Andhra HC (Pre-Telangana)
Union Of India And Another vs P.V. Subba Rao And Others on 14 August, 2001
Equivalent citations: 2001(5)ALD717
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT V.V.S. Rao, J.
1. Respondent No.1 is Deputy Chief Engineer (General) in the Office of the Chief Engineer, South Central Railway, Secunderabad. He joined in Railway Service in Group-C on 11-11-1964. By 1979 he was selected as Assistant Engineer Group-B through a limited departmental examination. Later he came to be promoted to Senior Time Scale (STS) Group-B on 29-6-1987. Next promotion of Officers of STS Group-B is to Indian Railway Service (IRSE), which is a selection post. Respondent No.1 became eligible for the post of IRSE Junior Scale (JS) Group-A by 27-10-1982 after completion of three years in STS Group-A. However, he could not be considered as he fell out of zone of consideration. By 1989 his seniority in Service of STS Group-B moved up and he allegedly came within the zone of consideration. As per the rules and procedure of Railways a Departmental Promotional Committee (DPC) has to consider all the eligible candidates who are within the zone of consideration and recommend for promotion to IRSE. It is admitted that the DPC was not constituted from 1988-91. Be it, however, noted that though the DPC was constituted in 1991 in relation to vacancies of 1988, the respondent No. 1 was not in the zone of consideration. In December, 1992 he was considered by the DPC and promoted as Deputy Chief Engineer (JS) Group-A in IRSE with effect from 24-12-1992.
2. The petitioner was given five years weightage from the date of his promotion i.e., 24-12-1992 in accordance with the principles laid down for fixation of seniority. He was fixed in the seniority list below three directly recruited officers who were respondents 3 to 5 before the Central Administrative Tribunal and who were recruited against the vacancies, which arose prior to 1989. Aggrieved by such action, respondent No. 1 filed an original application being OA No.495 of 1997 under Section 19 of the Administrative Tribunals Act, 1985 ('the Act' for brevity). He prayed for quashing the letter of the Railway Board-respondent No.l dated 8-12-1995 in which the seniority of un-official respondent Nos.3 to 5 was fixed from the date of initial time scale (DOITS) in 1984. He also prayed for a direction to the petitioner to refix his DOITS in 1984 counting weightage of five years from the year of vacancy. The Tribunal disposed of the OA directing the petitioner to dispose of the representation dated 22-7-1996 made by respondent No.1. The representation was duly disposed of by letter dated 3-10-1997. Aggrieved by the same, respondent No.1 again filed OA No.590 of 1998 before the Central Tribunal praying to quash the Railway Board's letter dated 8-12-1995 wherein his seniority was fixed with effect from 24-12-1987 and for quashing the tetter dated 4-10-1997 of the Secretary, Railway Board, which was the basis for passing the order on 3-10-1997 by respondent No.2, rejecting the representation made by the first respondent on 22-7-1996. The learned Tribunal allowed the OA in the following terms :
In view of what is stated above, we have no hesitation to come to the conclusion that the applicant should be shown as having been promoted to the Group 'A' Service in the vacancies that arose for promotion from Group 'B' to Group 'A' service in the year 1989. On that basis he should also be given antedated seniority in accordance with the principles laid down by order dated 30-11-1976. The applicant is also entitled for other consequential benefits arising out of that seniority.
3. While doing so the Tribunal also placed reliance on the judgment of the Central Administrative Tribunal, Bombay Bench in CP No.5 of 1991 in OA No.177 of 1986 dated 20-9-1991 wherein it was observed that the delay in holding DPC shall not deprive the claim of the incumbent for seniority and date of time scale anterior to the date of promotion.
4. Sri Gouri Shankar Sanghi, learned Counsel for the petitioners submits that allowing promotion to respondent No.1 in Group-A (JS) of IRSE prior to 1989 is in contravention of the principles of the Government of India approved by the President of India. If the principle laid down by the Tribunal is allowed to stand whenever there is delay in constitution of DPC, the subsequent promotions in accordance with the recommendations of DPC, would have to be dated back which would result in violation of Articles 14 and 16 of the Constitution of India. He also submits that the view taken by the Tribunal is contrary to the principles laid down by the Supreme Court in State of Bihar v. Baleshwar Sharma, , State of Bihar v. Kameshwar Prasad Singh, 2000 (4) Supreme 197, T.N. Administrative Service Officers Association v. Union of India, , Maharashtra Vikrikar Karamchari Sangathan v. State of Maharashtra, 2000 (1) Supreme 225, Union of India v. L.T. General Rajendra Singh Kadyan, and M.K. Shanmugam v. Union of India, 2000 (4) Supreme 710.
5. The learned Counsel for the respondent No.l Sri C.V. Mohan Reddy submits that though respondent No.l was eligible for promotion to Group-A even in 1982 his case could not be considered as he was not within the zone of consideration. Though there were vacancies in 1989 the petitioners did not hold DPC in relation to the vacancies whiclx arose in 1989 and respondent No.1 was only considered in 1992, and therefore, the petitioners are bound to give weightage of five years and refix the DOITS five years anterior to 1989 i.e., 1984. He also submits that when the Railway Administration is required to fill up vacancies in the ratio of 60:40 by direct recruitment and by promotion filling up vacancies from only one source is against rules and cannot be sustained. As respondent Nos.3 to 5 were directly recruited in the examination years 1983, 1985 and 1984 respectively. If the first respondent is not given weightage of five years to be reckoned from 1989, he would become junior to 1984 direct recruits which violates the fundamental right under Article 16 of the Constitution of India. As the petitioners held DPC in December, 1992 for the examination years of 1989, 1990 and 1991 and made separate panels for three years, the petitioners are bound to give weightage of five years from 1989, the examination year and not from the date of promotion as otherwise, respondent No. 1 would stand to loose three years of seniority. He also further submits that those officers who are promoted for the examination years of 1991 in view of the fact that there is only one year delay in conducting DPC, they would lose only year's seniority, and therefore, respondent No. 1 meted out with discrimination. He also submits that the petitioners have not followed the principles of determination of seniority vide Board's letter dated 30-11-1976, and therefore, the Tribunal was justified in allowing the OA. He placed strong reliance on the judgments of the Supreme Court in A.K. Nigam v. Sunil Misra, 1994 (4) SLR 20 (SC), Devendra Narayan Singh v. State of Bihar, , Union of India v. Vipinchandra Hiralal Shah, 1997 (1) SLJ 69, Union of India v. N.R. Banerjee, 1997 SCC (L&S) 1194 and H.S. Grewal v. Union of India, 1998(1) SLJ 259.
6. In the light of the rival contentions presented before us, the point that arises for consideration is whether the first respondent is entitled for weightage from the date of appointment to JS of Group-A of IRSE with effect from 24-12-1992 or is he entitled for such weightage anterior to the year of allotment i.e., 19-8-1997.
7. It is one of the principles of fixation of seniority that whenever there is recruitment to a particular service from two sources i.e., direct recruitment and promotion the seniority of promotees is fixed by giving wcightage in the form of seniority in the service subject to certain conditions. Weightage principle is generally applied also in a situation when persons in a feeder category come from two different lower categories and are required to fulfil two different kinds of eligibility criteria weightage of service means that though a promotee is given promotion to a cadre post or higher post in the non-cadre post, his seniority will be reckoned from a date anterior to the date of promotion, because in every year of recruitment, the rule obligates to maintain the ratio of recruitment between direct recruits and promotees. This is done to maintain the efficiency of service as well as to balance the competing interests. The weightage principle generally contemplates considering the service rendered in the cadre from which the promotion is given or for officiating service rendered on promotion prior to substantive appointment. Cases have come up with regularity where the question mostly involved the application of the rules than the vires of the rules. Further, cases involving weightage principle in fixing the seniority are by and large arose in relation to All India Services like Indian Administrative Service, Indian Police Service, Indian Forest Service etc. It also arose in relation to fixation of seniority of service holders who came to hold such post from two different sources. The principle of giving weightage has been held to be not unreasonable in Anand Prakash Saksena v. Union of India, and State of A.P. v. K.S. Muralidhar, .
8. The question however before this Court is not as to the validity of the principle of weightage in fixation of seniority, but only as to how such weightage is to be reckoned. Therefore, it is necessary to examine the controversy in a nutshell and the purport of the various Railway Board Orders as approved by the President of India.
9. It is not denied before us that respondent No. 1 was promoted in a vacancy earmarked for promotees with reference to 1989. It is also not denied before us that till 1991 respondent No.1 did not come up within the zone of consideration though he became eligible for being promoted to JS Group-A of IRSE cadre October, 1982. Further, a perusal of the order impugned before the Tribunal dated 8-12-1995 shows that by virtue of notification No.E (GP)92/ 1/49 dated 3-11-1995 issued by the Ministry of Railways, respondent Nos. 1 and 111 other Group-B officers were substantively appointed to the JS (Group-A) of IRSE with effect from 24-12-1992. According to the impugned letter/seniority list the inter se seniority of all the 112 Group-A officers who were substantively appointed to Group-A of IRSE was prepared giving DOITS by applying principle (vi) of the principles for determining the relative seniority vide Ministry of Railways letter No.E(O)l-72/ SR-6/29 dated 30-11-1976 as amended by letter dated 23-4-1991 and all other relevant factor. As per the annexure to the said letter 112 Group-B officers will rank below one Sri S.R. Paul whose DOITS was with effect from 4-12-1987 and above one Sri S.K. Pandey whose DOITS was with effect from 15-3-1988. The said S.R. Paul was junior most officer in the seniority list issued vide "ailway Board's letter dated 24-12-1993 and Sri S.K. Pande was the senior most direct recruit in 1986 batch and the inter se seniority position was circulated vide Railway Board letter dated 26-2-1983. This means that respondent No.l and all others who were appointed substantively to JS (Group-A) IRSE with effect from 24-12-1992 were placed above senior most of direct recruits of 1986 batch and junior most officer in the already finalised seniority list with reference to allotment year of 1987. Applying this principle, the petitioner was given DOITS with effect from 24-12-1987 whereas the said Paul was given DOITS with effect from 4-12-1987. Between these two dates there was no officer who was given DOITS with reference to 1984 which is now claimed by respondent No.1. All the 112 officers of Group-B were appointed to Group-A vide Railway Notification dated 3-11-1995 and their inter se seniority was fixed accordingly giving all of them DOITS as 24-12-1987. This was done by applying seniority principles contained in the letter dated 30-11-1976 as amended by another letter dated 23-4-1991.
10. As per Rule 209(B)(1) of Indian Railway Establishment Code Vo.1 read with Rule 4, recruitment for Indian Railway Service of Engineers 40% of the posts from promotion from Group-B to Group-A Junior Scale which is based on selection on merit. For filling up the promotion quota DPC is held by UPSC and as per the procedure followed in the Department of Personnel Officers coming within the zone of consideration and those who have Bench mark grading 'good' are considered. Even among these officers, the officers with grade as 'outstanding' rank en bloc seniority to those who have grade as 'very good' and those who have graded as 'very good' rank en bloc senior to those who have graded as 'good' and get place in the select list accordingly. The officers placed in the panel were promoted to Group-A JS with the approval of the President with effect from the date of communication of approval of the UPSC and recommendations of the DPC.
11. By letter dated 30-11-1976 the Government of India in Ministry of Railways with the approval of the President of India circulated principles for determining the seniority of officers appointed to various Class-I services from different sources (for short 'the principles'). Principle (i) states that the seniority of officers appointed to class-I shall be determined on the basis of 'date for increment on time scale' (DOITS) to be specifically determined in each case in accordance with the principles laid down therein. Principle (ii) is to the effect that all such officers promoted to class-I shall count their seniority from the date they commence earning increments in the regular scale as Assistant Officers subject to condition that inter se seniority of officers in each service recruited as probationers in a particular year will be regulated by their place in order of merit. Principle (vii) with which we are concerned reads as under:
Principle (vii):- In the case of Class II Officers permanently promoted to Class I Services, if two are more than two officers are promoted on the same date their relative seniority will be in the order of selection. Subject to the aforesaid provision the seniority of officers, permanently promoted from Class II to Class I services, shall be determined by giving weightage based on:
(a) the year of service connoted by the initial pay on permanent promotion to Class-I Service; or
(b) Half the total number of years of continuous service in Class-11, both officiating and permanent;
Whichever is higher, subject to a maximum weightage of five years.
12. The above principle (vii) contemplates giving wieghtage based either on the year of service connoted by the initial pay on permanent promotion to Class-1 or half of the total number of continuous officiating and permanent service in Class-II subject to maximum service of weightage of five years. These principles were amended subsequently by letter dated 23-4-1991. Principle (vii) in the letter dated 30-11-1976 was renumbered as principle (vi) and after amendment, it reads as follows:
Principle (vi): In the case of Group 'B' officers permanently promoted to Group 'A' services, if two or more officers are promoted on the same date, their relative seniority will be in the order of selection, subject to the aforesaid provision, the seniority of officers, permanently promoted from Group 'B" to Group 'A' service shall be determined by giving weightage based on:
(a) the year of service connoted by the initial pay on permanent promotion to Group 'A' service; or
(b) half the total number of years of continuous service in Group 'B' both officiating and permanent;
whichever is more, subject to a maximum of 5 years; provided that the weightage so assigned does not exceed the total non-fortuitous service rendered by the officer in Group 'B'.
13. As per the amendment contained in letter dated 23-4-1991 the same is applicable to all selections of Group-B officers for substantive appointment to JS for which selections are held after 23-4-1991. It is not denied that in the case on hand the selections were held on 24-12-1992 and therefore the principle (vi) as amended by letter dated 23-4-1991 is applicable. This principle (vi) was subject-matter in two cases before the Supreme Court being Nigam's case (supra) and Grewal's case (supra). While upholding these principles as satisfying tests of equity and fairness, the Supreme Court applied these principles therein. As seen from the principle, the weightage subject to a maximum of five years is with reference to the year of service connoted by initial pay on permanent promotion to Group-A or half the total number of years of continuous service in Group-B including officiating and permanent service. As respondent No.l I was substantively appointed w.e.f. 24-12-1992 to Junior Scale Group-A of IRSE (DOITS) with effect from 24-12-1992 can only be given weightage of five years with reference to that date and therefore the impugned order insofar as the same reckons weightage from 24-12-1987 is in accordance with principle (vi)(a) of the amended principles for determination of seniority. For all purposes, admittedly respondent No.l's year of service is 1992 and though he is shown against vacancy of 1989 a reasonable reading of the principle shows that he is entitled for weightage of five years with effect from 24-12-1992 and certainly not from 1989. If the contention of respondent No.1 is accepted he would be given DOITS with effect from 1984 in which year admittedly he was not even within the zone of consideration. He came within the zone of consideration only in 1989 and it is not permissible to read the 'principle' as suggested by the learned Counsel for respondent No.l. Further, he was appointed as Assistant Engineer Group-B in 1979 and to STS (Group-B) on 29-6-1987. If the weightage principle is given from 1989, he would have reckoned his seniority from 1984 when he was not even in STS (Group-B) post, which is feeder category to posts in Group-A IRSE.
14. The principle of giving weightage is subject to two conditions. First, under no circumstance the service shall be determined by giving weightage upto a maximum period of 5 years. Secondly, the weightage so assigned does not exceed the total non-fortuitous service rendered in Group-B. In our considered opinion, if respondent No.l's contention is accepted that he is entitled for weightage of five years from 1989, the same would violate the second condition, in the sense that admittedly the petitioner was promoted to STS Group-B on 29-6-1997, and he had worked for a little more than five years in STS Group-B. If his seniority is considered from 1984, the same would exceed the total non-fortuitous service rule of 5'/2 year's which is impermissible.
15. In Nigam's case (supra) the appellants who belong to Railway Board Secretariat Service (RBSS) claimed weightage of being substantively appointed by promotion to Junior Scale Group-A of Indian Railway Personnel Service (IRPS) on 15-12-1984 against 50% promotion quota reserved for Class-II Officers. By applying the relevant principle for determining the relative seniority of the Class-I Officers of All India Services on Railways (for reckoning weightage of seniority) DOITS worked out to 15-2-1979 that is to say five years weightage from the date of substantive appointment by promotion on 15-2-1984. Accordingly, they were given weightage in the JS Grade-I from 15-2-1979 and seniority was reckoned from that 'date of substantive appointment. Later as they were completed five years of service by 15-2-1984 in JS Grade-I they were posted in Senior Scale Grade-A of IRPS immediately after their joining in their respective Railways in JS Grade-I. They were also promoted to Junior Administrative Grade with effect from 14-5-1987 by reckoning their service from 15-2-1979 as they have completed eight years of service and eligible for consideration to Junior Administrative Grade and their seniority was circulated which was the subject-matter of challenge by Sunil Misra before the Central Administrative Tribunal, Principal Bench. The Central Tribunal allowed the OA and hence the appellants carried the matter to the Supreme Court. Placing reliance on principle (vi) of the principles for determining the relative seniority of Class-I (Group-A) officers, the Apex Court found fault with the order of the Central Tribunal. It was observed therein as under;
It is settled law that the appointing authority or the appropriate Government can frame rules governing seniority which are reasonable keeping in mind the divergent claims that can be put forward by the various categories of the members of the service. It is, however, necessary that there should be no discrimination, that is, persons placed in the same group must be treated similarly and, further, that any principle which is made the basis of determination of seniority should, if applicable to others, be applied to them also. In other words, if seniority is to depend purely upon the date of confirmation or the date of appointment, that rule should be applicable to all; but if the promotees and special recruits are being given weightage, the principles applicable to the members of the service should be kept in mind while determining the weightage to be given or while laying down rules for determination of seniority.
16. It is therefore clear that while granting weightage of five years to a promotee officer it is always five years backwards from the date of substantive appointment and not from the year of allotment. This judgment which is relied on by Sri C. V. Mohan Reddy in fact goes against the first respondent. As observed by the Supreme Court in Nigam 's case (supra) in working out weightage of promotee officers, one cannot ignore the principles of seniority applicable to other members and cannot ignore other principles for determination of seniority.
17. Devendra Narayan Singh's case (supra) involved the interpretation of Indian Police Service (Regulation of Seniority) Rules, 1954 and the case was decided on the facts peculiar to it and no principle or ratio was laid down therein. It is not an authority on the question of giving weightage with which we are concerned and the same cannot be considered an authority. Vipinchandra Hiralal Shah's case (supra) arose out of IAS (Appointment by Promotion) Regulations. Having regard to Regulation 5 of the said regulations it was held that if for any reason Selection Committee is not able to meet in a particular year the Committee when it meets next, should, while making selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service Officers who were eligible and fall within the zone of consideration for selection in that year. The relevant interpretation of the regulations is as under:
It must, therefore, held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose of making the selection from amongst State Civil Service Officers who fulfil the conditions regarding eligibility on the first day of the January of the year in which the Committee meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next, should, while making the selection prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service Officers who were eligible and fall within the zone of consideration for selection in that year.
18. In Banerjee's case (supra) the controversy involved the promotion to the post of Senior General Manager in Indian Ordinance Factories under Indian Ordinance Factories Service Rules. It was held:
It is true that filling up of the posts are for clear or anticipated vacancies arising in the year. It is settled law that mere inclusion of one's name in the list does not confer any right on him/her to appointment. It is not incumbent that all posts may be filled up. But the authority must act reasonably, and in public interest and omission thereof should not be arbitrary. In Parkarsan Dash v. Union of India, the Constitution Bench had held that inclusion of the name of a candidate in a merit list does not confer any right to be selected unless the relevant recruitment rules so indicate. The State is under no legal duly to fill up all or any of the vacancies even though the State Acts in an arbitrary manner. In Babita Prasad v. Stale of Bihar, [1993 Supp (3) 268 - 1993 SCC (L&S) 1076 = (1993) 25 ATC 598] it was held that mere inclusion of one's name in the panel does not confer on him/her any indefeasible right to appointment. It is further held that the purpose of making a panel was to finalise the list of eligible candidates for appointment. The preparation of the panel should be the exact to the notified or anticipated vacancies.....However, in the light of the above principles and in the light of the clear rules extracted therein before, it is seen that the exercise of preparation of the panel is undertaken well in advance to fill up the clear vacancies or anticipated vacancies. The preparation and finalisation of the yearly panel, unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. If the annual panel could not be prepared for any justifiable reason, year-wise panel of the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith.
19. Grewal's case (supra), which is concerned with the seniority of officers in the rank of Commandant/Security Officer in the Railway Protection Force. In relation, thereto the circular letter dated 30-11-1976 containing principles of seniority which was modified by the Government of India in accordance with the recommendations of the UPSC was also considered. Having regard to the policy of the Government of India, the Supreme Court observed after referring to Nigam's case (supra) and Muralidhar 's case (supra) that the two letters of UPSC containing principles of reckoning inter se seniority between Groups-A and B Officers was fair and equitable. This judgment of the Supreme Court refers to the principles of seniority contained in letter dated 30-11-1976 of the Railway Board on two earlier cases and having regard to the principles laid down in the cases of Nigam and Muralidhar (supra) came to the conclusion that the principle of weightage which is also proposed by UPSC in their letters was unassailable.
20. In Batheshwar Sharma's case (supra) the question was whether the respondent could be deemed to have been promoted from a date anterior to actual date of promotion. Patna High Court directed that the respondent shall be deemed to have been promoted with effect from 17-1-1989 with all consequential benefits though in its proceedings dated 13-9-1995 found the respondent unfit for promotion upto 16-1-1994. The Supreme Court held that an employee who is declared unfit initially but given ad hoc promotion cannot count his seniority from the date of ad hoc promotion and that his seniority shall be reckoned/ determined wilh reference to the date of regular promotion only.
21. The decisions of the Supreme Court in Kameshwar Prasad Singh, Maharashtra Vikrikar Karmachari Sanghatan and Shanmukham cases (supra) cited by petitioner's Counsel did not deal with the principle of weightage while fixing seniority of the promotccs and they deal with the question of consideration of period of ad hoc promotion for the purpose of reckoning seniority and therefore it is not necessary to refer to these judgments.
22. In T.N. Administrative Service Officers Association's case (supra) the question was as to whether the delay in filling up the vacant posts would confer any right on the person promoted subsequently to claim seniority from the date when the vacancy arose or from the year the vacancy was available. White dealing with Indian Administrative Service (Cadre) Rules and IAS (Fixation of Cadre Strength) Regulations, 1955 the Apex Court held that even when the vacancy exists to be filled up by promotion from non-cadre service holders, the State is not bound to fill up those vacancies. Placing reliance on the earlier judgments in State of Haryana v. Subhash Chander Marwaha, , the Supreme Court observed as under:
This however does not, in our opinion, confer any right on the petitioners to seek a mandamus for encadring those ex-cadre/temporary posts, for any such mandamus would run counter to the statutory provisions governing the creation of cadre and fixation of cadre strength. The basis of the petitioners' right to be selected for All India Service is traceable in case of State Civil Service Officers to Rule 8 of the Recruitment Rules which says that the Central Government may recruit 1AS persons by promotion from amongst the members of the State civil service. This Rule itself puts a ceiling on the number of posts that could be filled in IAS from such promotions, which are limited to not more than 33 1/3% of the posts enumerated therein. The prayer of the petitioners for encadrement of the ex-cadre/temporary posts in reality amounts to asking the Central Government to create more posts. The question then arises whether there is any such right in the petitioners to seek such creation of additional posts. It is a well-settled principle in service jurisprudence that even when there is a vacancy, the Slate is not bound to fill up such vacancy nor is there any corresponding right vested in an eligible employee to demand that such post be filled up. This is because the decision to fill up a vacancy or not vest with the employer who for good reasons, be it administrative, economical or policy, can decide not to fill up such post(s).
23. From the various authorities cited before us, the following principles would emerge:
(i) Even when vacancies arises/exists it is not incumbent on the part of the authorities to fill up the vacancies. The officers may have a legitimate expectation, but they cannot have any enforceable right either to compel constitution of DPC or to seek promotion with retrospective date; for valid reasons DPC may be postponed;
(ii) The principle of weightage has to be applied having regard to other principles of seniority and cannot be construed or applied in a straight jacket formula;
(iii) The principle of weightage has to be applied by giving due weightage of service of five years from the date of substantive appointment and not from the year of allotment;
(iv) The principle of giving weightage of five years from the date of substantive appointment is fair and equitable procedure and cannot be held to violate Articles 14 and 16 of the Constitution of India;
(v) The principle of giving weightage subject to condition that weightage assigned shall not exceed the total non-fortuitous service rendered by the officer in the lower category; and
(vi) If the principle of giving five years of weightage in service in the promoted category is reckoned with reference to year of allotment, the same would violate the principle of equity in Articles 14 and 16 of the Constitution of India, in that, even a person whose claims were rejected earlier or who was not qualified or who was not within the zone of consideration would get the benefit of weightage of five years of service which is illogical and illegal.
24. The learned Tribunal in the impugned judgment while holding that the first respondent is entitled for weightage from the year in which vacancy occurred placed reliance on the principles contained in the letter dated 30-11-1976 and did not notice the subsequent amendment by letter dated 23-4-1991. Apart from this as observed by the Supreme Court in Nigam 's case (supra) five years weightage can only be given from the DOITS i.e., the date on which the substantive appointment is made and not from the year in which the vacancy occurred. Be it noted that the year of service is always connoted by initial pay on permanent promotion and not promotion with reference to a panel year. In this view of the matter, the impugned judgment of the Tribunal suffers from error and is liable to be set aside which requires to be rectified by us in this petition for judicial review.
25. In the result, for the aforesaid reasons, we allow the writ petition and dismiss OA No.590 of 1998 filed by the first respondent herein. There shall be no order as to costs.