Shri Rajesh Kumar vs Air India
2001 Latest Caselaw 1228 Del

ORDER

Dr. Mukundakam Sharma, J.

1. The petitioner joined the Civil Works and Properties Department of respondent No.1 as a Typist/Clerk on temporary basis w.e.f. 17.11.1977. The period of his temporary service was also ordered to be treated as continuous by letter dated 4.7.1994 issued by respondent No.1 for the purpose of pay fixation and allied benefits from the aforesaid date.

2. The petitioner was appointed as Typist/Store Keeper on probation w.e.f. 3.6.1978 and was confirmed in the said post on 1.12.1978. The petitioner was promoted as Office Assistant w.e.f. 1.1.1990 and later on the he was promote to the post of Senior Office Assistant w.e.f. 1.7.1996. However, the seniority of the petitioner was reckoned from the ate of confirmation in service as the petitioner was working on probation from 3.6.1978 and as Typist/Clerk on temporary basis. Being aggrieved by the aforesaid decision of the respondent for reckoning the seniority of the petitioner from the date of his confirmation in service the petitioner submitted a representation to the respondent which was replied to by the respondent by letter dated 11.4.1998 wherein it is stated that under the promotion policy of the respondent the seniority of the petitioner is to be reckoned from the date of his confirmation in service and therefore, the benefit of his service during which he was working on probation cannot be bestowed on him. Being not satisfied with the aforesaid stand of the respondent the petitioner has fixed the present petition in this court praying for quashing and setting aside of the order dated 11.4.1998 with a further direction to the respondents to take the period from 17.11.1977 to 2.6.1978 as continuous while granting seniority to the petitioner. In other words the petitioner has sought for a direction to the respondents to treat the period from 17.11.1977 to 2.6.1978 for the purpose of reckoning seniority of the petitioner.

3. Counsel appearing for the petitioner submitted that the order dated 11.4.1998 is illegal and arbitrary, for by no stretch of imagination the benefit of service of the aforesaid period could be denied to the petitioner for the purpose of reckoning his seniority.

4. Counsel appearing for the respondent, however, drew my attention to the memorandum dated 7.9.1981 of the respondent which lays down the criteria for determination of inter se seniority in respect of the Ground Staff and Flying Crew. By the said memorandum the respondent laid down that the inter se seniority of an employee in respect of the ground staff and flying crew is determined on the basis of cadres or by the date of confirmation in the grade or if two persons are confirmed on the same date in a particular grade then by length of confirmed service in the next lower grade provided the employees in the next lower grade provided the employees in the next lower grade provided the employees in the next lower grade are in the line of promotion, or if the date of confirmation in the initial grade is the same, then by the date of joining or if the date of joining is the same, then by age.

5. In the present case, according to the respondent the criteria of the date of confirmation in the grade is applicable for determining the inter se seniority of the concerned employee. It was further stated that a Promotion Policy was circulated by the respondent on 8.5.1996. In terms of the aforesaid Promotion Policy the eligibility for promotion is either on number of years in the grade or total service in clerical cadre whichever is earlier. it is further provided in the said Promotion Policy that seniority is to be reckoned from the date of confirmation on completion of probation. It was stated that the petitioner joined the respondent in the Civil Works and Properties Department as Typist/Clerk on temporary basis w.e.f. 17.11.1977 and while appointing the petitioner on temporary basis it was made clear to the petitioner vide his appointment letter dated 15.11.1977 that the aforesaid appointment to the post was purely on temporary basis and that he shall have no claim for permanent employment. Thereafter the petitioner was appointed as Typist/Store Keeper and was put on probation from 3.6.1978 and was confirmed in the said grade with effect from 1.12.1978. Therefore, in the present case the seniority of the petitioner is reckoned from the date of confirmation on completion of probation i.e. 3.6.1978 which is in accordance with the Probation Policy and procedure of the respondent.

6. The issue therefore, that arises for my consideration in the present writ petition is whether the seniority of the petitioner is to be reckoned from the date of his confirmation i.e. 3.6.1978 or it should be reckoned from 17.11.1977 when the petitioner was initially appointed as Typist/Clerk on temporary basis. Determination of inter se seniority and ascribing correct seniority position is governed generally by the rules. If there be no rules or if the rules be silent on the aforesaid aspect it is permitted for the respondent to issue administrative guidelines laying down criteria for determining seniority and inter se seniority. The Promotion Policy of the respondent was framed only in 1996. Prior to adoption of the said Promotion Policy the respondent issued the administrative instructions in the form of memorandum dated 7.9.1981. Since there was no Promotion Policy of the respondent prior to 1996, therefore, the respondent was within its jurisdiction to issue the administrative circular laying down criteria for determination of inter se seniority of employees like the petitioner. The aforesaid circular clearly laid down that the seniority would be reckoned from the date of confirmation in the grade. The same position was reiterated and accepted under the Promotion Police of the respondent issued in the year 1996. Neither the aforesaid administrative circular dated 7.9.1981 nor the provisions of the Promotion Policy is under challenge in the present writ petition. Therefore, the said guidelines and the policy are binding on the parties. In terms thereof the petitioner is only entitled to claim his seniority from the date of his confirmation in the grade which is 3.6.1978. the respondents were, therefore, justified in not counting the period of temporary service and the service rendered during the probation period towards determining the seniority. The letter dated 11.4.1998 by which the petitioner was informed that the benefit of continuity of service for the temporary period and for the probation period could not be conferred on the petitioner, therefore, cannot be said to be in any manner arbitrary or illegal.

7. Counsel appearing for the petitioner in support of his submission relied upon the decision of the Supreme Court in Union of India and others Vs. Ansusekhar Guin and others etc. . In the said decision it was laid down by the Supreme Court that counting continuous length of service for fixation of seniority is a well accepted rule when the service rule doe snot prescribe a mode of fixing inter se seniority.

8. In my considered opinion, the aforesaid principle wold apply only when thee is no rule or any administrative circular governing the criteria for determining the seniority. In the aforesaid case decided by the Supreme Court there was neither any rule nor any administrative circular governing the criteria for fixation of seniority and therefore, in that context it was held by the Supreme Court in the aforesaid manner. In the present case there was an administrative circular issued in the year 1981 and also the Promotion Policy of the respondent which laid down the criteria for fixation of the seniority and therefore, the facts of the said case are distinguishable.

9. Counsel also relied upon the decision of the Supreme Court in Direct Recruit Class II Engg. Officer's Association Vs. State of Maharashtra, . A careful reading of the aforesaid decision would make it explicit that the ratio of the said decision is also not applicable to the facts of the present case.

10. In the light of the aforesaid discussions I find no merit in this writ petition and the same is dismissed. However, there will be no order as to costs.