Delhi High Court
Ashutosh Agarwal & Anr. vs Uoi & Ors. on 27 September, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 26th August, 2010
Judgment Delivered On: 27th September, 2010
+ WP(C) 9502-03/2004
ASHUTOSH AGARWAL & ANR. ...Petitioners
Through : Mr.R.K.Dhawan, Advocate with
Mr.Rahul Grover, Advocate
Versus
UOI & ORS. ...Respondents
Through: Mr.A.K.Bhardwaj, Advocate
WP(C) 9504-08/2004
J.K.TRIPATHI & ORS. ...Petitioners
Through : Mr.R.K.Dhawan, Advocate with
Mr.Rahul Grover, Advocate
Versus
UOI & ORS. ...Respondents
Through: Mr.A.K.Bhardwaj, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. Vide office memorandum dated 16.07.1956, Ministry of
External Affairs, Government of India, constituted „Indian
Foreign Service Branch B‟ (hereinafter referred to as the
„Service‟). The service consisted of two cadres; namely:
general cadre and stenographer cadre and a sub-cadre;
namely: Cypher sub-cadre. Various provisions were made in
the memorandum for recruitment to posts in various grades. In
exercise of power conferred upon it by Article 309 of the
Constitution of India, Government of India promulgated Indian
Foreign Service Branch „B‟ (Recruitment, Cadre, Seniority and
Promotion) Rules, 1964 (hereinafter referred to as the „Rules‟).
2. It may be useful to note the relevant Rules pertaining to
recruitment and seniority of the general cadre of the service:-
"CHAPTER -I
GENERAL
.....
3. Composition of the Service - There shall be following
Grades in the Indian Foreign Service, Branch 'B', and they
shall be classified as follows:
Grade Designation Classification Character
GENERAL CADRE
Grade - I Under Group-A Non-
Secretaries at (Gazetted) Ministerial
Hqrs. And
Second
Secretaries in
Missions or
Posts abroad.
Integrated Attaches and Group-B Ministerial
Gr.II & III Section (Gazetted)
Officers at
Hqrs, Vice
Consuls and
Registrars in
Missions or
Posts abroad.
Grade - IV Assistants at Group-B Ministerial
Hqrs. And in (Non-
Missions or Gazetted)
Posts abroad.
Grade-V Upper Group-C Ministerial
Divisional (Non-
Clerks at Gazetted)
Hqrs. And in
Missions or
Posts abroad.
Grade-VI Lower Group-C Ministerial
Division (Non-
Clerks at or Gazetted)
Posts abroad.
CHAPTER - II
APPOINTMENTS AND PROMOTION TO CADRE POSTS
....
13. Recruitment to posts in the Integrated
Grade II and III of General Cadre:- 1(a) One sixth
of the substantive vacancies, in the Integrated
Grades II and III of the General cadre shall be filled,
by direct recruitment on the results of competitive
examinations held by the Commission for this
purpose from time to time. The remaining vacancies
shall be filled by the substantive appointment of
persons included in the Select List for the Integrated
Grades II and III of the General Cadre. Such
appointments shall be made in order of seniority in
the Select List except when, for reasons to be
recorded in writing, a person is not considered fit for
such appointment in his turn.
Provided that:
i) the number of vacancies to be filled by the
substantive appointment of persons included in the
Select List for the Integrated Grades II and III of the
General Cadre, in a recruitment year, shall be
proportionate to the vacancies to be filled by direct
recruitment for that year;
ii) if sufficient number of candidates are not
available for filling up the vacancies in any
recruitment year either by direct recruitment or by
appointment of persons included in the Select List
for the Integrated Grades II and III of the General
Cadre, the unfilled vacancies shall be carried forward
and added to the number of vacancies of the same
mode of recruitment to be filled in next year;
iii) the unfilled vacancies shall be carried forward for
not more than two recruitment years, beyond the
year to which recruitment relates, whereafter the
vacancies, if any, still remaining unfilled belonging to
one mode of recruitment, shall be transferred as
additional vacancies for the other mode of
recruitment.
....
(2) The Select List referred to in clauses (a) and (b)
of Sub-rule (1) shall be prepared in the following
manner:-
(i) 33-1/3 percent of the quota for inclusion in the
Select List shall consist of persons to be promoted on
the basis of a limited competitive examination to be
held by the Commission for this purpose from time
to time; and
(ii) the rest of the promotion quota for inclusion in
the Select List shall consist of persons to be
promoted on the basis of seniority subject to the
rejection of the unfit of the officers of the Grade IV of
the General Cadre and Grade II of Cypher Sub-Cadre
who have rendered not less than eight years of
approved service in any one Grade or both the
Grades.
Provided that if any officer referred to in clause (ii) is
considered for promotion to Grades II and III of the
General Cadre in accordance with the provisions of
this rule, all persons senior to him in that Grade and
belonging to the Scheduled Castes or the Scheduled
Tribes, who have rendered not less than four years‟
approved service in their respective Grades shall
also be considered for promotion.
(3) The Controlling Authority shall from time to time,
lay down the ratio in which the available vacancies in
the Integrated Grade-II and III of the General Cadre
shall be filled from Grade IV of the General Cadre
and Cypher Assistants of the Cypher Sub-Cadre. This
ratio shall be fixed, as far as possible on the basis of
the relative strength of the respective cadre posts.
(14) Recruitment to Grade IV of the General
Cadre:- (1)(a) 50 percent of the substantive
vacancies in Grade-IV of the General Cadre shall be
filled by direct recruitment on the results of an open
examination held by the Commission for the purpose
from time to time and remaining vacancies shall be
filled by the substantive appointment of persons
included in the Select List for this Grade in the order
of seniority in the Select List except when for the
reasons to be recorded in writing, a person is not
considered fit for such appointment in his turn.
....
(2) The vacancies for inclusion in the Select list
referred to in Sub-rule (1) shall be filled by promotion
on the basis of seniority-cum-fitness from among
employees of Grade-V of the General Cadre who
have rendered not less than five years approved
service in that Grade...."
CHAPTER - III
FIXATION OF SENIORITY
21. General Provisions (1): Persons appointed to
the service at the initial constitution shall have the
seniority already allotted to them at that time.
(2) Persons appointed to that Grade of the Service at
the initial constitution shall be senior to persons
appointed to that Grade at the maintenance stage.
(3) Persons appointed to the Service after the initial
constitution and up to the appointed day shall have
the seniority already assigned to them by the
Controlling Authority.
(4) Notwithstanding the provisions of sub-rule (3)
and (4), permanent employees of each Grade shall
be ranked senior to persons who are officiating in
that Grade.
x x x x
25. Seniority inter se of the officers appointed
to a Grade from different sources:- (1)
Integrated Grades II & III of the General Cadre: (i)
The eligible persons in Grade IV of the General Cadre
and Cypher Assistants of the Cypher Sub-Cadre shall
be arranged in separate lists in order of their relative
seniority in their respective Grade. Thereafter the
Department Promotion Committee shall select
persons for promotion from each list upto the
prescribed quota as indicated in Rule 13 and arrange
all the persons selected from the two lists in a
consolidated order of merit which will determine the
seniority of persons on promotion to Grades II & III of
the General Cadre.
(ii) Officers substantively appointed to a Grade from
the Select List for the Grade and direct recruits shall
be assigned seniority inter se according to the
quotas of substantive vacancies in the Grade
reserved for the appointment of persons included in
the Select List and direct recruitment, respectively.
Provided that persons appointed substantively in a
Grade in a particular year against the unfilled
vacancies brought forward from previous years shall
be placed below the last slot, be it for a direct recruit
or for an officer included in the Select List as
determined on the basis of the rotation of vacancies
between direct recruits and persons included in the
Select List in that year as illustrated below:-
....."
3. In the decision reported as G.S.Lamba v Union of India
(1985) 2 SCC 604, the petitioners therein who were appointed
to the post of Assistant in the year 1955 had raised an issue of
seniority. Between the years 1976-1979 the said petitioners
was promoted from grade IV to integrated grade II and III. On
25.06.1979 the Government of India published a seniority list
of officers in the integrated grade II and III of general cadre,
which list was objected to by the said petitioners. It was
contended by the said petitioners that the said seniority list is
violative of the constitutionally guaranteed equality of
opportunity in the matter of public service, inasmuch as direct
recruits who came into service long after the departmental
promotees were regularly promoted to the aforementioned
grade have been assigned seniority over the earlier promoted
departmental promotees. Before objections taken by the
petitioners could be dealt with by the Government another
seniority list of the officers in integrated grade II & III of
general cadre was published on 30.06.1983, which list was
also objected by the said petitioners. Aggrieved by the
issuance of the seniority list dated 30.06.1983, the said
petitioners filed a writ petition under Article 32 of Constitution
of India before Supreme Court. It was contended by the
petitioners therein that the seniority list 30.06.83 suffers from
the same vice as the seniority list dated 25.06.79 and is all the
more objectionable inasmuch as it leaves blank spaces for
future recruits either as direct recruits or by limited
departmental examination and who are yet to come into
service, to be placed above the promotees like the petitioners,
who have already been in service for a long time. The said
petitioners contended that the impugned seniority list was
drawn up on the principle of rota-quota and results in violation
of Articles 14 and 16 of Constitution of India.
4. To be precise, the contention advanced by the said
petitioners was that where there is recruitment to a cadre from
more than one source and the recruitment has to conform to
the quota prescribed for each source, simultaneously
interlinking the inter-se seniority in respect of recruits entering
service from different sources to the quota for each source, if
the quota reserved for any source is not filled in for a long time
and the vacancies allotted to the source are carried forward
and the latter day recruits from that source are given deemed
seniority over the earlier recruits from the other sources, it has
the pernicious tendency to accord an undeserved advantage
to a latter recruit over the earlier recruit and would be violative
of Articles 14 and 16. That if it is held that Rule 25(1)(ii) has
precedence over Rule 21, then Rule 25(1)(ii) is
unconstitutional, inasmuch as failure to recruit enough number
of persons to the extent of the quota reserved for the source
within a reasonable time, in the absence of any power to carry
forward vacancies available to that source, the rota rule of
seniority would be discriminatory in character and would lead
to denial of equality in the matter of appointment to public
service. It was submitted that in such a situation the rota rule
would break down under the weight of massive departure from
the quota rule and the seniority rule being inextricably
intertwined with the quota rule, if given effect to, would be
unjust, unfair and iniquitous and thus would be violative of
Article 14.
5. After having examined the relevant rules, the Supreme
Court found merit in the contention(s) advanced by the
petitioners therein and quashed the seniority lists dated
25.06.79 and 30.06.1983. It was directed that the government
shall draw up a fresh seniority list within a period of three
months from the pronouncement of the judgment in
consonance with the ratio laid down in the judgment. The
relevant portion of the decision of the Supreme Court may be
extracted and is as under:-
"12. The service was constituted in 1956. However
the statutory rules came into force on May 5, 1964.
The Constitution of the service by a memorandum
of the Government of India in 1956 was in exercise
of the executive powers of the Government of India.
The statutory rules came into force from May 6,
1964 and since then the service is governed by the
1964 Rules. Commencing from the advent of 1964
Rules, the recruitment from three sources as
actually made may be noticed. Information in this
chart is according to averments in para 16 of the
petition:
.....
With reference to para 16 and the chart in the
petition, in the return filed on behalf of the first
respondent Government of India it is stated that the
chart does not give true and correct picture and
was denied. It is stated that the exact figures are
given in the chart annexed as Annexure „A‟ to the
return. It reads as under:
ANNEXURE „A‟
Para 16.--The figures of recruitment through the
different channel given by the petitioners are
incorrect and misleading. The correct figures are as
given below:
....
Accepting the information as supplied by the
respondent Union of India, what strikes one at a
glance is that the recruitment from three sources
was never according to quota nor according to
available vacancies for each source. Record as
disclosed does not indicate that the vacancies
available to a particular source but not filled in
during the relevant period were carried
forward.....Indisputably there was large scale
departure from the quota rule.
.....
14. The first thing to be noticed is that the statutory
rules do not provide for carry forward of vacancies
occurring in a given year to the next recruitment.
The feeble and inaudible plea to justify carry
forward of vacancies was non-availability of
candidates for filling in vacancies available to a
source.
15. It is of some importance to note that the
petitioners are members of the service and belong
to integrated Grade II and III in the general cadre of
IFS „B‟. They hold substantive posts and there is
nothing to show that their promotions when made
were either temporary or ad hoc or till such time as
a regular recruit is available from the other source
according to quota, though their promotions appear
to be in excess of the quota available for the
source. The quota is related to vacancies. Rule
13(1) which provides for quota clearly recites that
one-sixth of the substantive vacancies in the
integrated Grade II and III of the general cadre shall
be filled in by direct recruitment etc. Therefore, it is
undeniable that quota is related to vacancies. If the
quota has to be scientifically implemented it would
be incumbent upon the first respondent to
satisfactorily establish the number of vacancies
available every year since the constitution of
service; the number of vacancies available
according to quota reserved for each source; the
recruitment done during the year from that
particular source and to state whether all the
vacancies allocable to each source were filled in
from the concerned source and if not so filled in,
whether any recruitment in excess of the quota was
made from other sources. It must further be shown
whether such excess recruits were given
temporary, stopgap or ad hoc promotion subject to
availability of candidates from other sources who
were entitled to fill in those vacancies and that this
was done for a short period and till the candidates,
regularly recruited from the sources to which
vacancies were allocated were available to fill in the
vacancies held by the recruits in excess of the
quota from the other sources. No such information
was forthcoming. The only justification offered for
not filling in vacancies by recruits from each source
according to its quota is that the procedure for
direct recruitment as also the procedure for holding
limited competitive examination is prolix, time-
consuming and dilatory and therefore the
recruitment made at a later date from such source
could not work to the disadvantage of such recruits
by pushing them down below those who were
promoted in excess of the quota available to that
source.
.....
17. It is too late in the day to dispute that it would
be open to the Government, while constituting a
service, to provide for recruitment to it from more
than one source and also to reserve quota for each
source. As a logical corollary, it would equally be
open to the Government to provide for seniority
rule related to rotation of vacancies. Shortly this is
called quota rule of recruitment and rota rule of
seniority interlinking them. So far there is no
controversy. The contention of the petitioners is
that in implementing this rule there has been such
large scale deviation that it results in denial of
equality to the members of the service similarly
circumstanced. It will be presently demonstrably
established that where rota rule of seniority is
interlinked with quota rule of recruitment, and if the
latter is unreasonably departed from and breaks
down under its own weight, it would be unfair and
unjust to give effect to the rota rule of seniority. To
some extent this is not res integra. Though some
advance has been made on this proposition in later
decisions.
...
21. The sum total of the aforementioned three
judgments may be freely restated in the telling
expression in A. Janardhana case1 which reads as
under: (SCC p. 628, para 38)
"It is therefore, time to clearly initiate a
proposition that a direct recruit who
comes into service after the promotee
was already unconditionally and without
reservation promoted and whose
promotion is not shown to be invalid or
illegal according to relevant statutory or
non-statutory rules should not be
permitted by any principle of seniority to
score a march over a prometee because
that itself being arbitrary would be
violative of Articles 14 and 16."
Now proceeding on the assumption that Rule
25(1)(ii) is valid and therefore seniority inter se
between recruits from three different sources has to
be computed according to the quota by rotating
substantive vacancies in the grade reserved for
each source, if in actual implementation it creates
disparities between persons who are similarly
circumstanced and thereby deny equal treatment,
the rule would be violative of Article 16. The
outcome is not on account of an invidious
implementation of the rule but non-implementation
of a part of rule for years. The end product as will
be demonstrably established is unjust and unfair
and yet this unjust and unfair action is being
supported by the Union of India which was
responsible for utter inaction in implementing the
rule in its letter and spirit and for unreasonably long
intervals.....
22. Approaching the matter from a slightly different
angle, in our opinion, Rule 21(4) and Rule 25(1)(ii)
both can be harmoniously read because they
operate in two different areas. Rule 21(4) provides
that subject to other provisions of this rule (not all
rules) persons promoted or recruited earlier on the
basis of earlier selection or recruitment shall be
senior to those promoted or recruited on the basis
of subsequent selection or recruitment. If the
expression "selection" refers to those promoted via
the select list and the expression "recruitment"
refers to those entering service by direct
recruitment, in view of Rule 21(4) those who enter
service by "recruitment" or "selection" at any time
will always necessarily be senior to those promoted
or recruited on the basis of a subsequent selection
or recruitment. This is what Rule 21(4) provides. In
terms it caters to a situation where recruitment or
selection is at intervals with a time lag. Vacancies in
the cadre or the grade arise every year. Normally
the substantive vacancies in the cadre have to be
filled in as they occur or within a reasonable time.
The process of selection and recruitment must
continuously be in operation roughly from year to
year. By the impact of Rule 21(4), the selection or
recruitment of one year shall have precedence over
selection or recruitment of the next year and this is
what is known in service jurisprudence as seniority
according to continuous officiation in the cadre or
the grade which has been statutorily recognised in
sub-rule (4) of Rule 21. This is in tune with fair play
and justice and ensures equality as mandated by
Article 16. Now Rule 25(1)(ii) provides for
integrating direct recruits and persons entering via
the select list to a grade. It is implicit in sub-clause
(ii) of Rule 25(1) that it would operate at a time
when in a given year almost simultaneously or
within a measurable distance from each other
recruitment is made from all the other sources. To
illustrate if in a given year candidates are selected
for appointment to the grade by direct recruitment
as also by holding the limited competitive
examination and giving promotion and if all the
three enter the service or the grade at or almost at
the same time or within the year and within a
reasonable time lag from each other, a question is
bound to arise how to integrate all of them entering
service from different sources in the common
seniority list. Rule 25(1)(ii) caters to this situation
and helps in integrating appointees from three
sources to be integrated into common seniority list
according to quota. Now contrast Rule 25(1)(ii) with
Rule 21(4) and the meaning of Rule 25(1)(ii) reveals
itself and becomes clear and understandable. A
block of recruits in a given year coming from three
independent sources may be integrated inter se
according to quota and rota. The block in
subsequent year would be always junior to the
block of recruits in the earlier years. This is how
Rules 21(4) and 25(1)(ii) can be harmoniously read
and it is unquestionable that they operate in two
different situations and both have to be given effect
to.
23. Now turning to the impugned seniority lists,
what the Union of India appears to have done is
that it has applied the quota and rotated the
vacancies but where candidates from a particular
source were not available, the vacancies were
deemed to be kept open (some kind of carry
forward) to be filled in by later recruitment from the
same source years after the vacancy occurred, but
in the meantime the vacancy was filled in
presumably by excess recruitment from the other
sources. That is clearly either non-implementation
of the quota rule or malfunctioning of the quota rule
and yet the rota rule is adhered to which is both
impermissible under the Rules as well as unjust,
unfair and inequitous being violative of Articles 14
and 16.
....
25. The language of Rule 13(1) appears to be
mandatory in character. Where recruitment to a
service or a cadre is from more than one source,
the controlling authority can prescribe quota for
each source. It is equally correct that where the
quota is prescribed, a rule of seniority by rotating
the vacancies can be a valid rule for seniority. But
as pointed out earlier if the rule of seniority is
inextricably intertwined with the quota rule and
there is enormous deviation from the quota rule, it
would be unjust, inequitous and unfair to give effect
to the rota rule. In fact as held in O.P. Singla case
giving effect to the rota rule after noticing the
enormous departure from the quota rule would be
violative of Article 14. Therefore assuming that
quota rule was mandatory in character as pointed
out earlier, its departure must permit rejection of
rota rule as a valid principle of seniority.
28. Once the promotees were promoted regularly
to substantive vacancies even if temporary unless
there was a chance of their demotion to the lower
cadre, their continuous officiation confers on them
an advantage of being senior to the later recruits
under Rule 21(4). If as stated earlier by the
enormous departure or by the power to relax, the
quota rule was not adhered to, the rota rule for
inter se seniority as prescribed in Section 25(1)(ii)
cannot be given effect to. In the absence of any
other valid principle of seniority it is well-
established that the continuous officiation in the
cadre, grade or service will provide a valid principle
of seniority. The seniority lists having not been
prepared on this principle are liable to be quashed
and set aside....."
6. On 02.11.1986, Transfer Application No.129/85 titled
„P.N. Tandon & Ors v Union of India & Ors.‟ was decided by the
Principal Bench of the Central Administrative Tribunal, New
Delhi. The facts of the said case were that between the years
1956-1971 various officers working in Grade V of the service
got promoted to the post of Assistant (Grade IV) in excess of
quota prescribed for the promotees in Rule 14 of the Rules,
due to which reason they were appointed on ad-hoc basis.
Thereafter the services of the said officers got regularized in
Grade IV on diverse dates. Some of the said officers filed a writ
petition under Articles 226 and 227 of Constitution of India
before this Court, inter-alia, contending that the period of
service spent by them in Grade IV prior to regularization of
their services in said grade be taken into account for the
purposes of fixation of their seniority, which petition got
transferred to the Tribunal and got registered as TA
No.129/1985. After placing reliance upon the decisions of
Supreme Court reported as G.S.Lamba v Union of India (1985)
2 SCC 604 and Narender Chadha v Union of India AIR 1986 SC
638, it was held by the Tribunal that the said officers are
entitled to count their seniority in Grade IV from the date of
their continuous officiation in the said grade irrespective of the
fact that the said officiation was on ad-hoc basis or in excess
of the quota prescribed for promotees in Rule 14 of the Rules.
7. Thus, another seniority list has to be redrawn. On
18.05.1987 a revised seniority list of Assistants was drawn up
by the government purporting to be in compliance with the
judgment and order dated 02.11.1986 passed by the Tribunal
in P.N. Tandon‟s case (supra) wherein seniority of 196 direct
recruits Assistants got pushed down by several notches in the
seniority list dated 18.05.1987. Be it noted here that as a
result of benefit of ad-hoc officiation granted to the promotees
Assistants, 251 promotees Assistants became eligible for
promotion to the post of Section Officers.
8. One Karam Singh, an officer who was promoted to the
post of Assistant on ad-hoc basis had filed a writ petition
bearing No.2635/1980 titled as „Karam Singh v Union of India‟
under Article 32 of the Constitution of India before the
Supreme Court, inter-alia, alleging that while drawing up the
seniority list of Assistants, the government has not taken into
account the period of service spent by him in Grade IV before
regularization of his services in said grade. Noting the
judgment dated 02.11.1986 passed by the Tribunal in P.N.
Tandon‟s case (supra), vide order dated 11.12.1987, the
Supreme Court disposed of the said petition in the following
terms:-
"...By judgment dated 2.11.1986 the Delhi Bench of
the Tribunal has set aside the impugned seniority list
and has directed that it should be re-drawn up on
the basis of the seniority based upon total length of
service including continuous officiation irrespective
of whether the same was ad hoc or temporary.
Counsel appearing for the appellant says that the
decision was accepted and has also been
implemented. In that view of the matter no direction
in the writ petition for quashing of the seniority list or
for re-drawing of the seniority list is necessary to be
given. We are, however, asked to give a direction
that upon the refixation of seniority in accordance
with the direction of the Tribunal referred to above,
consequential benefit should be available to the
appellant...In the case of the petitioner before us
who has now retired notional promotion may be
granted so that the benefit which would accrue may
be worked out...."
9. In Karam Singh‟s case (supra), an issue was also raised
with respect to direct recruits Assistants who, it was claimed
wrongly got promoted as Section Officers on the basis that the
period of service spent by the promotee Assistants in Grade IV
prior to regularization of their services in said grade was not to
be reckoned for the purposes of fixation of their seniority,
which issue was dealt with by Supreme Court in the following
terms:-
"...Counsel appearing for the respondents suggests
that in calling upon the Union of India to give effect
regarding conferment of consequential benefits, we
should indicate that if as a result of the preparation
of the seniority list in accordance with the decision
and review of the promotions which would follow as
a consequence, promotees in the higher grades are
likely to be reverted, such officers may not be
reverted and should continue in the higher posts by
creating supernumerary posts to the extent as may
be necessary. Such a direction appears to have been
given by this Court in a similar situation in Narender
Chadha & Ors v Union of India (1986) 1 SCR 211. We
suggest to government that while complying with
the direction for extending the consequential
benefits to the appellant upon re-drawing of the
seniority list, it should keep in mind this principle in
view and give effect to our order..."
10. On 12.02.1988, Original Application No.762/87 titled as
„P.N. Tandon & Ors v Union of India & Ors‟, which application
was filed by the applicants of P.N.Tandon‟s case (supra) and
hereinafter may be referred to as P.N.Tandon(1), was filed
seeking promotion, payment of arrears of pay and other
consequential benefits upon re-fixation of their seniority in
terms of judgment dated 02.11.1986 passed by the Tribunal in
P.N.Tandon‟s(1) case (supra). This Original Application, which
we may call P.N.Tandon(2) was disposed of by the Tribunal in
the following terms:-
"(a) The applicants should be considered for
promotion to the grade of Section Officers from the
date their promotions so considered and if found
suitable in accordance with the rules, should be
given promotion w.e.f. the dates their juniors were to
be promoted.
(b) The applicants, if promoted to the Grade of
Section Officers, should be given arrears of pay and
allowances with retrospective effect by creating
supernumerary posts, if necessary.
(c) The arrears of pay and allowances, if any, should
be paid within a period of three months from the
date of communication of this order.
(d) The applicants should reckon their service as
Section Officers from the date of their respective
promotion, if any, for the purpose of eligibility for
promotion as Under Secretary or equivalent grade.
(e) The seniority on the applicants in the grade of
Section Officers should be reckoned on the basis of
their retrospective promotion, if allowed as above,
and they should be considered for promotion as
Under Secretary or equivalent grade in accordance
with the rules from the date their juniors in the grade
of Section Officers were so considered" (Emphasis
Supplied)
11. In order to implement the aforesaid directions issued by
the Tribunal in P.N.Tandon(1)‟s case (supra), various office
orders were passed by the government on 12.05.1988. Two of
such office orders were, that 196 direct recruits Assistants who
were held wrongly to be promoted to the post of Section
Officer were assigned new date of promotion to the post of
Section Officer, which date was naturally subsequent to their
earlier date of promotion; and that 251 promotee Assistants
who ought to have been promoted to the post of Section
Officer on a date which was earlier to the date on which they
were actually promoted were given the benefit of deemed
promotion from an earlier date.
12. On 16.03.1993, Original Application No.837/86 titled as
„K.J. Francis v Union of India‟ was decided by the Tribunal. In
the said case, applicants who got promoted to the post of
Under-Secretary were reverted to the post of Section Officer
on the basis of a seniority list of Section Officers drawn up by
the Government, which list was challenged by the applicants
before the Tribunal. It was contended by the applicants that
while preparing the impugned seniority list, the government
has not correctly followed the ratio of law laid down by the
Supreme Court in G.S.Lamba‟s case (supra) inasmuch as the
date when an officer „actually‟ joined a post has been taken as
the date of continuous officiation. After examining the
judgment of Supreme Court in G.S.Lamba‟s case (supra), it
was held by the Tribunal that the date of continuous officiation
is dependent upon the date of selection of an officer for a
particular post and not the date when the officer „actually‟
joins the said post. Thus, the Tribunal further directed the
government to draw a fresh seniority list of the Section
Officers.
13. Vide office memorandum dated 16.09.1993 Ministry of
External Affairs, Government of India issued a seniority list of
the Section Officers. The relevant portion of the said
memorandum reads as under:-
"....2. Placement of officers in this Seniority List for
the years 1970 to 1980 and 1985 to 1991 is based
on the principle of "Continuous Officiation" as
stipulated in the Supreme Court judgment in the
case of G.K. Lamba & others vs Union of India (Writ
Petition Nos: 13248-13257 of 1983 decided on
6/11/85) as also the Central Administrative Tribunal‟s
decision in the case of K.J. Francis & others v the
Union of India (OA 837 of 1986 decided on 16/3/93)
and in consonance with Rule 21(4) of the IFS (B)
RCSP rules except for the beneficiaries of the
judgment of CAT in TA No.129/85 (P.N. Tandon and
others vs U.O.I.) and the judgment of the Supreme
Court in Writ Petition No.2635 (Karam Chand &
others vs the UOI)
3. Placement of Officers in this Seniority List for the
years 1981 to 1984 is in accordance with rule 25(1)
of the IFS (B) RCSP rules...." (Emphasis Supplied)
14. An interesting feature of the seniority list now drawn up
was that the some direct recruits Assistants who were senior to
some promotee Assistants in the Seniority List dated
18.05.1987 of the Assistants were shown as junior to the said
promotee Assistants. This happened because of cumulative
effect of benefit of ad-hoc officiation granted to 251 promotee
Assistants vide judgment dated 02.11.1986 passed by the
Tribunal in P.N.Tandon(1)‟s case and the revised date of
promotion assigned to 196 direct recruits Assistants vide office
order dated 12.05.1988 passed by the government.
15. Let us illustrate. Suppose A was directly appointed to the
post of Assistant on 01.01.1980. B, an officer working in grade-
V of the service got promoted to the post of Assistant on
01.01.1981 in excess of the quota prescribed for the
promotees in Rule 14 of the Rules. A got promoted to the post
of Section Officer on 01.01.1984. By virtue of the judgment
dated 02.11.1986 passed by the Tribunal in P.N.Tandon‟s(1)
case (supra), the seniority of B to the post of Assistant is to be
reckoned from 01.01.1981. Furthermore, the seniority of A to
the said post gets pushed down by several notches, due to
which reason he becomes eligible for promotion to the post of
Section Officer only on 01.01.1987. By virtue of office order
dated 12.05.1988, B is deemed to have been promoted to the
post of Section Officer on 01.01.1986 whereas A is assigned
new date of promotion to the post of Section Officer i.e.
01.01.1987. Due to the aforesaid, B becomes senior to A in the
seniority list dated 16.09.1993 of Section Officers despite the
fact that he was junior to A in the seniority list of Assistants.
16. Feeling aggrieved by the seniority list dated 16.09.1993
of the Section Officers, some direct recruits Assistants filed
Original Application No.201/89 titled „M.S. Rao & Ors v Union of
India & Ors‟ before the Tribunal. In view of the discrepancy
occurring in the seniority list dated 16.09.1993 noted by us in
para 14 above and explained in para 15 above, vide judgment
dated 03.06.1994 the Tribunal quashed the seniority list dated
16.09.1993 and directed the government to draw up a fresh
seniority list of Section Officers on the basis that direct recruit
Assistants who were senior to promotee Assistants in the
seniority list dated 18.05.1987 of the Assistants should
continue to remain senior to such promotee Assistants in the
seniority list of Section Officers. The relevant portion of the
judgment of the Tribunal reads as under:-
"12. In spite of a number of opportunities given to
the respondents they could not clearly explain as to
how the juniors in the seniority list of Assts have
been given regular promotion as Section Officers
earlier to the applicants. There was absolutely no
explanation coming forth. We have been given no
assistance other than what had been put in writing
and repeated perusal of these does not convince us
that the promotions to the post of Section Officers
has been made strictly as per the seniority list of
Assistants issued in May 1987.
13. In view of the above it would be fit and proper
to direct the respondents to recheck the dates of
regular promotion as Section Officers of the
applicants vis-à-vis the other promotees Assistants
and it has to be ensured that May 1987 seniority list
of Assistants is correctly followed. It is needless to
add that while doing this the guidelines given in the
second case of Tandon vide order dated 12-2-1988
have to scrupulously followed..."
17. Thereafter, Ministry of External Affairs, Government of
India, issued a revised seniority list of Section Officers
purporting to be in compliance with the judgment dated
03.06.1994 passed by the Tribunal in M.S.Rao‟s case, vide
office memorandum dated 28.06.1994. The relevant portion of
the said memorandum reads as under:-
"....3. Placement of officers in this Seniority List for
the years 1970 to 1980 and 1985 to 1991 is based
on the principle of "Continuous Officiation" as
stipulated in the Supreme Court judgment in the
case of G.K. Lamba & others vs Union of India (Writ
Petition Nos: 13248-13257 of 1983 decided on
5/11/85) as also the Central Administrative Tribunal‟s
decision in the case of K.J. Francis & others v the
Union of India (OA 837 of 1986 decided on 16/3/93)
and in consonance with Rule 21(4) of the IFS (B)
RCSP rules.
4. Placement of Officers in this Seniority List for the
years 1981 to 1984 is in accordance with rule 25(1)
of the IFS (B) RCSP rules...." (Emphasis Supplied)
18. In the meantime, somewhere in the year 1991, some
direct recruits Assistants who got wrongly promoted to the post
of Section Officer and were given protection from reversion by
Supreme Court in Karam Singh‟s case (supra) from being
reverted to the post of Assistant, filed Original Application
bearing No.2338/91 titled „M.P. Singh & Ors v Union of India &
Ors‟ before the Tribunal, inter-alia, contending that in view of
judgment dated 02.11.1986 passed by the Tribunal in
P.N.Tandon (1)‟s case, their seniority to the post of Section
Officer should be reckoned from the date when they were
actually appointed on the said post and not from the date their
services to the post of Section Officer was regularized by the
government, which application was dismissed by the Tribunal
vide judgment dated 09.02.1996. The relevant portion of the
judgment of the Tribunal reads as under:-
"13. In the first place, the applicants cannot
compare themselves with the applicants in the
Tandon cases. They (i.e. the applicants in Tandon
cases) are declared senior by virtue of the judgment
in their cases. They have been found to be entitled
for retrospective promotion in place of the applicants
who had been promoted in the past. Therefore, their
service in the supernumerary posts is their rightful
due and it has necessarily to be counted for
seniority. That is not the position of the applicants.
They occupy supernumerary posts to avoid
reversion. In the circumstance, they held the post
only by virtue of the compassionate order passed by
the Supreme Court to avoid reversion.
14. There is no doubt that their earlier promotion
was on a regular basis but that was on the basis of
the pre-revised seniority list of Assistants wherein
they were shown as seniors to a number of promote
Assistants. However, that seniority list was directed
to be recast by the Tribunal in Tandon case No.1. In
the revised seniority list of Assistants (Annexure A-5)
the applicants are far below in the list and became
disentitled to hold the promotion post and faced
reversion. In the normal course, the applicants and
other similarly situated could have been reverted
when these judgments came to be implemented on
12.5.1988. In other words, their earlier promotion
was treated a mistake based on a wrongly prepared
seniority list. In the light of the revised seniority list,
they would have been reverted with all its
consequences i.e. reduction to the post of Assistant,
break in service as Section Officers for purpose of
seniority. That was prevented in part by the
Supreme Court‟s order. They cannot get any
advantage out of that order for counting the earlier
service, now found to be unauthorized, for the
purpose of reckoning seniority. That order of the
Supreme Court only prevented their reversion as
Assistants and protects their pay and allowances as
Section Officers and no more..."
19. Be it noted here that an application seeking review of the
aforesaid judgment passed by the Tribunal in M.P. Singh‟s case
(supra) was filed, which application was dismissed vide
judgment dated 04.10.1996.
20. In continuation of the seniority list dated 28.06.1994, a
further seniority list of the Section Officers was issued by
Ministry of External Affairs, Government of India on
04.10.1996.
21. The very next year i.e. in the year 1997, one M.S.
Mandhaiya, a promotee Section Officer, filed Original
Application No.306/1997 titled „M.S. Mandhaiya v Union of India
& Ors‟ before the Tribunal challenging the validity of the
seniority list dated 28.06.1994 of the Section Officers on the
ground that the government ought to have determined
seniority of Section Officers in respect of the years 1981-1984
on the basis of principle of continuous officiation contained in
Rule 21(4) of the Rules on the basis of rota-quota rule
contained in Rule 25(1) of the Rules. Vide judgment dated
17.08.2000, the Tribunal dismissed the aforesaid application,
primarily on the ground that since recruitment to the post of
Section Officers pertaining to the years 1981-1984 was done in
accordance with the quota prescribed for each source of
recruitment in Rule 13 of the Rules, the seniority of Section
Officers in respect of said years has to be determined on the
basis of rota-quota rule contained in Rule 25 (1) of the Rules.
The relevant portion of the judgment of the Tribunal reads as
under:-
"7. The respondents submit that even the Hon‟ble
Supreme Court has observed that in their opinion
Rule 21(4) and Rule 25 can be harmoniously read
because they operate in two different areas. Rule
25(1) has never been struck down in any of the
judgments cited by the applicant. The contention of
the applicant that the seniority should be
determined solely on the basis continuous officiation
is not in line with the provisions of rules. It can be
determined on the basis of rota-quota also. Rule
21(4) of the IFS (B) Rules cannot be implemented in
isolation. It has to be implemented in consonance
with Rule 25(1)(ii) of the IFS (B) RCSP Rules. As such,
no relief can be granted to the applicant.
....
11. In the present case, the applicant was
promoted departmentally. He was not an ad hoc
promotee on continuous officiation. The applicant‟s
seniority, therefore, has to be reckoned with
reference to the seniority of those who were
promoted departmentally vis-à-vis those who were
recruited directly and those who were promoted
through limited departmental examination as per
their respective quota. Since Rule 21(4) is only a
general provision providing a guideline and Rule
25(1)(ii) is specific, the respondents have followed
Rule 25(1)(ii) as the rota-quota rule was
implemented for the block period of 1981-84. Both
the provisions have to be read harmoniously. As
there was no violation of the rota-quota during 1981-
84, the respondents have rightly applied Rule 25....
......
13......His original seniority as Assistant on 18.5.1987
has not been disturbed. His seniority has been
depressed because of the implementation of various
judgments including the judgment in the case of M.S.
Rao & ors and because of the rota-quota rule
followed as per Rule 25(1) of the IFS „B‟ Rules...."
(Emphasis Supplied)
22. In the year 1999 a few Section Officers filed Original
Application No.567/1999 titled „Sanjay Vyas & Ors v Union of
India & Ors‟ before the Tribunal challenging the validity of the
seniority lists dated 28.06.1994 and 04.10.19996 of the Section
Officers, on the ground that while reckoning the seniority of the
direct recruit Assistants who got wrongly promoted to the post
of Section Officer and were protected by the judgment of
Supreme Court in Karam Singh‟s case (supra), the government
could not take into account the period spent by such officers
on the post of Section Officer prior to regularization of their
services and has thus violated the directions issued by the
Tribunal in its judgment dated 09.02.1996 passed in M.P.
Singh‟s case (supra).
23. Vide judgment dated 10.01.2001, the Tribunal disposed
of the aforesaid Original Application in the following terms:-
"....9. The main grievance of the applicants
appears to be that the respondents taking cover
under the judgment delivered by the Tribunal in M.S.
Rao‟s case (supra) on 3.6.1994 have issued the
impugned seniority list in a hurried manner on
28.6.1994, in which they have favoured Shri M.P.
Singh with substantive benefit of seniority which has
been disallowed by the Tribual in its order dated
9.2.1996. It is unfortunate that these specific
averments in paragraphs 4(xiii-xv) have nowhere
been countered by the respondents in their reply....It
is also noticed from the facts mentioned above that
while in the seniority list issued by the respondents
on 16.2.89, the date of regular appointment of Shri
M.P. Singh has been shown as 28.12.1987 and he is
placed at Serial No.249, the applicant No.1‟s
appointment is shown as 14.10.1987 and placed at
Serial No.230. This position has been reversed in the
seniority list issued by the respondents on 28.6.1994
following the judgment in M.S.Rao‟s case (supra)
given on 3.6.1994....However, one of the main
contentions of the applicants in M.P. Singh‟s case
(supra) was that their services in supernumerary
posts should count for the purposes of seniority but
that contention had not found favour with the
Tribunal. The same contentions has been reiterated
by the applicants in Paragraph 4 (xiii-xv), to which
the respondents have not filed any specific reply. In
the facts and circumstances of the case and
particularly noting the fact that the respondents
have not given any specific reply to the averments
made by the applicants, they ought to have
reviewed/considered the seniority lists issued by
them on 28.6.1994 and 4.10.1996 in the light of the
judgment of the Tribunal in M.P. Singh‟s case (supra)
which admittedly they have not done. We hasten to
add that this does not mean that the earlier
judgments of the Tribunal are being reviewed or
commented upon as they have become final and are
required to be followed by the respondents....
11. In the above facts and circumstances of the
case, the O.A. is disposed of as follows:-
(i) the respondents are directed to review/recheck
and reconsider the impugned seniority lists of the
Section Officers in Grade-II and III of IFS(B), taking
into account the relevant judgments, including those
mentioned above and in particular the order of the
Tribunal dated 9.2.1996 in M.P. Singh‟s case (supra)
which has become final and binding with reference
to the earlier seniority lists dated 28.6.1994 and
4.10.1996;
(ii) The respondents shall issue a general notice to
all concerned persons who are likely to be affected
by a change in the aforesaid seniority lists and afford
them a reasonable opportunity to present their case,
and if need be by giving them a personal hearing;
(iii) The respondent shall issue a final seniority list
in the aforesaid cadre as early as possible and in any
case within six months from the date of receipt of a
copy of this order in accordance with relevant law,
rules and instructions on the subject."
24. Vide office memorandum dated 20.07.2001 issued by the
Ministry of External Affairs, Government of India, a revised
seniority list of Section Officers was issued purporting to be in
accordance with the judgment dated 10.01.2001 passed by the
Tribunal in Sanjay Vyas‟s case (supra). The relevant portion of
the said office memorandum reads as under:-
"In its judgment dated 10th January, 2001 in OA
No.567 of 1999 (Sanjay Vyas & Ors Vs Union of India
& Ors.), the Principal Bench, New Delhi of the hon‟ble
Central Administrative Tribunal (CAT) had directed as
under:-
.....
4. Taking into account the Court/CAT judgments
and the rules, relevant to the seniority of SOs in MEA
and keeping in view the position that has emerged
with regard to various points/issues raised in the
submissions in response to the „general notice‟ (as
set out in Annexure - I), the seniority list of SOs in
MEA has been re-drawn and the same is enclosed as
Annexure-II to this Office Memorandum. The
following „basic‟ criteria has been adopted in re-
drawing the seniority list.
(i) Continuous officiation applied uniformly
Seniority of all Section Officers, including DP
SOs appointed in the years 1981-84, LDE SOs
appointed on the basis of LDEs conducted in the
years 1981-84 and DR SOs recruited on the basis of
CSEs 1981 to 1984, has been determined in
accordance with the principle of „continuous
officiation‟.
(ii) Year of recruitment
For the purpose of determining an officer‟s
seniority, his/her recruitment year has been
determined as under:-
(a) For DP SOs, the year for which the
Departmental Promotion Committee was held and
recommended the promotions, has been taken as
the year of recruitment.
(b) For LDE SOs, the year for which the
examination was held has been taken as the year of
recruitment.
(c) For DRs, the year in which the result of the
examination was declared by the UPSC has been
taken as the year of recruitment....
A vacancy for which a candidate through
desired mode of recruitment is not available in the
recruitment year in which the vacancy arose, has not
been carried forward for that mode of recruitment. In
other words, the rota principle of determining
seniority has not been applied...
(iii) Date of continuous officiation
For the purposes of seniority, for the SOs
recruited through different modes but belonging to
same recruitment year, the date of continuous
officiation has been determined as under:-
(a) In case of DP SOs, the date of Departmental
Promotion Committee (DPC) has been taken as date
of continuous officiaton.
(b) In case of LDE SOs, the date of declaration of
result has been taken as the date of continuous
officiation. However, their year of recruitment is the
year for which the examination is held.
(c) In case of DR SOs the only plausible date prior
to the date of joining which can be reasonably taken
as the date of continuous officiation is the date of
announcement of result by the UPSC....Thus in case
of DR SOs, Year of Recruitment is the year of
announcement of result and the Date of Continuous
Officiation is the date of announcement of the
result..... (Emphasis Supplied)
25. Aggrieved by the aforesaid memorandum dated
20.07.2001 issued by the government, some officers who were
directly recruited to the post of Section Officer between the
years 1981-1984 filed two original applications Nos.956/2002
and 1388/2002 titled „Manju & Ors v Union of India & Ors‟ and
„Subashini & Ors v Union of India & Ors‟ respectively. The main
grievance of the applicants in O.A.No.956/2002 was that the
government has committed an illegality in fixing the seniority
of the Section Officers for the years 1981-1984 on the basis of
the principle of „continuous officiation‟ contained in Rule 21(4)
of the Rules instead of „rota-quota‟ rule prescribed in Rule
25(1)(ii) of the Rules whereas in O.A.No.1388/2002 it was
mainly urged that while fixing „year of recruitment‟ the
government has discriminated between direct recruit Section
Officers and limited competitive examination Section Officers,
for in respect of limited competitive examination Section
Officers „year of recruitment‟ has been taken as year of
examination whereas in respect of direct recruit Section
Officers „year of recruitment‟ has been taken as the year of
declaration of result.
26. Vide order dated 04.12.2002 a Division Bench of the
Tribunal referred the aforesaid applications to a Larger Bench
of the Tribunal. The question formulated by the Division Bench
for the consideration of the larger Bench reads as under:-
"It is not in controversy that there are two judgments
of this Tribunal taking contradictory views one dated
17.8.2000 in OA 306/97 and other dated 10.1.2001
in OA 567/99. Since contradictory judgments on
certain points involved in these OAs have been
passed, it would be appropriate that the matter is
referred to a Larger Bench".
27. After considering the judgments passed by the Tribunal
in Mandhaiya and Sanjay Vyas‟s cases (supra), vide judgment
and order dated 01.04.2003 it was held by the Full Bench of
the Tribunal that there is no conflict between the said two
decisions as they operate in different fields. The relevant
portion of the decision of the Full Bench of the Tribunal reads
as under:-
"22. In view of the above legal position as quoted by
the learned author, now we proceed to examine
whether both of these judgments can be reconciled.
23. On a perusal of the judgment of M.S.
Mandhiaya‟s case in OA 306/97, we find that it has in
unambiguous terms followed the rule of continuous
officiation for determining the seniority barring the
block of 4 years from 1981 to 1984 when quota-rota
rule was implemented and Rule 25(1)(ii) was applied.
This judgment was rendered after following various
judgments such as G.S. Lamba, K.J. Francis, P.N.
Tandon, Karam Singh and others.
24. The judgment given in Sanjay Vyas case (OA
567/99) has confined only to the point of counting of
period spent by an officer on supernumerary post
and this judgment too has held that in M.P. Singh
case the main contentions of the applicant is that
their services in supernumerary post should count
for the purpose of seniority had not found favour
with the Tribunal. So while disposing of the OA, the
directions were given to re-check and reconsider the
impugned seniority list taking into account the
relevant judgments including those mentioned in the
body of the order particularly in M.P.Singh‟s case
which had become final and binding. Thus probably
the Tribunal was of the view that in the impugned
seniority list there were certain officers who have
been given the benefit of counting of period spent on
supernumerary post so it is only in that context the
respondents were asked to recheck and reconsider
the impugned list.
25. Even while giving the directions the Court had
directed the respondents to recheck/review and
reconsider the impugned seniority lists taking into
account the relevant judgments including M.S. Rao‟s
case, P.N. Tandon‟s case, Karam Singh‟s case and
others. The court also observed that we hasten to
add that this does not mean that the earlier
judgments of the Tribunal are being
reviewed/commented upon as they have become
final and are required to be followed by the
respondents. This observation of the court clearly
goes to show that while delivering the judgment in
OA 567/99 the Tribunal did not intend to review or
comment upon any previous judgment as the same
had become final and are required to be followed by
the respondents. Similarly, Mandhaiya‟s case has
also become final. Moreover, in Madhaiya‟s case, the
Tribunal had followed the earlier judgments in Karam
Singh‟s case, Lamba‟s case, K.J. Francis‟s case, P.N.
Tandon-II‟s case and others. So by necessary
implication, the Tribunal in OA 567/99 had affirmed
the earlier judgments and did not overrule or differ
with any of the earlier judgments. Hence, the earlier
judgments still hold the field on the principle of
determination of seniority. We have to interpret as if
the judgment given in OA 567/99 has been confined
to only one issue, i.e. of the counting of the period of
service when an employee held the post on
supernumerary post.
26. Thus, we are of the considered view that there is
no conflict in both these judgments. This Tribunal
had only affirmed the principle of law that the
principle of continuous officiation is applicable for
determining the seniority barring the application of 4
years from 1981-84. In Sanjay Vyas (supra) the only
principle which had been laid down is that the period
spent by an officer on supernumerary post would not
be counted for determining the seniority, thus both
these judgments are reconcilable and accordingly we
answer the question as follows:-
The answer to the question is in the negative,
as both these judgments are reconcilable, as
observed above.
27. Accordingly, the case may be placed before the
respective Benches for further proceedings in
accordance with law." (Emphasis Supplied)
28. Vide judgment and order dated 30.05.2003, the Tribunal
dismissed the aforesaid two applications challenging the
memorandum dated 20.07.2001 issued by the government. It
was held by the Tribunal that in light of directions issued by
the Tribunal in Sanjay Vyas‟s case (supra) to undertake a
comprehensive review of the seniority list of the Section
Officers, the government was fully justified in re-
checking/reviewing the earlier seniority lists of the Section
Officers regarding the application of rota-quota rule for fixing
the seniority of the Section Officers for the years 1981-1984; in
view of the fact that government had not filled vacancies
which had arisen to the post of Section Officer for the years
1981-1984 in accordance with quota prescribed for each
source of recruitment, no fault can be found with the decision
of the government while fixing the seniority of the Section
Officers on the basis of principle of „continuous officiation‟ as
contained in Rule 21(4) of the Rules for the same is in
accordance with the ratio laid down by the Supreme Court in
G.S. Lamba‟s case (supra) and the decision of the government
for fixing the year of declaration of result as the „year of
recruitment‟ of direct recruits Section Officers is legal and valid
as the same is in consonance with Rules 12 and 21(4) of the
Rules.
29. At this stage, it is most significant to note some portions
of the judgment of the Tribunal:-
"4. Needless to state that the applications as such
have been contested by the respondents particularly
the Union of India. It has been pointed out that the
revised seniority list has been approved only in
accordance with the directions of the Tribunal. The
year-wise recruitment of Section Officers for these
years from 1970 has been shown to be:-
Year DPs LD DRs
Es
1970-71 28 - -
1971-72 32 19 -
1972-74 35 30 -
1986-87 06 11 -
1987-88 18 31 -
1988-89 04 04 -
1989-90 13 15 -
1990-91 17 11 -
1991-92 20 10 -
1992-93 18 10 -
1993-94 17 09 -
1994-95 41 24 -
1995-96 20 02 -
1996-97 18 08 -
1997-98 28 08 -
1998-99 11 05 -
1999-00 14 04 -
2000-01 12 06 -
From the aforesaid, it has been pointed that
recruitment has not been proceeded according to
the prescribed quota in any year since 1970. Even
from 1981-1984, the ratio of recruitment from the
three sources was:-
Prescribed DRs DPs LDEs
Thus, there was a normal departure from the
prescribed quota for those years....
16. .....In the present case the fact which was not in
dispute before us was the figures provided by the
respondents pertaining to the recruitment of direct
recruits, departmental promotees and Limited
Departmental Examination. A perusal of the same
indicated that the quota rule was not followed for the
years 1981-84. Once it was not followed, the
admissions so made are held to be erroneous in the
previous litigations." (Emphasis Supplied)
30. Aggrieved by the judgment and order dated 30.05.2003
passed by the Tribunal, the petitioners have filed the above-
captioned petitions under Articles 226 and 227 of Constitution
of India.
31. During the hearing, following 5 submissions were
advanced by the learned counsel for the petitioners:-
A That there was no occasion for the government to
review/re-check the seniority list(s) of the Section Officers with
respect to application of rota-quota rule while fixing the
seniority of Section Officers for the years 1981-1984. It was
argued that the Tribunal failed to appreciate that under the
garb of the directions issued by the Tribunal in Sanjay Vyas‟s
case (supra), the government had upset the position settled
by the Tribunal in various decisions, particularly in
Mandhaiya‟s case, and the memorandum dated 16.09.1993
and 28.06.1994 issued by the government regarding the
application of rota-quota rule for fixing the seniority of the
Section Officers for the years 1981-1984 inasmuch as the only
direction given by the CAT in Sanjay Vyas‟s case (supra) was
to re-check/review the seniority of the Section Officers limited
to the aspect of reckoning of supernumerary service of the
direct recruits Assistants who wrongly got promoted to the
post of Section Officer, which position stood clarified by the
judgment of the Full Bench.
B That the impugned judgment of the Tribunal of upholding
the decision of the government of reckoning the seniority of
the Section Officers for the years 1981-1984 on the basis of
principle of „continuous officiation‟ contained in Rule 21(4) of
the Rules is patently illegal as the same runs contrary to an
earlier judgment rendered by a co-ordinate Bench of the
Tribunal in Mandhaiya‟s case (supra) wherein it was held that
the seniority of the Section Officers for the years 1981-1984
should be reckoned on the basis of rota-quota rule contained
in Rule 25(1)(ii) of the Rules. To further buttress the said
submission, learned counsel pointed out that a perusal of the
judgment of the Full Bench of the CAT shows that the
judgment of the Tribunal in Mandhaiya‟s case (supra) had
attained finality. It was argued that the differing view taken by
the Tribunal in the impugned judgment in clear contradiction
to an earlier judgment rendered by a co-ordinate bench
amounts to judicial impropriety.
C That the recruitment chart submitted by the government
to the Tribunal to demonstrate that the recruitment to the
post of Section Officer between the years 1981-1984 was not
in consonance with the quota prescribed for each source of
recruitment under Rule 13 of the Rules was not a correct
chart.
To quote from the written submissions submitted by the
learned counsel for the petitioner: „The chart furnished by the
Ministry was not a "recruitment chart based on actual
vacancies" as prescribed in the Rules. The chart rather
showed number of SOs from different streams in the Seniority
list of 2001 resulting from placement of DR SOs in wrong years
(as per Ministry‟s arbitrary criteria) and of DP SOs whose
Supernumerary service was counted for seniority. It may be
emphasized that this very seniority list of 2001 was disputed
in Manju‟s case and hence cannot be used to show break
down of quota rule.‟
D That while passing the impugned judgment the Tribunal
did not attach due importance to the ratio of law laid down by
the Supreme Court in the decision reported as Arvinder Singh
Bains v State of Punjab (2006) 6 SCC 673 wherein it was held
that „rota and quota must necessarily be reflected in the
seniority list and any seniority list prepared in violation of rota
and quota is bound to be negated‟.
E That the Tribunal failed to appreciate that the decision of
the government of adopting different criteria for determination
of „year of recruitment‟ for direct recruit and limited
departmental examination Section Officers has resulted in
discrimination between direct recruit and limited departmental
examination Section Officers and is thus violative of Article 14
of Constitution of India.
32. The submission advanced by the learned counsel for the
petitioners that while implementing directions passed by the
Tribunal in Sanjay Vyas‟s case (supra) of reviewing/re-
checking the seniority list(s) of Section Officers, the
government could not have reviewed the seniority list with
respect to application of rota-quota rule for fixation of
seniority of the Section Officers for the years 981-1984 is
totally misplaced.
33. The seniority of an officer cannot be fixed in isolation.
Change in seniority of one officer is bound to affect the
seniority of some of his counterparts. Any change in a
seniority list will cause a ripple effect. The instant case is a
classic example of the aforesaid principle. For instance, when
seniority of 251 promotee Assistants got revised in view of
judgment of the Tribunal in P.N. Tandon (1)‟s case (supra), the
seniority of 196 direct recruits Assistants was adversely
affected.
34. In M.P. Singh‟s case (supra) it was directed by the
Tribunal that service rendered by direct recruits Assistants
who got wrongly promoted as Section Officers on
supernumerary posts should not be reckoned for the purposes
of fixation of their seniority. However, in Sanjay Vyas‟s case
(supra) the Tribunal noted that despite the ratio laid down in
M.P. Singh‟s case (supra), while drawing seniority lists dated
28.06.1994 and 04.10.1996, the government has reckoned the
service rendered by Section Officers on supernumerary posts
for the purposes of fixation of their seniority and thus it
directed the government to re-check/review the seniority lists
of the Section Officers. The aforesaid review/re-check of the
seniority lists resulted in change of seniority of some
promotee Section Officers which in turn changed the number
of promotee Section Officers recruited in a particular year. In
that view of the matter, the government was well-justified in
determining whether the change in one source of recruitment
to the post of Section Officer has led to substantial departure
from the quota prescribed for each source of recruitment
under Rule 13 of the Rules. And when it was found that the
quota rule for recruitment has broken down in a particular
year it was perfectly legal for the government not to give
effect to rota rule for the purposes of fixation of seniority and
reckon the seniority of the Section Officer on the basis of
principle of „continuous officiation‟ in view of ratio laid down
by Supreme Court in G.S. Lamba‟s case (supra). Therefore, the
implementation of the directions passed by the Tribunal in
Sanjay Vyas‟s case (supra) itself led to review/re-check of the
seniority lists of the Section Officers regarding application of
rota-quota rule for the purposes of fixation of seniority of
Section Officers for the years 1981-1984.
35. Whether the decision in Mandhaiya‟s case (supra)
precluded the Tribunal from taking a view in the instant
matters that the seniority of the Section Officers for the years
1981-1984 is to be reckoned on the basis of „continuous
officiation‟ instead of „quota-rota‟ rule?
36. A perusal of the relevant extract of the judgment in
Mandhaiya‟s case (supra) noted by us in the foregoing
paragraph 21 above evidences that in the said case the
Tribunal proceeded on the assumption that the recruitment to
the post of Section Officers, for the years 1981-1984, was
made in accordance with quota prescribed for each source of
recruitment under Rule 13 of the Rules, which assumption was
subsequently found to be incorrect in the decision which is
impugned.
37. It is trite that a judgment based on an erroneous
assumption of fact or of law cannot be treated as a precedent.
Therefore, there was no predicament in the way of the
Tribunal to hold that the seniority of the Section Officers
for the years 1981-1984 is to be reckoned on the basis of
„continuous officiation‟ instead of „quota-rota‟ rule
contained in Rule 25(1)(ii) of the Rules.
38. As regards the contention that the recruitment chart
submitted by the government to the Tribunal was
incorrect, suffice would it be to state that we do not find
even a whisper in the impugned decision pertaining to the
contention regarding the correctness of the said
recruitment chart. On the contrary, the impugned
judgment records that the figures contained in the
recruitment chart in question were not disputed. In that
view of the matter, the petitioners cannot be allowed to
turn around and contend that the recruitment chart in
question was incorrect. Besides, in what manner the
chart is incorrect has not been highlighted even before us.
39. As regards the decision of the Supreme Court in A.S.
Bains‟s case (supra), a perusal thereof reveals that the
said case is entirely distinguishable from the present
case. In the said case, despite provisions in the relevant
recruitment rules prescribing application of rota-quota
rule for the purposes of fixation of seniority, the
government was not implementing the rule. It was in that
context certain pertinent observations were made by the
Court regarding the application of rota-quota rule for the
purposes of fixation of seniority. The Court therein was
not concerned with the issue of breakdown of quota-rota
rule as in the present case.
40. This takes us to the last submission advanced by the
learned counsel for the petitioners.
41. Whether the government has correctly fixed the
„year of recruitment‟ in respect of direct recruits and
limited competition examination Section Officers?
42. Rule 13(1)(a) of the Rules provides that one sixth of
the substantive vacancies, in the Integrated Grades II and
III of the General cadre shall be filled, by direct
recruitment on the results of competitive examinations
held by the Commission, whereas Rule 13(2)(ii) stipulates
that 33-1/3 percent of the quota for inclusion in the Select
List of Integrated Grades II and III shall consist of persons
to be promoted on the basis of a limited competitive
examination. Rule 13 thus provides that the appointment
of a direct recruit Section Officer is to be made on the
declaration of his results whereas a limited competitive
examination Section Officer is to be appointed on the
basis of limited competitive examination. Having regard to
the aforesaid distinction made in Rule 13 regarding the
recruitment of direct recruit and limited competitive
examination Section Officers, no fault can be found in the
decision of the government in prescribing different criteria
for fixing „year of recruitment‟ of direct recruit and limited
competitive examination Section Officers.
43. Finding no infirmity in the view taken by the Tribunal
we dismiss the writ petitions but make no order as to
costs.
(PRADEEP NANDRAJOG)
JUDGE
(MOOL CHAND GARG)
JUDGE
SEPTEMBER 27, 2010
mm
