Central Administrative Tribunal - Delhi
Prakash Singh vs Union Of India on 11 September, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.2719 of 2014 New Delhi, this the 11th Day of September, 2015 HONBLE SHRI A.K. BHARDWAJ, MEMBER (J) HONBLE SHRI SHEKHAR AGARWAL, MEMBER (A) Prakash Singh S/o late Shri Syoji Ram Age: 50 years, Designation: SAO-II, DRDO-LASTEC, Delhi R/o Q.No.210, Trishul, Anusandhan Vihar, DRDO Residential Complex, Lucknow Road, Timarpur, Delhi-110054. .Applicant (By Advocate : Shri Mukesh Kumar) versus 1. Union of India Through its Secretary, Department of Personnel & Training (DoPT) Ministry of Personnel, Public Grievances & Pension, North Block, New Delhi-110001. 2. Department of Defence Research & Development Ministry of Defence, Through its Secretary, DG of DRDO & Scientific Advisor to Raksha Mantri DRDO Bhawan, Raja ji Marg, New Delhi-110105. .Respondents (By Advocate: Shri Subhash Gosai) ORDER (ORAL) SHRI A.K. BHARDWAJ, MEMBER (J) :
The UPSC issued an advertisement to fill up the post of Senior Administrative Officer Grade-II (SAO-II) in DRDO (Ministry of Defence) in March 2001. The recruitment test for the said post was held on 17.3.2002 for the purpose of screening the candidates for being called for interview. The candidates screened were interviewed in September 2002 at UPSC. A list of 04 candidates was recommended by the UPSC in October, 2002 for appointment as SAO-II. The applicant herein was not included in the select list. Nevertheless, out of four, two candidates, who had been selected for SAO-II also, joined as SAO-I and the applicant who had been included in the reserve panel was given appointment as SAI-II. He joined the service on 30.4.2004. His seniority was fixed with reference to date of his joining. After the Honble Supreme Court passed the judgment in Union of India and ors. etc. vs. N.R. Parmar and others etc., JT 2012 (12) SC 99, the applicant approached this Tribunal in 2014 by way of OA No.570/2014. The said OA was disposed of, vide Order dated 17.2.2014, with the direction to the respondents to examine the claim of the applicant with due regard to judgment of the Honble Supreme Court in N.R. Parmar case (supra). Para 2 of the judgment reads thus:-
2. It appears, therefore, that at present remedy can be provided to the applicant by the respondents by taking a decision on the pending representation of the applicant dated 19.09.2013. We, therefore, direct the respondents to dispose of the applicants pending representation in consonance with the rules and instructions and the judgment of the Honble Supreme Court in N.R. Parmar case (supra) through a reasoned and speaking order under intimation to the applicant. Ordered accordingly. Respondents shall take expeditious decision within a definite time frame not exceeding four months from the date of receipt of a copy of this order.
2. In implementation of the said Order passed by the Tribunal, the respondents issued Order No.DOP/AA1/65053/PS/CAT dated 29.4.2014 which reads thus:-
ORDER WHEREAS Shri Prakash Singh has submitted a representation dated 19.09.2013 for re-fixation of his seniority in the grade of SAO-II vis-`-vis promote officers and conducting of review DPC for his promotion to the higher grade of SAO-I. He has cited the Honble Supreme Court judgment dated 27.11.2012 in UOI vs. NR Parmar & Ors case, wherein it is adjudicated that the direct recruits have to be interspaced with promotes of the same recruitment year.
AND WHEREAS Shri Prakash Singh was appointed as SAO-II on 30.04.2004 as direct recruit through UPSC. 04 vacancies of SAO-II were notified to the UPSC for filling up by direct recruitment. These vacancies were advertised by USPC in Mar 2001. The UPSC held a recruitment test on 17.03.2002 for the purpose of screening the candidates to be called for interview. The interviews were held in Sep 2002 at UPSC. A list of 04 candidates was recommended by the UPSC in Oct 2002 for appointment as SAO-II. Shri Prakash Singh was not amongst the 04 recommended candidates. Out of the 04 candidates 02 candidates belonging to OBC were also recommended for appointment to the post of SAO-I and they joined as SAO-I. UPSC was then requested to forward candidates from the reserved panel for appointment as SAO-II in Nov 2003. The name of Shri Prakash Singh (OBC) was forwarded by UPSC in Jan 2004. Shri Prakash Singh was offered appointment and he joined in DRDO as SAO-II on 30.04.2004. He was given seniority in the grade w.e.f. 30.04.2004.
AND WHEREAS para 2.4.1 and 2.4.2 of DOP&T OM dated 03.07.86 on consolidated instructions on seniority contains the following provisions:-
2.4.1 The relative seniority of direct recruits and of promotes shall be determined according to the rotation of vacancies between direct recruits and promotes, which shall be based on the quota of vacancies reserved for direct recruit and promotion respectively in the Recruitment Rules.
2.4.2 If adequate number of direct recruits does 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 recruits and the promotees.
AND WHEREAS the seniority of Shri Prakash Singh in the Grade of SAO-II was fixed in the year 2004 taking into consideration the term available as contained in Para 2.4.2 of DOP&T OM dated 03.07.86 as actual year of appointment after declaration of results/selection and pre-appointment formalities.
AND WHEREAS Shri Prakash Singh is now contending that since the recruitment process for the posts were started in 2000, he should be placed senior to all those promotees who were promoted in the year 2001. He has been requesting to grant him seniority in the year 2000 above all those promotees of the year 2001 citing the Honble Supreme Court judgment dated 27.11.2012 in UOI vs. NR Parmar & Ors. case, wherein it is adjudicated that the direct recruits have to be interspaced with promotees of the same recruitment year. The case of NR Parmar was a dispute of inter-se seniority between Income Tax Inspectors of the Income Tax Department, Direct recruits and promotes. The direct recruit Income Tax Inspectors (joined the service in Mar-May 1995) had challenged the seniority list finalized on 08.02.99 claiming seniority over some promote Income Tax Inspectors. They were claiming seniority from the date of occurrence of vacancies. The matter reached the Apex Court after series of litigations between Direct Recruits and promotes in various CATs/High Courts.
AND WHEREAS the judgments of Courts are generally department specific and department specific judgment cannot be implemented across the board without orders/guidelines of DOP&T, which is nodal authority. Even in Department specific judgments, all such verdicts of Honble Courts on service matters are considered/analyzed by DOP&T, who frames and promulgates instructions/policy for Central Govt. employees. For example, DOP&T had issued detailed guideline for implementation of post based roster for reservation in all departments in line with the law laid down by Honble Supreme Court in the case of R.K. Sabharwal vs. State of Punjab as well as J.C. Malllicks vs. Ministry of Railways and disclosure of Annual Confidential Report in the case of Dev Dutt vs Union of India.
AND WHEREAS the representation of Shri Prakash Singh was, therefore, referred to DOP&T for clarification/ advice on his request for re-fixation of his seniority in the grade of SAO-II w.e.f. 01.01.2001 i.e. above all promote SAO-II who were appointed in the grade after 01.01.2001 in the light of Honble Supreme Court judgment dated 27 Nov 2012 in NR Parmar & Ors vs UOI case. It was intimated by DOP&T that the implications of the judgment of the Supreme Court dt. 27.11.2012 in Union of India Vs. N.R. Parmar & Ors. on determination of inter-se seniority between direct recruits and promotees was under their examination in consultation with the Department of Legal Affairs and necessary instructions in its implementations would be issued shortly. DOP&T has advised DRDO HQ, Min. of Defence to await the issue of the instructions for taking further necessary action in this case. The same was intimated to Shri Prakash Singh vide our letter dated 20.01.2014.
AND WHEREAS, not satisfied with the reply given by the department, Shri Prakash Singh has filed OA No.570/2014 before Honble CAT, Principal Bench, New Delhi requesting re-fixation of seniority in the grade of SAO-II on the basis of judgment in the case of NR Parmar & Ors vs UOI and for consequent relief by way of promotion to the post of SAO-I w.e.f. 01.01.2007. Honble CAT, vide its order dated 17.02.2014, has directed the department to dispose of his pending application dated 19.09.2013 in consonance with the rules and instructions and the judgment of Honble Supreme Court in N.R Parmar case through a reasoned and speaking order within a definite time frame not exceeding four months from the date of receipt of a copy of the order.
AND WHEREAS instructions on the fixation of seniority between direct recruits and promotees in pursuance of Honble Supreme Court judgment dated 27.11.2012 in Civil Appeal No.7514-7515/2005 in the case of NR Parmar & Ors vs. UOI has now been issued by DOP&T vide its OM dated 04.03.2014. The instructions inter-alia provide that the rotation of quota based on the available direct recruits and promotees appointed against the vacancies of a Recruitment year, as provided in DOP&T O.M dated 7.2.1986/03.07.1986, would continue to operate for determination of inter se seniority between direct recruits and promotees. The available direct recruits and promotees, for assignment of inter se seniority, would refer to direct recruits and promotes who are appointed against the vacancies of a recruitment year and recruitment year would be the year of initiating the recruitment process against a vacancy year.
AND WHEREAS the above DOP&T OM further stated that the above principles for determination of inter se seniority of direct recruits and promotees would be effective from 27.11.2012, the date of Supreme Court judgment in Civil Appeal No.7514-7515/2005 in the case of N.R Parmar vs UOI & Ors and the cases of seniority already settled with reference to the applicable interpretation of the terms availability, as contained in DOP&T dated 7.2.86/3.7.86 may not be reopened.
AND WHEREAS the seniority of Shri Prakash Singh in the grade of SAO-II was settled way back in 2004 and further promotions were also made from that settled seniority.
NOW THEREFORE, the competent authority, after examining the representation dated 19.09.2013 submitted by Shri Prakash Singh and taking into account the DOP&T instructions dated 04.03.2014 on the subject, has decided not to reopen the seniority case of Shri Prakash Singh, which was already settled in 2004.
Sd/-
(Bimal Ghosh) Dy. Dir. (Per-AAI) For DG DRDO
3. The view taken by the respondents in the matter is that the instructions regarding fixation of seniority provided that the rotation of quota based on the available direct recruits and promotees appointed against the vacancies of a particular recruitment year would continue to operate for determination of inter-se seniority between direct recruits and promotees. According to the respondents, the available direct recruits and promotees for assignment of inter-se seniority would refer to direct recruits and promotees who are appointed against the vacancies of a recruitment year and recruitment year would be the year of initiating the recruitment process against a vacancy year and the position has been reiterated in DOP&T OM dated 4.3.2014 but the principle would be effective from 27.11.2012 and the past cases would not be re-opened. Thus the applicant filed the present OA praying therein :-
(a) To set aside the impugned SRO-70 dated 23.6.1993 issued by the respondent DRDO in matters of consideration of senior when juniors are also considered for promotion to SAO-I, copy placed as ANNEXURE: A-1, page no.18 -22;
(b) To set aside the impugned Office Memorandum dated 4.3.2014 issued by the respondent DoPT in respect of declining benefits of seniority retrospectively, copy placed as ANNEXURE: A-2, page no. 23 24;
(c) To set aside the impugned Order dated 29.4.2014 passed by the respondent DRDO, copy placed as ANNEXURE: A-3, page no. 25 27;
(d) To pass an order or direction to the respondent DRDO to promotion the Applicant to the post of SAO-I w.e.f. 1.1.2007 and/ or as due with all consequential benefits; and/or
(e) To pass such other order(s) and further reliefs which this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case and in the interest of justice.
4. Shri Mukesh Kumar, learned counsel for the applicant, submitted that since the vacancies for the direct recruit for which the applicant was selected as SAO-II were reported to UPSC in the year 2000, he should be treated as direct recruit of the said year and his seniority should be fixed accordingly.
5. On the other hand, Shri Subhash Gosai, learned counsel for the respondents, submitted that ramification of the judgment of the Honble Supreme Court is only that the instructions dated 3.3.2008 were set aside and the rule position regarding fixation of seniority before issuance of the OM was restored.
6. We have heard learned counsels for the parties and perused the records.
7. As far as judgment of the Honble Supreme Court in N.R. Parmar (supra) is concerned, in the said judgment, the Honble Supreme Court ruled that the intention of the Department of Personnel and Training while issuing the OM dated 3.3.2008 was not to alter the manner of determination of inter-se seniority between the promotees and direct recruits but the intention was only to clarify the earlier OM dated 3.7.1986 which would impliedly include the OM dated 7.2.1986. The further view taken in the judgment is that OM 3.3.2008 has clearly breached the parameters and the ingredients of a clarification and, therefore, the same would be deemed as non-est. Finally, the OM was quashed and the principles regarding fixation of seniority laid down in OMs dated 7.2.1986 and 3.7.1986 were restored. Para 29 to 34 are reproduced as under:-
29. A perusal of the OM dated 3.3.2008, would reveal, that a reference to paragraphs 2.4.1 and 2.4.2 of the OM dated 3.7.1986, has been made therein. Thereupon, the meaning of the term "available" used in paragraph 2.4.2 of the OM dated 3.7.1986, is statedly "clarified". In view of the conclusion drawn in the foregoing paragraph, the said clarification must be deemed to be with reference, not only to the OM dated 3.7.1986 but also the OM dated 7.2.1986. We have already noticed, in an earlier part of the instant judgment, the essential ingredients of a "clarification" are, that it seeks to explain an unclear, doubtful, inexplicit or ambiguous aspect of an instrument, which is sought to be clarified or resolved through the "clarification". And that, it should not be in conflict with the instrument sought to be explained. It is in the aforesaid background, that we will examine the two queries posed in the preceding paragraph. We have already analysed the true purport of the OM dated 7.2.1986 (in paragraph 20 hereinabove). We have also recorded our conclusions with reference to the OM dated 3.7.1986 wherein we have duly taken into consideration the true purport of paragraph 2.4.2 contained in the OM dated 3.7.1986 (in paragraph 21 hereinabove). The aforesaid conclusions are not being repeated again for reasons of brevity. We have separately analysed the effect of the OM dated 3.3.2008 (in paragraph 26 of the instant judgment). It is not possible for us to conclude that the position expressed in the earlier office memoranda is unclear, doubtful, inexplicit or ambiguous. Certainly not on the subject sought to be clarified by the OM dated 3.3.2008. A comparison of the conclusions recorded in paragraph 20 (with reference to the OM dated 7.2.1986) and paragraph 21 (with reference to OM dated 3.7.1986) on the one hand, as against, the conclusions drawn in paragraph 26 (with reference to OM dated 3.3.2008) on the other, would lead to inevitable conclusion, that the OM dated 3.3.2008 clearly propounds, a manner of determining inter se seniority between direct recruits and promotees, by a method which is indisputably in conflict with the OMs dated 7.2.1986 and 3.7.1986. Ofcourse, it was possible for the Department of Personnel and Training to "amend" or "modify" the earlier office memoranda, in the same manner as the OM dated 7.2.1986 had modified/amended the earlier OM dated 22.11.1959. A perusal of the OM dated 3.3.2008, however reveals, that it was not the intention of the Department of Personnel and Training to alter the manner of determining inter se seniority between promotees and direct recruits, as had been expressed in the OMs dated 7.2.1986 and 3.7.1986. The intention was only to "clarify" the earlier OM dated 3.7.1986 (which would implicitly include the OM dated 7.2.1986). The OM dated 3.3.2008 has clearly breached the parameters and the ingredients of a "clarification". Therefore, for all intents and purposes the OM dated 3.3.2008, must be deemed to be non-est to the extent that the same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. Having so concluded, it is natural to record, that as the position presently stands, the OMs dated 7.2.1986 and 3.7.1986 would have an overriding effect over the OM dated 3.3.2008 (to the extent of conflict between them). And the OM dated 3.3.2008 has to be ignored/omitted to the extent that the same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. In the light of the conclusions recorded hereinabove, we are satisfied that the OM dated 3.3.2008 is not relevant for the determination of the present controversy.
30. Besides the interpretation of the relevant OMs issued by the DOPT, learned counsel representing the promotees placed reliance on some judgments of this Court in order to press their contention, that seniority for direct recruits could not be determined with reference to a date preceding the date of their recruitment. In so far as the instant aspect of the matter is concerned, reliance was placed on Jagdish Ch. Patnaik & Ors. v. State of Orissa and others, (1998) 4 SCC 456; Suraj Prakash Gupta & Ors. v. State of J&K & Anr., (2000) 7 SCC 561; and Pawan Pratap Singh & Ors. v. Reevan Singh & Ors., (2011) 3 SCC 267.
31. The seniority rule applied in Jagdish Ch. Patnaik's case (supra) has been extracted in paragraph 24 of the said judgment. The seniority rule in question, inter alia expressed, that seniority would be determined with reference to the date of recruitment. In Suraj Prakash Gupta's case (supra), the relevant seniority rule was extracted in paragraph 53 which provided, that seniority would be determined with reference to the date of first appointment. The rule itself expressed that the words "date of first appointment" would mean the date of first substantive appointment against a clear vacancy. In Pawan Pratap Singh's case (supra) the question which arose for consideration, related to determination of inter se seniority between two sets of direct recruits. The first set comprised of vacancies advertised in 1987 which came to be filled up in 1994, and the second set comprised of vacancies of the year 1990 which came to be filled up in the year 1991. The controversy in Pawan Pratap Singh's case (supra) was conspicuously different from the controversy in hand. In view of the fact that the seniority rules, as also the factual matrix in the cases relied upon was substantially at variance with the relevant OMs dated 7.2.1986 and 3.7.1986 (which are the subject of interpretation in so far as the present case is concerned), as also the facts of the cases in hand, it is apparent, that the judgments relied upon by the learned counsel are inapplicable to determine the present controversy.
32. One finds attracted to the observations recorded in Jagdish Ch. Patnaik's case (supra) wherein it was observed, "when the language used in the statute is unambiguous and on a plain grammatical meaning being given to the words in the statute, the end result is neither arbitrary, nor irrational nor contrary to the object of the statute, then it is the duty of the court to give effect to the words used in the statute because the words declare the intention of the law making authority best". We are of the view that the aforesaid observations are fully applicable to the present controversy. We may add that the various ONs and letters issued by the DOPT (referred to above) do not leave room for any ambiguity.
33. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paragraphs 20 and 21 hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitment was issued by the SSC in the recruitment year in which direct recruit vacancies had arisen. The said factual position, as confirmed by the rival parties, is common in all matters being collectively disposed of. In all these cases the advertised vacancies were filled up in the original/first examination/selection conducted for the same. None of the direct recruit Income Tax Inspectors herein can be stated to be occupying carried forward vacancies, or vacancies which came to be filled up by a "later" examination/selection process. The facts only reveal, that the examination and the selection process of direct recruits could not be completed within the recruitment year itself. For this, the modification/amendment in the manner of determining the inter-se seniority between the direct recruits and promotees, carried out through the OM dated 7.2.1986, and the compilation of the instructions pertaining to seniority in the OM dated 3.7.1986, leave no room for any doubt, that the "rotation of quotas" principle, would be fully applicable to the direct recruits in the present controversy. The direct recruits herein will therefore have to be interspaced with promotees of the same recruitment year.
34. In view of the above, the Civil Appeals, the Transferred Case, as well as, the Transfer Case (filed by the direct recruits and the Union of India) are hereby allowed. The claim of the promotees, that the direct recruit Income Tax Inspectors, in the instant case should be assigned seniority with reference to the date of their actual appointment in the Income Tax Department is declined.
8. In other words, the Honble Supreme Court did not declare any fresh law but only restored the principles regarding fixation of seniority as in vogue prior to 3.3.2008. One of the principles in vogue prior to 3.3.2008 was that the direct recruit would be entitled to be assigned seniority with reference to the recruitment year in which the requisition of the vacancy was made. Such provision was contained in OM dated 2.2.2000. In this regard, it would be useful to refer to para 23 of the Judgment which reads thus:-
23. Following the ON dated 20.12.1999, the Department of Personnel and Training, Establishment (D) Section, examined the issue in yet another Office Note dated 2.2.2000 (hereinafter referred to as "the ON dated 2.2.2000"). Just like the earlier ON dated 20.12.1999, the instant ON dated 2.2.2000 also has no legal sanction, and as such, is not enforceable in law. But just like the earlier office note, the instant ON dated 2.2.2000 would also be relevant in determining the logic and process of reasoning which prevailed at the relevant point of time. This would aid in the interpretation of binding office memoranda, only where the language is ambiguous, and only if there is no conflict between the two (the office note and the office memoranda, sought to be interpreted). In the aforesaid background, and for the aforesaid limited purpose, reference is also being made to the ON dated 2.2.2000. The same is being extracted hereunder:
"Department of Personnel & Training Estt. (D) Section Notes from p.17/ante may please be seen with reference to our earlier note on Pp.9-10 ante.
With reference to 'X' on p.18 and 'Y' on p.19/ante, it will be clear from our note on Pp.9-10/ante that if action for the Recruitment Year 1986-1987 has been initiated at any time during that Recruitment Year even if the exam is held in 1988 and the results are declared in 1989 and the candidate join only in 1990, since the action for recruitment was initiated in 1986-1987 itself merely because the process of recruitment took so long for which the candidates cannot be blamed and since the responsibility for the delay in completing the process of recruitment squarely lies with the administration, it would not be appropriate to deprive the candidates of their due seniority of 1986-87. Consequently, if action was initiated during the Recruitment Year 1986-1987 even if it culminates in the joining by the selected candidates only in 1990, they will get seniority of 1986-1987. This applies equally to DRs as well as promotees. In other words, if such DRs of 1986-1987 ultimately join in 1990 yet they will be rotated with promotees of 1986-87.
As regards point (1) on page 19/N, it is clarified that "initiation of action for recruitment/initiation of recruitment process" would refer to the date of sending the requisition to the recruiting authority for a particular Recruitment Year in question.
Points (2) & (3) are the concern of Estt.(B).
As regards point (4), it is clarified that as already stated the concept of initiation of action for recruitment is applicable equally to direct recruits and promotees.
As regards point (5), it may be stated that even if DOPT is also one of the respondents, it is for the Administrative Ministry/Department who are concerned with the persons involved in the CAT court case to take necessary action on behalf of DOPT also. In any case, our comments are already contained in our earlier note as well as this note. It is for the Administrative Ministry/Department to incorporate them suitably in the counter reply. Hence, the counter reply on Pp.159-175/Cor. May be suitably modified in the light of our advice on Pp.9-10/ante as already advised at 'X' on p.10/ante and this note.
In future, the Department of Revenue, if they want our advice, refer such cases well in time (instead of making such reference at the eleventh hour) to enable us to consider the matter in its proper perspective without any time constraint.
Estt.(B) may please see for comments on points (2) and (3) on Pp.19-20/ante before the file is returned to Department of Revenue.
Sd/-
(Under secretary) 2.2.2000."
The logic and process of reasoning emerging from the ON dated 2.2.2000, as is apparent to us, is being analysed below:
(a) If the process of recruitment has been initiated during the recruitment year (in which the vacancies have arisen) itself, even if the examination for the said recruitment is held in a subsequent year, and the result is declared in a year later (than the one in which the examination was held), and the selected candidates joined in a further later year (than the one in which the result was declared), the selected candidates will be entitled to be assigned seniority, with reference to the recruitment year (in which the requisition of vacancies was made). The logic and reasoning for the aforesaid conclusion (expressed in the ON dated 2.2.2000) is, if the process of direct recruitment is initiated in the recruitment year itself, the selected candidate(s) cannot be blamed for the administrative delay, in completing the process of selection.
(b) The words "initiation of action for recruitment", and the words "initiation of recruitment process", were explained to mean, the date of sending the requisition to the recruiting authority.
9. It is not so that the principle that a direct recruit would be entitled to be assigned seniority with reference to the recruitment year in which the requisition of vacancy was made is introduced for the first time. The provision was very much there as on 2.2.2000 when the applicant joined the service in the year 2004. He could have raised his grievance of fixation of seniority with reference to the said ON. Instead, he did not do so and approached this Tribunal for the first time in the year 2014. By now, on the basis of law declared by the Honble Supreme Court N.R. Parmar (supra), the DOP&T has issued Office Memorandum dated 4.3.2014 wherein it has been clearly provided that the cases of seniority already settled with reference to the applicable interpretation of the term availability as contained in DOP&T OMs dated 7.2.1986 and 3.7.1986 may not be reopened. Clauses 5(h) and (i) of the OM dated 4.3.2014 reads thus:-
5 h) The above principles for determination of inter se seniority of direct recruits and promotees would be effective from 27.11.2012, the date of Supreme Court Judgment in Civil Appeal No.7514-7515/2005 in the case of N.R. Parmar Vs. UOI & Ors.
i) The cases of seniority already settled with reference to the applicable interpretation of the term availability, as contained in DoPT O.M. dated 7.2.86/3.7.86 may not be reopened.
10. Since in the present case seniority of the applicant had been fixed as on June 2004, i.e., prior to 27.11.2012, it would not be open to us to interfere with the same. Also in the case of P.S Sadasivaswamy versus State of Tamil Nadu, reported in (1975)1 SCC 152, Honble Supreme Court ruled that settled position would not be unsettled after a long delay. The relevant part of the said Judgment is reproduced below:--
A person aggrieved by an order of promoting a junior over his head should approach the court at least within six months or at the most a year of such promotion: it is not that there is any period of limitation for the court to exercise their power under Article 226 nor is it that there can never be a case where the court cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the court to refuse to exercise their extraordinary power under Article 226 in the case of person who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach.
11. The Honble Supreme Court in B.S. Bajwa & another v. State of Punjab & others, JT 1998 (1) SC 57, held that the question of seniority should not be reopened after the lapse of a reasonable period, as it results in disturbing the settled position, which is not justifiable. Paragraph 6 of the said judgment reads as under:
6. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the judgments of the Single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of latches because the grievance made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the order aforesaid persons and the rights inter se had crystalised which ought not to have been re-opened after the lapse of such a long period. At every stage the others were promoted before B.S. Bajwa and B.D.Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself.
12. Again in the case of State of Karnataka & others v. S.M. Kotrayya & others, (1996) 6 SCC 267, ruled that the judicial pronouncement made in a matter does not give rise to fresh cause of action and the date of knowledge of a previous Order of Tribunal on the basis of which a claim can be founded cannot be an explanation acceptable to condone the delay. Paragraphs 8 and 9 of the said judgment read thus:-
8. The decision of the Constitution Bench in S.S. Rathore's case (supra) has no application to the facts in this case. Therein, this Court was concerned with the question whether the total period of six months covered under Sub-section (3) had to be excluded in filing the petition in the suit, when it was transferred to the Tribunal under the Administrative Tribunal Order. In that behalf, the Constitution Bench held that a suit under a civil court's jurisdiction is governed by Article 58 of Limitation Act, 1963 and the claims for redressal of the grievances are governed by Article 21 of the Act. The question whether the Tribunal has power to condone the delay after the expiry of the period prescribed in Sub-sections (1) and (2) of Section 21, did not arise for consideration in that case.
9. Thus considered, we hold that it is not necessary that the respondents should give an explanation for the delay with occasioned for the period mentioned in Sub-sections (1) or (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be required to satisfy itself whether the explanation offered was proper explanation. In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under Sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under Sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal is wholly unjustified in condoning the delay.
11. In the wake, the OA is found devoid of merit and is accordingly, dismissed. No costs.
(SHEKHAR AGARWAL) (A.K. BHARDWAJ)
MEMBER (A) MEMBER (J)
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