B.N. Bajpai And Ors. vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 140 Del

JUDGMENT

S.B. Sinha, C.J.

1. In this writ petition, the petitioner has questioned the judgment of the Central Administrative Tribunal dated 21.5.1998 passed in OA No. 1882/97 wherein the Tribunal has issued the following direction:

12. In the result taking into account the facts and circumstances of the case, the O.A. is allowed with the following directions to respondents 1 - 4:

(a) to prepare and publish a final seniority list of Principals within one month from the date of receipt of a copy of this order, after giving reasonable time to the affected persons to show cause against the provisional seniority list:

(b) during the aforesaid period, they shall also complete the ACRs of concerned persons and take steps to convene DPC meetings for promotion of Principals to ADEs/EOs immediately, and in any case within one month of the publication of the seniority list.

The DPC meetings shall be completed as expeditiously as possible, within one month in accordance with the relevant rules/instructions;

(c) Thereafter, promotion orders in respect of those recommended by the DPC shall be issued within one, month of the completion of the DPC proceedings.

(d) As regards the consequential reliefs, while the applicants shall be entitled to seniority from the due date in accordance with law/rules, they shall be entitled to only notional fixation of pay in the higher scale from that date, and actual benefits of arrears of pay and allowances with effect from two months from the date of filing of this application, that is from 1.10.1997"

2. The applicants, non-official respondents had been working as principals in schools. They filed the said application in regard to the alleged inaction of the official respondents in not convening regular DPCs for promotion to the post of Education Officer or Assistant Education Officer. 50% of the said posts are filled up by promotion and 50% by direct recruitment. DPC held its meeting in August, 1983 and pursuant to its recommendation promotion to the eligible candidates had been granted. Direct recruitment was made in November, 1984 and again in May, 1996. In the year 1986, some principals, who were promoted as Assistant Directors through DPC on ad-hoc basis had, inter alia, contended that the direct recruits who were also principals should be held to be junior to them, inter alia, on the ground that they had been working on those posts on ad hoc basis and rota quota system had failed in the education department. On 29.1.1987, the Tribunal disposed of the matter holding that rota quota had failed and thus directed the seniority list to be prepared on the basis of length of service. A final seniority list of Assistant Directors/Education Officers was drawn up after calling for objections therefore in October, 1987 from both the categories of direct recruits and promotees where after the promotees were placed above the direct recruits. Curiously enough, after 1986 no direct recruitment was made and principals were being promoted on ad hoc basis. However, the age of retirement of Assistant Director Education/Education Officer was 58 years while those of principal was 60 years. It is accepted that a practice came to be developed to the effect that as soon as the concerned candidate would reach the age of 58 they would seek reversion to the post of principal. However, on 25.3.1994, 20 posts of ADE/EO in the direct recruit quota were filled up through UPSC. Out of the eligible candidates, 21 principals were promoted to the post of ADE/EO on adhoc and emergent basis till regular appointments were made through UPSC. In the meanwhile, directly recruited officers of 1984 batch who had completed three years of service had also been given work-charge of Deputy Director Education.

3. Respondents No. 5 to 9 filed an original application praying therein that respondents 1 to 4 be directed to issue a final seniority list of principals, convene a DPC with reference to year-wise vacancies of Assistant Director of Education/Education Officer from 1984 onwards and grant them seniority with effect from the same dates when the vacancies arose in the ratio of 1:1. A preliminary objection, as regards the said original application being barred by limitation, had been raised by the petitioners herein, but the same was rejected by the Tribunal stating:

"11. In view of the facts mentioned above, the plea of limitation taken by the official respondent cannot be accepted as it is settled law that government cannot and should not take technical pleas of limitation, etc. to defeat the legitimate claims and expectations of their employees, especially when they themselves are responsible for some of the delay in taking proper action. In the facts and circumstances, therefore, the delay in filing the OA is condoned subject to the observations made below."

4. The Tribunal by reason of the impugned order dated 21.5.1998 issued directions, as noticed hereinbefore.

5. Ms Avnish Ahlawat, learned counsel appearing on behalf of the petitioners, would submit that keeping in view the fact that neither the appointments of the petitioners which were made in 1984, as also the promotions which were effected in 1986 had been challenged; the directions as contained in para 12(d), aforementioned issued by the Tribunal in its impugned judgment must be held to be wholly illegal and without jurisdiction. Learned counsel would urge that the learned Tribunal also committed a serious illegality in so far as it failed to arrive at the conclusion that the application was barred by limitation. Our attention in this connection has been drawn to the fact that even respondents 1 to 4 had raised the said question.

6. Learned counsel would argue that the Tribunal committed an illegality in so far as it directed grant of promotion with retrospective effect.

7. Strong reliance in this regard has been placed on Baij Nath Sharma v. Rajasthan High Court at Jodhpur, , and Rudra Kumar Sain and Ors. v. UOI and Ors., 2000(8) SCC 25.

8. As regards the question of limitation, reliance has been placed on Govt of Andhra Pradesh v. Mohd Ghouse Mohinnuddin and Ors., 2001(3) All India Service Law Journal, 479. Counsel for the respondent, on the other hand, would urge that having regard to rota quota system, it was obligatory on the part of respondents 1 to 4 to fill up the said vacancy on year-wise basis. If appointments had been delayed for no fault of the original applicants, they cannot suffer therefore.

9. Learned counsel has drawn our attention to Swamy's Compilation on Establishment and Administration at page 794, where it is stated as under:-

"Preparation of Yearwise panels by DPC where they have not met for a number of years-

6.4.1 Where for reasons beyond control, the DPC could not be held in a year(s), even though the vacancies arose during that year( or years), the first DPC that meets thereafter should follow the following procedures:-

(i) Determine the actual number of regular vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.

(ii) Consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards.

(iii) Prepare a 'Select List' by placing the select list of the earlier year above the one for the next year and so on."

10. Mr Sham Babu would urge that the only question which arose for consideration before the Tribunal as to what would be the position of the seniority obtaining on the relevant dates having regard to the extent rules. In that regard, our attention has been drawn to the order passed in C.P. No. 272/99 (in O.A. 1882/97) on 24th July, 2000. Learned counsel would, in support of his contention, rely upon Union of India v. N.R. Bannerjee, 1996(11) J.T. 605, Pilla Sitaram Patrudu v. UOI, 1996(4) SCC 731, and MSD Patil v. State of Maharashtra, 1996 (10) J.T. 334.

11. The only question which arises for consideration in this writ petition is as to whether the learned Tribunal in the facts and circumstances of this case was justified in directing that in the event of their promotion, the successful candidates would be entitled to seniority from the due date in accordance with law/rules.

12. The Tribunal, in our opinion, in the instant case has proceeded with the matter on a wrong premises. Firstly, it failed to notice that no recruitment or promotion was made since August 1983. The Original Application filed by the principals in the year 1986 attained finality wherein it has clearly been noted that rota qota system had failed. A common seniority list was directed to be prepared in terms wherein the promotees were held to be senior, although they were appointed against the vacancies meant for direct recruits.

13. Since 1994, the petitioners were validly recruited through UPSC and had been holding their posts. It is not disputed that some of the applicants appeared as departmental candidates but could not succeed. They were given their promotion on ad hoc basis in 1996. They are yet to be promoted on regular basis. Could in such a situation, the original applicants have prayed for promotion with retrospective effect? Answer thereto must be rendered in negative.

14. The rights of the petitioners having regard to the fact situation obtaining herein could not have been interfered with. The writ petitioners having regard to the fact that they had completed three years of service and had also been posted in a higher category albeit on work-charge basis could not have been denied their seniority. Furthermore, the seniority list which was prepared in the year 1987 had attained finality and the settled position could not have been unsettled.

15. The original applicants have not yet been appointed on regular basis by UPSC. They were promoted by order dated 1.1.1996 on purely ad hoc and emergent basis for a period of six months or till regular appointment was made by UPSC, whichever was earlier. Such a promotion being not regular, non-official respondents could not have maintained the application claiming seniority over the writ petitioners herein. Once it was held that the rota quota had completely broken down, the said decision could not have been reopened indirectly, as the same could not be done directly.

16. Even in the Original Application, the non-official respondent could not have questioned the conclusions of the decision of the Central Administrative Tribunal rendered in the year 1987 co-laterally.

17. The said decision has been acted upon by all concerned by preparation of seniority list on 30-10-1997.

18. It is a well settled principle of law that when a seniority list had been prepared long back and the position of the employees has become settled, the same should not be allowed to be unsettled after a long time.

19. The normal rule of seniority is that a direct recruit gets seniority from a date he is taken in the cadre. On the other hand, a temporary appointee appointed dehors the rules or on ad hoc basis gets seniority from the date of regular appointment. See V. Shreenivasa Reddy v. State of Andhra Pradesh .

20. In the instant case, even if the original applicants are found to be promoted by UPSC, their seniority could be counted from the date of continuing officiation.

21. In Baij Nath Sharma v. Hon'ble Rajasthan High Court at Jodhpur , the Apex Court held that although promotion of direct recruitment should be made regularly but observed:

"But then the service is not constituted merely for the benefit of the officers in the service but with a certain purpose in view and in the present case, for dispensing justice to the public at large. It is not at all advisable to keep any post in the judiciary vacant for days when the courts are burdened with arrears and the litigants are the ones who suffer. We expect the High Courts to be vigilant and to fill up the posts in the direct quota in time and if the Bar quota cannot be filled for any reason for no fault of the promotee officers, their case for promotion should not be kept pending till some of them even superannuate. When the process for recruitment from the Bar begins and it is expected that posts for the direct quota will be filled up soon, during the intervening period, the officers in the subordinate service can be given ad hoc promotions without their right to claim seniority over direct recruits, who may join later. Functioning of the courts must not stop."

22. Yet in Rudra Kumar's case (supra) the Apex Court has held that quota rule having already broken down, inter se seniority between direct recruits and promotees, should have been determined on the basis of length of service and not on the basis of Rule 8(2) of Delhi Higher Judicial Service Rules, 1970.

23. In the aforementioned background, we may consider the decision cited by Shri Sham Babu. In Union of India v. N.R. Bannerjee' 1997 (1) SCALE 235, the Apex Court was considering the provisions of All India Ordinance Factory Service Rules. The question which arose for consideration was when the vacancy of senior General Manager would arise?. In that case although year-wise select list was to be prepared a question arose as to what would happen if quota rota had completely broken down and a judgment was operative in the field. The said decision is not applicable to the facts of the present case.

24. In MSD Patil's case (supra), the Apex Court was concerned with the case of reservation. While holding that promotees in excess of the quota cannot be given seniority from the respective dates of their promotions but they have to be considered only from the respective dates on which their respective quota is available. It was held that the question of carry forward had no application for the reason that the recruitment proportion is one of the methods of recruitment which is required to be made and balance posts are required to be recruited by subsequent publication and the promotees cannot be given the posts reserved for the direct recruit. It was observed at page 337:

"In several judgments of this Court it is now firmly settled that merely because of the fact that the State Government could not make direct recruitment due to its inaction, it cannot be said that the rule of quota has been broken down. Therefore, as and when the direct recruitment has been made the direct recruits are entitled to placement of their seniority into the vacancies reserved for them as per the ratio and the seniority determined as per the rules within the respective quota."

25. However, in this case as noticed hereinbefore, quota rota rule has been completely broken down. It is profitable to note that in that decision itself it was held whether the petitioners were parties to earlier proceedings or not they would be covered by the decision of the Apex Court.

26. In Pilla Sita Ram v. UOI, 1996 (4) JT 731, the Apex Court held that appointment of the petitioner had been delayed for no fault of his. He came to be appointed in 1981 in terms of extant rules and, thus he was entitled to be given a rank and appointment made accordingly.

27. The learned Tribunal also failed to take into consideration that having regard to the fact that petitioners were appointed in 1994, their seniority should not have been directed to be disturbed by issuing a direction as has been done in para 12(d) of its order on having regard to the delay and laches on the part of the applicants. In Govt of Andhra Pradesh and Ors. v. Mohd Ghouse Mohinuddin and Ors. 2001(3) All India Services Law Journal, 479, the Apex Court observed that a practice followed for a long time should not ordinarily be interfered with. It was held:

"It is cardinal principle in Service Jurisprudence, that a particular method or procedure adopted for a long time, need not be ordinarily interfered with, unless such method is repugnant to any constitutional provision or is contrary to any statutory rule. That apart, under the Administrative Tribunal Act, a period of limitation is provided for in Section 21. In this view of the matter, when the units formed the cadre, pursuant to notifications issued by the State Government, in the year 1976, in respect of non-gazetted posts and on that basis, appointment to and promotion within the cadre was being considered, in respect of non-gazetted posts, applications filed before the tribunal in 1992-1993, after expiry of more than 15 years, could not have been entertained and the settled position could not have been unsettled, as has been done by the tribunal in its final order. On this ground alone, the impugned order cannot be sustained."

28. For the reasons aforementioned, we are of the opinion that the impugned judgment cannot be sustained and para 12(d) of the directions is set aside accordingly.

29. The writ petition is allowed to the extent mentioned hereinbefore but without any order as to costs.