Central Administrative Tribunal - Delhi
Shri P K Paul vs Union Of India Through on 5 May, 2009
Central Administrative Tribunal
Principal Bench
O.A.No.2196/2008
New Delhi, this the 5th day of May 2009
Honble Shri Shanker Raju, Member (J)
Honble Dr. Veena Chhotray, Member (A)
1. Shri P K Paul
son of late Shri P C Paul
Employee Code No.242301
2. Shri M S Yadav
son of Shri Lok Nath Paul
Employee Code No.246693
Both are c/o Army Head Quarter
Ministry of Defence,
Sena Bhawan, New Delhi-11
..Applicants
(By Advocate: Shri P K Sharma)
Versus
Union of India through
1. Secretary,
Ministry of Defence, South Block
New Delhi
2. The Joint Secretary (Trg) and CAO
Ministry of Defence
C-II Hutments, New Dwelhi
3. Shri Hari Om Rastogi
Employee Code No.125589
4. Shri Rajeev Sharma
Employee Code No.125831
5. Shri Om Prakash
Employee Code No.125956
6. Shri J V Rao
Employee Code No.148346
7. Shri T S Chidambaram
Employee Code No. 236380
8. Shri J P Mahato
Employee Code No.148250
9. Shri N M Kulkarni
Employee Code No.148289
Through respondent No.2
All are c/o Army Head Quarter
Ministry of Defence
Sena Bhawan, New Delhi-11
..Respondents
(By Advocates: Shri Rajesh Katyal for respondents 1 & 2
Shri Padma Kumar for respondents 3 & 4
None for remaining respondents)
O R D E R
Shri Shanker Raju:
A never ending dispute of seniority between direct recruits and promotees is the gravamen of the grievance raised before us.
2. Applicants, numbering 2, have impugned official respondents order dated 21.2.2008 as well as seniority list of Junior Research Officer (JRO) published on the same date.
3. Applicants, who were working as Senior Technical Assistant (STA), joined on 12.10.1988. In pursuance of UPSCs advertisement for the post of JRO, both of them applied and on their appointment, they joined as JRO as direct recruits on 9.9.1998 and 15.1.1999 respectively.
4. In pursuance of a DPC held in 2000 and thereafter a review DPC, private respondents 3 to 9 were promoted after the date of joining of applicants as JRO. Applicants were shown senior in the list of 1.5.2005 by virtue of their joining earlier than the promotees. However, the seniority was revised by an Office Memorandum dated 30.1.2006, which was represented against and when this was not finalized, led to filing of OA-1719/2006 where the private respondents in the OA were also made respondents. The Tribunal vide order dated 27.7.2007, by virtue of decisions of Apex Court in Nani Sha & others v. State of Arunachal Pradesh & others, 2007 (7) SCALE 521 and State of Uttaranchal & another v. Dinesh Kumar Sharma (Appeal (Civil) No.5573/2006) decided on 4.12.2006, directed the respondents to reconsider the issue with a speaking order in the light that the seniority of the promotees has to be reckoned from the date of promotion and not from the date when they were not borne on the cadre.
5. Subsequently, in view of DOPT OM of 3.7.1986 and the advice tendered on 23.9.2005 where it has been decided that direct recruits are to be assigned seniority from the year in which they have joined but the promotees were given from the panel year, the representation was turned down and revised seniority issued places the private respondents above the applicants and are also promoted subsequently as Research Officer Group A w.e.f. January 2009.
6. Learned counsel for applicants would contend that as per DOPT clarification to OM dated 3.7.1986 issued on 3.3.2008 in the matter of availability of the vacancy year, this has been clarified that for a direct recruitment it is the particular batch and in case of promotee, it is on joining the service. According to him, this clarification relates back to 3.7.1986 and in such view of the matter, DOPT advice tendered in 2005 is not sustainable.
7. Learned counsel has relied upon the decision of Apex Court, as cited in the earlier OA-1719/2006, and also the decision of coordinate Bench of this Tribunal in Shri A.K. Dahiya & others v. The Secretary, Union Public Service Commission & others (OA-911/2007) decided on 5.3.2009 where the seniority is to be reckoned from the date of joining of direct recruits as well as the promotees and not from the panel years.
8. On the other hand, learned counsel appearing for official respondents would rely upon the earlier decision of this Tribunal in Rajeev Sharma v. Union of India & others (OA-256/2001) decided on 19.11.2001 as well as DOPT advice to say that the seniority position of the applicants in the grade of STA is not linked and as the DPC was delayed due to the fact that senior being not eligible in passing their training, a DPC held was for the panel year 1997-98 and earlier DPC held on 28.9.1999 was for the panel year 1995-97. The promotees have been given seniority with reference to their panel years and as such when the rota quota is not broken, the inter-se-seniority between direct recruits and promotees has been rightly determined.
9. Learned counsel appearing for private respondents 3 & 4 has defended the orders and stated that as the official respondents had not held DPC for the vacancy year for the post of JRO during 1995 to 1998, as seniors were not having the requisite qualifications when private respondents 3 & 4 were eligible, the Department when conducted the DPC on 28.9.1999, respondent 3 was promoted in the DPC year 1995-96 and respondent 4 was promoted in respect of the vacancy year 1996-97. The Government instructions dated 3.7.1986 and clarification dated 23.9.2005 determine the seniority from the panel years.
10. Learned counsel has relied upon the following decisions to substantiate his plea:-
Surendra Narain Singh & others v. State of Bihar & others, 1998 SCC (L&S) 1317, U.P. Secretariat U.D.A. Association through its Joint Secretary, G.C. Srivastava & others, JT 1997 (2) SC 461, Union of India & others etc. v. S.D. Gupta & others, 1996 (2) SLR 5, M. Subba Reddy & another v. A.P. State Road Transport Corporation & others, 2004 (3) SLJ SC 125; and Balwant Singh Narwal & others v. State of Haryana & others, (2008) 2 SCC (L&S) 586
11. Learned counsel has distinguished the decision in Nani Shas case (supra) by contending that there were statutory rules but in case of applicants, DOPT instructions dated 3.7.1986 hold the field and are correctly applied to accord seniority to the promotees over and above the direct recruits maintaining rota quota.
12. We have carefully considered the rival contentions of the parties and perused the material placed on record.
13. At the outset, service being a civil right can be infringed only by valid rules as held by the Apex Court in State of U.P. & another v. Dinkar Sinha, 2008 (1) SCC (L&S) 38. When the statutory rules framed under proviso to Article 309 of the Constitution do not provide for determination of seniority, the administrative instructions issued for want of rules shall validly and legally apply the seniority as ruled in M. Srinivasa Prasad & others v. The Comptroller and Auditor General of India & others, 2007 (5) SCALE 173.
14. It is also trite law that when a clarification is issued to some administrative instructions, it would relate back and be effective from the retrospective date, as if the part of original instructions as ruled in S.S. Grewal v. State of Punjab & others, 1993 SCC (L&S) 1098 and S.B. Bhattacharjee Vs. S.D. Majumdar & others, (2007) 10 SCC 513
15. With the above position of law clear before us, as regards the question of seniority of direct recruits and promotees, the trite law is that the promotion cannot be given effect to from the date of accrual of vacancy or the panel year but from the date it has been given effect to on joining of a person, as ruled in Nirmal Chandra Sinha v. Union of India & others, 2009 (1) SCC (L&S) 671. In the matter of seniority, as ruled in Nani Shas case and Dinesh Kumar Sharmas case (supra) that a person, who was not even borne in the cadre, he cannot be accorded seniority on a legal fiction and on an implication that he had worked on the promoted post when he was still to join and assume the charge of the post.
16. The Apex Court in B.S. Mathur & another v. Union of India & others, 2009 (1) SCC (L&S) 1 held that seniority between the direct recruits and promotees has to be operated as per OM of 3.7.1986, which has been further clarified vide OM dated 3.3.2008 laying down the following proposition:-
3. Some references have been received seeking clarifications regarding the term available used in the preceding para of the O.M. dated 3.7.1986. It is hereby clarified that while the inter-se seniority of direct recruits and promotees is to be fixed on the basis of the rotation of quota of vacancies, the year of availability, both in the case of direct recruits as well as the promotees, for the purpose of rotation and fixation of seniority, shall be the actual year of appointment after declaration of results/selection and completion of pre-appointment formalities as prescribed. It is further clarified that when appointments against unfilled vacancies are made in subsequent year or years either by direct recruitment or promotion, the persons so appointed shall not get seniority of any earlier year (viz. year of Vacancy/panel or year in which recruitment process is initiated) but should get the seniority of the year in which they are appointed on substantive basis. The year of availability will be the vacancy year in which a candidate of the particular batch of selected direct recruits or an officer of the particular batch of promotees joins the post/service.
4. Cases of seniority already decided with reference to any other interpretation of the term available as contained in O.M. dated 3.7.1986 need not be reopened.
17. From the above, it is clear that the cases of seniority already decided with reference to any other interpretation of the term available as contained in OM dated 3.7.1986 need not be reopened. Seniority assigned to the private respondents was in the year 2005 but after the decision of the Tribunal, re-examination has to be done, which has not been validly done and as the seniority has now been assigned on 20.1.2008, this clarification would not apply to the seniority already decided before 3.3.2008. Accordingly, the interpretation of OM dated 3.7.1986, which has not been done by the official respondents in consultation with DOPT and as per their advice in 2005, according seniority to the private respondents from the date of panel year, shall not be disturbed as the only instructions to operate the seniority is the OM issued by the DOPT. The claim of the applicants cannot be countenanced and the seniority already fixed shall not be disturbed.
18. For want of challenge by the applicants to clause 4 of the OM ibid, we cannot agitate as to legality of seniority. Accordingly, the OA, being devoid of any merit, is dismissed. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/