Central Administrative Tribunal - Delhi
Patanjali Sharma vs The Union Of India on 29 May, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.3651/2011 With O.A. No.3408/2011 O.A. No.3409/2011 O.A. No.3410/2011 Order Reserved on 27.01.2014 Order Pronounced on: 29.05.2014 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) OA No.3651/2011 Patanjali Sharma S/o Shri N.N. Sharma, At present posted as Area Manager, Canteen Stores Department, 61 EC Road Dehradun-248001 -Applicant (By Advocate: Shri H.S. Sharma) Versus 1. The Union of India, through the Secretary to the Government of India, Ministry of Defence, South Block, New Delhi-110 001. 2. The General Manager, Canteen Stores Department, Adelphi, 119, M.K. Road, Churchgate, Mumbai-400 020. 3. Deputy Director General Canteen Services, Room No. 16, L-1 Block, Church Road, Quarter Master Generals Branch, Integrated HQ of MOD (Army), New Delhi-110 001. 4. Shri Gokul Rajan, Area Manager, CSD Depot Narangi, P.O. Satgaon, Guwahati, Assam- 781 027. -Respondents (By Advocate: Shri Rajinder Nischal, for official Respondents Shri Ankur Chhibber, for Private Respondent) OA No.3408/2012 Satbir Yadav S/o Chandgi Ram, Residing at 1-Gulmohar, CSD Estate, Golibar Road, Ghatkopar (West), Mumbai-400 088. -Applicant (By Advocate: Shri Kumar Parimal) Versus 1. The Union of India, through the Secretary to the Government of India, Ministry of Defence, South Block, New Delhi-110 001. 2. The General Manager, Canteen Stores Department, Adelphi, 119, M.K. Road, Churchgate, Mumbai-400 020. 3. Shri Gokul Rajan, Area Manager, CSD Depot Narangi, P.O. Satgaon, Guwahati, Assam- 781 027. -Respondents (By Advocate: Shri Rajinder Nischal, for official Respondents Shri Ankur Chhibber, for Private Respondent) OA No.3409/2012 Ajay Kumar Nagar S/o Shri Jai Prakash Nagar R/o D1, CSD Residential Complex, Opposite Empire Talkies, Theater Road, Jabalpur-482001. -Applicant (By Advocate: Shri Kumar Parimal) Versus 1. The Union of India, through the Secretary to the Government of India, Ministry of Defence, South Block, New Delhi-110 001. 2. The Secretary, Union Public Service Commission Dholpur House, Shahjahan Road New Delhi-110 001 3. The Secretary, Canteen Services, Secretariat, Board of Control Canteen Services L-1 Block Room No.16, Church Road, New Delhi-110 001. 4. The General Manager, Canteen Stores Department, Adelphi, 119, M.K. Road, Churchgate, Mumbai-400 020. 5. Shri Gokul Rajan, Area Manager, CSD Depot Narangi, P.O. Satgaon, Guwahati, Assam- 781 027. -Respondents (By Advocate: Shri Rajinder Nischal, for official Respondents Shri Ankur Chhibber, for Private Respondent) OA No.3410/2012 K.V. Raghuthaman s/o Shri E.P.V. Narayanan, working as Area Manager, CSD Depot, Hissar, Haryana. -Applicant (By Advocate: Shri Kumar Parimal) Versus 1. The Union of India, through the Secretary to the Government of India, Ministry of Defence, South Block, New Delhi-110 001. 2. The General Manager, Canteen Stores Department, Adelphi, 119, M.K. Road, Churchgate, Mumbai-400 020. 3. Shri Gokul Rajan, Area Manager, CSD Depot Narangi, P.O. Satgaon, Guwahati, Assam- 781 027. -Respondents (By Advocate: Shri Rajinder Nischal, for official Respondents Shri Ankur Chhibber, for Private Respondent) O R D E R Per Mr. Sudhir Kumar, Member (A):
These four connected cases were heard together, reserved for orders together and are, therefore, being disposed of through a common order. For the sake of convenience, facts of these cases will be discussed, as described by taking up the case of applicant of OA No.3651/2011 first.
2. The short question involved in these cases is as to when a person, who is duly selected, by the prescribed method and procedure for selection, for appointment to a post, but is not issued a letter of appointment for over a decade, and thus does not join his duties in time, and is then issued a very much belated letter of appointment, and joins duties after more than a decade of his original selection, whether he would be entitled to ante-dated seniority on the basis of his seniority in the original merit list/panel prepared by the selecting body, more than a decade back, irrespective of the rights created in the interregnum in favour of his own panel mates, as well as those who were selected for the same post in the later years, through a similar process of selection, and had joined their duties in the interregnum period of that decade.
3. The applicants before us are the persons aggrieved by the Official Respondents No. R-1 to R-3 having conceded to, and having granted retrospective seniority to the Private Respondent No.R-4, based upon his position in the original selection panel prepared a decade back. The applicant of OA No.3651/2011 was in the same panel as Private Respondent No.R-4, and the applicants of the other three OAs were selected for the same post in the interregnum, during the decade which had elapsed in between.
OA No.3651/20114. The Union Public Service Commission (UPSC, in short) had advertised for filling up the posts of Manager Grade-I/Section Officer, Canteen Stores Department (CSD, in short), Ministry of Defence, through the advertisement published in Employment News dated 12-18 March 1994 (Annexure A-5 of the OA). The applicant and the Private Respondent No.R-4 were both selected in the process of selection as per the communication dated 25.04.1995 (Annexure A-6 of this OA). In the Annexure to the UPSCs letter, the names of the following were recommended for appointment:-
1. Shri Ramesh Chandra Das
2. Shri C. Gokula Rajan (SC candidate), [Private Respondent No.R-4]
3. Shri Nitin Ranjan Rai
4. Shri Philip Abraham
5. Shri Jasjot Singh Chopra
6. Shri Patanjali Sharma [applicant of the present OA]
7. Shri Kishan Lal Singh (SC candidate)
8. Ms. Sandhya Kujur (ST candidate).
5. In the same letter dated 25.04.1995, it was also indicated by the UPSC that the candidates called for interviews were required to bring along with them the originals of the degree/diploma certificates and other certificates in support of their qualifications, and Matriculation or equivalent certificates in support of their Dates of Birth as claimed by them. It was mentioned in a second Table, Annexure B, that Shri Ramesh Chandra, Shri G. Gokula Rajan (SC) (Private Respondent No.R-4), Shri Nitin Ranjan Rai, and Shri Kishan Lal Singh, Sl Nos. 1,2,3 & 7 in Annexure-A, did not, however, comply with this requirement to the extent indicated in the last column of that Annexure B to the UPSCs letter, and, therefore, the Secretary, Govt. of India, Ministry of Defence, was advised that the original degree/diploma certificates etc. mentioned there in the Annexure B may be verified before their appointment. This Annexure B has been produced by the applicant at page-51 of the paper-book, and its typed copy at page-56 of the paper-book of the OA. However, when the final Recruitment Results were published in the Employment News, the names of 10 candidates instead of 8 were shown as selected against the advertised posts of Manager Grade-I/Section Officer, CSD, Ministry of Defence, and published through Annexure A-7 (Page-57 of the paper-book).
6. Accordingly, Official Respondents No.R-1 to R-3 issued Annexure A-8 dated 28.09.1995, a Memorandum by way of an offer of appointment to the applicant of the OA, which, being in a cyclostyled format, must be the same as the offers of appointment issued to the others also. But it was not issued then to the Private Respondent No.R-4, as he had applied through his the then employer, Kandla Port Trust, and not directly.
7. On 07.06.1995, a letter was issued to the Chairman, Kandla Port Trust (KPT, in short), intimating the recommendation of UPSC in respect of Private Respondent No.R-4, and requesting KPT for forwarding the Integrity Certificate and other documents in respect of Private Respondent No.R-4. While this letter has not been filed by the applicant in this OA, its reply dated 04.08.1995 received from the Deputy Secretary (Personnel), KPT, in the Office of the Chairman, KPT, Gandhidham, addressed to the Secretary, Board of Control, Canteen Services, has been produced by the applicant at Annexure A-13. This letter confirmed the following:-
a) That Private Respondent No.R-4 was working as Assistant Traffic Manager with Port Trust, and belongs to the Scheduled Caste category, as per the original caste certificate already submitted to KPT.
b) The Vigilance Section of the Port Trust had not cleared the Private Respondent No.R-4 from integrity angle, as an enquiry was pending against him for causing loss of revenue to the Port.
c) That the original degree certificate and other documents had already been submitted by the Private Respondent No.R-4 personally to the office of CSD.
d) That the KPT is an autonomous body constituted under the Major Port Trust Act, 1963, functioning under the control of the Ministry of Surface Transport, Govt. of India.
e) That as per the certificate produced by the Private Respondent No.R-4, his Scheduled Caste status had been verified at the time of his recruitment to the post of Assistant Traffic Manager in the Port Trust.
f) That the character and antecedents of the Private Respondent No.R-4 had also been got verified from the Supdt. of Police, Chennai, Anna East District, St. Thomas Mounts, Madras-16.
8. As a result, while the Private Respondent No.R-4 having been denied the Vigilance clearance, and not having been relieved by the KPT, could not join the CSD in 1995, the applicant joined the offered post on 02.11.1995, in response to the offer of appointment received by him. Thereafter, in the Seniority List of Managers of CSD as issued yearly, the name of the applicant of the OA figured in them appropriately, and at Sl. No.9 of Annexure A-9 dated 22.07.2003- Revised Seniority List of CSD Managers as on 01.01.2003, Annexure A-10 dated 12.02.2004- Seniority List of Managers as on 01.01.2004, Annexure A-11 dated 03.01.2005- Seniority List of Managers as on 01.01.2005, and Annexure A-12 dated 09.01.2006- Seniority List of Managers as on 01.01.2006.
9. In the meanwhile, correspondence had been going on in between the CSD and the KPT regarding the candidature of Private Respondent No.R-4. Annexure A-16 letter dated 10/11.04.2001 had been issued in response to the letter dated 09.02.2001, which appears to have been a reminder in respect of the letter dated 07.06.1995 at Annexure A-18. Through this letter, the KPT informed the CSD that the Private Respondent No.R-4 had worked as Assistant Traffic Manager in the Port Trust from 16.10.1989 to 04.07.1998, and in between this period of employment, he was charge-sheeted twice, in the first of which a token penalty of recovery of Rs.20,000/- had been imposed upon him for having caused pecuniary loss to the KPT, which he had paid through a Demand Draft dated 19.03.1998, and in respect of the second charge-sheet, he was exonerated from the charges. Copies of the Charge-Sheets, and orders of the Disciplinary Authority in both the above cases were also forwarded by the KPT to the CSD. By that time, the Private Respondent No.R-4 had ceased to be in KPT long back.
10. Through letter dated -9-2005 (Annexure A-17) received in CSD on 19.09.2005, the Secretary & CVO of KPT had informed that the Private Respondent No.R-4 was serving as an Assistant Traffic Manager in the Port Trust from 16.10.1989, and had ceased to be in the services of the KPT w.e.f. 05.07.1998, due to his prolonged unauthorized absence from his duty from 13.03.1995 onwards, for more than three years. The CVO, KPT further informed the CSD that the Private Respondent No.R-4 had not been properly relieved from the Port Trust, but that since he had remained absent from duty from 13.03.1995 till 05.07.1998 unauthorizedly, and had thus relinquished/left the service on his own, he was, therefore, treated to have ceased to be an employee of the Port Trust w.e.f. 05.07.1998. It was further informed that since the incumbent was not on duty from 13.03.1995 till 05.07.1998, the office of Secretary & CVO of KPT was not in a position to issue Integrity Certificate clearance of the person concerned for the said period, even though he was declared to have been cleared from integrity angle for the period from 16.10.1989, the date of his joining service with KPT, till 12.03.1995, before he became unauthorizedly absent, during which period the two Charge-Sheets, mentioned above, were served upon him, and in one of which he was fined, and in the other one he was exonerated, as already mentioned above.
11. The Respondents No. 1 to 3 finally issued a letter of appointment to the Private Respondent No.R-4 on 03.08.2005, more than a decade after his name in the select panel was communicated on 25.04.1995, and he joined the offered post on 10.10.2005. Soon after his having joined appointment, the Private Respondent No.R-4 had been initially included at Sl. No.33 of Annexure A-12 dated 09.01.2006-Seniority List of Managers of CSD as on 01.01.2006, in accordance with the date of his joining service having been shown as 10.10.2005. But, soon thereafter, the Private Respondent No.R-4 gave a representation on 31.01.2006, and requested that he may be given seniority as per the original select list panel drawn by UPSC in 1995, at the time of his selection as Manager Grade-I in CSD. The request of Private Respondent No.R-4 was referred to Secretary, Board of Central Civil Services (BOCCS), New Delhi, for a decision, who, by his letter dated 22.08.2008, communicated that as per the concurrence of the Ministry of Defence/DoP&T, the seniority of Private Respondent No.R-4 may be re-fixed as per the inter-se seniority of the original panel drawn by UPSC in 1995.
12. As a result, through the impugned order dated 22.05.2009, the seniority of Private Respondent No.R-4 in the grade of CSD Manager was re-fixed, as per the original panel drawn by UPSC on 25.04.1995, (para 4/above), and his name was notionally placed above the applicant of this OA. The result of this was that in Annexure A-2 dated 08.02.2010- Seniority List of Managers as on 01.01.2010, the Private Respondent No.R-4 came to occupy the position at Sl. No.2, which continued to be the same in Annexure A-3 dated 16.03.2011- Seniority List of Managers as on 01.01.2011.
13. The applicant is aggrieved by this, as well as the amendment of Annexure A-4 dated 31.03.2009 Seniority List of Managers as on 01.01.2009, in which Private Respondent No.R-4 was initially at Sl. No.23 but through the impugned order dated 22.05.2009, he was ordered to be brought to the Sl. No.2 of the already notified Seniority List, by amending the 2003 Seniority List itself, and placing him at Sl. No.4 of the revised Seniority List of 22.07.2003.
14. The applicant is aggrieved that through this process, the Private Respondent No.R-4 has been given undue seniority, even in respect of the period when he had not even joined the post, since he did not get the necessary clearances from his the then parent department KPT, even though he had been selected for appointment in CSD. He has assailed the actions of official respondents No. R-1 to R-3, in firstly having given appointment to Private Respondent No.R-4 after a lapse of 10 years, and secondly fixing his seniority over the applicant, as being not only illegal, but highly arbitrary and against the established principles of administrative law.
15. While conceding that in the list of candidates recommended by the UPSC in April 1995 for appointment to the post of Manager in CSD, the name of Private Respondent No.R-4 had appeared at Sl No.2, it was submitted by the applicant that seniority of a Direct Recruit is determined by the year in which he joins service, even though he may have been selected in an earlier batch, but having not joined the services within the stipulated period, or the extended period as specifically permitted, they are to be shown juniors to the persons who had joined earlier. It was further submitted that in the case of a person who is offered appointment and fails to join the post offered for any reason within the prescribed period mentioned in the advertisement, the post again becomes vacant, and the Appointment Letter has then to be issued, and the post offered, to the next wait listed candidate, if such a provision has been made, otherwise the said selection lapses. It was submitted that even if, in exigencies of service, the lapsed panel of appointment is required and is ordered to be revived, then, in such a situation also, the seniority of the candidates who had, in the meanwhile, already been appointed, and had joined on the basis of selections subsequently held properly, cannot be depressed, in the light of the DoP&T OM dated 06.06.1978, which had been produced by the applicant as Annexure A-14.
16. It was further submitted that when a person, once selected to the post, does not join the post, the vacancy is automatically carried forward to the next year, and is required to be filled in through a fresh or open selection. Therefore, it was alleged that in violation of established norms and procedures, and the standing instructions of DoP&T, the Official Respondents No.R-1 to R-3 had illegally and arbitrarily offered appointment to the Private Respondent No.R-4 to the post of Manager Grade-I in the year 2005, and had permitted him to join after a lapse of 10 years, and had further, in violation of all the established norms, Rules and Regulations, and in contravention of the statutory and legal provisions, also decided to grant him ante-dated seniority from the initial year of selection, i.e., 1995.
17. It was submitted that the Official Respondents No.R-1 to R-3 have not only allowed the appointment of Private Respondent No.R-4 illegally, but have also thereby appointed a person with doubtful integrity, which is not warranted in view of the kind of valuable stores, which are entrusted to Area Managers of CSD Canteens. It was submitted that cause of action arose in favour of the applicant only when the seniority of Private Respondent No.R-4 was wrongly fixed by Official Respondents No.R-1 to R-3 ahead of the applicant. He had pointed out to the unauthorized absence of Private Respondent No.R-4 from KPT from 13.03.1995 till 05.07.1998, because of which it was ordered by KPT that Private Respondent No.R-4 had ceased to be an employee of KPT, through Annexure A-17, as already described above. It was, therefore, submitted that neither the Official Respondents No.R-1 to R-3 were aware that the Private Respondent No.R-4 was no longer an employee of Port Trust Board, nor has the Private Respondent No.R-4 come with clean hands when he reported to the authorities, and, therefore, the services of Private Respondent No.R-4 are liable to be terminated on this ground alone.
18. It was further submitted that the post against which the Private Respondent No.R-4 had been selected in the year 1995 was neither kept vacant, nor carried forward to the subsequent years, through any specific orders having been passed in this regard, and in the intervening years, the subsequently available vacancies were advertised, and selected candidates appointed, who have since joined the service in the department on their places of duty batch-wise and year-wise, and the Private Respondent No.R-4 had neither applied, nor got selected to any of the posts later so advertised by the UPSC in the intervening period from 1996 to 2005. It was submitted that for un-known reasons Official Respondents No.R-1 to R-3 have not only waived the condition of submission of Integrity Certificate in respect of Private Respondent No.R-4, but have also granted him antedated seniority of about 10 years, on the basis of the panel drawn by UPSC on 25.04.1995, although no vacant post of the year 1995 was available for being filled up in the year 2005, nor was the original panel of 1995 revived, or its life extended by the UPSC. They had submitted that the appointment of Private Respondent No.R-4 could not have been made, but for extraneous reasons, and the further wrongful action of the official respondents, of granting him seniority from the year 1995, has shocked and surprised the applicant. The applicant submitted that he had represented to the authorities concerned on 12.06.2009, to point out that the ante-dated seniority now wrongly granted to Private Respondent No.R-4 was clearly contrary to and inconsistent with the guidelines issued by the DoP&T dated 06.06.1978 and 09.08.1995 at Annexures A-14 & A-15 (supra). It was further submitted that similar representations were submitted by other Managers also, challenging the appointment of Private Respondent No.R-4.
19. The applicant had further represented on 12.03.2010, after which he received a reply dated 12.04.2010 from the Official Respondents No.R-1 to R-3, wherein it had been stated that the ante-dated seniority of Private Respondent No.R-4 had been issued in compliance of the directives issued by Ministry of Defence/DoP&T. The respondents had also disregarded the additional representation of the applicant dated 19.05.2010, through which he had requested for the impending DPC to the post of DGM to be kept pending till the final disposal of the representation. A copy of the additional representation as had been further filed by the applicant on 19.05.2010 also, and a reminder preferred on 09.09.2010, were also brought on record.
20. It was submitted that the next higher post to which the applicant was eligible to be considered, was to the post of DGM/Regional Manager, as he already held the required 5 years of regular service in the grade of Assistant General Manager, which post he is holding since 01.04.2007.
21. It was submitted that if now the Private Respondent No.R-4 is granted promotion to the grade of Assistant General Manager on the basis of the impugned Seniority List of Managers as on 01.01.2011, as per the impugned order dated 22.05.2009, the Private Respondent No.R-4 will get to be placed above the applicant, thereby adversely affecting the promotion of the applicant to the next higher post of DGM. It was submitted that from 1996 till date the applicant had been duly granted seniority according to his seniority in the Select Panel of UPSC for the batch of 1995, excluding the Private Respondent No.R-4, and the impugned alteration in the Seniority List of Managers in the year 2010 has adversely affected his future career prospects.
22. Re-wording the same submissions and contentions, the applicant had raised grounds 5 (A) to 5 (K) of the OA. The only additional point raised in the grounds was that no post of the year 1995 had been kept vacant for Private Respondent No.R-4, neither any such post could have been kept vacant for him for a period of 10 years, nor the validity of the selection seniority panel of 1995 drawn by UPSC was extended, therefore the grant of seniority now to the Private Respondent No. R-4 over and above almost 9 batches of Direct Recruits is illegal, and bad in law, and that the Private Respondent No.R-4 is not entitled to grant of an antedated seniority of almost 10 years. It was submitted that the Official Respondents No.R-1 to R-3 had failed to consider the fact that any such offer of appointment could not now have been made to the Private Respondent No.R-4 without consultation with the UPSC, and specially so in the backdrop of the accepted facts regarding the previous service career record of the Private Respondent No.R-4 with KPT, during which he was charge-sheeted, penalized and even removed from service.
23. Shelter was sought behind the ratio of the Honble Apex Court judgment in the case of A. Janardhana vs. Union of India, AIR 1983 SC 769, to submit that no direct recruit can get seniority from the date earlier to his date of appointment. Further shelter had been sought behind the ratio of the Honble Apex Court in A.N. Pathak vs. Secretary, Ministry of Defence, AIR 1987 SC 716, in the case of S.P. Gupta vs. State of Jammu & Kashmir, (2000) 7 SCC 56, and in the case of N.K. Chauhan vs. State of Gujarat (1977) 1 SCC 308: AIR 1977 SC 251, to submit that it has been held by the Honble Apex Court repeatedly that Direct recruits cannot claim appointment from the date of vacancy in the quota, before the actual date of their selection and appointment, and that in service jurisprudence, a Direct Recruit can claim seniority only from the date of his regular appointment, and not from a date when he was not even borne in the service. It was pointed out that in A.N. Pathak (supra), the Honble Apex Court has held that slots cannot be kept reserved for the Direct Recruits for retrospective appointment, and the only criteria for determination of seniority is the actual date of joining the service, and becoming regular member of the service, and not on any hypothetical grounds. The applicant has, therefore, assailed the action of Official Respondents No.R-1 to R-3 in firstly having allowed Private Respondent No.R-4 to join, and secondly for ordering in a manner for allowing him to unsettle the settled position of seniority, upsetting the rights, which had crystallized in favour of the applicant over a period of 10 years. In the result, the applicant had sought for the following reliefs:-
a) This Honble Tribunal be pleased to call for the complete records and of the present case for the proper adjudication of the case and be further pleased:
b) To pass an order/direction quashing and setting aside the order dated 22.05.2009 wherein seniority of Respondent No.4 has been refixed.
c) To pass an order/direction quashing and setting aside the impugned Order dated 27 July 2005, whereby the respondent No.4 was allowed to join the service in the department on 10th of October, 2005 after ten years.
d) To pass an order/direction quashing the circulated dated 16 March 2011 granting antedated seniority of almost ten years to the Respondent No.4
e) Pass any such Order and/or Orders as this Honble Tribunal deems fit and proper in the facts and circumstances of the present case.
f) Grant cost of the Application.
24. He had also sought interim relief, but the same was never pressed and considered after the date the Transfer Petition was allowed, and the OA was ordered to be retained for the purpose of hearing at the Principal Bench itself, and notices were issued on 10.10.2011.
THE OTHER THREE OAs.
25. The other three OAs were filed at different Benches of the Tribunal. OA No.3408/2012 was first filed as OA No.78/2011 before Mumbai Bench of this Tribunal and was transferred to the Principal Bench after the Transfer Petition was allowed by the Honble Chairman on 18.01.2012. On the very first date of hearing, when on 11.10.2012 the matter was listed before a Coordinate Bench, interim relief was granted to the applicant, and it was ordered that any promotions made on the basis of the impugned seniority list will be subject to the outcome of this OA.
26. OA No.3409/2012 had initially been filed as OA No.180/2011 before Jabalpur Bench of this Tribunal, but after the Transfer Petition was allowed by the Honble Chairman on 18.01.2012, the matter was transferred to the Principal Bench, and the case was renumbered as OA No.3409/2012.
27. OA-3410/2012 was filed first as OA No. 255/HR/2011 before the Chandigarh Bench of this Tribunal and stood transferred to the Principal Bench of this Tribunal when the Transfer Petition was allowed on 18.01.2012 by the Honble Chairman. Later somehow it so transpired that the order dated 18.01.2012 in the Transfer Petition was recalled by the Honble Acting Chairman on 25.04.2012, and the freshly filed Transfer Petition was thereafter allowed by the Honble Chairman on 03.10.2012, after which it got listed as OA No.3409/2012 before the roster Bench from 11.12.2010 onwards.
OA No.3408/201228. The applicant of this case had also been appointed as Manager Grade-I w.e.f. 31.12.2001, and had been granted his due seniority all along, and now, after a period of almost ten years, the seniority position of the applicant of this O.A. has also been depressed through the impugned order dated 22.05.2009, whereby the Private Respondent No.R-3, who had joined Government service only on 10.10.2005, has been granted ante-dated seniority of the year 1995, and has been placed in between the persons who had joined Government service in the year 1995, granting him seniority over and above the applicant of this O.A. also. The applicant of this O.A. has also assailed the Seniority List of Managers as on 01.01.2010, published on 08.02.2010, whereby the Private Respondent No.R-3 has been granted seniority at Sl No.2, granting the Respondent No.R-3 seniority over and above the applicant and his other colleagues, though he was at Sl. No.23 in the earlier Seniority List of 01.01.2009. However, he had brought out the point that while having been a candidate at the time of applying and appearing for the interview in the said post of 1994-95, the Private Respondent No.R-3 had not disclosed the facts regarding departmental proceedings pending against him, and if this fact had been correctly disclosed, his application might not have led to his selection against the post. It was also submitted that in the year 1995 itself, the CSD had in fact decided not to issue an offer of appointment to the Private Respondent No.R-3, because of which he had also not made any efforts to seek an offer of appointment, and not pursued the matter, and that the post against which the Private Respondent No.R-3 had been selected had also not been kept vacant or carried forward to the subsequent years. He had also questioned the waiver of the requirement of the submission of the Integrity Certificate before issuance of offer of appointment to the Private Respondent No.R-3 after a period of almost 10 years, even though no vacant post of the year 1995 was available in 2005, for being filled up after a gap of over one decade. While having raised these issues in the grounds, and the grounds in regard to inter-se seniority raised thereafter, the applicant of this OA had also ultimately confined his prayers for relief only to the following:-
a) This Honble Tribunal be pleased to call for the record and proceedings of the present case and after examining the legality and propriety thereof, quash and set aside the seniority list dated 8th of February, 2010 by directing the Respondents to delete name of the Respondent No.3 appearing at Serial No.2 and to grant him his seniority along with his batch-mates of the year 2005.
b) This Honble Tribunal be pleased to hold and declare the grant of antedated seniority of almost ten years to the Respondent No.3 herein in the Seniority List of Manager Grade-I as illegal and bad in law and accordingly quash and set aside the same.
c) Pass any such Order and/or Orders as this Honble Tribunal deems fit and proper in the facts and circumstances of the present case.
d) Costs of the Application be provided for.
OA No.3409/2012,
29. In this case also, the applicant has challenged the same impugned order dated 22.05.2009, whereby the Private Respondent No.R-5, who had joined Government service only on 10.10.2005, has been granted seniority of the year 1995, and has been placed above the applicant. The applicant of this O.A. has also challenged the Seniority List of Managers as on 01.01.2010, published on 08.02.2010, whereby the Respondent No.5 has been granted seniority at Sl No.2, though he was at Sl. No.23 in the earlier Seniority List of 01.01.2009. While repeating the same contentions as in the above two OAs, that the Private Respondent could not have been offered appointment in the year 2005 on the basis of the original panel of 1995 without its life having been extended in any manner whatsoever, all the submissions and grounds assailing the Private Respondents appointment itself were mentioned in the body of the OA. However, in the relief portion, the applicant of this OA also had limited his relief as prayed for only in respect of the antedated seniority granted to the Private Respondent, by submitting as follows:-
8.1 Summon all relevant record and proceedings from the passion of the respondents.
8.2 Upon holding that the grant of antedated seniority to the Respondent No.5 in the Seniority List of Manager Grade I is illegal, set aside the Order dated 22nd of May, 2009 bearing NO. Ref.3/AGM(P)/PN -0114/363 is enclosed herewith as Annexure A-1, seniority list dated 8th of February, 2010 Annexure A-2, communication dt. 14.09.2010 Annexure A-3 and the letter No. 95012/Q/BOCCS/GR/Sen dated 23.07.2010.
8.3 Direct the Respondents to delete name of the Respondent No.5 appearing at Serial No.2 seniority list dated 8th of February, 2010 Annexure A-2 and to grant him his seniority along with his batch-mates of the year 2005.
8.4 Any other order/orders as deemed fit by this Honble Tribunal may also be passed.
8.5 Costs of the Application be provided for.OA No.3410/2012
30. The applicant of this OA is a selectee of the year 2001, and had joined the Respondent Department on 20.11.2001, and his seniority was correctly reflected thereafter in the Seniority Lists as on 01.01.2003, 01.01.2004 and 01.01.2005. He had placed reliance on the DoP&T Office Memorandum dated 06.06.1978 (Annexure A-4 of this OA) to submit that if a person is offered appointment on the recommendation of the UPSC, he has to join the service within the stipulated period mentioned in the offer of appointment, and if he does not join within the stipulated period, the offer lapses, and if he is allowed to join even after the stipulated period, in exceptional circumstances, he would be ranked below who had joined earlier. The applicant of this OA has also assailed the impugned order dated 22.05.2009, whereby the Private Respondent had been offered an appointment in the year 2005, and had been appointed w.e.f. 10.10.2005, although more than 10 years had elapsed since the UPSC had communicated the select panel dated 25.04.1995, but he had thereafter mainly questioned only the assignment of seniority to the Private Respondent with respect to the panel of 1995, by which he had moved above, and jumped over 13 persons in the Seniority List, including the applicant of this OA. In a similarly worded OA, he had also assailed the delayed offer of appointment issued to the Private Respondents, without the panel having been renewed, and had thus in a manner challenged the appointment itself, and even the grounds raised were also accordingly framed, in which he had relied upon the ratio of the Honble Apex Court judgments in A. Janardhana v. Union of India (supra), A.N. Pathak vs. Secretary, Ministry of Defence (supra) and S.P. Gupta vs. State of Jammu & Kashmir (supra). But, while framing his prayer clause, the applicant of this OA had also confined his prayers only to the aspect of seniority, by praying as follows:-
(i) Quash the order dated 22.5.2009 (Annexure A-1) vide which, respondent no.3, who had joined his service on 10.10.2005, has been granted seniority of the year 1995 and has been placed between the persons who had joined government service in the year 1995, thereby granting him seniority over them including the applicant herein in violation of rules and law.
(ii) Quash the seniority list of Managers as on 1.1.2010, published on 8.2.2010 (Annexure A-2) whereby the respondent no.3 has been granted seniority at Serial No.2, although he was at serial no.23 in the earlier seniority list of 1.1.2009, thereby ranting the respondent no.3, seniority over and above the applicant herein and other persons and this has been done ignoring the rules and law and principles of natural justice as if the respondents wanted to disturb the seniority settled long time back, the minimum requirement was at least serve upon the applicant a show cause notice which has not been done and as such the impugned seniority lists and order being in violation of principles of natural justice is liable to be quashed and set aside.
(iii) Quash the letter / order dated 12.04.2010 (Annexure A-3) vide which it has been conveyed that the seniority of the respondent no.3 had been issued in compliance to the directives issued by the Ministry of Defence / Department of Personnel and Training vie their letter dated 22.8.2008. It was also stated that several officers who had represented against the restoration of the panel seniority, fresh directive on the subject will be communicated. This decision is obviously in violation of the rules and law and instructions on the subject.
(iv) Issue direction to the respondents to consider the case of the applicant and other eligible persons for promotion to the post of Assistant General manager on the basis of the seniority list of manager, Grade I as on 1.1.2008 or 1.1.2009 ignoring the seniority lists issued on 2.2.2010 and if found eligible and suitable, grant him such promotion from due date, with all the consequential benefits i.e. arrears of pay and allowances with interest @ 18 per annum from the date the amount became due to the actual date of payment and seniority.
(v) Any other order or direction deemed fit and proper in the facts and circumstances of the case may also kindly be issued in favour of the applicant.
(vi) Costs of the O.A. be allowed in favour of the applicant. SUBSEQUENT PLEADINGS
31. Counter replies had been filed in these OAs even while they were pending in the respective Benches, but because of the repetitive nature of the stand of the respondents, we need not reproduce all the submissions made in such counter replies in all these four cases in great detail.
32. In the counter reply filed on 23.02.2012 in OA No.3651/2011, through an affidavit sworn to by the Regional Manager (West), CSD of Delhi, it was admitted that no offer of appointment was ever issued to the Private Respondent in the year 1995, as a result of the decision to await the outcome of the two charge-sheets issued to him by his previous employer KPT. However, shelter was sought behind the UPSC advice that the panel of 1995 still stood to be valid, and that the DoP&T advice was that the outcome of the two disciplinary cases in the case of Private Respondent was such that he had not got disqualified for Government employment in future.
33. Acknowledging all the facts as made out by the applicants in detail, and as recorded by us from the file notings subsequently, they had admitted that in the year 1997, the case for cancellation of selection of the Private Respondent was taken up by the CSD with the Ministry of Defence, but that was not agreed to by them at that point of time. Once again when for the second time the same proposal was moved for cancellation of candidature of Private Respondent, the matter got referred to DoP&T and UPSC, and directions were issued by the Ministry of Defence to the CSD to issue an offer of appointment, when there was no alternative but to issue to him an appointment letter.
34. It was admitted that it was once decided that the Private Respondent should not be appointed due to non-compliance of integrity requirement, and no vacancy was exclusively reserved for him since 1995. But, it was submitted that, thereafter, under instructions of DoP&T and Ministry of Defence, the offer of appointment had been issued to the Private Respondent, after the requirement of waiver of integrity certificate had been approved by the Ministry of Defence. In a very weak defence of the case of the respondents, an attempt had been made to explain the non-applicability of the cases of A.N. Pathak (supra) and S.P. Gupta (supra) to the facts of the instant case.
35. It was further submitted that since the appointment of the Private Respondent had been made on the basis of the recommendations made by the UPSC for his selection in the year 1995, ultimately the seniority based upon that also had to be given to the Private Respondent, and it was contended that no right had been created in favour of the applicant of the OA No.3651/2011, who was below the Private Respondent in the list of UPSC selectees in the year 1995.
36. Private Respondent himself filed only one counter reply in OA No.3651/2011. He had sought shelter behind the stand of the official respondents that the select panel recommended by UPSC in April, 1995, stood valid when the offer of appointment was issued to him, and that the ante-dated seniority had also been rightly accorded to him, based upon general principles of determination of seniority, as laid down by the DoP&T. He submitted that it is not a case where he had failed to join duties within the stipulated time once appointment was offered to him, and also submitted that his late joining of the concerned position cannot be attributed to him at all, and the delay was only due to the fact that the official respondents No.R-1 to R-3 did not allow him to join, and he had, therefore, pleaded that his seniority has now rightly been given from the date he was selected by the UPSC. He had submitted that as per DoP&T/DP&AR OMs dated 06.06.1978 and 09.08.1995, the relative seniority of direct recruits appointed on the recommendation of the UPSC has to determine the order of appointment, in the order in which they have been selected for such appointment. In his counter reply, the Private Respondent had not given any explanation as regards his whereabouts from 13.03.1995 till the date of his joining in the Respondent-Department on 10.10.2005. He had justified the action taken by respondents in having placed him appropriately, by granting him seniority against the year 1995, and had prayed for the OA to be dismissed, arguing that there was nothing wrong in the action of the respondents in having issued him the letter of appointment in 2005, since the delay in issuance of such a letter could not be ascribed to him. He had also submitted that the judgments cited by the applicant are not applicable, since the ratio of those cases was in the context of direct recruits and promotees. With this statement, he had distinguished his case from A.N. Pathak (supra), and S.P. Gupta (supra), which latter case was regarding retrospective regularization of promotees against direct recruitment quota.
37. At Annexure R-1 to his counter reply, he had produced a letter dated 29.12.1997 issued by the respondents addressed to him at his Chennai address, in response to his letter dated 09.12.1997, stating that the case for issuance of an offer of appointment to him was under consideration, and on finalization of the same, he will be intimated. We may only note that on both these dates, on 09.12.1997 when the Private Respondent wrote a letter from Chennai, and on 29.12.1997, when the official respondents replied to him at the Chennai address, the Private Respondent was still in the employment of KPT, since the deemed date of his retirement from KPT, after his long unauthorized absence from KPT of more than three years, has already been noted by us above to have been 05.05.1998, and he was unauthorizedly absent from his the then Governmental employment with KPT.
38. The applicant filed a sur-rejoinder on 06.09.2012. He had taken a stand that both the replies received by the Official Respondents, from UPSC by way of clarification, and from DoP&T in response to a query, like in the instant case, were not of a binding in nature, and were only advisory in nature. In regard to the preliminary objection of non-joinder of UPSC and DoP&T as necessary parties taken by both the official and the Private Respondents, it was submitted that since the applicant has not challenged either the advice given by the UPSC, or the clarification to the query provided by the DoP&T, they had not been arrayed as necessary parties. He had alleged mala fide, and had submitted that the answering respondents were under the obligation to state as to how the offer of appointment letter was issued to the Private Respondent, without taking into account the Select Lists of UPSC in the intervening period of 1995 to the year 2005, through which all the vacancies had already been exhausted year after year, and the candidates so selected in that intervening period had also joined their respective appointments, and also that it was not clear as to how and in what circumstances the selection made by the UPSC in the year 1995 was kept alive, even though all the subsequent select lists were exhausted. It was, therefore, submitted that the appointment of Private Respondent was not made against any existing vacancy whatsoever, but was made only by deeming the concerned vacancy of 1995 to be still alive and available, where no such vacancy any longer existed, and the name of the Private Respondent could not have been recommended even against the select list of year 2005. He had submitted that still the Private Respondent having been allowed to join on 10.10.2005, and then the question of fixation of seniority being raked up, both amounted to colourable exercise of powers by the official respondents.
39. It was further submitted that the vacancies, in respect of which the original panel was recommended by the UPSC in 1995, itself stood exhausted, as, subsequently, the several next selection lists/panels recommended by the UPSC had become operative, and had been executed by offering appointments to the persons subsequently so empanelled by the UPSC. It was further submitted that the previous department of the Private Respondent, the KPT, had had to close the departmental enquiry file against the Private Respondent invoking the deeming provision, since he had unauthorizedly left his service without any intimation, and it was deemed by KPT that he was no longer interested in the service of KPT. It was submitted that this was not a proper relief of the Private Respondent from KPT, and it is settled law that a person cannot be an employee of the two departments at the same time, and the employee continues to be under the contractual obligation or the service conditions of his department till he is properly relieved. It was, therefore, submitted that the belated action of the respondents to issue him offer of appointment after a decade was a colourable exercise of their powers. The applicant had also found fault with the interpretation of the words integrity and moral turpitude, as adopted by the official respondents in respect of omissions and commissions committed by the Private Respondent. It was submitted that even the opinion given by the DoP&T was tainted and motivated. It was further submitted that in the instant OA, the appointment order of the Private Respondent has not been challenged, and only the action of the official respondents providing him 10 years ante-dated seniority by supersession of the intervening selection lists was under challenge.
40. It was further submitted that both the DoP&T and UPSC had given evasive replies, and had left the issue open, and had not given any clear directions to the appointing authority. Thereafter in Para-14 of the sur-rejoinder, the applicant had challenged the appointment of the Private Respondent itself, as being totally invalid, against the Rules of the Govt. of India, arbitrary, void ab initio, and liable to be quashed. It was submitted that if the Private Respondents appointment is quashed, the instant controversy of seniority will come to rest on its own. It was further submitted that when the disciplinary proceedings against the Private Respondent undertaken by the previous employer, the KPT, itself had not concluded till the year 1998, i.e., till three years after the issuance of the Select List of 1995 by the UPSC, and even his deemed relief from service, due to long unauthorized absence from KPT, was only in the year 1998, the Private Respondent could not have been granted seniority in their department w.e.f. 1995, since he was notionally in employment with KPT till the year 1998. It was submitted that since the KPT Authorities had not supplied the complete details of the departmental proceedings conducted by them to the official respondents, the appointment letter issued to the Private Respondent was itself liable to be quashed. It was submitted that it is mysterious that the file had been put up again and again for consideration of issuance of offer of appointment to the Private Respondent, when the vacancy for which he had been selected had already lapsed, and even the Integrity Certificate had not been issued by his previous department KPT till date. In the end, the applicant had submitted that the basic question which remains unanswered is as to how antedated seniority could be given to the Private Respondent from 1995, when, firstly he was not even on the rolls of the CSD department till 2005, and secondly he was on the rolls of KPT till 1998. The impugned order, granting antedated seniority to the Private Respondent was, therefore, termed to be misplaced and illegal, and it was prayed that the OA be allowed with heavy costs. It was further submitted that the Private Respondent has never submitted his original caste certificate, and the caste certificate, which was submitted by him before the UPSC was also only a provisional caste certificate. It was, therefore, prayed that the OA be allowed, and any other appropriate order or direction, that the Tribunal may deem fit and proper in the facts and circumstances of the case, may be issued.
41. These four OAs were argued together vehemently by both the sides, including the learned counsel for the Private Respondent. We have carefully examined the facts of these four cases, and also the Departmental file submitted for our perusal.
42. In its judgment in the case of Union of India & Ors. vs. N.R. Parmar & Ors. JT 2012 (12) SC 99, the Honble Apex Court has propounded upon the importance of studying the file notings, in order to understand contemporaneous exposition regarding various aspects which had gone into arriving at a particular decision. In that very spirit, we have very carefully perused the Departmental File No.95012/Q /BOCCS(17), which was submitted during the hearing of these cases.
43. After the UPSC had selected 10 candidates for the posts of Manager Grade-I/Section Officer in the CSD, and communicated the Select List through their letter dated 25.04.1995, in which the Private Respondent No.R-4 was placed at Sl. No.2 in the Select List, the appointment letters flowing from the Select List could be issued only in respect of the other 9 candidates. The offer of appointment to the Private Respondent No.R-4 could not be issued, as he was at that time under employment with the KPT (till 1998), and as two disciplinary proceedings were pending against him in KPT, as already mentioned above. The Ministry of Defence consulted the DoP&T in this matter at that time, and the DoP&T opined that proposed appointment of the Private Respondent No.R-4 in the CSD under Ministry of Defence might seriously hamper the on-going enquiries against him by the KPT, and that since some of the charges framed against him appeared to be quite serious, and if upheld during the course of the enquiry, are likely to render the candidate as unsuitable for appointment under the Government, it would be prudent to await the decision of the KPT disciplinary proceedings, and then determine his suitability (on the basis of such disciplinary enquiry findings) before considering to issue him the offer of appointment from CSD.
44. In the year 1997, there was even a proposal put up for cancellation of selection of Private Respondent No.R-4, and it was taken up with Ministry of Defence, but no such decision could be taken, and only his previous employer KPT was requested and reminded to finalize the disciplinary cases expeditiously. After receipt of reply in 1998 from the KPT regarding conclusion of the Disciplinary Enquiry against Private Respondent No.R-4, his case was again taken up with the DoP&T in the year 1998, the DoP&T observed that since the penalty imposed upon him was not a major penalty of dismissal from service, which would render him unsuitable for any further employment in the Government, the penalty of a fine of Rs.20,000/- imposed upon him, should not come in the way of offering him an appointment. However, the General Manager, CSD, again recommended the cancellation of the candidature of Private Respondent No.R-4, saying that the nature of charges against the Private Respondent No.R-4 itself was such that he could not be trusted to work in an organization where, at Managers level, goods worth many crores of Rupees are handled every month. When the file was referred to office of the DDG, CSD, for comments, the General Manager(CSD) had not recommended the Private Respondent No.R-4 to be appointed in the CSD, which is a sensitive organization, keeping in view the previous record of the officer, and the Secretary Board of Control Canteen Services, had also felt accordingly, and had strongly recommended that the appointment of the Private Respondent No.R-4 may not be made.
45. It is seen that the file noting dated 22.03.2000 recorded by Brigadier Satish Kumar, Secretary, Board of Control Canteen Services was recorded in continuation of the earlier file No.95012/Q/BOCCS (7), which has not been produced before us, and the noting has started with reference to Note No.189 dated 10.11.98. Documents of the period of interregnum, dated 01.03.1999, 30.06.1999, 20.07.1999, 10.08.1999, 08.12.1999, 30.12.1999 and 27.01.2000, are the extracts from the previous file No.95012/Q.BOCCS (7) No.184 of the Note Sheet onwards, and the originals of the select list advice received from the UPSC. After a long gap, this file No.(17) had been created when the earlier file No. (7) last sent to Ministry of Defence dated 10.11.98 had never been received back. Therefore, through this file No.(17), the proposal was again sent to Ministry of Defence, and was examined therefrom on 25.09.2000 onwards.
46. On 28.09.2000, the JS(O) concerned asked for a copy of the charge-sheet, on the basis of which the Private Respondent No.R-4 had been asked to pay Rs.20,000/- to the KPT. Obtaining that Charge-Sheet from KPT itself took nearly a year, and it was then put up on 16.05.2001. Then, a 4 page Self-Contained Note was put up by the Under Secretary (Mov) on 24.08.2001 but without adverting to the issue as to whether the UPSCs original select panel of 1995 was still valid or not. The aspect of more than 3 years unauthorized absence of Private Respondent No.R-4 from KPT itself had also not been brought out clearly in this self-contained Note.
47. It was, however, pointed out at that stage itself that in addition to the 9 candidates selected along with the Private Respondent No.R-4, 7 more candidates from subsequent batches had also since joined the CSD Head Office, and their relative seniority would be an issue. However, the Under Secretary (Mov) and Ministry of Defence on 24.08.2001 recommended that the Private Respondent No.R-4 having already been punished by KPT for the omissions and commissions during his tenure of service in KPT, it does not appear to be a fit case for cancellation of his candidature for the post in CSD, for which he had been properly selected by the UPSC.
48. The Director (Q) thereafter observed that though the Private Respondent No.R-4 had not been imposed with such a major penalty which may disqualify him from future employment in the Government, which is the penalty of dismissal from service, however, since a period of more than six years had already passed by then, on 27.08.2001, he suggested that UPSC may be consulted before an offer of appointment letter could be issued to the Private Respondent No.R-4.
49. The JS (O) then in his noting on 28.08.2001 rightly asked to check as to whether there is any time limit regarding validity of the UPSC recommendation. The relevant portion of the Swamys Publication on Establishment & Administration was submitted to him in reply, and it was, thereafter, noted on 30.08.2001 that as per existing instructions a time limit of 3 to 4 months has been fixed to avoid inconvenience to candidates, as also to the administration, but a rider was added that it does not appear that the instructions prohibit sending an offer of appointment after 3 to 4 months. However, by way of abundant caution, it was proposed for the DoP&T to be again consulted. The file was put up again on 06.11.2001, and it was ordered to be referred to the DoP&T (Estt) (B) Desk.
50. DoP&T issued a clarification dated 11.12.2001 without adverting to the legal position as per their Rules about the validity of the UPSC Select panel of 1995, and only giving an opinion that in accordance with the Rule position, the penalty of recovery of Rs.20,000/- imposed by KPT on Private Respondent No.R-4 does not disqualify him for future employment under the Government. In the clarification issued by the DoP&T on 11.12.2001, the Under Secretary, DoP&T did not propound upon the life of the UPSC panel, and as to whether the offer of appointment could still be issued to Private Respondent No.R-4, but only stated/clarified as follows:-
Reference the preceding note of the Ministry of Defence.
2. The rule position in the matter, namely that the penalty of recovery of Rs.20,000 imposed by the Kandla Port Trust on Shri C. Gokularajan does not disqualify him for future employment under the Government, has, already been clarified in this Departments note dated the 19th August, 1998. On the question of determining Shri Gokularajans suitability for the proposed appointment as Manager, Grade-I/Section Officer in the Canteen Stores Department, it is for the appointing authority to take a decision thereon on the basis of facts revealed during the inquiry, etc. vis-`-vis the nature of duties and functions of the said post. Matter of fact, it would not be appropriate for this Department to influence the decision of the appointing authority one way or the other.
(Emphasis supplied).
51. A view was thereafter taken that when the Private Respondent No.R-4 had been found guilty of financial misdemeanor, and a penalty of recovery of Rs.20,000/- had been imposed upon him, he was not fit for employment with CSD which handles over Rs. 3700 crores worth goods annually, and in which Manager Grade-I working at an Area Depot handles stores worth Rs.7 to 12 Crores every month, and, therefore, the officers selected should have highest level of integrity, which was felt not to be available in the candidature of Private Respondent No.R-4, because of which CSD had endorsed the recommendations for cancellation of his candidature. However, the DDG, Canteen Stores Department recorded on 10.09.2002 that though there is no evidence of any moral turpitude and there are no findings affecting adversely on the aspect of his integrity. However, since the CSD Head Office being the user department had expressed their reservation repeatedly against the appointment of Private Respondent No.R-4, he had also endorsed the same views of CSD Head Office, Mumbai. This was then approved by the JS (O), Ministry of Defence also.
52. However, within one month thereafter, the case was again reopened and put up on 23.10.2002 by the Dy. Secretary submitting that there are no strong grounds for not accepting the 1995 recommendations of the UPSC, and since the DoP&T had also opined that the penalty imposed upon Private Respondent No.R-4 does not disqualify him for future employment, it was suggested that the recommendation of the UPSC Select List of 1995 may be accepted, and the order of his appointment may be issued. There was no discussion regarding the Select Panel suggested by the UPSC being current and alive or not in this. JS(O) thereafter put up the file for seeking approval for issuing the letter of appointment to the Private Respondent, to which the Additional Secretary (S) raised a query as to whether the UPSC recommendation (of 1995) was still valid, as according to him, there is perhaps a fixed life for the recommendations of the UPSC. DS(M) then again put up the file on 29.10.2002, and in his noting he had confirmed that in the case of direct recruitment, no fixed period has been prescribed for validity of a panel recommended by the UPSC. The matter was again put up, but not approved by the Additional Secretary (S), who had asked the JS (O) to discuss, and a Note was later put up on 11.11.2002 to seek the advice of the Legal Advisor of the Ministry of Defence. In his Noting dated 27.11.2002, the Legal Advisor (Defence) opined that there appears to be no legal objection, if the appointment order is issued, and in case the incumbent is again involved in a disciplinary case, it will depend on the merit of the case.
53. The proposal for issuing appointment letter to the Private Respondent was then recommended by the JS(O) through Note dated 30.11.2002, and approved by the Additional Secretary (S) on 02.12.2002. The offer of appointment to the Private Respondent was then put up through Noting dated 17.12.2002 , at which stage Ministry of Defence woke up to the matter that a police verification will also be required, since the individual concerned was no longer in Government service, and the Integrity Certificate also could not be provided, as it had not been supplied by his previous employer. A declaration regarding his not having more than one wife was also found to be missing.
54. Oblivious of the fact regarding the removal from service of Private Respondent No.R-4 from KPT in the year 1998 itself due to his unauthorized absence of more than three years, the Director (Q) on 07.02.2003 noted that he thought that the person concerned is still in service, but if he is not, police verification will be required.
55. At that time, a letter was addressed to KPT, and also to the District Magistrate and Police Commissioner, Chennai, on 31.03.2003, and upon receipt of reply from the KPT dated 19.04.2003, and later after receipt of the reply of Commissioner of Police, Chennai dated 14.03.2004, the proposal was put up on 19.03.2004 for issuance of an offer of appointment to the Private Respondent, and a draft offer of appointment was put up, with a Noting that CSD Head Office should get the individual medically examined before taking him on strength, as per the existing procedure.
56. The Ministry of Defence still had some doubt, and the Under Secretary put up a Note on 28.04.2004, which was agreed by the Director (Q) also, that there is no formal advice/communication from UPSC that their recommendation of 25.04.1995 was still valid in spite of lapse of 9 years. It was opined by him that it would be appropriate to obtain an opinion of the UPSC on the same since, on appointment, the incumbent will stand senior to all those who were subsequently selected, and had been already appointed, with varying periods of service already rendered, and, secondly, the availability of a post in the CSD despite the orders issued by the Ministry of Finance regarding ban on filling up of the posts had to be confirmed. It was also noted that the character verification of the candidate had been done on the basis of the attestation form furnished by him 09 years ago, and his subsequent whereabouts have to be reflected invariably in the service records, especially in view of the information given by the KPT that he had been deemed to have resigned due to his long unauthorized absence from duty.
57. On this, the Ministry of Defence on 31.01.2005 opined that fresh attestation forms may be issued to the Private Respondent for getting verified by the Police as per procedure, which was done, and the character and antecedents of the Private Respondent were got freshly verified from the Commissioner of Police, Chennai, and put up, as per the Noting dated 29.04.2005 of Deputy Director, Canteen Services.
58. The then Director (Q) once again on 17.06.2005 raised the issue about the continued validity of the 1995 selection, and it was opined by him that a Self-Contained Note should be sent to the UPSC, seeking confirmation on the validity of the panel, and about the issue as to how the question of seniority would be resolved. The UPSC, thereafter, replied through their letter dated 27.12.2004 by stating as follows:-
To The Secretary to the Govt. of India, Ministry of Defence, New Delhi.
(Attention : Sh. T.K.M. Pillai, Under Secretary) Subject: Recruitment to the 10 posts of Manager, Gr.I/Section Officer in the Canteen Stores Department, Ministry of Defence.
Sir, I am directed to refer to the Ministrys letter No.95012/Q/BOCCS/ 44/D(Mov)/2003 dated 29.6.2004 seeking the advice of the Commission in regard to validity of Panel and Seniority List in connection with case mentioned above.
2. As per DOP & AR O.M. No. 22011/2/79-Estt(D) dated 8.2.1982, there is no time limit in the validity period of list of selected candidates. And as such there is no bar in issue of offer of appointment to Shri C. Gokulrajan subject to the fulfillment of conditions mentioned in Recommendation letters dated 25.4.95 & 5.5.95.
3. As regards, fixing of seniority, & related matters M/o Defence are advised seek the opinion of the Department of Personnel & Training in this regard.
Yours faithfully, sd/-
( AMRIT LAL ) UNDER SECRETARY.
(Emphasis supplied)
59. The UPSC had, through the above letter, somehow strangely stood by the validity of its nearly 10 years old Select Panel being without any time limit, without commenting upon its impact upon the subsequent Select Panels for the same post, but as regards fixing of seniority in the matter, the opinion of DoP&T was suggested to be sought. Thereafter, Secretary, Board of Control Canteen Services put up his Noting dated 01.07.2005 without obtaining any further clarification from the DoP&T, as suggested by UPSC, and recommended the issuance of an offer of appointment to the Private Respondent on the basis of the reply received from the UPSC. When the file again reached the Ministry of Defence, the Director (Q) (O) was chided by the JS (Q), Ministry of Defence, through the Noting dated 21.07.2005, for still raising questions about the validity/currency of the 10 years old Select Panel, and, again without consulting DoP&T thereafter, as had been suggested by the UPSC, the fair copy of the offer of appointment to the Private Respondent was put up for signatures on 26.07.2005, and, thus, without properly examining the legal aspect of continuing validity of the panel prepared by the UPSC a decade back in 1995, the offer of appointment was issued to the Private Respondent No. R-4 on 03.08.2005.
60. No questions were asked from him as to what employment or avocation he was having in between, for a decade, from the year 1995 onwards, from the date he was unauthorizedly absent from KPT, prior to his dismissal on 05.07.1998 due to such an unauthorized absence from KPY from 13.03.1995 onwards. The willingness of the Private Respondent No.R-4 was received on 10.08.2005, and, thereafter, a sort of Integrity Certificate which was issued undated -.09.2005, was also received from KPT. In the meanwhile Private Respondent No.R-4 had reported for duty on 29.08.2005, but he had not been allowed to join the duties for want of Integrity Certificate from his only known previous employer, KPT. Though it was noted that the individual concerned is required to submit an Integrity Certificate from his previous employer along with other documents, a wrong fact was noted in the Noting dated 06.09.2005, in Para-6(a), to state that the Private Respondent No.R-4 had resigned from his earlier service w.e.f. 05.07.1998, while the fact was that he was unauthorizedly absent from KPT for more than three years, and was thus deemed to have been removed from service in the year 1998 (on 05.07.1998) by KPT, which fact was not put up in the file noting correctly. The contents of the KPT Secretary & CVOs undated letter .09.2005 may be reproduced here as follows, for appreciating the correct legal position:-
It is further pointed out that Shri C. Gokula Rajan had not been relieved from the Port Trust, but as he remained absent from duty from 13-3-95 till 5-7-98 unauthorizedly and left the services on his own, the officer had been ceased to by an employee of the Port Trust Board w.e.f. 5-7-1998. Since, the incumbent was not on duty from 13-3-1995 till 5-7-1998, this office is not in a position to issue integrity clearance of the officer concerned for the said period. However, Shri C. Gokula Rajan is cleared from integrity angle for the period from 16-10-1989 to 12-3-1995 during which period, he was served with two Charge Sheets on 24-3-1992 and 28-1-95. Departmental proceedings were initiated under Major Penalty out of which in one case, he was exonerated.
61. The letter sent from CSD, Head Office, Mumbai on 26.09.2005 may be reproduced here as follows:-
Ref No. 3/AGM(P)/1109 (GpA)/158 26 September, 2005 Secretariat, Board of Control Canteen Services L-1, Block, Room No. 16 New Delhi-110 001 Recruitment to the post of Manager grade-I Shri C Gokula Rajan Reference your letter No. 95012/Q/BOCCS(17) dated 14 September, 2005.
2. We have received a letter from Kandla Port Trust in respect of Shri C Gokula Rajan regarding his integrity. It is observed from their letter, that the integrity part is not fully met for the entire service rendered by the officer at Kandla Port Trust. The copy of the above letter is enclosed for your ready reference. The departmental working being commercial in nature, integrity certificate is vital requirement as per the appointment letter. Purely from the departmental point of view, it is felt that, such cases where there are grey areas is not acceptable for appointment in CSD.
3.In view of the above, please advise/clarify explicitly in this case whether the requirement of integrity certificate has been waived-off by MOD and necessary amendment issued accordingly. If so, please forward copy of the same.
Sd/ (S K Sood) Joint General Manager-II For General Manager
62. Still, in view of the wrong submission having been made in the file noting that the individual had resigned from his earlier service w.e.f. 05.07.1998, approval had been sought for the requirement of Integrity Certificate from his previous employer to be waived. When the matter was examined in Ministry of Defence once again, on 07.09.2005, the Under Secretary put up another incorrect Noting to state that there does not seem to be any necessity for an Integrity Certificate from KPT, since the incumbent has now got nothing to do with the earlier employer, and that his appointment had been cleared by the UPSC. With this, the requirement of an Integrity Certificate being furnished was also waived, and through Noting dated 12.09.2005, the DDG, Canteen Stores was informed to convey the same to CSD Head Office, Mumbai, for necessary action. Ultimately the Private Respondent joined on 10.10.2005 at CSD Head Office Mumbai.
63. The issue regarding re-fixation of his seniority in the CSD was then raked up by file Notings starting from 31.05.2006, of Dy. Director, CSD, and the Ministry of Defence file Notings thereupon were thereafter recorded starting from 15.10.2007, and the matter was referred to Under Secretary (Estt.-D), DoP&T. The DoP&T Under Secretary thereafter gave his opinion on 23.07.2008, and after its being approved by the JS concerned, which was communicated to the Ministry of Defence by stating as follows:-
1 & 2.xxxxxxxxx(Not reproduced here).
3. The general principles of seniority have rightly been recorded at para 6 of the note at page 143/n. In the instant case, the panel recommended by UPSC in 1995 Stands valid as intimated by the Commission. It is not a case where the candidate failed to join the service within the stipulated time once appointment offer was made to him. Further, the outcome of the disciplinary cases culminated in (i) exoneration in one case and (ii) recovery of pecuniary loss in another case. There has been no evidence of moral turpitude or any finding reflecting adversely on the integrity of Shri Gokularajan. The Department in this case took its time before allowing him to join the post in CSD. The fact remains that he was appointed as per the selection panel recommended by the UPSC in 1995. Considering the aforestated position and the fact that, the late joining cannot directly be attributed to Shri Gokularajan in the present circumstances, his seniority in this case will have to be fixed as per the general principles enumerated at Para 6 of page 143/n.
(Emphasis supplied).
64. This DoP&T opinion was thereafter promptly accepted, and the matter was communicated by the Defence Ministry to the CSD, which then issued the impugned order of re-fixation of the seniority of the Private Respondent by the impugned order dated 22.05.2009 already referred to above.
ARGUMENTS ADVANCED AND CASE LAW RELIED UPON
65. Written arguments had been submitted in this case by the learned counsel for the applicants even before the date of hearing of the cases. Any delay in challenging the appointment of the Private Respondent made in 2005 was denied, and it was submitted that it was only through the impugned Annexure A-1 that the applicants had come to know that the Private Respondent had been appointed against the Select List recommended by UPSC in 1995, prior to which it was never clearly indicated ever since 2005 as to how was the Private Respondent appointed. It was submitted that as soon as they learnt about the illegality of the appointment of Private Respondent, the applicants had filed these cases, within the period of limitation, and hence there has been no delay. It was further submitted that in any case the aspect of delay has no meaning when the appointment of somebody to a public post is made de hors the Rules, and is void ab initio. The point that in the interregnum 7 more selection lists for the same post have been declared by the UPSC, and all the selected candidates have even joined the department, and no order in respect of select list of 1995 having been carried forward was passed, was reiterated. Therefore, the action of the official respondents in having operated an invalid list, after a lapse of time of a decade, when most of the candidates selected in between have joined the department in question was assailed. The waiver of the essential and statutory requirement of Integrity Certificate was questioned, and the appointment of Private Respondent without his fulfilling the mandatory requirement of obtaining an Integrity Certificate was questioned. The facts of the case had been recounted once again in the written arguments, and need not be reproduced here, and shelter had been sought behind the orders of this Tribunal in OA No.3191/2009 dated 30.09.2010 Adil Rashid Siddiqui and Anr. vs. Union of India and Ors., and in OA No.248/2012 dated 27.09.2012 Pankaj Kumar MIshra and Ors. vs. Union of India and Ors.
66. Reliance had also been placed upon the Honble Apex Courts judgment in the case of D.A.V. College, Bhatinda etc. vs. The State of Punjab and others, to submit that a petition can be filed when the persons fundamental rights were threatened, and the petitioner need not wait till the threat has been actually carried out.
67. The Patna High Court judgment in the case of Rita Mishra and Ors. Etc. Etc. vs. Director, Primary Education, AIR 1988 Pat 26; 1988 (36) BLJR 1 had been cited in which it was argued before the Honble Patna High Court that when the procedural requirements of selection and appointment are statutory, and have not been complied with at all, there is no proper appointment in the eyes of law, and the Honble Apex Courts finding in University of Kashmir vs. Dr. Mohd. Yasin, AIR 1974 SC 238 that an appointment contrary to and in opposition to the teeth of the law cannot confer any legal rights had been reiterated by the Honble Patna High Court. It was further held by the Honble Patna High Court that the State is not bound by the doctrine of promissory estoppel for the acts of subordinates done in violation of its directions or administrative instructions, as held by a Full Bench judgment of Patna High Court in Chetlal Sao vs. State of Bihar, 1986 BBCJ 109: AIR 1986 Pat 267. After considering the relevant case law the Patna High Court had in that case held as follows:-
To sum upon this aspect, I am inclined to the view that where the very letter of appointment is flagrantly violative of the statutory procedures prescribed for selection and appointment, the same would be illegal and there being no valid appointment in the eye of law, no consequential right to salary stricto sensu would arise. In any case, no writ of mandamus can possibly be claimed in such a situation.
(Emphasis supplied).
68. Learned counsel for the applicant had then relied upon the case of Suraj Prakash Gupta and Others vs. State of J&K and Others (2000) 7 SCC 561 to submit that it had been held by the Honble Apex Court in that case that power to relax the Rules does not include the power to relax Recruitment Rules.
69. In the cited judgment of a Coordinate Bench of this Tribunal in OA No.248/2012 dated 27.09.2012, in delivering which one of us, Member (A), was a party, in Para-134,135 & 136, the following observations of the Honble Apex Court in three landmark cases were relied upon, which are very relevant for the present case also:-
134. In the case of Pawan Pratap Singh & Ors. vs. Reevan Singh & Ors. , (2011) 3 SCC 2678 the Honble Apex Court has very aptly summarized the principles regarding determination of seniority in such cases & has held as follows:-
30. From the above, the legal position with regard to determination of seniority in service can be summarized as follows:
(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from the different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time.
135. In Uttaranchal Forest Rangers Assn. (Direct Recruits) & Ors. v. State of U.P. & Ors., : 2007 (2) SLJ 133 (SC) = (2006) 10 SCC 346, the Honble Apex Court has stated as follows:-
37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to be adversely appointed validly in the meantime, as decided by this court in the case of K.C. Joshi & others vs. Union of India, 1992 Suppl (1) SCC 272 held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees, it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one, it must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies or expediency. The result of pushing down the promotees appointed in excess of the quota may work out hardship, but it is unavoidable and any construction otherwise would be illegal, nullifying the force of statutory rules and would offend Articles 14 and 16(1) of the Constitution.
38. This Court has consistently held that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime. In, State of Bihar & Ors v. Akhouri Sachidananda Nath & Ors, 1991 Suppl. (1) SCC 334, this court observed that, "12. In the instant case, the promotee respondents 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when the respondents 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over the respondents 1 to 5. It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter-se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law the respondents 6 to 23 can not be made senior to the respondents 1 to 5 by the impugned Government orders as they entered into the said Service by promotion after the respondents 1 to 5 were directly recruited in the quota of direct recruits. The judgment of the High Court quashing the impugned Government orders made in annexures, 8, 9 and 10 is unexceptionable."
136. Further, in a case very close to the present case, in State of Uttaranchal & Anr. v. Dinesh Kumar Sharma: 2007 (3) SLJ 242 SC = (2007) 1 SCC 683, the Honble Apex Court had observed as follows:-
28. It is clear from the above that a person appointed on promotion shall not get seniority of any earlier year but shall get the seniority of the year in which his/her appointment is made. Therefore, in the present fact situation the respondent cannot claim promotion from the date of occurrence of the vacancy which is 1995-96 but can only get promotion and seniority from the time he has been substantively appointed i.e. from 1999. Likewise, the seniority also will be counted against the promotion/appointment in the cadre from the date of issuance of order of substantive appointment in the said cadre, i.e. from 19.11.1999.
29-33. xxxxxx 34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent's contention is that since the vacancy arose in 1995-96 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in the case of Jagdish Ch. Patnaik & Ors. vs. State of Orissa & Ors. 1998(4) SCC 456.
70. In the judgment of another Coordinate Bench of this Tribunal, in OA No.3191/2013 dated 30.09.2010 (supra), in Paragraphs 8,9 & 10 of that judgment, it had been held as follows:-
8. It is not in dispute that vacancy against which applicant was selected, pertained to the year 1991-92 but the fact remains, he was recommended by the Staff Selection Commission vide letter dated 2.5.1995 (page 30) and joined the post on 15.6.1995 as a direct recruit.
9. It is submitted by the applicant that he should be given seniority from the date of vacancy and not from the date of his appointment. If his contention is accepted then he would be given seniority from a date when he was not even borne in the cadre. The law is well settled that seniority can be given to a person only from the date when he is borne in the cadre and not from an earlier date.
10. At this juncture it would be relevant to refer to the following judgments which have dealt with this issue:-
(i) In State of Uttaranchal Vs. Dinesh Kumar Sharma reported in 2006 (13) SCALE 246 the issue was whether the respondent has the right to claim promotion and seniority from 1995-96 when the vacancy arose or whether seniority will be reckoned from the date of substantive appointment which is 1999, it can be observed that an employee will be considered member of a cadre from the date of his/her substantive appointment in the cadre after selection. Similarly it was held that even a person appointed on promotion shall not get seniority of any earlier year but shall get the seniority of the year in which his/her appointment is made. Therefore, in the present fact situation the respondent cannot claim promotion from the date of occurrence of the vacancy which is 1995-96 but can only get promotion and seniority from the time he has been substantively appointed i.e. from 1999. Likewise, the seniority also will be counted against the promotion/appointment in the cadre from the date of issuance of order of substantive appointment in the said cadre, i.e. from 19.11.1999. The same view was taken by the Honble Supreme Court in Suraj Prakash Gupta & Others Vs. State of J&K & Others reported in 2000 (7) SCC 561 wherein it was held as follows:-
Due to delay in making direct recruitment, ad hoc promotions made to the posts within the direct recruits quota, Direct recruits, after belated recruitment, replacing such ad hoc promotees. Even in such circumstances a direct recruit, held, could claim seniority only from the date of his regular appointment and not from the earlier date on which the post concerned had become available under the direct recruitment quota.
(ii) In State of Bihar and Others Vs. Akhouri Sachindra Nath and Others reported in 1991 Supp.(1) SCC 334 it was held as under:-
It is well settled that no person can be promoted with retrospective effect from a date when he was not borne in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service. In other words, seniority inter se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers. This being the position in law the respondents Nos. 6 to 23 cannot be made senior to the respondents Nos. 1 to 5 by the impugned government orders as they entered into the said service by promotion after the respondents Nos. 1 to 5 were directly recruited in the quota of direct recruits.
This principle was reiterated in Jagdish Ch. Patnaik Vs. State of Orissa reported in 1998 (4) SCC 456 wherein it was held as under:-
The High Courts view that vacancies arose in 1987-88 and, therefore, should be given retrospective effect has no force and import. The date on which vacancies arose cannot without more be made a basis for giving retrospective promotion and seniority. The Supreme Court has consistently held that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime.
Though these cases dealt with the promotees but underlying principle would apply to direct recruits as well.
(iii) In Keshav Chand Joshi and Others Vs. U.O.I. & Others reported in 1992 Supp (1) SCC 272 it was held as under:-
In order to become a member of the service the officer must hold the post of Assistant Conservator of Forests in substantive capacity, appointment to this post must be according to rules and within the quota. The membership to the service must be preceded by an order of appointment to the post validly made. Then only an employee can be a member of the service.
In view of above settled law, prayer of the applicant that his seniority should be counted from the date of year of vacancy is rejected.
71. At Annexure-6 of the written arguments was the Honble Apex Courts judgment in Pawan Pratap Singh and Others (supra), the operative portion of which has already been cited by us above and relied upon in the order in OA No.248/2012 dated 27.09.2012 in Pankaj Kumar Mishra & Ors. (supra).
72. At Annexure-7 of the written arguments was the Honble Apex Courts judgment in Uttaranchal Forest Rangers Assn (Direct Recruit) and Others (supra), the operative portion of which also has already been cited by us above in the order in same case in OA No.248/2012 dated 27.09.2012 in Pankaj Kumar Mishra & Ors. (supra).
73. At Annexure-8 of the written arguments was the Honble Apex Courts judgment in G.R. Luthra vs. Lt. Governor of Delhi and Others (1979) 4 SCC 406. That judgment concerned grant of seniority under the Next Below Rule in the case of Delhi Higher Judicial Service, and its ratio is not directly applicable to the facts of these cases.
74. At Annexure-9 of the written arguments was the Honble Apex Courts judgment in the case of Baldeo Prasad and Others vs. Akhouri Sachindra Nath and Others (supra), the operative portion of which also has already been cited and relied upon by the Coordinate Bench in its order in OA No.3191/2009 dated 30.09.2010, as reproduced above.
75. At Annexure-10 of the written arguments was the Honble Apex Courts judgment in the case of Jagdish Patnaik and Others (supra), the operative portion and ratio of which has also already been cited by the Coordinate Bench in the same order dated 30.09.2010 in OA No.3191/2009.
76. At Annexure-11 of the written arguments was the Honble Apex Courts judgment in the case of R. Jayarama & Others vs. State of Kerala and Ors. 2011 (128) FLR 338. That case was concerning direct recruitment to the post of Sub-Inspectors of Police in Kerala, in which the rank list was prepared on 05.06.1990, after the written test, physical test and interview, but the names of the appellants were not included in the rank list, as their names were not advised by the Public Service Commission. They had filed a Writ Petition, and a direction had been issued by the Honble Kerala High Court to report 28 vacancies for appointment of direct recruits. The claim of the appellants then was that they are entitled to count their seniority from the date of the advise of the Kerala State Public Service Commission dated 04.01.1993, and not from the date of the Government Order appointing them dated 17.06.1999. Their claim was rejected by the Honble Kerala High Court, which judgment was upheld by the Honble Apex Court, stating that seniority had to be reckoned on the basis of actual availability of the posts, against which the persons had joined such service. The Respondent No.3 in that case had been appointed in the meanwhile as an Assistant Sub Inspector in 1989 by way of direct recruitment, and had even been promoted as Sub Inspector in the year 1995. The Honble Kerala High Court had observed that while the appellants were working as Sub Inspectors, the Respondent No.3 was working under them as Assistant Sub Inspector, and had, therefore, gone on to hold that he cannot be placed above the appellants in the seniority list, which aspect was upheld by the Honble Apex Court. The learned counsel for the applicants before us had specifically relied upon the observation of the Honble Apex Court in Para-11 of this judgment to submit that the Public Service Commission, being a Constitutional body, must act in accordance with law, and cannot issue an order or notification extending the term of a dead list, for which it has no authority. It was further observed by the Honble Apex Court in Para-13 of the judgment that seniority had to be reckoned on the basis of the actual availability of the post against which appointments had been made. When we apply the ratio of this judgment of the Honble Apex Court in the instant cases, it is clear that the vacancy of 1995 had not survived, and had not been carried forward by the official respondents till the year 2005, and, therefore, the seniority of a person, who had been allowed to join only in 2005, when a post was somehow actually made available to him, to accommodate him, could not have been counted from the date when he had not even been issued an offer of appointment, and for some part of which period, till 1998, was still in service with another organization.
77. At Annexure-12 of the written arguments, the applicants had produced the Honble Apex Courts judgment in Secretary, State of Karnataka and Others vs. Uma Devi (3) and Others (2006) 4 SCC 1, in which in Para-43 the Constitution Bench of the Honble Apex Court has held that the High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional scheme. Merely because an employee had continued under cover of an order of Court, which had been described as 'litigious employment' in the earlier part of that very Apex Court judgment, he would not be entitled to any right to be absorbed or made permanent in the service. The deviations from the Constitutional Scheme for recruitments in the instant case have already been noted by us.
78. The learned counsel for the applicants had also relied upon the case in Amarjeet Singh and Others vs. Devi Ratan and Others (2010) 1 SCC 417, in which, giving effect to promotion with retrospective effect was commented upon by the Honble Apex Court in Para-27 in the following words:-
27. The law permits promotion with retrospective effect only in exceptional circumstances when there has been some legal impediment in making the promotions, like an intervention by the Court. An officer cannot be granted seniority prior to his birth in the cadre adversely affecting the seniority of other officer who had been appointed prior to him. "The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue" (vide Dr. S.P. Kapoor vs. State of Himachal Pradesh AIR 1981 SC 2181; Shitala Prasad Shukla vs. State of U.P. & Ors., AIR 1986 SC 1859; and Uttaranchal Forest Rangers' Assn. (Direct Recruit) & Ors. vs. State of U.P. & Ors., (2006) 10 SCC 346).
(Emphasis supplied).
79. The learned counsel for the applicants had also relied upon the Honble Allahabad High Court judgment in the case of Birendra Singh vs. State of U.P. and Others 2013 (4) AWC 3718, in which the Honble Allahabad High Court had held that when the action of declaring appointment of the petitioner was taken after 26 years, against a non-existent post, which action was found to be necessary in order to remove perpetuation of illegality and not merely irregularity, the petitioner was held to have been not entitled for payment of salary, and nor having any right to claim continuance of such non-existent post. The applicants before us can scarcely derive much benefit in regard to ante-dating of seniority of the Private Respondent from this judgment of the Honble Allahabad High Court, though it is fully supportive of their contentions against the very appointment offered to the Private Respondent.
80. During the arguments, learned counsel for the applicants had also relied upon Bhey Ram Sharma and Others vs. Haryana State Electricity Board and Others 1994 Supp (1) SCC 276 on the aspect of inter-se seniority of officers directly recruited, by the same process, at different times. The paragraphs 5,6,7 & 8 of that judgment may be reproduced by us here as follows:-
5. This Court has examined the question of fixation of seniority inter se between officers appointed from different sources i.e. by promotion and by process of direct recruitment. It is almost settled that while determining the inter se seniority amongst officer recruited from different sources or between officers appointed by the same process at different times, the date of entering in the service is relevant. A person who enters in the service first shall rank senior unless there is some Rule providing otherwise which can be held to be consistent with Arts. 14 and 16 of the Constitution. Reference in this connection may be made to the cases of N. K. Chauhan v. State of Gujarat, AIR 1977 SC 251, Paramjit Singh v. Ram Rakha Mal, AIR 1983 SC 314 A. Janardhana v. Union of India, AIR 1983 SC 769, A.N. Pathak v. to the Govt. Ministry of Defence, AIR 1987 SC 716. The same view was approved by a Constitution Bench of this Court in the case of Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra. (1990) 2 SCC-715 : (AIR 1990 SC 1607).
6. Once it is established that the appellants were appointed Assistant Engineers Class II on April 18, 1969 w.e.f. 1-1-1969, whereas the respondents had been appointed between October and December, 1968 as Assistant Engineers Class II, then the respondents shall rank senior to the appellants, as they entered in the cadre of Assistant Engineers Class II of the Board before the appellants. The High Court has rightly pointed out that in fact the appellants were appointed as Assistant Engineers Class 11 on April 18, 1969, but notional seniority was given to them with effect from January 1, 1969. In this process they cannot affect the seniority of even respondents Nos. 6, 16, 17 and 28.
7. According to the appellants, as in the advertisement aforesaid, it had been said that they had to undergo apprenticeship for a period of six months, after expiry of that period they should have been appointed as Assistant Engineers Class II. It was urged that if they had been appointed as Assistant Engineers Class II just after the expiry of the period of six months of apprenticeship, they would have ranked senior to the respondents. It need not be pointed out that the advertisement while saying that the candidate concerned will have to undergo apprenticeship for a period of six months had also said that he will have to undergo training for such period, as may be decided by the Board, which can be extended up to a maximum of three years. Even in the offer of appointment, referred to above, it had been said in clear and unambiguous terms that the candidate will have to undergo apprenticeship for a period of one year or such period as may be decided by the Board. We fail to appreciate as to show the appellants while challenging the seniority list can make a grievance in respect of the period of apprenticeship which was specifically mentioned in the advertisement and in the offer of appointment. According to us, if the appellants were required to undergo apprenticeship for a period exceeding six months, no injustice has been done to them and that cannot be a ground for questioning the seniority list.
8. On behalf of the appellants, it was also pointed out that in past in respect of some of the candidates, the period of apprenticeships was for six months only. That is of no consequence when in the advertisement as well as in the offer of appointment with which we are concerned, it had been clearly stated that such period of six months could be extended up to maximum of three years. Accordingly, the appeals fail. But in the facts and circumstances of the case, there shall be no orders as to costs.
Appeal dismissed.
(Emphasis supplied).
81. The distillate of the ratio as emerges from the above cited judgment is that even any notional advancement/preponement of the date of appointment of a person, who was selected earlier, but had, for more reasons, joined later, cannot change the seniority position, the benefit of which judgment would accrue to the applicants of these cases.
82. The applicants had also produced the judgment of Patna Bench of this Tribunal in Arun Prasad vs. Union of India and Others (1991) 18 ATC 875 in which in Para-6 and Para-10, a Coordinate Bench had held as follows:-
6. In the impugned order, objections were invited from persons adversely affected by the order. The applicant had represented without any result. What is clear is that before distributing his seniority, he was not given an opportunity of being heard. He was not asked to show cause why his seniority vis-a-vis the 6th respondent be not changed. Inviting objections after the impugned order was issued, does not amount to allowing an opportunity before the decision was taken and before the impugned order was passed. Therefore, the impugned order violates the principle of natural justice. The seniority of the applicant vis-`-vis the 6th respondent was disturbed after a period of 8 years. The impugned order has unsettled the settled position after a lapse of 8 years and that too without hearing the applicant. The impugned order, therefore, is fit to be quashed on this ground alone.
7 to 9.xxxxxxxx(Not reproduced here)
10. The length of service is the main criterion for determining inter se seniority of employees in any organization. This principle has been recognized by the Supreme Court in a series of decisions. We may in this connection refer to a decision of the Supreme Court in A.N. Pathak v. Secretary to the Government of India. The facts were slightly different but the principle enunciated in the decision seems to apply to the facts of the case. In that case appointments were made by direct recruitment as well as by promotion. There used to be undue delay in the appointment, though the method of direct recruitment. But once a candidate was appointed through direct recruitment, he was shown senior to the promoted officers. The posts to be filled up by direct recruitment were kept vacant and as and when appointments were made the name of the direct recruits were inserted at the place reserved, regardless of the fact that there were many other promoted officers who had put in more years of service than the direct recruits. The promoted officer took the matter to the Supreme Court. The Supreme Court stated in paragraph 14 of the order as under:-
The rules enabling the authorities to fill in vacancies for direct recruits as and when recruitment is made and thereby destroying the chances of promotion to those who are already in service cannot but be viewed with disfavour. If the authorities want to adhere to the rules strictly, all that is necessary is to be prompt in making the direct recruitment. Delay in making appointments by direct recruitment should not visit the promotees with adverse consequences denying them the benefits of their service In the present case also there was inordinate delay in offering appointments to the 6th respondent but on that account the applicant cannot be made to suffer. It was open to the second respondent to appoint the 6th respondent earlier that the applicant. This was not done. He was appointed three years later than the date of appointment of the applicant. The applicant cannot be made to lose his seniority on account of the fact that the 6th respondent though selected earlier was appointed after three years.
(Emphasis supplied).
83. The official respondents had filed the Honble Apex Court judgments in D.C.S. Negi vs. Union of India & ors. SLP (C) No.7956/2011 (CC No.3709/2011) decided on 11.04.2008, and in Union of India and Others vs. M.K. Sarkar (2010) 2 SCC 59, to try to submit that these four OAs concerned were filed belatedly, and delay aspect ought to be considered. The aspect of delay has been considered in these four OAs by four different Benches before notices were ordered to be issued, and before filing Transfer Petitions before the Honble Chairman. We are also not convinced by any of the arguments of the official respondents on the aspect of delay.
84. The learned counsel for the Private Respondent had very valiantly defended the case of the Private Respondent, but without commenting on the whereabouts of the Private Respondent in between the year 1995 to 2005, from 13.03.1995 to 09.10.2005. He had submitted that his client has been made to suffer because of in decision on the part of the official respondents in not having taken a decision in time for issuance of a letter of appointment. He had submitted that after the termination of his services from KPT in 1998, with the minor penalty of a fine of Rs.20,000/- in one of the disciplinary proceedings against him, and exoneration from the charges in the second disciplinary proceedings against him, the Private Respondent had remained unemployed and had remained waiting at his residence at Chennai from 1995 to 2005, for issuance of the letter of offer of appointment by the official respondents, which they had unnecessarily delayed.
85. He had submitted that great injustice had been done to the Private Respondent by the official respondents by not processing the case properly, and tossing the file regarding issuance of appointment letter to him between the CSD and Ministry of Defence and the DoP&T, and by not issuing the letter of appointment to him in time even after receiving favourable comments from both the DoP&T as well as from the UPSC. He had denied that there was any irregularity in the issuance of the offer of appointment to the Private Respondent for the post of Manager Grade-I, which he had joined on 10.10.2005, and also that there was no irregularity in the official respondents having provided him antedated seniority, according to his merit position in the Select List prepared by the UPSC in the year 1995.
86. In regard to the aspect of seniority, the learned counsel for the Private Respondent had relied upon three cases. He submitted that in Surendra Narain Singh and Others vs. State of Bihar and Others (1998) 5 SCC 246, it was clearly held in the case of Bihar Judicial Service (Recruitment) Rules, 1955, that candidates recruited against earlier vacancies had to rank senior to those recruited against later vacancies, and when appointment is delayed, the candidates cannot be allowed to suffer for no fault of theirs, and are eligible for grant of seniority. This is a case, which arose from the Bihar Judicial Service (Recruitment) Rules, 1955, in which controversy had arisen in regard to carry forward of reserved points in the reservation roster.
87. We have gone through that judgment carefully, and have found that the facts of that case are not on all fours with the facts of the present cases before us, and that in this decided case, it was a case of recruitment by two modes having proceeding side by side, which had led to the persons recruited through one of the modes joining earlier than the persons recruited to the judicial service against earlier vacancies. That is not the case before us, and, therefore, no benefit can be allowed to accrue to Private Respondent out of the ratio of this cited judgment.
88. Learned counsel for the Private Respondent had also relied upon Honble Apex Courts judgment in Balwant Singh Narwal and Others vs. State of Haryana and Others (2008) 7 SCC 728, in which case a merit list of 30 candidates was published by the Haryana Public Service Commission on 01.10.1993, for 1992-1993, but the process of appointments thereafter was halted, after making first 16 appointments on 02.06.1994, due to intervening litigation, and the process then recommenced on 26.05.2000, when the matter finally got decided by the Honble Apex Court, upholding the validity of entire original list of 30 candidates. It had so happened that in the meanwhile, against the vacancies of subsequent years, the appellants had been appointed during the period from 1995 to 2000. Since the seniority of the remaining 14 persons, who could not be appointed after 02.06.1994 due to intervening Court cases was getting affected only on account of pendency of the Court cases, and since the Honble Apex Court had ultimately upheld the original merit list of 30 candidates, the Honble Apex Court had protected the seniority of those 14 persons, by placing them immediately below the 16 candidates, who had already been appointed on 02.06.1994 against the original merit list, and it was held that the appellants, who had been appointed in the interregnum period from 1995 to 2000 could not make any valid objection to protection of the seniority of the 14 Private Respondents. The learned counsel had relied upon Para-7 & 9 of the judgment in particular, which state as follows:-
7. The High Court rejected the writ petition by the impugned order dated 5.10.2004. 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 were beyond their control; that but for the decision rendered by the learned Single Judge on 4.4.1994 declaring selections beyond 18 to be illegal, they would have been appointed on 2.6.1994 when the other candidates from the said merit list were appointed; and that therefore, the State Government was justified in giving respondents 4 to 16 benefit of notional seniority with effect from 2.6.1994 and placing them above the appellants who were appointed against subsequent vacancies/advertisements.
8.xxxxx(Not reproduced here)
9. 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.
89. However, that case also was not on all fours with the instant four cases before us, because the Private Respondent before us could not have joined in the year 1995, since he was not relieved by his the then employer, the KPT, at least 05.07.1998, when he was still in service with KPT, and, thereafter, there was no pendency of any Court cases etc. which may have prevented his joining duties thereafter. It is only because the verification of documents and issuance of Integrity Certificate, which was ultimately waived, could not take place, that the Private Respondent was not issued an offer of appointment, and was not able to join till 2005. Therefore, it is clear that the instant case is not on all fours with the judgment of the Honble Apex Court in Balwant Singh Narwal (supra), and the Private Respondent cannot claim any benefit from the ratio of that judgment also.
90. The 3rd judgment relied upon by the learned counsel for the Private Respondent was in the case of Dr. M.S. Mudhol and Another vs. S.D. Halegkar and Others (1993) 3 SCC 591. In that case, the Selection Committee had wrongly selected the respondent to the post of Principal of a private aided school, even when it had been disclosed that he did not possess the required qualifications, and the Director of Education had thereafter acquiesced in the appointment, and the respondent had continued in the post for 9 years till the filing of the Writ Petition, and was still continuing even up to 12 years. When the Honble Apex Court decided the case, it was held that his appointment need not be disturbed at this late stage, and the question as to whether the writ of quo warranto would lie need not be considered. The judgment in that case had turned upon the concepts of acquiescence and equity, and because the Honble Apex Court had noticed that the infraction of the statutory Rules regarding the qualification of the incumbent was also not very grave, taking into consideration all the other relevant facts, his appointment was not disturbed or struck down.
91. We find that the benefit of this cited judgment of the Honble Apex Court would not also enure to the Private Respondent, because this Tribunal has very limited powers to decide judgments on the basis of equity, and to do complete justice, like only the Honble Apex Court can do, in exercise of its unlimited powers under Article 142 of the Constitution of India.
FINDINGS & CONCLUSIONS
92. Summing up, in regard to the facts of these four cases, the following points may be noted and noticed by us:-
a) The Private Respondent had been unauthorizedly absent from his service with his previous employer KPT from 13.03.1995, even during the pendency of two disciplinary enquiries relating to two Charge-Sheets issued against him, and even before the Select Panel dated 25.04.1995 was communicated by the UPSC to the user department Ministry of Defence, including his name at Sl. No.2 therein.
b) Strictly speaking, due to his unauthorized absence from 13.03.1995, without proper sanction of leave from KPT, even during the pendency of two disciplinary enquiries, which were still going on against him, the applicant had rendered himself ineligible for being included in the Select Panel of UPSC dated 25.04.1995.
c) Even the communication of the Select Panel by the UPSC dated 25.04.1995, including the name of the applicant at Sl. No.2 therein, was not unqualified. Two Tables had been made, and, as already mentioned above, in Table-B it was mentioned that the candidature of 1,2,3,5 & 7, including the Private Respondent at Sl. No.2, their original certificates need to be verified, including the caste certificates and the qualification certificates etc. It is trite law that till the verification of such original certificates, no right can be deemed to have accrued in favour of any of those five persons 1,2,3,5 & 7 for employment against the recommended Select Panel through Table-A, as long as the requirements as indicated against their names by the UPSC in Table-B of their letter had been fully met and complied with.
d) It is obvious that these requirements were complied with and the original certificates verified in respect of four others, those at Sl. No. 1,3,5 & 7 of Table-A, as indicated in Table-B of the UPSCs recommendations, except in the case of the Private Respondent at Sl. No.2, because 9 out of the 10 persons recommended by the UPSC, and whose result was published in the Newspaper also as mentioned above, had joined their services.
e) The requirement of such verification of qualifications and eligibility criteria, including caste certificate, could not have been verified and fulfilled at that time in the case of the Private Respondent, since he was already unauthorizedly absent from KPT from 13.03.1995 onwards, much before the issuance of this Advice Letter and Select Panel by the UPSC dated 25.04.1995.
f) The opinion of DoP&T as given on the first occasion that charges against the Private Respondent were grave in nature, which if proved during disciplinary enquiry may lead to his being rendered unsuitable for any further appointment under the Government, was correct, as the charges included the Private Respondent not having completed the disciplinary enquiries entrusted to him, and having absconded/absented himself without proper sanction of leave, without handing over the disciplinary enquiry records in respect of the enquiries entrusted to him, which was one of the most serious charges against him.
g) Even the other charges, as has been seen, were serious, enough including the charge of making baseless allegations against other persons.
h) While the first Charge-Sheet resulted only in imposition of a fine of Rs.20,000/- against him, the second Charge-Sheet including 5 or 6 serious charges against the Private Respondent had to be per-force ended in acquittal, since the delinquent person himself was unauthorizedly absent, and was not available after 13.03.1995 for the KPT to conclude the disciplinary enquiry, and the KPT did not follow the procedure of holding the disciplinary enquiry against him in absentia, as is permitted under the Rules, and which procedure they could have easily followed.
i) Even the termination of employment of the Private Respondent with KPT was only a deemed termination, effective from 05.07.1998, only because he was just not available to the KPT authorities to even personally serve the notice of termination of his appointment upon him.
j) The fact that the Private Respondent had deserted his place of appointment at Kandla under KPT, and was rather living in Chennai, is exemplified from the fact that he had sent a reminder about the status of appointment with CSD from Chennai address through letter dated 09.12.1997. The official respondents also sent a reply dated 29.12.1997 directly to him at his Chennai address, without routing it through his the then employer KPT, from which his termination of appointment has not yet become effective in the year 1997, and was given effect to only 05.07.1998.
k) The applicants of these four OAs are very right in suspecting as to how the file regarding issuance of letter of offer of appointment to the Private Respondent could be revived again and again, over a period of 10 years, and even the requirement of Integrity Certificate from his previous employer could be so easily waived, and even no questions were asked as to what employment or avocation the Private Respondent was having in the long period of 10 years, from 13.03.1995, when he absented himself from KPT from Kandla, and went to settle down in Chennai, and even entered into correspondence with the Respondent Department from Chennai, and the police verification has also been done only from Chennai, and not from Kandla, and even the waiver of the requirement of Integrity Certificate was done in order to go out of the way to issue him an offer of appointment.
l) The UPSC reply dated 27.12.1994 (as already reproduced above) was evasive, and only half-correct, and even though it stated that the Select Panel remains valid unless there is a Rule or stipulation regarding the period of validity, but it failed to mention the other half of the truth that it is trite law that a previous Select Panel has to lapse automatically when, pursuant to a further subsequent process of similar selection for the same post, a new Select Panel is formed for the posts remaining to be filled up. The UPSCs reply was also misleading in the sense that it did not specify as to how the character of the 1995 Select Panel would have undergone a change when subsequent thereto, the remaining posts as available were notified seven times and numerous persons had been selected on almost yearly basis against the identified vacancies. This aspect was not taken into consideration properly in the departmental file also.
m) Further, the fact remains that no orders were ever passed, either by the UPSC, or by the Respondent-Department CSD, or by the Ministry of Defence, renewing from time to time the life of the UPSC Select Panel dated 25.04.1995, and, thereby, keeping the 10th post of 1995, against which the selection of Private Respondent had been made, as vacant, since the issuance of a letter of offer of appointment to the Private Respondent was still under consideration by them.
93. We have also examined the further available case law regarding this. In the case of Nagar Mahapalika, Kanpur vs. Vinod Kumar Srivastava AIR 1987 SC 847; 1987 (1) SCC 602 in the context of Select List, the Honble Apex Court has held that the words list which is pending can only mean a list which has current force. It had further observed that it could never be the intention of the Government that the Select Lists prepared in the earlier years, irrespective of the interval of time, should be treated as pending lists, and all the candidates included in those lists should be given employment, before fresh lists of eligible candidates are prepared. In the instant case, we have already seen that the official respondents had not treated the UPSC Select List of 1995 as a list which is pending, and had gone ahead to make recruitments to the vacancies which had arisen later in the same post, in subsequent years, and even up to the year 2001 itself, 7 more persons had been appointed, 3 of whom are the applicants of OAs No.3408/2012, 3409/2012 & 3410/2012 before us. Therefore, the applicants are entitled to the benefit of the ratio of this case.
94. In the case of State of Orissa vs. Rabindra Kumar Rath 2001 (10) JT 415, the Honble Apex Court had clearly held that a Select List is in operation only for a period of one year, unless it is extended in accordance with law. In that case the Honble Apex Court had found that there is nothing to show that the Select List, which was prepared in 1992, was ever extended beyond the period of one year, and that, therefore, the Honble Apex Court had gone ahead to hold that in the year 1997, no relief could be granted to the respondents before it in respect of Selection List of the year 1992.
95. In the instant case also we find that neither the Ministry of Defence has requested the UPSC, nor the UPSC has suo moto passed any order extending the validity of the Select List prepared by it in the year 1995, and as per the law as laid down by the Honble Apex Court, the UPSC Select List dated 25.04.1995 had expired on 25.04.1996, in the absence of any specific orders extending the life of the Select List.
96. The Private Respondent was never issued an offer of appointment for 10 years against his selection in the Select List year 1995. His name was included at Sl. No.2 in that list, but since he was under a cloud in his the then parent organization, KPT, no letter of appointment could ever have been issued to him.
97. In the case of Punjab State Electricity Board vs. Malkiat Singh, AIR 2004 SC 506; 2004 (9) SCC 22, the Honble Apex Court has held that mere inclusion of the name of a candidate in Select List does not to confer any vested right on him for appointment. Therefore, on the one hand, the Private Respondent No.R-4 had never come to acquire any vested right to be appointed to the post, as per the Select List of 1995, till his exoneration and dismissal from service in 1998 by the KPT, and before such an exoneration and his dismissal took place in 1998, the Select List itself had expired after one year, in the absence of any formal extension of the said Select List. It is, therefore, very strange that the official respondents had treated the Select List to be still pending, and continued to treat it to be so for a decade, and could issue, on the basis of that expired/lapsed Select List, an offer of appointment to the Private Respondent No.R-4, a decade later, in the year 2005.
98. On the specific point of extension of period of validity, of a Select List, in a case arising from Kerala Public Service Commission in K. Thulaseedharan vs. Kerala State Public Service Commission, Trivandrum 2007 (6) SCC 190, it was held by the Honble Apex Court that the Public Service Commission is a Constitutional body, and it is expected to act even handedly, and strictly in accordance with law. The Honble Apex Court noted that when the 5th proviso to Rule 13 of the Rules of Kerala Public Service Commission gives it only a power to extend the validity of Select Lists for the periods referred to therein, and only in the circumstances indicated therein, it only has the power to keep alive a rank list, which is still current on the day the decision is taken, and even the Public Service Commission cannot revive and thereafter keep alive a rank list which had already expired.
99. In the instant case before us also, the UPSC has never even been requested by the official respondents-Ministry of Defence and CSD to keep alive the 1995 Select Panel, and, therefore, as held by the Honble Apex Court in K. Thulaseedharan vs. Kerala State Public Service Commission, Trivandrum (supra), neither the Government nor the Public Service Commission had any power to revive a dead list, and all that the UPSC could have done is to keep the Select List alive for a further period, if such a decision had been taken on a day when that Select List was still alive, and had not yet expired, i.e. before 25.04.1996.
100. Further, on the point of delay in appointment flowing from a rank list, in the case of Deepa Keyes vs. Kerala State Electricity Board 2007 (6) SCC 194, the Honble Apex Court had held that the rank list published on 24.01.2001 was liable to expire in that case after a 3 years period on 24.01.2004, as provided for in the relevant Rules. However, on 19.11.2003 the Public Service Commission had taken a decision to further extend the validity of the list up to 04.02.2004. Noting that the power to keep alive the Select List was exercised by the Public Service Commission in time, the Honble Apex Court had gone on to still hold that such power was not properly exercised, in that such extension was not done in terms of the Rules, whereunder the Commission had power to keep alive the rank list which had expired only for such periods, as had been decided by the Commission, subject to a minimum period of three months, or for such further periods, not exceeding one year in the aggregate. It was held by the Honble Apex Court that when the validity of the select list was not properly extended, and three years have gone by after it was prepared, it would not be proper to grant relief to the appellant in the Writ Petition, even if it is otherwise possible.
101. In the instant case also, the official respondents have not only issued an offer of appointment to the Private Respondent, a decade after his name was included in the 1995 Select List, but they have also given him benefit of appointment with ante-dated and retrospective effect, from 1995, even counting the period of his continued previous employment with KPT till 1998 to be eligible for his seniority in CSD, which is obviously wrong and illegal !!
102. In the case of Rajendra Singh vs. Jagdish Prasad AIR 1984 SC 885, Rajendra Narain Singh vs. State of Bihar AIR 1980 SC 1246, S.B. Patwardhan and Another vs. State of Maharashtra and others AIR 1997 SC 2051, and R.N. Nanjundappa vs. Thimmiah (1972) 2 SCR 799, it was held that appointment with retrospective effect, affecting the seniority of others, is violative of Articles 14 & 16 of the Constitution of India, which is exactly what has happened in this case, where seniority of the persons selected in the interregnum period from 1996 to 2005 has been affected because of retrospective effect having been given to the seniority upon belated appointment of the Private Respondent.
103. This aspect was further reiterated by the Honble Apex Court in S.K. Saha vs. Prem Prakash Agarwal AIR 1994 SC 745; 1994 (1) SCC 431, in which it was held by the Honble Apex Court that it has repeatedly struck down and decried any attempt on the part of the appointing authorities to give a notional seniority from a retrospective date, especially when this process affects the seniority of those who have already entered into the service, in the meanwhile. Thus, the issue regarding appointment of Private Respondent, with a delay of a decade, from a Select Panel which had lapsed 9 years back, would also be hit by the observations of the Honble Apex Court in R.N. Nanjundappa vs. Thimmiah (supra), in which it was held that if the appointment itself is in infraction of the Rules, it is in violation of the provisions of the Constitution, as an illegality, which cannot be regularized.
104. The Rules only provide for extension of joining time after issuance of letter of appointment. In this case, since the offer of appointment itself had not been issued to the Private Respondent, there was no question of the official respondents giving him extension of joining time. The benefit of such a provision could have been made available to him only if the offer of appointment had been issued to him in the year 1995-1996 itself, along with the 9 other selectees along with him, and, thereafter, the Private Respondent may have sought extension of joining time, till his being properly relieved from KPT. Here, the Private Respondent was on the Rolls of KPT itself till 1998, which aspect has been completely overlooked by the Official Respondents R-1 to R-3 while granting him retrospective seniority in CSD with effect from 1995, as if he was working in two Government establishments for 3 years.
105. In the case of Haryana Vidyut Prasaran Nigam vs. Mukesh Kumar 2004 (13) SCC 596, the Honble Apex Court had examined the implications, and effect of extension of joining time, and had held that extension of time for joining on request of appointee had been given twice, but the appointee still did not join, and his having approached to join after three months, on a plea of delay of a few days in receipt by him of the extension letter, and no steps having been taken by the appointee to ascertain as to what had happened in respect of extension of time for his joining, the rejection of any further extension of time for joining was justified.
106. Nothing has been brought on record in the file submitted for our perusal to show that the 10th vacancy of 1995 had not been included in the vacancies subsequently notified for selection by the UPSC, against which subsequent selections had taken place. Therefore, there appears to be merit in the submissions of the applicants of these four OAs that there was no post or vacancy, which was available, or which was kept reserved for the purpose of the Private Respondent, in order that the panel of 1995 could be operated in the year 2005.
107. The clarification given by the DoP&T was correct, but was a half truth. That clarification did not take into account that seniority of a direct recruit has to be fixed in accordance with the date of issuance of his offer of appointment, and had overlooked the fact that in respect of the 25.04.1995 Select List panel recommended by UPSC, the offer of appointment had been issued only in respect of 09 of those 10 candidates, and, his having missed issuance of offer of appointment, because of his unauthorized absence from KPT, and non- verification of the documents in time as per the list provided by the UPSC in Table-B of their recommendation dated 25.04.1995, the candidature of the Private Respondent could not at all have been kept alive even for issuance of an offer of appointment.
108. The Private Respondent also has resorted to a stony silence in regard to his whereabouts, and the status of his employment or avocation from 13.03.1995 to 09.10.2005, when initially for more than three years he was unauthorizedly absent from KPT, and later on he was just awaiting the issuance of letter of appointment by the CSD, before he joined CSD on 10.10.2005. It may well neigh be possible that the Private Respondent may have been in the meanwhile doing a private job, may have been without any job whatsoever, or may have taken some private employment with the private sector, and may have even taken up employment with another Public Sector Enterprise of Central or State Government in Chennai, or elsewhere in Tamil Nadu, the details in regard to which he has not submitted and enclosed. Since the Private Respondent has not come with clean hands before this Tribunal, we find it very strange that the official respondents could decide to provide him even ante-dated seniority on the basis of his past placement in the UPSC Select List dated 25.04.1995, even though neither he had got his original documents verified, nor had he been issued an offer of appointment, nor had he ever even sought for extension of time period of joining such employment, nor had he even disclosed as to what he has been upto in the nearly 10 = years period from 13.03.1995 to 09.10.2005.
109. Even if the half truth clarification of DoP&T is stretched to the limit, even though his name could be deemed to be continued to be included in the UPSC Select List, the Private Respondent could have joined the Respondent Department, CSD, only after 05.07.1998, after his services were discharged from the KPT. Therefore, by no stretch of imagination, he can be given ante-dated seniority on the basis of his Select List Panel position of 1995, when he was neither relieved by his previous organization, nor were his original documents verified for the purpose of employment, nor was any 10th post kept vacant for the whole decade, all through, carrying forward the vacancy position of the year 1995. As already cited above, the Honble Apex Court has observed in a number of cases that nobody can be assigned seniority in a cadre when he has not yet been borne on the strength of the cadre, as was held in the case of Uttaranchal Forest Rangers Assn (Direct Recruit) and Others (supra) and in State of Uttaranchal & Anr. v. Dinesh Kumar Sharma (supra). Therefore, the Private Respondent could not have laid any claim to any ante-dated seniority, and his claim for seniority could have only commenced from the date of his actually joining in the Respondent department, CSD, on 10.10.2005.
110. This Tribunal is bound within the parameters of Acts, Rules and Regulations, and has to interpret the fact situations within the parameters of the Constitution, Acts, Rules, Regulations and Subordinate Legislation, to decide Service Law matters. The scope for this Tribunal to decide matters on equity thus being very limited, it can be extended in the instant case only to the extent that since the Private Respondent was ultimately allowed to join duty with the Respondent department on 10.10.2005, in spite of all the findings arrived at and observations made by us as to how such an appointment could not have been issued to him, on equity, we clarify that those observations are by way of obiter dicta only, and would not affect the appointment of Private Respondent w.e.f. 10.10.2005 in Manager Grade-I. This is all the more so necessary to be clarified because even though applicants in all the four OAs have raised the issue regarding the illegality in the appointment of the Private Respondent w.e.f 10.10.2005, but in none of the four OAs, any of the prayers made, has made a proper prayer for the appointment of the Private Respondent itself to be cancelled. We can only decide upon the reliefs as have been prayed for by the applicants before us. Therefore, on the basis of equity, we also will not issue any directions in regard to the legality of appointment of the Private Respondent as Manager Grade-I w.e.f. 10.10.2005.
111. However, as has already been discussed in the case law cited above, by no stretch of imagination can the official respondents grant seniority to the Private Respondent in respect of the year 1995, since he was in employment with the KPT till the date of his removal from service with KPT on 05.07.1998.
112. The issue would then be as to whether he can be granted antedated seniority from 1998 onwards or not. But the fact remains that the Private Respondent does not have any locus standi to claim antedated seniority even from the year 1998 onwards, since he was never issued a letter of appointment, and was never called upon for verification of his original documents, qualifications and certificates. Even his police verification was only received from Chennai, and no police verification was got done from Kandla, where he had served with KPT from 1989 to 1998, and even the requirement of an Integrity Certificate being obtained from his only known previous employer, KPT, in respect of his employment there from 1989 to 1998, had been waived off in the year 2005. Therefore, it is held that the Private Respondent can only be allowed to claim his seniority with effect from the date of his actually joining service with the Respondent Department on 10.10.2005, and not from any date prior to that.
113. In the result, all the four Original Applications are allowed to the extent as above, subject to the above observations, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.