Central Administrative Tribunal - Delhi
B.D. Sharma vs Union Of India on 20 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 521/2011 ORDER RESERVED ON: 15.10.2012 ORDER PRONOUNCED ON: 20.12.2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) 1. B.D. Sharma, MES No. 314283, Working as JE (QS&C), HQ CWE (AF) Palam, Delhi Cantt-10. 2. Sant Ram, MES No. 314232, Working as JE (QS&C), HQ CWE (AF) (WAC) Palam, Delhi Cantt-10. 3. Krishan Datt, MES No. 314388, Working as JE (QS&C), HQ E-in-Cs Branch Integrated HQ of MoD (Army) DHQ PO, New Delhi-11. Applicants. (By Advocate Shri Rajiv Manglik) Versus 1. Union of India Through Secretary (Defence), Ministry of Defence, South Block, New Delhi. 2. Engineer-in-Chief, Engineer-in-Chiefs Branch, Integrated HQ of MOD (Army), DHQ PO, New Delhi. 3. Chief Engineer Western Command HQ Western Command PIN-908543 C/o 56 APO 4. Shri Naresh Kumar, MES No. 314233 O/o CWE Hissar, Hissar Cantt, Haryana. 5. Shri Govind Gopal, MES No. 314304, O/o CWE Shimla Hills, Jutogh, Shimla, Himachal Pradesh. 6. Shri Subhash Chander, MES No. 314150, O/o Garrison Engineer (South), Ambala Cantt, Haryana. 7. Shri Raj Kumar, MES No. 314261, O/o GE (Utility) Ambala Ambala Cantt, Haryana. 8. Shri Rajender Kumar, MES No. 314288, O/o GE (North) Ambala Ambala Cantt, Haryana. Respondents. (By Advocates Shri Shamsuddin Khan for Respondents 1-3, Shri Fazal Ahmed for Respondents 4-7). O R D E R
Shri G. George Paracken:
The applicants of this Original Application are aggrieved by the impugned final `All India Seniority List of JE (QS&C) as on 01.04.2002 issued by the 2nd Respondent, namely, Engineer-in-Chief, Engineer-in-Chiefs Branch, Integrated HQ of MOD (Army), DHQ PO, New Delhi, vide its Annexure A-1 letter dated 16.09.2010 after circulating the draft seniority list vide their letter No. B/42033/AISL/JE (QS&C)/E1 (DPC-1) dated 31.08.2009 and considering the representations received from the aggrieved persons. The said impugned letter, inter alia, says that the aforesaid seniority list has been finalized keeping the following broad concepts in mind:
a. The settled seniority of JE (QS&C) for year 2001 circulated vide this HQ letter dated 25 Oct 01 has been considered as basis. The names of JEs (QS&C) who have been promoted as AE (QS&C) have been deleted.
b. This AISL includes only those JE (QS&C) who joined up to the year 1994 and who remained as JE (QS&C) on 01 Apr 2002.
c. Inter-se seniority of Direct Recruit SA-1 and Departmental Promotee SA-1 is fixed as per their rotation of quota and in terms of DOP&T OM bearing no. 22011/7/86-Estt (D) dt 03 Jul 86.
d. Few SA-II [Now JE (QS&C)] were selected in 1983 and appointed in 1987/1988 by one Command Chief Engineer. In the meantime during 1983 to 1987 appointment to the post of SA-II were made by other Commands Chief Engineers independently. Selections to the post of SA-II were made by their appointing authorities i.e. Command Chief Engineers independently. Since seniority based on the principle of date of selection panel can be applied only for intra command and not for inter command as in present case, hence seniority of these JEs is fixed based on their date of joining.
2. The factual matrix of this case is that till the year 1982, there were only two cadres in the subordinate Group `C category in the Military Engineering Services (`MES for short), namely, Building and Roads (B/R) and Electrical and Mechanical (E/M) cadres. The third cadre, namely, Quantity Surveying & Contracts (QS&C) was carved out of the B/R cadre in the year 1983-84. In both the B/R cadre as well as the E/M cadre, the post of Superintendent Grade-II was the feeder grade for the post of Superintendent Grade-I. While for the B/R & QS&C, the required educational qualification was in the field of Civil Engineering, for the E/M, it was in the field of Electrical and Mechanical Engineering. There was no other difference.
3. In the year 1982, the 2nd Respondent circulated certain vacancies of Superintendent Grade-II to be filled up in both B/R and E/M cadres. The selection in B/R cadre took place in the year 1983. Subsequently, the selected candidates including the applicants and the private respondents were appointed as Temporary Superintendent SA Grade-II in the MES in the pay scale of Rs.425-700 plus usual allowances vide Annexure A-5 letter(s) dated 24.4.1984. The applicant No. 1 was posted to GE Bikaner and others were posted to different offices with the stipulation that their appointments will take effect from the respective dates of their reporting for duty. Their positions in the panel of selected candidates published by Annexure A-3 panel are as under:
S.No. Applicant/Respondent Marks obtained Sl.No. in the select panel 1. Applicant No.1 35.5 66 2. Applicant No.2 34.5 82 3. Applicant No.3 30 147 4. Respondent No.4 31 134 5. Respondent No.5 29.5 153 6. Respondent No.6 33 109 7. Respondent No.7 32 119 8. Respondent No.8 30 151
4. The channel of promotion, as per the position prevailing up to the year 1988, was from the post of SA Grade-II to SA Grade-I and then to the post of Assistant Surveyor of Works (ASW) (Group `A post). From 1989, the channel of promotion was changed from SA Grade-I to the newly created Group B post of Junior Surveyor of Works (JSW) and then to ASW (Group `A post). While the seniority list of the Superintendent Grade-II was being prepared and maintained at the Command level on the principle of continuous officiation, the seniority list of ASW was prepared and maintained at All India level on the basis of panel seniority.
5. Some of the Grade-II employees had earlier approached the Chandigarh Bench of this Tribunal in OA 101-PB/1988 and the said Bench, vide its order dated 12.09.1994, directed the respondents to grant them seniority as per their positions in the select panel and the respondents implemented the said direction. Thereafter, in terms of the directions of the Bangalore Bench of this Tribunal in OA 2145/95, the respondents, vide letter dated 25.04.1996, granted time bound promotions to all the employees from Grade-II to Grade-I. Subsequently, the posts in Grade-II and Grade-I were merged into one post with the designation as Junior Engineer (JE) in all the three respective cadres vide letter dated 09.07.1999 and the designations of the applicants and the private respondents were changed to JE (QS&C) and the respondents started the preparation of the seniority lists for the merged post of JE in all the three cadres. However, some of those JEs represented to the respondents to grant them seniority in the combined list of JEs as per the DOP&Ts O.Ms dated 22.12.1959 and 03.07.1986 based on the following principle (as stated in O.M. dated 03.07.1986):
The relative seniority of all direct recruits is determined by the order of merit in which they were selected for such appointment on the recommendations of UPSC or other selecting authority. Persons appointed as a result of earlier selection being senior to those appointed as a result of a subsequent selection.
6. Thereafter, the Respondent No. 2 issued instructions vide Annexure A-6 letter dated 01.05.2000 to the Respondent No. 3 and all other Command HQs regarding revision and fixation of the seniority as per the merit position at the time of selection for appointment. The said letter reads as under:
REGISTERED Headquarters Engineer-in-Chiefs Branch DHQ PO, New Delhi-110011 75040/RPOS/EIC (1) 01 May 2000 Chief Engineers HQ Western Command, Chandimandir HQ Southern Command, Pune HQ Central Command, Lucknow HQ Eastern Command, Calcutta HQ Northern Command, C/o 56 APO FIXATION OF SENIORITY; DIRECT APPOINTEE
1. All India MES Civilian Engineers Association, during their Meeting held at this HQ on 06 Mar 2000 raised a point that the seniority of Direct Appointee may please be fixed on the basis of merit achieved by an individual in the Select Panel.
2. A case of similar nature was referred to DOP&T through Min of Def, Govt. of India, Min of Personnel P&G Pension (DOP&T) have ruled that the seniority in such cases may be fixed as per his merit position at the time of his selection for appointment and there is no question of linking it with the date of joining his senior.
3. In view of the above, the seniority of directly appointed personnel may suitably be fixed as per instructions contained in DOP&T OM No. 22011/7/86-Estt (D) dated 03 Jul 86, if and when any representation to this effect is received from the present incumbent to avoid Court cases/litigation.
4. Please also note and circulate the instructions to your lower formations to fix the seniority in accordance contained in the DOP&T letter dated 03 Jul 86 for appointment made in future.
5. CE WC only: In the light of above, a list of candidates submitted by All India MES Civilian Engineers Association and applications pending with this HQ is enclosed herewith as Appendix `A for review. Please examine each case on merit and refix seniority where applicable.
6. Please intimate progress/factual position on each case by 20 June 2000.
Encl: As above Sd/- (BP Kukreti) Col Dir Pers `C For Engineer-in-Chief
7. Accordingly, the respondent No. 3 corrected the draft All India seniority of JE (QS&C) including the applicants as well as the private respondents and forwarded the same to the Respondent No. 2 vide the Annexure A-7 letter dated 05.08.2005 and their positions in the said seniority list were as under:-
S.No. Applicant/Respondent No Sl.No. in the draft seniority list sent by respondent No.3 to respondent No.2 1 Applicant No.1 5 2 Applicant No.2 8 3 Applicant No.3 29 4 Respondent o.4 24 5 Respondent No.5 32 6 Respondent No.6 17 7 Respondent No.7 19 8 Respondent No.8 31
8. Meanwhile, the respondents prepared the combined seniority list of B/R and E/M cadres based on the principle of panel seniority and circulated it in the year 2004. The seniority list of B/R cadre was challenged before the Ernakulam Bench of this Tribunal in OA 680/2004 seeking fixation of their seniority on the basis of the continuous officiation. The applicants in the aforesaid OA were Junior Engineers in the office of the Garrison Engineer, Cochin who belong to the Military Engineering Service. They entered service as Superintendent Grade-II during the years 1983-84. On amalgamation of the posts of Superintendent Grade-I and Grade-II in the year 1989, they were redesignated as Junior Engineers and their next promotional post was Assistant Engineer. It was observed in the said order that the All India seniority list was maintained for both the grades and in the year 2000-01, an integrated seniority list of both Superintendents Grade-I and II was drawn up as All India seniority List showing Junior Engineers (Civil) in two parts, the first part containing the names of those who were working as Superintendent Grade-I and Part-II consisting of persons working as Superintendent Grade-II. The contention of the applicants therein was that no promotion of Superintendents Grade-II to Grade-I was done during the years 1995 to 1999 because of the process initiated for amalgamation of the posts. Therefore, the Director General (Personnel) issued instructions to the Chief Engineers (Headquarters) calling upon all the five Commands to calculate year-wise vacancies and to carry out proforma promotions. The grievance of the applicants in the said OA was against the decision of the respondents to recast the All India Seniority list of Junior Engineers and the letter dated 29.07.2004 issued by the Director General whereby an all India seniority list of Junior Engineers (Civil) 2004-05 has been issued. They have, therefore, sought a direction to the respondents to quash the said seniority list of JEs (Civil) as on 01.04.2004 and also a direction to the respondents to effect promotions to the post of JE only in accordance with the earlier seniority list. They also sought a declaration that they are entitled to have their seniority fixed from the date of first continuous appointment in DES. The Ernakulam Bench disposed of the aforesaid OA, vide order dated 07.09.2005, with a direction to the respondents to publish the final seniority list at the level of the first respondent incorporating the changes in accordance with the rules and till such time, the promotions made to the next higher post of Assistant Engineers shall be treated as provisional. The operative part of the said order reads as under:
8. We have carefully gone through the pleadings and heard the arguments and perused the documents referred to by the learned counsel appearing on both sides. First we shall deal with the contention of the respondents particularly the sixth respondent that the OA is liable to be dismissed for non-joinder of the necessary parties. It is true that the setting aside of the seniority list will adversely affect persons like respondent No.6 and others who are assigned higher rank and seniority above the applicants in Annexure A-4. But in the present case the seniority list has been challenged on the basis that the criterion adopted while recasting the seniority has not been uniformly applied and also that it is not in accordance with the rules prevalent at that point of time and no relief has been sought against any particular individual. Therefore, there is no necessity to implead all those who were senior to the applicants in the seniority list. The question of promotions arose after the OA was filed on 14.9.2004 and the promotions which have been made subsequent to the filing of this OA are stated to be subject to the outcome of this OA. It is also the contention of the applicant that Annexure A4 is a provisional seniority list. Therefore, we do not consider that non-impleadment of the promotees who are likely to be the affected parties is a serious matter necessitating the dismissal of the OA, and hence we reject this argument.
9. We now proceed to examine the issue on merit. The first contention of the applicants side is that the revision of seniority has unsettled the settled position which has been in existence for years. The above statement is not supported by any facts or documents, as for the first time an integrated seniority list of both Superintendents Grade-II and Grade-I was published in December, 2000 (Annexure-I). It is an admitted fact that the posts of Superintendent Grade-I and II were merged and redesignated as Junior Engineer only in 1999. It is also not the contention of the applicants that any promotions were made on the basis of seniority list published in December, 2000. In this list the seniority was purportedly determined on the basis of the continuous officiation in the post which was contrary to the executive direction contained in the OM dated 22.12.1959. Since the list was prepared against the principle of seniority embodied in the above OM, the Engineer-in-Chief issued directions that the seniority of all the Junior Engineers and erstwhile Superintendents Grade-II shall be recast according to the principles laid down by the DOP&T on seniority. Meanwhile certain Superintendents Grade-II who were designated as Junior Engineers approached the Chandigarh Bench of this Tribunal for a direction for fixation of seniority in accordance with the directions of the letter dated 1.5.2000 issued by the Army Headquarters Engineer-in-Chief, New Delhi. The OA was disposed of with the direction that appropriate orders with regard to fixation of seniority in the light of the letter dated 1st May, 2000 shall be issued within a period of two months. It is therefore evident that the letter dated Ist May, 2000 is initiated by the Army Headquarters for rectifying the mistake committed. We do not find merit in the argument that a seniority position which has been settled for long time has been upset as the integrated seniority was first determined only in 2000 and the revision has been effected in 2004.
10. The applicants have challenged this provisional seniority also on the ground that the Union of India decision has been applied retrospectively. This contention is also not valid as the same principle of granting seniority to direct recruits was in vogue even when DOPT Instructions dated 22.12.1959 governed seniority. The DOPT letter dated 3.7.1986 is only a consolidation of earlier instructions issued for the convenience of all concerned reiterating the principle formulated in the earlier memoranda issued by the Department. Therefore in no way it can be argued that a new principle has been brought into effect from 3.7.1986. The only new element which has been introduced in the later communications is the delinking of confirmation for determination of seniority, which aspect is not an issue in the present case. Hence the view of the applicants that the instructions in DOPT OM dated 3.7.1986 is applicable to only appointments made in future after that date is not tenable.
11. The next contention of the applicants is that the principle that seniority has to be fixed not on the date of continuous appointment but on merit in the panel has no legal validity nor is it based on any rule. It is now settled law that seniority has to be determined as per the ranking in case of direct recruits and the mere chance of reporting to duty earlier would not alter the ranking given by the Selection Committee. The judgments of the Apex Court in Chairman, Puri Gramya Bank VS. Ananda Chanda Das [(1994) 6 SCC 301] Bimalesh Tanwar Vs. State of Haryana and Chandra, Navaneeeswara Reddy Vs. State of Andhra Predesh (AIR 1998 SC 939) all reiterated this decision relating to inter-se seniority and that when an executive direction governing seniority exists such instructions have to be followed. Therefore the action of the respondents in re-casting of the seniority in accordance with the prescription in their instructions which have been upheld by the judgment of the Tribunal and in this case specifically on direction from the Chandigarh Bench of the Tribunal to follow the above instructions we find is in order and in accordance with the rules and the law and they cannot be faulted for the same.
12. The other contentions raised by the applicants is that the respondents have recast the second seniority list on the basis of inadequate data and several entries in the columns are found missing in the revised list. They have also alleged that opportunity has not been given to the applicants to represent their case. On a perusal of the records, particularly the correspondence initiated by the Director General (Personnel) Army Headquarters through the Engineers-in-Chief and the five Commands we find that there is some merit in this contention. The order of the Chandigarh Bench was issued ion 7.8.2002 and the direction was to carry out the changes within a period of three months. Even prior to that action had been initiated by the Headquarters by letter dated 1.5.2000 to refix the seniority of directly appointed personnel in accordance with the merit position at the time of selection. The direction of the Chandigarh Bench of the Tribunal was to implement these instructions. The respondents carried out the amendments to the seniority list case of the applicants in the OA vide letter dated 21.7.2003. Subsequently they received large number of representations seeking similar protection and therefore it was instructed by letter dated 29.7.2004 by Army Headquarters that the entire seniority list may be recast ion the same lines giving relief to all similarly situated Junior Engineers. It was directed in this letter that revised seniority list should be disseminated to all the Junior Engineers within 15 days and the representation so received shall be scrutinised at Command level and a consolidated report shall be forwarded to reach the Headquarters by 31.8.2004. The above direction in para 6 of the letter dated 29.7.2004 (Annexure R-4) definitely indicate that it is a provisional seniority list subject to confirmation after disposal of the representations. Prior to that another letter has been issued on 13.5.2004 to all the Commands to furnish Command-wise list indicating the seniority as reflected in the promotion/recruitment panels. While the above letter communicated tentative seniority list and giving time till 15.6.2004 for scrutiny and submission of consolidated report Command-wise. Ion 31.7.2004 the Chief Engineer, Southern Command by Annexure A4 which is impugned in this OA addressed all the subordinate officers in the Command to scrutinize the details of the entries in the list and submit the consolidated reported by 20.8.2004. The entire correspondence leads us to the conclusion that the list communicated by the letter dated 29.7.2004 is only a provisional list and has not attained any finality. The respondents have not produced before us any final All India seniority list which should have been issued by the Director General (Personnel) Army Chief Headquarters and the Annexure A4 is only a communication from the Southern Command communicating the provisional list as sent to them by the Director General (Personnel). The above mentioned reply by the respondents is also contradictory in that it was submitted in the counsel statement that the list is provisional and has been forwarded to all formations inviting objections whereas in para 12 of the additional reply statement it is stated that the seniority issued vide letter dated 29.7.2004 is the final seniority which has been used for holding the DPC for promotions. This leads us to the firm conclusion that the respondents have acted in undue haste. In matters regarding seniority, directly impringing on the service career of the employee, it is necessary to exercise caution and the procedure adopted for making any changes in the seniority list has to be transparent and reasonable opportunity given to those affected to be heard. In fact every representation made by the employee against the revision in seniority has to be considered on merit and due notice issued to all the affected parties and individual decisions accepting or rejecting the representations have to be communicated. Thereafter only the list can be finalised. The materials on record indicate that the respondents have only considered some representations of the employees in piece meal and the very fact that they have issued four amendments already to the so called final All India seniority list 2004 indicates that the whole process has been hurried through. The respondents cannot issue amendments to a provisional seniority list. They should have considered the representations and then issued a final seniority list. No such list has been produced before us. If any promotions have been made on the basis of a provisional seniority list such promotions can only be provisional and adhoc and subject to finalisation of the seniority. The respondents have admitted that they have received various representations including some from the applicants. They pointed out that applicants No.2, 4, 5 and 6 never represented or objected to the amendment they contend that applicants without exhausting their departmental remedy have approached this Tribunal and objections have been raised through rejoinder filed by them. It was however submitted by the applicants counsel that the applicants were called for perusal of the records and for personal hearing and for some reason or other it could not take place. Such problems would not have arisen if the respondents had followed strictly the procedure for revision of seniority by giving enough time and opportunity to all those who are aggrieved by their recasting of the seniority and considered their representations in toto after receipt of all the objections from all the five Commands under them. In fact the representations had to be first scrutinized at the Command level and then a final decision taken at Headquarters. We are therefore of the considered view that this process has to be undertaken as a fresh exercise and that the all India seniority list communicated by the impugned A4 letter is only a provisional seniority list and not a final seniority list as claimed by the respondents.
13. Some other issues like discrepancies in the date of birth and missing entries in the various columns have also been raised by the applicants. We do not want to go in detail into those matters but we observe that the respondents while undertaking a fresh exercise should look into the matter on the basis of availability of relevant records and evolve a fair and equitable formula to govern such cases. It is also not found necessary to have columns relating to order of merits and dates of panel etc. in the seniority list. The years in which the panels were approved will be the most relevant as there could not more than two panels approved in any year. The applicants have also pointed out some cases wherein the applicants and the private respondents were approved in the same panel on 1983 but were appointed later after a gap of five years in 1988. Such cases will also have to be re-examined for a decision regarding the determination of their seniority unless covered by specific orders of the Court. Therefore the respondents are directed to examine each of these cases on merit and pass appropriate orders.
14. In the light of the above discussions we are of the view that Annexure A4 seniority list is to be considered only as a provisional seniority list and therefore it is not necessary to quash the same. The following direction for finalising the seniority would meet the ends of justice. Accordingly the respondents are directed:
to fix a time limit for submission of representations on the provisional seniority list communicated to the various Commands vide letter dated 29.7.2004 giving reasonable time for the Command Headquarters to receive representations from all Junior Engineers employed in their jurisdiction and thereafter consider and dispose of these representations at the Headquarters level giving individual replies to all those who submitted their representations and publish the final seniority list at the level of the first respondent incorporating the changes in accordance with the rules.
till such a final seniority list is prepared and published the promotions made to the next higher post of Assistant Engineers shall be treated as provisional. This exercise shall be completed within a period of six months from the date of receipt of this order.
15. The Original Application is allowed as above with no order as to costs.
9. The respondents complied with the aforesaid directions of the Ernakulam Bench and assigned panel seniority to all the candidates but it was again challenged in OA 164/2007 before the Principal Bench of this Tribunal. The Principal Bench upheld the aforesaid seniority list based on panel seniority, vide its order dated 26.05.2008 except for the belated appointments made in 1983. The applicants have also stated that the averments in the present O.A. and those in O.A 164/2007 Ashok Kumar & Ors. Vs. Union of India & Ors. and O.A. 2636/2010 Suresh Chand Sharma & Ors. Vs. Union of India & Ors. are different. While the applicant in OA 2636/2010 (supra) and the private respondents in OA 164/2007 were appointed in 1988, though they were selected in the panel of 1983, the applicants in the present OA were selected in the panel of 1983 and joined in 1983/1984. The private respondents who were junior in the same panel of selection had joined earlier to the applicants and those have been given seniority above the applicants. The co-ordinate Bench of this Tribunal in OA 164/2007 (supra) followed in OA 2636/2010 (supra), vide orders dated 26.05.2008 and only directed specifically that the whole seniority list cannot be unsettled, thus holding the validity of the seniority list as per the panel seniority, and had held that those who had joined later in 1988 cannot be assigned seniority as per the panel seniority.
10. The applicants have also stated that the dispute in OA 1941/2008 Dharamvir Singh Vs. Union of India was again same as in OA 164/2007 i.e. the applicant therein was selected in the panel of 1983 but appointed only in 1988. The relevant part of the said order reads as under:-
19. Before dealing with the rival contentions, we may refer to one other argument that had been raised by the applicants but not seriously pursued. It was that a wrong has been done to them, and when vacancies were available from 1996-99, when they were actually looking after the duties of Superintendent Grade-II, there were vacancies available in the category of Ist grade Superintendents. But the selection had not been held for no fault of theirs. Therefore, justice demanded that at least at this point of time, a direction be issued whereby respondents were obliged to consider such claims by directing to constitute a DPC and consider the promotability of the applicants with reference to their date of entitlement. This would have given them lungpower to claim promotions as of right. But such a contention would have come to their aid, only if the dates of seniority given to private respondents had been interfered with. Further, our attention had been invited to a Full Bench judgment of the Tribunal in M.C. Singhania & Ors. Vs. UOI & Ors. (OA 1663/06), decided on 06.09.2007 where a similar contention had been raised. Taking notice of the settled position, spoken to by the Honble Supreme Court, the Full Bench had held that even if there would have been vacancies available during the past years, there cannot be a legal right for a Government servant to get his claims considered with reference to a past date, or sustain a claim for appointment with retrospective effect. We respectfully follow the reasoning given by the Full Bench and the claims of the applicants for promotion, as Grade-I Superintendents cannot be entertained.
20. In view of the orders passed by the Jodhpur Bench, in OA 166 of 1998, to which reference is made in the counter statement, as also the Chandigarh Bench in OA 734 of 2004, the Department had been obliged to revise the existing seniority list, as there was direction to examine the contentions whether an officer was entitled to a date of reckoning or the date of joining or on the basis of merit in the panel. No doubt, the hornets nest had been touched at that point of time, since a re-examination could not have been avoided. Of course, the Chandigarh Bench had required to examine the issue with reference to the principles in the DOP&T OM dated 3.7.1986. However, as pointed out by the parties and also noted by the Ernakulam Bench, thereby the existing instructions had been only consolidated. When we examine the OM, broadly, the following matters have been dealt with:
(1) seniority of direct recruits and promotees;
seniority of transferees;
seniority in special type of cases as adverted to.
The present case, therefore, did not come within any of the above categories. The Office Memorandum of 8.2.1982 made available to us of course indicates that there need not be any restriction about validity of the period of list of selected candidates. But it deals with a position where the list is prepared to cater to the declared vacancies. By way of Paragraph 4, the following is prescribed:
Once a person is declared successful according to merit list of selected candidates, which is based on the declared number of vacancies, the appointing authority has the responsibility to appoint him even if the number of vacancies undergoes a change, after his name has been included in the list of selected candidates. Thus, where selected candidates are awaiting appointment, recruitment should either be postponed till all the selected candidates are accommodated or alternatively intake for the next recruitment reduced by the number of candidates already awaiting appointment and the candidates awaiting appointment should be given appointments first, before starting appointments from a fresh list from a subsequent recruitment or examination. But we are of the opinion that the materials as above relied on by the official respondents are insufficient for them to successfully defend the proceedings which has forth come. Though Office Memoranda dated 22.12.1959 and 6.6.1978 had been pressed into service, we can hardly see any support, as given by them for the official respondents to take a stand that persons situated like respondents 3 to 9 required to be given a special treatment. In fact, we find from the order of the Ernakulam Bench that attention was required to be focused on the aspect whether a person who entered into service was to surrender the seniority, in favour of a person who had for the first time entered service years thereafter, but whose name appeared in a panel prepared, sometime back. Such a contingency had not been adverted to in any of the cited proceedings. Normally a person who is selected and included in a panel is not to surrender his seniority vis-a-vis person who came to be selected by a later selection. However, as argued by the applicants, the factual situation cannot at all be overlooked, as this cannot be a position to be followed when selections are made by independent authorities, and when there is no mutual consultation.
21. The practice admittedly was that the different Commands carried out separate selections. The normal principle for adjudging seniority is on the basis of date of entering service as between the person appointed in one Command. Of course, there is no difficulty in applying principles cited that any earlier selectee will be entitled to priority in the matter of seniority. But this principle cannot be applied when selection is carried by different authorities, totally independent of one another. The objection that the applicants might have been appointed during a period of ban, has mostly lost its significance, since they have been in regular service for decades. When a combined seniority is prepared, therefore, they are necessarily to get their seniority reckoned from the original date of entry into service when he is compared with a person who belonged to yet another Command. It would be illogical to suggest that they had to be pushed down below persons who were later on appointed.
22. As a matter of fact, the belated appointment from a panel which had lost its relevance itself was an unmerited advantage as far as respondents 3 to 9 were concerned and persons similarly situated like them. The panel had outlived its life and need not have been operated at all. On no principles of law or equity, they are entitled to gain seniority over persons who had entered service and had actually drawn salary. They are entitled to the benefits of service consequent to their appointment. To deny them the normal admissible date would be arbitrary, and in violation of their fundamental rights under Article 14 and 16 of the Constitution of India.
23. From Annexure `O we can gather that the real issue required to be examined with reference to this dispute, had not been attempted. Office Memoranda referred to in the order could not have had any application as far as the case at hand was concerned. The applicants were entitled to get seniority from the date of their initial appointment and so far as this has been overlooked in Annexure `O, the same is required to be appropriately modified. The general question whether seniority from the date of appointment, or the date of panel, cannot have application in these circumstances since appointments had not been made by one and the same Command. Even if it was applicable by stretching, the long delay in conferment of appointment could not have been gone unnoticed.
24. However, we do not think it is necessary to unsettle the whole list at this point of time. We direct that in the matter of adjudging seniority, the principle of initial date of appointment/continuous officiation should be borne in mind and the principle of panel seniority was inapplicable and not possible to be followed as far as claims of applicants and similarly situated are concerned vis-a-vis respondents 4 to 9. Consequently, we direct that appropriate modification to the seniority list appended to Annexure `O is to be brought, and circulated. The applicants will be entitled to the aforesaid benefits as declared by us and their seniority should be with reference to their date of appointment. O.A. is disposed of. No costs.
11. The applicants have stated that the aforesaid order of this Tribunal in OA 164/2007 dated 26.05.2008 (supra) has been stayed by the Honble High Court of Delhi vide its order dated 27.08.2008 in CWP No. 4394/2008.
12. The Honble High Court of Punjab and Haryana vide its judgment dated 25.07.2011 in CWP No. 13055 of 2011 Union of India & Ors. Vs. CAT & Ors. upheld the decision of the Chandigarh Bench of this Tribunal in OA No. 734-HR-2002 dated 07.08.2002 and held that the persons selected in earlier panel cannot be given a lower place in the seniority in comparison to those who have been selected later. The operative part of the said judgment reads as under:
1. The instant petition preferred by Union of India and its officers is directed against the order dated 28.9.2010 passed by the Chandigarh Bench of the Central Administrative Tribunal (for brevity 'the Tribunal'). The original applicant-respondents firstly filed OA No. 734-HR-2002 before the Tribunal, which was decided on 07.08.2002 (A-1). Placing reliance on letter dated 01.05.2000 issued by the Army Headquarters, Engineer-in-Chief's Branch DGQ PO, New Delhi. The Tribunal issued directions to the petitioner-Engineer-in-Chief, Army Headquarters that he would personally look into the matter and pass appropriate orders with regard to the fixation of seniority of the direct appointees in the light of the Army Headquarters' letter dated 01.05.2000 (A-8). In pursuance of the time bound directions given by the Tribunal, the original applicant-respondents were given seniority on the basis of merit determined by the recruiting agency in as much as those who were appointed as a result of earlier selection were considered senior to those appointed as a result of subsequent selection. As a consequence of passing order on 22.07.2003 (A-3), a seniority list was also released on 12.08.2004 (A-4). The original applicant-respondents once again approached the Tribunal by filing OA No. 126-PB -2009 with a variety of prayers but the Tribunal accepted only one prayer that once the original applicant-respondents had been found to be higher in order of merit and their inter se seniority has been fixed by the petitioner then they were not entitled to the arrears of pay but were entitled to fixation of their pay on the premise that persons junior to them were given higher pay. The directions issued by the Tribunal are discernible from the perusal of para 7, wherein the Tribunal has directed the petitioner to fix the pay of the original applicant respondents with increments from time to time at par with their junior like Shri Rajan Bombey on notional basis. It has been clarified that original applicant-respondents would start getting pay only from the date they had actually joined their duties with arrears thereon upto date and benefit of counting of such service towards eligibility for grant of benefit of ACP etc.
2. Notice of motion.
3. Mr. Amit Sharma, Advocate who is present in the Court accepts notice on behalf of the caveator-respondents Nos. 1, 5 to 7 and Mr. D.S. Patwalia, Advocate who is also present in the Court accepts notice on behalf of respondent Nos. 2 to 4.
4. We have heard learned counsel for the parties and keeping in view the nature of controversy involved and with their consent, the writ petition is taken up for final disposal at the motion stage.
5. It has remained undisputed that the Tribunal while disposing of OA No. 734-HR of 2002, had issued directions on the basis of letter dated 01.05.2000 asking the Engineer-in-Chief, Army Headquarters Kashmir House, New Delhi to personally look into the matter and determine the seniority of the direct recruits-applicants. It in terms meant that the inter se seniority was to be fixed by following the principle that those who are appointed as a result of earlier selection were to rank senior to those who are appointed as a result of subsequent selection. In other words the earlier batch was to rank senior to the batch selected later on. On the basis of the aforesaid directions, the petitioners have passed an order dated 21.07.2003 and also issued All India Seniority List of JE (A-4) on 12.08.2004. As a consequence of the aforesaid grant of seniority, the original applicant-respondents admittedly ranked senior to those who were given appointment ahead of them. The necessary consequence is that juniors were drawing higher pay than their senior, which resulted in filing another OA which is relatable to the present writ petition. Therefore, there is no escape from the proposition that once a mandamus has been issued by the Tribunal then it has to be taken to its logical end and the effect of the mandamus cannot be nullified by issuing another writ. The aforesaid proposition stands settled more than 30 years ago in the case of Naresh Shridhar Mirajkar v. State of Maharashtra AIR 1967 SC 1. Therefore, it is not possible for us to reverse the mandamus issued in the year 2002 particularly when the aforesaid directions have been complied with and the original applicant-respondents have been granted seniority. Even on equity and merit, persons who have been selected in the earlier panel cannot be given a lower place in the seniority in comparison to those who have been selected later. Therefore, we do not find any legal infirmity in the view taken by the Tribunal. The writ petition is wholly without merit.
6. Accordingly, the present writ petition fails and the same is dismissed.
13. According to the applicants, in spite of the aforesaid orders of this Tribunal, the respondents have now issued the Annexure A-1 seniority list dated 16.09.2010 again following the principle of continuous officiation i.e. from the date of joining. The relative seniority position of the Applicants and the private Respondents in the Annexure A-7 seniority list dated 5.8.2005 and in the impugned seniority list dated 16.9.2010 are as under:-
S.No. Applicant/ Respondent No Sl.No. in the draft seniority list sent by respondent No.3 to respondent No.2 Sl.No. in the seniority list dated 16.9.2010 Date of joining of service
1. Applicant No.1 5 168 01.06.84
2. Applicant No.2 8 171 29.06.84
3. Applicant No.3 29 167 01.06.84
4. Respondent No.4 24 130 12.04.84
5. Respondent No.5 32 143 18.04.84
6. Respondent No.6 17 144 18.04.84
7. Respondent No.7 19 128 11.04.84
8. Respondent No.8 31 109 10.03.84
14. The applicants have made representations against the aforesaid impugned seniority list but the respondents have not considered and disposed of them. Therefore, they have approached this Tribunal by the present O.A. seeking the following reliefs:
(i) To quash and set aside seniority list dated 16.9.2010; and
(ii) To direct the official respondents to re-cast the seniority of the applicants as per their merit in the select panel of 1983 and place them above the private respondents; and
(iii) To quash and set aside the proceedings of the DPC held on the basis of seniority list dated 16.9.2010; and
(iv) To direct the official respondents to conduct the DPC/review DPC for the post of Assistant Engineer (QS&C) for the vacancy year 2002-03 to 2010-11 and consider the applicants as per their revised seniority; and
(v) To direct the official respondents to grant all consequential benefits to the applicants in case they are found fit by the DPC for promotion to the post of AE (QS&C); and
(vi) To award exemplary costs; and
(vii) To pass any other order as this Honble Tribunal deem fit in the interest of justice.
15. The applicants have challenged the aforesaid seniority list on the ground that the respondents have adopted continuous officiation as the basis for recasting the seniority list in respect of direct recruits but different yardsticks in preparing the seniority list of other categories. Further, according to them, the action of the respondents in recasting the seniority by adopting principles of continuous officiation in respect of the direct recruits is not only unjust, arbitrary and unreasonable but it is a U-turn from their own letter dated 01.05.2000 regarding fixation of seniority which has been extracted earlier in this order.
16. Another ground taken by the applicant to challenge the aforesaid impugned order is that the respondents have fixed the seniority in violation of the DOP&Ts O.M. dated 22.12.1959 which has again been included in the Consolidated Office Memorandum dated 03.07.1986, the relevant part of which reads as under:
SENIORITY OF DIRECT RECRUITS AND PROMOTEES (MHA O.M. No. 9/11/55-RPS dated 22.12.59) 2.1 The relative seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendations of the U.P.S.C. or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection.
2.2 Where promotions are made on the basis of selection by a D.P.C., the seniority of such promotees shall be in the order in which they are recommended for such promotion by the Committee. Where promotions are made on the basis of seniority, subject to the rejection of the unfit, the seniority of persons considered fit for promotion at the same time shall be the same as the relative seniority in the lower grade from which they are promoted. Where, however, a person is considered as unfit for promotion and is superseded by a junior such persons shall not, if he is subsequent found suitable and promoted, take seniority in the higher grade over the junior persons who had superseded him.
2.3 Where persons recruited or promoted initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their appointment, seniority shall follow the order of confirmation and not the original order of merit.
2.4.1 The relative seniority of direct recruits and of promotee shal be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules.
2.4.2 If adequate number of direct recruits do not become available in any particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees [DOP&T OM No.35014/2/80-Estt (D) dated 7.2.1986] In other words, the extent direct recruits are not available the promotees will be bunched together at the bottom of the seniority list below the last position up to which it is possible to determine seniority, on the basis of rotation of quotas with reference to the actual number of direct recruits who become available. The unfilled direct recruitment quota vacancies would, however, be carried forward and added to the corresponding direct recruitment vacancies of the next year (and to subsequent years where necessary) for taking action for direct recruitment for the total number according to the usual practice. Thereafter in that year while seniority will be determined between direct recruits and promotees to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional, direct recruits selected against the carried forward vacancies of the previous year would be placed en-bloc below the last promotee (or direct recruit as the case may be), in the seniority list based on the rotation of vacancies for that year. The same principle holds good for determining seniority in the event of carry forward, if any, of direct recruitment or promotion quota vacancies (as the case may be) in the subsequent year.
17. The applicants have also contended that in addition to the (i) order in OA 101-PB-1988 of the Chandigarh Bench of this Tribunal decided on 12.09.1994; (ii) order in OA 680/2004 of the Ernakulam Bench of this Tribunal decided on 07.09.2005; (iii) common order in OA 800/2004 & OA 686/2005 of the Ernakulam Bench of this Tribunal decided on 18.09.2006; (iv) order in OA 164/2007 of the Principal Bench of this Tribunal decided on 26.05.2008; and (v) judgment of the High Court of Delhi in WP (C) No. 4394/2008 decided on 27.08.2008 staying the aforesaid order of this Tribunal in OA 164/2007 (supra) already relied upon by them, the impugned seniority list is in violation of the following judgments also:-
(i) judgment of the Apex Court in State of Bihar Vs. Kalika Kuer @ Kalika Singh & Ors. (AIR 2003 SC 2443); (ii) judgment of the Apex Court in Balwant Singh Narwal and Ors. Vs. State of Haryana & Ors. (AIR 2009 SC (Supp)1296);
18. Kalika Kuer @ Kalika Singhs case (supra) was an appeal preferred by the State of Bihar before the Apex Court against the judgment and order dated 25.09.1989 passed by the Patna High Court declaring Section 15 (1) and 15 (2) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 ultra vires of Articles 13 and 14 of the Constitution. The Apex Court remanded the said case to the High Court to consider the decision and reasoning in the two judgments of the Full Benches i.e. in the case of Ramkrit Singh and Ors. Vs. State of Bihar and Ors. (AIR 1979 Patna 250) and the case of Kalika Kuer @ Kalika Singh (supra) which run contrary to each other on the very same subject. In Balwant Singh Narwal and Ors. Vs. State of Haryana and Ors. (AIR 2009 SC (Supp) 1296), the appellants were aggrieved by the dismissal of their writ petition by the Punjab and Haryana High Court vide judgment dated 05.10.2004. They were appointed as Principals between 1995 and 2000 (either by direct recruitment or promotion). They were aggrieved by the seniority given to the respondents 4 to 16 and appointed as Principals on 26.05.2000 with retrospective effect from 02.06.1994. The facts in that case were that the Haryana Public Service Commission issued an advertisement in January, 1992 inviting applications for 18 posts of temporary Principals in higher secondary schools. The advertisement made it clear that the number of posts advertised was subject to variations. Thereafter, on 01.06.1993, the State Education Department made a fresh requisition to the Commission in regard to additional vacancies, thereby increasing the number of posts to be filled up to 37. The respondents 4 to 16 were applicants against the said advertisement and they underwent the process of selection. The Commission declared the merit list of 30 selected candidates on 30.09.1993 (published on 01.10.1993) which included Respondents 4 to 16. However, before the State Government could make appointments in terms of the said list, a non-selected candidates filed Writ Petition No. 12700 of 1993 contending that only 18 posts were notified and the Commission could not have made recommendations for selection of 30 candidates. Both the learned Single Judge and the Division Bench dismissed the case. In the meanwhile, in view of the order of the learned Single Judge, the State Government appointed only 16 as against 18 candidates as permitted by the High Court, not for want of vacancies but on account of some technical difficulty in appointing the other two candidates. The respondents 4 to 16 challenged the order of the Division Bench dated 18.01.1999 before the Apex Court and by way of interim order dated 10.05.1999, the Apex Court directed that 12 vacancies may not be filled until final disposal and the court ultimately disposed of the appeals filed by respondents 4 to 16 vide order dated 06.12.1999, reversing the judgment of the High Court and dismissing the writ petition. Thereafter, the State Government appointed the Respondents 4 to 16 as Principals vide order dated 25.06.2000 but they sought seniority at par with the other candidates who were appointed earlier. As the respondents refused to grant them seniority at par with them, they approached the Punjab and Haryana High Court again vide CWP No. 18727 of 2003 contending that the selection by the Commission being merely recommendatory does not imply automatic employment and, therefore, candidates selected by the Commission are not entitled to claim seniority on the basis of selection or from the date of selection. They submitted that seniority of the respondents 4 to 16 should be reckoned only from the date of actual appointment, namely, 26.05.2000. They also contended that granting notional seniority to them with retrospective effect would affect them as they had already entered into service prior to them. The High Court rejected the writ petition vide the impugned order dated 05.10.2004. It held that appointments of respondents 4 to 16 were in regard to an advertisement issued prior to the advertisement, in response to which the appellants were selected; that the actual appointment of respondents 4 to 16 was delayed not for want of any vacancies but on account of litigation which was beyond their control. The High Court also held that the State Government was justified in giving respondents 4 to 16 benefit of notional seniority w.e.f. 02.06.1994 and placing them above the appellants who were appointed against the subsequent vacancies/advertisements. The said decision was challenged by the appellants reiterating the contentions urged before the High Court. However, the Apex Court dismissed the appeal finding no reason to interfere with the order of the High Court. The operative part of the said order reads as under:
7. The said decision is challenged by the appellants reiterating the contentions urged before the High Court. Reliance was also placed on the decisions of this Court in the State of Madhya Pradesh vs. Prem Prakash - 1994 (1) SCC 432; Dr. Chander Prakash vs. State of UP - 2002 (10) SCC 710 and State of Uttaranchal vs. Dinesh Kumar Sharma - 2007 (1) SCC 687, and other cases which lay down the general proposition that selection by Public Service Commission is merely recommendatory and does not imply automatic appointment and that the appointing authorities should not give notional seniority without valid reason, from a retrospective date, which would affect the seniority of those who have already entered service.
8. There is no dispute about these general principles. But the question here is in regard to seniority of the respondents 4 to 16 selected on 1.10.1993 against certain vacancies of 1992-93 who were not appointed due to litigation, and those who were selected against subsequent vacancies. All others from the same merit list declared on 1.10.1993 were appointed on 2.6.1994. Considering a similar situation, this Court, in Surender Narayan vs. State of Bihar - 1998 (5) SCC 246, held that candidates who were selected against earlier vacancies but who could not be appointed along with others of the same batch due to certain technical difficulties, when appointed subsequently, will have to be placed above those who were appointed against subsequent vacancies.
9. This Court while allowing the appeals by respondents 4 to 16 by order dated 6.12.1999 made it clear that all the 30 persons recommended by the Commission as per merit list dated 1.10.1993, including respondents 4 to 16 are entitled to be appointed. The State Government submitted that but for the order dated 4.4.1994 of the High Court, Respondents 4 to 6 would have been appointed on 2.6.1994 itself. The order dated 4.4.1994 was ultimately set aside by this Court and respondents 4 to 16 who were consequently appointed should not be denied the benefit of seniority. Therefore the State Government was justified in giving them only notional seniority and placing them immediately below the other 16 candidates selected in the common merit list (published on 1.10.1993) and appointed on 2.6.1994. Respondents 4 to 16 have been given retrospective seniority not from the date of their selection as wrongly assumed by appellants, but from 2.6.1994 when other selected candidates in their merit list were appointed.
19. The respondents 1 to 3 have filed their reply. They have submitted that the selection and appointments to the post of JE (QS&C) was made by the CE Commands independently. Similar disputes regarding seniority were considered by this Tribunal in OA 164/2007 and vide order dated 26.05.2008, this Tribunal directed that the principle of date of selection cannot be applied when the selection is carried out by different authorities independent of one another. When a combined seniority list is prepared, therefore, they are necessarily to get their seniority reckoned from the original date of entry into service. Therefore, they have submitted that the seniority list is based on the principles decided by this Tribunal in OA 164/2007. It has also been upheld by this Tribunal vide its order dated 10.01.2011 in OAs 2636/2010 and 2621/2010. The applicants in those two OAs were aggrieved by non-fixation of seniority as per merit position in the select panel and through those OAs, they were challenging the respondents order dated 31.08.2009, circulated the All India Seniority List of JEs (QS&C) as on 01.04.2002. The aforesaid OAs were dismissed after considering the entire documents of the case. The relevant part of the said order reads as under:
After considering the respective submissions, we find that the issues raised in the present OAs are squarely covered by the decision of this Tribunal in the OA 164/2007 (Shri Ashok Kumar & Ors vs. UOI & Ors) decided on 26.5.2008. Hence it would be apt to elaborate it further. A copy of this order finds place as Annexure R-5/13 with the counter reply filed by the impleaded private respondents.
20. The respondents have also stated that the applicants have made their representations against the impugned all India seniority list and they were disposed of by Annexure R-2 letter dated 14.02.2011 intimating them as under:
(a) Seniority of JE (QS&C) (erstwhile SA-II) is decided based on their date of joining (DOJ). In cases, where DOJ of two or more individuals is same, person having earlier date of birth is allotted higher AISL as per DOP&T instructions.
(b) This AISL has also been upheld by Honble Cat, New Delhi vide their judgment dated 10th January, 2011 in OA No.2636/2010 and 2621/2010.
21. The private respondents 4 to 7 have also filed their reply. They have stated that the issue as regards applicability of panel seniority or continuous officiation is no longer res integra and has been repeatedly adjudicated by this Tribunal. Therefore, the plea cannot be raked up once again. They have also stated that the plea of the applicants that the judgment dated 26.05.2008 having been stayed by the High Court of Delhi vide its order dated 27.08.2008 cannot be upheld as ratio of the judgment is different from the order. In this regard, they have relied upon the judgement of the Apex Court in Sanjay Singh Vs. UP Public Service Commission (2007 (3) SCC 720) wherein it has been stated that judgment of a court primarily comprises of three components: (1) narration of facts (ii) reasoning i.e. ratio decidendi and (iii) order. It is the second component which constitutes precedence and not the first and the third. Therefore, the ratio of judgment dated 26.05.2008 of this Honble Tribunal in OA No. 164/2007 as followed in judgment dated 15.01.2011 in OA 2636/2010 and others remain applicable and binding on a bench of co-equal strength. Further, according to them, it has been the undisputed position that the All India seniority list was published initially in the year 1989, then in 1992, 1994, 1996 and 2002. All these seniority lists have been placed on record wherein seniority has been drawn following the principle of continuous officiation. Undisputedly, again the applicants never in the past challenged any of those seniority lists and never pleaded applicability of the principle of panel seniority to them. Therefore, such belated challenge to the settled seniority list by the applicants would be unavailable to them in law. They have further stated that it is by now settled that direct recruits in a service cannot claim seniority from a date anterior to their actual joining the post. Thus, applicants cannot claim seniority except from the date of their joining i.e. continuous officiation. In this regard, they have relied upon the judgment of the Apex Court in Shiba Shankar Mohapatra & Ors. Vs. State of Orissa & Ors. (2010 (12) SCC 471) and Pawan Pratap Singh & Ors. Vs. Reevan Singh & Ors. (2011 (3) SCC 267).
22. We have heard the learned counsel for the applicants Shri Rajiv Manglik and the learned counsel for the respondents 1 to 3 Shri Shamsuddin and the learned counsel for the Respondents 4 to 7 Shri V.K. Garg. We have also considered the detailed submissions made by all of them. Further, we have seen the judgments relied upon by the learned counsel in support of their arguments. The undisputed facts in this case are that till 1996, the official Respondents have prepared the seniority of Superintendent Grade-II based on the principle of continuous officiation and it was maintained at the Command level. The Respondent No.2 itself has realized that the principle for preparation and maintenance of seniority being followed by them was not correct. Therefore, they themselves vide their letter dated 01.05.2000 directed the Command HQ to correct the seniority list of direct recruits by following the principle laid down by the Government of India, Department of Personnel and Training. According to the said principle, the relative seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendations of the U.P.S.C. or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection. It is also seen that seniority list of Grade-I was maintained at All India Level. Later on, the posts of Grade-II and Grade-I have been merged vide order dated 9.7.1999 in terms of the order of the Bangalore Bench of this Tribunal in OA 2145/1995 (Supra) and the merged post has been designated as Junior Engineer. Thereafter, following the order of the Chandigarh Bench of this Tribunal in OA 734-HR-2002 (Supra), the Respondents have also prepared the seniority list vide letter dated 05.08.2005 and the Applicants were shown senior to the private Respondents. In this regard, the Chandigarh Bench has also taken into consideration of the letter dated 1.5.2000 of the Army HQ rectifying the mistake committed earlier and thus applying the panel seniority for direct recruits. Even though the said list was challenged vide OA No.680/2004 (Supra) before the Ernakulam Bench of this Tribunal, on the grounds that the recasting of seniority on the basis of merit in the panel is arbitrary and against the settled principles of seniority, vide order dated 7.9.2005, it found no merit in the contention of the Respondents that the settled seniority position has been upset as the integrated seniority has been made for the first time in the year 2004. As regards the panel seniority was concerned, the Tribunal has also held that it is now settled law that seniority has to be determined as per the ranking in case of direct recruits and the mere chance of reporting earlier would not alter the ranking given by the selection committee. Again the issue came up for consideration in OAs 800/2004 (Supra) and 686/2005 (Supra). The Ernakulam Bench vide common order dated 18.9.2006 again held that the seniority list has to be in order on the basis of the merit position in the select panel. The official Respondents again prepared seniority list and assigned seniority as per the merit position in the select panel to all including those who, though, were selected through the panel of 1983 but were appointed in the year 1988. The fresh seniority list of JE (Civil) was prepared on the principles of merit position in the select panel and circulated vide letter dated 21.12.2006. There was specific challenge to the assigning of the seniority on the basis of the merit position in the select panel to the employees selected in the 1983 panel but were appointed in 1988. This Tribunal vide order dated 26.5.2008 in OA 164/2007 (Supra) following the precedent of various pronouncements of Ernakulam Bench as well as the Chandigarh Bench held that the legal contentions on the issue of final seniority has been duly examined and the only remaining issue is the assigning of the seniority to the private Respondents, i.e., employees of 1983 panel appointed after a gap of 5 years in 1988. Therefore, OA 164/2007 only considered the issue of assigning the seniority of merit position in the select panel to those who were appointed after a gap of 5 years in 1988 and are not similarly situated as that of the applicants in the instant case who were appointed in 1984. In the said order, this Tribunal held that the whole list should not be unsettled at that point, thereby holding the validity of the merit position in the select panel for all the employees except those who were appointed after a long gap in the year 1988 and directed to carry out the appropriate modification of the seniority list.
23. In our considered view, the combined seniority list of JE(QS&C) as on 1.4.2002 prepared and circulated by the Respondents vide impugned order dated 16.9.2010 wrongly interpreted the principles followed in OA 164/2007 (Supra) and went back to the principle of continuous officiation and assigned the seniority to every employee from the date of joining and against the general principles of seniority for direct recruits as laid down vide DOP&T OM dated 22.12.1959 and reiterated vide OM dated 3.7.1986. It is seen that OA 2636/2010 (Supra) and OA 2621/2010 (Supra) were disposed of, vide order dated 05.01.2011 following the order in OA 164/2007 (Supra). We, therefore, do not find any valid reasons to deviate from the principles followed by the Co-ordinate Benches.
24. We, therefore, allow this OA. Resultantly, the impugned All India seniority list of JE(QS&C) as on 1.4.2002 circulated vide Annexure A-1 letter dated 16.9.2010 are quashed and set aside. The official Respondents shall recast the seniority of the applicants as per their merit in the select panel of 1983 and place them above the private respondents. Further, all the actions based on the aforesaid impugned seniority list including the DPC held on 16.10.2010 have also been held invalid. The Respondents shall conduct the DPC/review DPC for the post of Assistant Engineer (QS&C) for the vacancy year 2002-03 to 2010-11 and consider them as per their revised seniority and to grant them all consequential benefits in case they are found fit by the DPC for promotion to the post of AE (QS&C). The Respondents shall carry out the aforesaid directions within a period of two months from the date of receipt of a copy of this order. No costs.
( MANJULIKA GAUTAM) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD