot make retrospective appointment so as to effect seniority of existing incumbents, which eventually may result in reducing their chances of promotion (Ramendra Singh and Ors. v/s Jagdish Prasad v/s Jagdish Prasad (1984 (Supp) SCC 142).

No person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely effect others. (Vinodanand Yadav v/s State of Bihar, 1984 (Supp) 2 SCC 44.)

The year in which vacancy arose and against which vacancy the recruitment has been made is no at all to be looked into for determining of the inter-se seniority between direct recruits and promotes (Jagdish C.Patnaik v/s State of Orissa, 1988 (4) SCC 456)

Since, no vacancy has arisen earlier after the preparation of the seniority list, mere rejection of the said representation held, would not disentitle the employee concerned to file the said writ petition to claim seniority over the superseding candidate (1995 (5) SCC 680).

Continuous officiating in the post of Assistant in the determining factor to fix the inter-se seniority (AIR 1997 SC 406).

Notifications issued inviting applications was in respect of one post and the first candidate in the select panel was not only offered but on his own acceptance of offer came to be appointed and it was only subsequently he came to resign. With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlined its utility. (2002 (1) SCC 113).

Right to get particular position in the seniority list is not a vested or accrued right (1997 (8) SCC 522), Bola v/s B.D. Sardana)

The promotees come into service, not by any fortuitous circumstances but they form an integral part of the regular cadre entitled to all benefits by the length of their service. Delay in making appointments by direct recruitment should not visit the promotees with adverse consequences, denying them the benefit of their service. (1987 (Supp) SCC 763).

Inter-se seniority among the directly recruited candidates and promotees Quota and Rota system places for directly recruited candidates kept vacancy in the roster  no candidates directly recruited for few years candidate later appointed cannot steal a march over promotees  quota system broken down as recruitment was not simultaneous rotational system also collapse direct recruitment in subsequent years cannot claim seniority over promotees (HC of Delhi (1994) 28 DRJ 593).

No person can claim a right to be promoted from the date when the vacancy accrued and he must take the promotion with its benefits from the date of actual promotion (HC of Delhi WP (c) 1188-90/2005).

16. Besides, he has also relied upon the orders of this Tribunal in (i) OA 56/2009 dated 30/09/2010, Mohit Kumar Sharma and Ors. vs. UOI and Ors., (ii) OA 779/2006 with OA 1626/2006 and OA 1349/2006 Avtar Singh and Ors. vs. UOI and Ors. with connected cases, (iii) OA 911/2007 A.K. Dahiya and Ors. vs. The Secretary, UPSC and Ors. and (iv) OA 3191/2009 Adil Rashid Siddiqui vs. UOI and Ors. wherein the aforesaid judgments of the Apex Court have been followed.

17. Further according to the Respondent no.2, he has been disputing the seniority lists since the year 2005. But there was no occasion for him to challenge them in any court of law because of the fact that the Applicant was not being considered for promotion for the next higher post thereby not affecting his legal rights. He was rather waiting for a cause of action to challenge the seniority earlier assigned to the Applicant. It was only after the clarification OM dated 03/03/2008 was issued by the DOPT and that the Respondent No. 1 was attempting to promote the Applicant, he filed the last representation on 18/01/2010 and on the basis of which the Respondent No. 1 corrected the mistake the crept in the seniority list. Had his representation dated 18/01/2010 been rejected by Respondent No.1, he would have approached this Tribunal for the rectification of the error in the seniority list and to secure his valid legal right, before the present OA was filed by the Applicant.

18. We have heard the learned counsel for the Applicant Shri Sanjay Ghosh and Mohd. Farruck, the learned counsel for Respondent No.1 Shri Rajesh Katyal and the learned counsel for Respondent No.2 Shri Naresh Kaushik.

19. Admitted position in this case is that Shri Ashok G. Pawade and the Applicant have applied for the sole post of DLC under DR quota which has arisen during the recruitment year 2002-03 and after interviewing them on 25.09.2003, the UPSC prepared the panel of selected candidates in which the former was at Sl.No.1 and the latter at Sl.No.2. On his recommendation by the UPSC, Shri Pawade joined as DLE on 19.08.2010 and worked for less than three months and resigned from that post on 09.11.2011. The executive instructions to be followed in such a situation by the Ministries/Departments has been prescribed by the DOPandT in their OM dated 13.06.2000 (supra). According to the said OM, the Union Public Service Commission, wherever possible, maintains a reserve panel of candidates found suitable on the basis of selections made by them for appointment on direct recruitment, transfer on deputation, transfer basis and it is operated by it, on a request received from the Ministry/ Department concerned when the candidate recommended by it either does not join, thereby causing a replacement vacancy or he joins but resigns or dies within six months of his joining. Ministries/ Departments have also been advised that whenever such a contingency arises, they should first approach the UPSC for nomination of a candidate from the reserve panel, if any. The recruitment process be treated as completed only after hearing from the UPSC and the Ministry/ Department concerned may resort to any alternative method of recruitment to fill up the vacancy thereafter. Later on, the Fifth Central Pay Commission, in para 17.11 of its Report, recommended that with a view to reduce delay in filling up of the post, vacancies resulting from resignation or death of an incumbent within one year of his appointment should be filled up immediately by the candidates from the reserve panel, if a fresh panel is not available by then. Such a vacancy should not be treated as a fresh vacancy. The Government has accepted the said recommendations and issued directions to the Ministries/ Departments accordingly for future compliance. The Respondent No.1 acted accordingly and vide its letter dated 16.11.2004, requested the UPSC to provide a substitute from its reserve panel. Thereafter, the UPSC, vide its letter dated 27.12.2004, ascertained the willingness of the Applicant and on his acceptance he was recommended and accordingly he joined as DLC on 25.02.2005 in the place of Shri Pawade. The aforesaid OM dated 13.06.2000 clearly stipulates that such a vacancy should not be treated as fresh vacancy. Therefore, undoubtedly the vacancy which was available for the Applicant was the vacancy which has arisen in the year 2002-03. It is also not the case of Respondent No.1 and Respondent No.2 that the Applicant was appointed against any other vacancy. The Respondent No.2 has never challenged the aforesaid OM dated 13.06.2000 in this OA or in any other proceedings. Therefore, the contention of the Respondent No.2 that with the resignation of Shri Pawade on 08.11.2004 a new vacancy has arisen in the year 2004 is absolutely wrong and unfounded. As far as the Respondent No.1 is concerned, their contention was also that in such situation DOPandTs OM dated 03.03.2008 would apply. They have also got confirmation in this regard from the DOPandT itself. Despite the above position, they advised the Respondent No.1 in the present case to go according to the instructions contained in Para 3 of the aforesaid OM dated 3.32008. By giving such an advice, they have violated their own advice in the next para of the said OM, i.e., Para 4 which reads as under:-

“4. Cases of seniority already decided with reference to any other interpretation of the term `available as contained in OM dated 3.07.1986 need not be reopened.”

Admittedly, the Respondent No.1 had issued the Draft Seniority List of DLCs at least 3 times, firstly on 29.12.2005, secondly on 31.08.2005 and thirdly on 15.02.2010. Following their wrong advice, Respondent No.1 has upset the seniority list which was in operation for 5 years and issued the impugned seniority list dated 25.10.2010 showing the Applicant for the first time junior to Respondent No.2. Moreover, the aforesaid stipulation in Para 4 of the said OM is in fact in conformity with the Apex Courts judgment in D. P. Sharma Vs. Union of India 1989 Supp (1) SCC 244. In the said judgment, the Supreme Court held that “the general rule is if seniority is to be regulated in a particular manner in a given period, it shall be given effect to and it shall not be varied to disadvantage retrospectively”. In the case of Rajendra Pratap Singh Yadav and Others case (supra) also, the Apex Court held that the seniority list once published cannot be disturbed at the behest of the persons who chose not to challenge it for four years. The relevant part of the said judgment is as under:

“52. We deem it appropriate to reiterate that in service jurisprudence there is immense sanctity of a final seniority list. The seniority list once published cannot be disturbed at the behest of person who chose not to challenge it for four years. The sanctity of the seniority list must be maintained unless there are very compelling reasons to do so in order to do substantial justice. This is imperative to avoid avoidable litigation and unrest and chaos in the services.”

20. Apart from the above position, the interpretation given by the Respondent No.1 to para 3 of the OM dated 3.03.2008 itself is wrong. The Apex Court in N.R. Parmar's case (supra) has clearly held that the said OM is only clarifying the earlier OMs of the Department of Personnel dated 7.02.1986 and 3.07.1986. The OM dated 7.02.1986 is on the issue of determination of inter-se seniority between direct recruits and promotees. The OM dated 3.07.1986 was issued for the purpose of consolidating the existing government orders on the subject.  The Apex Court has further held that there is nothing new in OM dated 3.03.2008 as the is only the clarification of the aforesaid OMs. Accordingly, the Apex Court held that “as per the OM dated 3.3.2008, when appointments are made against unfilled vacancies in subsequent year(s), the persons appointed would get seniority of the year in which they are appointed “on substantive basis.” Further, it has been held in the said judgment that” the OM dated 3.3.2008 has clearly breached the parameters and the ingredients of a ‘clarification. Therefore, for all intents and purposes the OM dated 3.3.2008, must be deemed to be non-est to the extent that the same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. Having so concluded, it is natural to record, that as the position presently stands, the OMs dated 7.2.1986 and 3.7.1986 would have an overriding effect over the OM dated 3.3.2008 (to the extent of conflict between them) and the OM dated 3.3.2008 has to be ignored/omitted to the extent that the same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986.

21. We, in the above facts and circumstances of the case, allow the OA. Consequently, we quash and set aside OM dated 27.06.2011, seniority lists dated 25.10.2010 and 15.09.2011 respectively and direct the Respondent No.1 to restore the seniority of the Applicant to the actual position as on 2005 and 2008. We further direct the Respondent No.1 to restore the position of the Applicant in its seniority lists dated 25.12.2005, 31.8.2008 and 15.2.2010 when he has been shown senior to Respondent No.2. The Respondent No.1 shall also issue appropriate orders/seniority list in compliance of the aforesaid directions within 2 months from the date of receipt of a copy of this order.

22. There shall be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //