Central Administrative Tribunal - Delhi
S Kanagavel Pandiyan vs Labour on 14 August, 2024
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Item No.41 (C-5) O.A. No. 847/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 847/2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Reserved on : 08.08.2024
Pronounced on : 14.08.2024
1. S. Kanagavel Pandiyan, Group A
S/o Shanmugavel A.
Aged 49 years
R/o 7, Muthuswamy Nagar,
Maran Nagar Extension, Poonamallee,
Tiruvallur, Tamil Nadu- 600056.
2. Kanhu Charan Sahu, Group A
C/o Late Suputri Devi
Aged 33 years
R/o Suputri Nivas Arobinda Nagar,
Brahmapur Sadar, Ganjam, Orissa- 760001.
3. Susanta Kumar Nayak, Group A
C/o Birenra Kumar Nayak
Aged 41 years
R/o Qur No.- E-33-F, 2d Floor, Type- 4, Mayapuri-
110064, Delhi.
... Applicants
(By Advocate:- Mr. Ashim Shridhar)
Versus
Ministry of Labour & Employment
Union of India
Through Secretary
Shram Shakti Bhawan
Rafi Marg, New Delhi-110001.
... Respondent
(By Advocate:- Mr. Gyanendra Singh)
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Item No.41 (C-5) O.A. No. 847/2023
ORDER
By Hon'ble Mr. Manish Garg, Member (J) In the instant O.A., the applicants seek the following relief(s):-
"a. Quash the impugned Seniority List for STS officers dated 18.01.2022 prepared by the Respondent.
b. Issue Necessary Directions thereby directing the Respondent to reevaluate and issue fresh Seniority List for STS officers in accordance with OMs dated 06.06.1978 and 03.07.1986 thereby maintaining the Seniority of the Applicants at par with their batchmates.
c. Pass any other order this Honorable Court may deem just and proper in the facts and circumstances of the case."
2. Highlighting the facts of the case, learned counsel for the applicants states as under :-
2.1 Learned counsel for the applicants submits that unfortunately the applicant No. 1 has expired. Since the present case pertains to the grant of seniority, therefore, he does not press the relief qua the applicant No. 1. Now, only issue remains qua the applicant Nos. 2 and 3 herein, vis a vis their seniority.
2.2 The UPSC vide its advertisement No. 51/2013 invited applications for the post of Junior Time Scale (JTS) Officers in the Central Labour Service and the applicants being successful in the said examination were appointed as Assistant Labour Commissioner (ALC) in the year 2015.3
Item No.41 (C-5) O.A. No. 847/2023
2.3 The seniority of the applicants was fixed as per their
merit in the aforesaid examination. For the purpose of determining the seniority for the year 2017, the cut-off date was 01.04.2017.
2.4 The DPC was conducted belatedly and a common promotion order was passed in the year 2019 vide order dated 28.02.2019. After considering the objections raised by the applicants herein, a draft seniority list dated 18.01.2022 was issued. The seniority of the applicant No. 1 was downgraded by 15, the applicant No. 2 by 24 and the applicant No. 3 by 22. Drawing the attention of this Bench to a table at page 14 of the OA, learned counsel submits that on the following dates, appointment letters were issued to 57 persons including the applicant Nos. 2 and 3, which is reproduced as under:-
Date of issuance of Batch No. of candidates appointment order 1. 26.08.2014 5 2. 03.12.2014 18 3. 16.01.2015 14 4. 26.03.2015 8 5. 27.07.2015 3 Total 48 4 Item No.41 (C-5) O.A. No. 847/2023 The applicant No. 2 was issued appointment letter on 26.03.2015 whereas the applicant No. 3 on 03.12.2014. The revision in the seniority list has been made on the basis of the date of joining.
2.5 Learned counsel for the applicants draws attention to O.M. dated 03.07.1986. The relevant para of the said O.M. reads as under:-
"2.1 The relative seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendations of the U.P.S.C. or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection."
2.6 He further reiterates that the applicants herein sought extension of time for joining which was acceded to by the respondent. The applicants were allowed to join at a later date. He places reliance on O.M. dated 06.06.1978, the relevant portion of the O.M. reads as under:-
"(ii) If, however, within the period stipulated, a request is received from the candidates for extension of time, if may be considered by the Ministries/Departments and if they are satisfied, an extension for a limited period may be granted but the total period granted including the extension during which the offer of appointment will be kept open, should not exceed a period of nine months. The candidates who join within the above period of nine months will have their seniority fixed under the seniority rules applicable to the service/post concerned to which they are appointed, without any depression of seniority"
2.7 He places reliance on the decision rendered by the Hon'ble Apex Court in the matter of Union of India vs. 5 Item No.41 (C-5) O.A. No. 847/2023 Sadhana Khanna (2008) 1 SCC 720. The operative portion of the said judgment reads as under:-
"11. It may be noted that the respondent was offered appointment vide letter dated 5-7-1983 which is after 1-7-1983 from which the eligibility was to be counted. Hence, it is the department which is to be blamed for sending the letter offering appointment after 1-7-1983. In fact, some of the candidates who were junior to the respondent were issued letters offering appointment prior to 1-7-1983. Hence it was the department which is to be blamed for this. Moreover, in view of the office memorandums of the Department of Personnel and Training dated 18-3- 1988 and 19-7-1989 the respondent was also to be considered, otherwise a very incongruous situation would arise, namely, that the junior will be considered for promotion but the senior will not."
2.8 He further relies upon the decision rendered by the Hon'ble High Court of Delhi in W.P.(C) 7423/2013 in the matter of Govt. of NCT of Delhi & Ors. vs. Rakesh Beniwal & Ors. The operative portion of the said judgment reads as under:-
"26. The delay in appointment and the consequential denial of benefits is the direct corollary of the inaction of the petitioners; consequently, they cannot take advantage of their own delays in declaring results and issuing appointment letters to deny promotion to the respondents. The Supreme Court has observed in this regard in the matter of Baij Nath Sharma v. Hon'ble Rajasthan High Court at Jodhpur,1988 SCC (L&S) 1754, "But here the appellant has been deprived of his promotion without any fault of his. High Court said that it might be sad state of affairs that the name of the appellant was not considered for promotion till he retired. High Court may feel anguish but it gives no comfort to the appellant. At least for future such an unfortunate thing should not happen to any other officer similarly situated. This malaise which abysmally afflicts any service when there is recruitment from different sources when there is recruitment from different sources crops up in the one form or the other with great disadvantage of one or the other. But then service is not constituted merely for the benefit of the officers in the service but with a certain purpose in view and in the present case for dispensing justice to the public at large.""6
Item No.41 (C-5) O.A. No. 847/2023
2.9 He also relies upon the recent judgment delivered by
Jabalpur Bench of this Tribunal in O.A. No. 799/2022 in the matter of Shoaib Ali Sayyed & Anr. vs. Union of India & Ors.
3. Opposing the grant of relief, the learned counsel for the respondent would rely upon the averments made in the counter affidavit.
3.1 He would contend that the seniority is determined as per the RR's. He would rely upon paras 4.6-4.9 of the counter affidavit , the same read as under:
"4.6-4.9. In reply to contents of paras 4.6 to 4.9 of the OA, it is submitted that in June 2014, UPSC had forwarded dossiers of 57 candidates for induction into Junior Time Scale (JTS) grade of Central Labour Service (CLS). The case for posting of selected candidates were placed before the Transfer/ Posting Committee as and when their requisite pre-appointment formalities i.e. Police verification, Medical Examination, verification of their caste certificates etc. could be completed and the offers of appointment were issued after obtaining approval of the Competent Authority on the recommendations of Transfer/ posting Committee. As the pre-appointment formalities of different candidates could be completed on different dates, the offers of appointment were issued in five groups on 26.08.2014, 03.12.2014, 16.01.2015, 26.03.2015 and 27.07.2015. Further, some candidates (including applicants No. 2 and 3) were already working with Central/ State Govt./ PSUs and their joining were done only after their relieving/ receiving of pre-appointment formalities from the organizations where they were posted. Moreover, some JTS (DR) candidates including applicants No. 2 and 3) also sought extension of time for 7 Item No.41 (C-5) O.A. No. 847/2023 joining. In respect of Applicant No. 1(Shri S. Kanagavel Pandiyan) and Applicant No. 2(Shri Kanhu Charan Sahu), it is submitted that after completion of the pre-appointment formalities, their case was placed before the Transfer/ Posting Committee in its meeting held on 10,03.2015 and after seeking approval of the Competent, Authority i.e. the then Hon'ble MoS(I/C), L&E on the recommendations of the Transfer/ Posting Committee, the offers of appointment were issued to both the applicants vide Ministry's letter No. A-22013/06/2014-CLS.I dated 26.03.2015. The applicant No. I,Shri S. Kanagavel Pandiyan, vide Ministry's above- mentioned letter dated 26.03.2015, was directed to report for duty as Assistant Labour Welfare Commissioner (Central) at Naval Armament Depot, Aluva, Kerelawithin 30 days from the date of issue of appointment letter (Annexure-R/3). The applicant joined NAD, Aluva, Kerela on 08.04.2015. The contentions made in these paras in respect of applicant No. 2 are false and misleading. The applicant No. 2, Shri Kanhu Charan Sahu, vide Ministry's above- mentioned letter dated 26.03.2015, was directed to report for duty as Assistant Labour Welfare Commissioner (Central) at Gun & Shell Factory, Cossipore, West Bengal within 30 days from the date of issue of appointment letter. However, the applicant vide his representation dated Nil, received in the Ministry on 15.04.2015, requested for extension of joining time upto 1" week of July, 2015 as he had to serve a three-month notice period to his previous employer i.e. NHPC Ltd. Accordingly, vide Ministry's letter No. A-31011/05/2014-CLS.(Pt.) dated 10.06.2015, the applicant was granted extension of joining time up to 07.07.2015. Eventually, the applicant reported for his duties at Gun & Shell Factory, Cossipore on 02.07.2015. Ministry's letter dated 26.03.2015 & 10.06.2015 and Shri K.C. Sahu's representation dated Nil are attached as Annexure-R/4.In respect of Applicant No. 3. Shri Susanta Kumar Nayak it is subited that the ofter of appointment was isued 10 him vide Ministry's letter No. A- 3101/05/2014-CLS. dated 03.12.2014 and he was directed to report for duty as Assistant Labour Welfare Commissioner (Central) at Heavy Vehicle Factory, Avadi, Chennai within 30 8 Item No.41 (C-5) O.A. No. 847/2023 days from the date of issue of appointment letter. However, Shri Susanta Kumar Nayak vide his representations dated 10.12.2014 requested for extension of joining time till 03.09.2015 as he had to serve the notice period to his previous employer i.e. Nuclear Power Corporation of India Ltd. Accordingly, vide Ministry's letter No. A- 31011/05/2014-CLS.I dated 19.02.2015, the applicant was granted extension of only three months i.e. up to 02.03.2015. The applicant vide his representation dated 23.02.2015 had once again requested for extension of joining time for another three months i.e. upto 02/06/2015 and the same was granted vide Ministry's letter No. A- 31011/05/2014-CLS.IPt.) dated 20.04.2015. Eventually, the applicant reported for his duties at Heavy Vehicle Factory, Avadi on 01.06.2015. The Ministry's letter No. A-31011/05/2014-CLS.I dated 03.12.2014, 19.02.2015 & 20.04.2015 and Shri Susanta Kumar Nayak's representations dated 10.12.2014 & 23.02.2015 are attached as Annexure-R/5. It shows that the Ministry was kind enough towards the applicants to extend the joining time not only on one occasion but on two occasions."
3.2 Learned counsel for the respondent further relies upon the DoP&T's O.M. No.22011/6/2013-Estt(D) dated 28.05.2016. The relevant clause of the said O.M. reads as under:-
"In case of financial year-based vacancy year, there is a clear gap of 3 months between the crucial date of eligibility and the date of commencement of vacancy year i.e. between January 1 and April 1. Due to this gap, for any such vacancy year, even if the Departmental Promotion Committee (DPC) meeting is held in time as per the Model Calendar, there is always a possibility of few officers not fulfilling the eligibility criteria as on the crucial date of eligibility, though they are fulfilling the same as on the date of commencement of the vacancy year."9
Item No.41 (C-5) O.A. No. 847/2023
3.3 He further relies upon para 4.13-4.18 of the counter
affidavit at internal page 8 and the relevant paras are reproduced under:-
"In reply to paras 4.13 to 4.18 of the OA, it is submitted that total 46 vacancies were available for promotion to STS Grade of CLS for the vacancy year 2017-18. The zone of consideration for the 46 vacancies would be 72 and as mentioned at Para 4.12 above, the crucial date for determining eligibility was 01.04.2017.As per Central Labour Service (Group 'A') Recruitment Rules, 2015 (Annexure-R/7), 04 years of regular service in JTS grade is required for promotion to STS grade. Further, Note I of Schedule-Ill of said Rules stipulates that "Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifving or eligibility service, or two vears. whichever is less, and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service."
The junior most eligible officer in the zone of consideration, Sh. Shammi J. Tigga (mentioned at SI.No.156 of Final Seniority List dated 17.08.2017) had already completed 4 years of regular service in the JTS grade as on 01.04.2017 and accordingly, all the senior officers who were fulfilling the above mentioned condition became eligible for promotion. Though 07 officers (including the applicants) were senior to Sh. Shammi J. Tigga, they had neither completed their probation period nor the minimum regular service of 02 years in JTS grade as on the crucial date i.e. 01.04.2017, thus they were not eligible for promotion on this date.Final Seniority list (dated 17.08.2017) of Junior Time Scale (JTS) Officers of CLS up to inclusion of 2012-13 batch is attached as Annexure-R/8. Further, while contemplating a proposal to fill up 46 vacancies in STS grade of CLS through promotion for the vacancy year 2017-18, representations were received from the JTS(DR) officers who were senior to Shri. Shammi J. Tigga but were not eligible as per RRs as they joined the service after 01.04.2015. The representations of the Applicants were duly examined in the Ministry and the case was referred to DoP&T for seeking relaxation/ approval to consider the crucial date for vacancy year 2017-18 as 09.09.2017 instead of 01.04.2017 to enable the following 07 JTS (DR) officers to be treated at par with their juniors as a special dispensation:
Relaxation sought Sl. Date of Date of for the year 2017-
Name of the officer
No. appointment confirmation 18 (As on
1.4.2017) (approx.)
1. Manikandan 02.04.2015 02.04.2017 01 day
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Item No.41 (C-5) O.A. No. 847/2023
2. Nirmal Chandra Kar 06.04.2015 06.04.2017 05 days
3. Kanagavel Pandiyan 08.04.2015 08.04.2017 07 days
Shoaibali Hasanali
4. 23.04.2015 23.04.2017 22 days
Sayyed
Susanta Kumar
5. 01.06.2015 01.06.2017 02 months
Nayak
Kanhu Charan Sahu
6. 02.07.2015 02.07.2017 03 months 1 day
(OBC*)
05 months 08
7. Rajiv Ranjan (OBC) 09.09.2015 09.09.2017
days
......the Ministry had sought relaxation afier applying the junior-senior clause and junior-senior clause in itself is a relaxation so as to obviate the anomalous situation of a junior getting promoted before his senior. Further, the junior-senior clause as prescribed in the relevant Recruitment Rules is applicable onlv when the seniors falling short of qualifving service have successfully completed their probation period and as per rule 10(1) of the relevant RRs, the probation period is of two years. However, the relaxation being sought was with reference to the crucial date of eligibility for the vacancy year 2017-18 which is 01.04.2017. On this date, none of these seven officers could have successfully completed their probation period of too vears as all of them were appointed after 01.04.2015. Therefore, the Ministry has sought the relaxation so as to make these seven officers eligible as on 01.04.2017 when they would not have been eligible for completion of the probation period."
3.4 The substantial argument of the learned counsel for the respondent is that since the applicant did not complete the period of probation, they are not eligible to the relief sought in the present matter.
3.5 He would contend that O.A. No. 799/2022 in the matter of Shoaib Ali Sayyed & Anr. (Supra) is per incurium and cannot be applied to facts of the present case.
4. We have heard the learned counsel for the respective parties and given thoughtful consideration to the pleadings on record.11
Item No.41 (C-5) O.A. No. 847/2023
5. In context of the relief(s) sought and submissions made by the learned counsels for the parties thereto, the crux of the case to be examined is what would be the crucial date to determine inter-seniority amongst the direct recruits. Is it the date of joining or the date of appointment and what would be the impact on final seniority list dated 18.01.2022?
6. ANALYSIS 6.1 The impugned OM dated 18.01.2022 finalizing seniority list of Senior Time Scale officers of Central labour Service (as on 1.1.2021 ) is reproduced as under :-
"Subject: - Final Seniority List of Senior Time Scale Officers of Central Labour Service (as on 01.01.2021) - reg.
The undersigned is directed to refer to this Ministry's O.M. of even number dated 16.07.2021 on the above mentioned subject and to say that representations/objections received from STS Officers have been examined in light of DOP&T's instructions.
2. After consideration of all the facts, the seniority list of STS Officers (as on 01.01.2021) of CLS is accordingly finalized as Annexure-1. The details of STS officers, whose names had figured in the earlier seniority list vide this Ministry's OM. No.A-24021/04/2018-CLS.I dated 12.12.2018 have since been deleted from the present Seniority List as they are not in STS Grade as on date and accordingly their names are separately given as Annexure-II.
3. The Final Seniority List of STS Officers would be subject to the outcome of the following Court Cases pending before various Hon'ble courts:
i. SLPC). No. 9345-9346/2020 filed by Shri Mukesh Kumar Suman in Hon'ble Supreme Court of India.
ii. OA No. 1256/2017 filed by Shri OM Prakash & Others before Hon bie CAT, PB, New Delhi.
iii. WCT No.15/2012 filed by Shri Ajay Kumar(since retired) before Hon'ble High Court, Kolkata 12 Item No.41 (C-5) O.A. No. 847/2023 iv. Any other court cases having impact on the issue."
6.2 We find that above seniority list of Senior Time Scale officers dated is subject to outcome of following cases:-
6.2.1 Petition(s) for Special Leave to Appeal (C) No(s). 9345-9346/2020 titled as "MUKESH KUMAR SUMAN VERSUS UNION PUBLIC SERVICE COMMISSION & ORS. arising out of impugned final judgment and order dated 21-01-2020in WPC No. 13150/2018 21-01-2020 in WPC No. 151/2019 passed by the High Court Of Delhi At New Delhi. The challenge is to following findings:-
"20. This Court is of the view that the CAT exceeded its jurisdiction in setting aside the entire selection made pursuant to the advertisement No. 51/2013 for the aforementioned Labour officer posts and in holding that the UPSC had to redo the entire exercise by restricting the marks to be allocatedfor the interview to 15% "without insisting on minimum marks therein".
21. The impugned order of the CAT is accordingly hereby set aside. The petition is allowed but in the circumstances, no order as to costs. The pending applications also stand disposed of. "
6.2.2 OM PRAKASH Vs M/O LABOUR - OA No. 1256/2017, which came be disposed of by this Tribunal vide order dated 8th day of January, 2024:-
"The present OA has been filed challenging the Draft Seniority List dated 17.02.2017 of the Junior Time Scale of the Central Labour Service. Representations against the said Draft Seniority List were filed by the applicant which have been annexed at page 91 of the OA Annexure A8.
2. It seems that during the pendency of the OA the Final Seniority List was issued on 17.08.2017. Counter affidavit filed by the respondents states that after considering the representations of the aggrieved individuals, the final seniority list was issued. The said seniority list is not under challenge. Infact, the cause of action, if any, to challenge the draft seniority list has already been 13 Item No.41 (C-5) O.A. No. 847/2023 eclipsed by issuance of the final seniority list.
3. In view of the above, the OA is dismissed as infructuous. The applicants would be at liberty to challenge the Final Seniority List, as per law, if they so desire.
4. No costs. "
6.2.3 The WPCT No.15/2021 titled as Ajay Kumar (retd) before the Hon'ble High Court of Kolkata. 6.3 The records of the case would reveal that vide Office Order dated 28.2.2019, the applicant nos. 2 & 3 herein who were working as Junior Time Scale (JTS) Officers of Central Labour Service (CLS) were promoted to Senior Time Scale Officer of CLS.
6.4 The name(s) of the applicant No. 2, Mr. Kanhu Charan Sahu figured at Serial No. 50 and the name of applicant No. 3, Mr. Susanta Kumar Nayak figured at Serial No. 51.
However, the promotion of JTS Officers [mentioned in para 4] to STS Grade of CLS is subject to further orders/outcome of WP(C) No.13150/2018 in the matter of UPSC vs. Mukesh Kumar Suman & Ors before Hon'ble High Court, Delhi. 6.5 The Ministry of Labour & Employment published final seniority list of Junior Time Scale (JTS) officers of Central Labour Service vide OM No. A-24021/03/2016- CLS.I dt. 17.08.2017. The said seniority list was in 14 Item No.41 (C-5) O.A. No. 847/2023 accordance with the relevant DOPT guidelines wherein relative inter-se-seniority between promotes (DP) and Direct Recruits (DR) were maintained.
6.6 The position post promotion order dated 28.2.2019, qua seniority has been altered vide OM dated 16.7.2021. 6.7 The applicant no.2 Shri K C Sahu vide his representation dated 11.08.2021 has submitted as under :-
"Besides the above, it is pertinent to mention that the DPC for promotions from JTS to STS was actually held during August 2018 and promotions were effected vide order dated 28.02.2019. Even though it is assumed that the crucial date was reckoned as 01.04.2017, no DPC was held during the whole year of 2017. Even the final seniority list of JTS was published only on 17.08.2017 much after 01.04.2017. As on the date of DPC, I had put in more than 3 years of service. Therefore, on this ground also my seniority is unlikely to be affected. It is humbly submitted that the appointment letters were issued in one batch with advice to join before a particular date, all candidates would have been on similar footing without any advantage or disadvantage. In the instant case, the candidates who got appointment letter during August 2014 got much more time to join than those who got offer during July 2015 due to administrative reasons. It is also relevant to mention that the undersigned as well as other candidates were not aware that they will be considered for promotion after 2 years of service and crucial date could be 01.04.2017. Had this known to the candidates, all candidates would have tried their level best to join before 01.04.2015 at any cost. On the contrary, all the candidates were aware that as per DOPT guidelines, seniority will be reckoned as per merit list of UPSC on joining within 6 months from the date of offer irrespective of actual date of joining.
The incongruous scenario arising out of draft seniority list of STS can be easily mitigated by adhering to the inter se seniority of JTS notified vide OM dt. 17.08.2017 in respect of officers promoted to STS vide order dt. 28.02.2019 and none will be adversely affected by the same."
6.8 On similar lines The applicant no.3 Shri Sushanta Kumar Nayak vide his representation dated 13.8.2021 has submitted as under :-
15
Item No.41 (C-5) O.A. No. 847/2023 "4. Besides the above, it is pertinent to mention that the DPC for promotions from JTS to STS was actually held during August 2018 and promotions were effected vide order dated 28.02.2019. Even though it is assumed that the crucial date was reckoned as 01.04.2017, no DPC was held during the whole year of 2017. Even the final seniority list of JTS was published only on 17.08.2017 much after 01.04.2017. As on the date of DPC, I had put in more than 3 years of service. Therefore, on this ground also my seniority is unlikely to be affected. It is humbly submitted that had the appointment letters were issued in one batch with advise to join before a particular date, all candidates would have been on similar footing without any advantage or disadvantage. In the instant case, the candidates who got appointment letter during August 2014 got much more time to join than those who got offer during July 2015 due to administrative reasons. It is also relevant to mention that the undersigned as well as other candidates were not aware that they will be considered for promotion after 2 years of service and crucial date could be 01.04.2017. Had this known to the candidates, all candidates would have tried their level best to join before 01.04.2015 at any cost. On the contrary, all the candidates were aware that as per DOPT guidelines, seniority will be reckoned as per merit list of UPSC on joining within 6 months from the date of offer irrespective of actual date of joining. The incongruous scenario arising out of draft seniority list of STS can be easily mitigated by adhering to the inter se seniority of JTS notified vide OM dt. 17.08.2017 in respect of officers promoted to STS vide order dt. 28.02.2019 and none will be adversely affected by the same."
6.9 In above factual context, we would highlight that in CA Nos. 8324-8327 OF 2022 [Arising out of Special Leave Petition (Civil) Nos. 30734- 30737 of 2014] titled as AMIT SINGH Vs RAVINDRA NATH PANDEY & ORS. Etc., the Hon'ble Apex Court observed as under:-
"20. This Court in the case of Pawan Pratap Singh and others vs. Reevan Singh and others(2011) 3 SCC 267 observed thus:
"44. The Constitution BenchCourt in Direct Recruit ClassOfficers' Assn. v. State Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] stated the legal position with regard to inter se seniority of direct recruits and promotees and while doing so, inter alia, it was stated that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.16
Item No.41 (C-5) O.A. No. 847/2023
45. From the above, the legal position with regard to determination of seniority in service can be summarised 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 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 backdate 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 been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."
21. This Court in the said case held that 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. This Court further held that the inter se seniority in a particular service has to be determined as per the service rules. It held that 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 different sources. It further held that 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 of India. It further held that 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 held that the 17 Item No.41 (C-5) O.A. No. 847/2023 seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.
22. A bench of three learned Judges of this Court in the case of P. Sudhakar Rao and others vs. U. Govinda Rao and others(2013) 8 SCC 693 has approved the law as laid down by this Court in the case of Pawan Pratap Singh and others (supra).
23. It is thus clear that the inter se seniority between the promotees and the direct recruits will have to be determined in accordance with the 1992 Rules. The 1992 Rules fix the quota of 67% for direct recruits and 33% for promotees. A "year of recruitment" has been defined to be a period of twelve months, commencing from the first day of July of the calendar year and as such, in the present case, the year of recruitment would be from 1st of July of 1997 to 30th of June 1998."
6.10 The relative seniority of all the direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendations of the U.P.S.C. or other selecting authority. Accordingly, the persons appointed in pursuance of an earlier selection are senior to those appointed in a subsequent selection. The relative seniority that used to be determined earlier according to the date of confirmation and not the original order of merit, (in case where confirmation was in an order different from the order of merit indicated at the time of their appointment), in accordance with the general principles of seniority, has been discontinued w.e.f. 4.11.1992 (O.M. No. 20011/5/90-Estt (D) Dated 4.11.1992). The general principles of seniority therefore stands modified to that extent. [Para 2.1 of O.M. No. 22011/7/86-Estt.(D) Dated 18 Item No.41 (C-5) O.A. No. 847/2023 03.07.1986 and para 3 of O.M. No. 20011/5/90-Estt (D) Dated 4.11.1992] 6.11 In the case of persons who are recruited through a competitive examination, the inter-se seniority is determined on the basis of the rank assigned by the Public Service Commission conducting the examination and same cannot be altered. (Union of India v. Mohan Lai Capoor, (1973) 2 SCC836 ), S. K. Ghosh v. Union of India, AIR 1968 SC 1385; Harikishan Singh v. State of Punjab, AIR 1971 SC 1602: M.Savithri v. State of Mysore, 1972(1) Mys LJ 45; Syed Shamim Ahmed v. State, SLR 1981(l)Raj.
6.12 Seniority is not determined by mere fortuitous reporting for duty earlier and the date of the joining report; seniority would be determined on the basis of the ranking done by the Selection Board and as arranged in the roster. (REF:
Chairman, Puri Grmaya Bank v. Ananda Chandra Das, (1994) 6 SCC 301. Furthermore, where the selection process has ranked the candidates, merely because a person ranked higher had a later date of joining, within the stipulated period or extended period of joining granted by the authorities, cannot change the seniority based on performance in the selection board. A mere delay in joining, for reasons beyond the candidate's control cannot change 19 Item No.41 (C-5) O.A. No. 847/2023 his seniority. Ref P. Srnivas v. M. Radhakrishna Murthy, (2004) 2 SCC 459.
6.13 We may also state that birth in the cadre first would automatically accord the seniority over and above those who are appointed at a later date. It has been held so in the case of State of Uttar Pradesh vs. Ashok Kumar Srivastava & Anr. [(2014) 14 SCC 720].
6.14 Much emphasis has been laid to fact that the applicants cannot be considered for promotion as they are not eligible under Rules for not having completed their probation. We may agree with the submissions made by the learned Standing Counsel Shri Gyanender Singh in this regard. We find that such plea could have been taken into consideration only when in the relief(s) sought in the OA was to determine the eligibility of the applicants for promotion but for the fact that the relief(s) herein is the challenge of final seniority list dated 18.1.2022 of STS.
7. There is yet another point to ponder that once promotion order dated 28.2.2019 from JTS to STS was issued and the same was acted by respondent themselves which was based on seniority list of JTS, we can say that the Ministry of Labour & Employment published the final seniority list of Junior Time Scale (JTS) officers of Central 20 Item No.41 (C-5) O.A. No. 847/2023 Labour Service vide OM No. A-24021/03/2016-CLS.I dt. 17.08.2017. The said seniority list was in accordance with the relevant DOPT guidelines wherein relative inter-se- seniority between promotes (DP) and Direct Recruits (DR) were maintained. The seniority of all direct recruits were in accordance with the merit list recommended by UPSC. Once the applicants herein have been accorded the benefit of promotion to STS in terms of seniority list of JTS at the relevant point of time, we find no rationale and logic behind revisiting the list of STS to the detriment of the applicants herein. As per respondent's own assertion, the impugned final seniority list dated 18.1.2022 is also subject matter of challenge to various litigations. The said list ought to have been re-drawn at a later stage.
8. In light of well settled law and OM discussed herein above, we arrive at conclusion that the crucial date to determine inter-seniority amongst direct recruits is the date of appointment and not the date of joining. Accordingly, in peculiar facts and circumstances of the case of the applicant nos. 2 and no.3 herein , seniority of the applicants have to be revisited and their seniority has to be determined by taking into consideration their entry into the cadre, i.e., the 21 Item No.41 (C-5) O.A. No. 847/2023 date of their appointment order and not from the date of joining.
9. CONCLUSION 9.1. We, accordingly, hold and direct that the seniority of the applicant Nos. 2 and 3 should be re-determined. Accordingly, the seniority position should be re-casted/re- fixed/restored on that basis only. The final seniority list dated 18.1.2022 shall be re-casted/re-fixed/restored qua the applicant Nos.2 and 3, preferably within 30 days from date of receipt of the certified copy of this order. 9.2. The OA is disposed of in aforesaid terms. All pending MAs, if any, shall also stand disposed of. No costs.
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(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/dhruv/