Central Administrative Tribunal - Delhi
Ritambra Prakash vs Union Of India Through on 7 January, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 814/2008 New Delhi, this the day of January, 2009 HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) HONBLE MRS. MEERA CHHIBBER, MEMBER (J) Ritambra Prakash D/o Shri Prem Prakash R/o B-79, Shardapuri, New Delhi-110015. Applicants (By Advocate: Shri Arun Bhardwaj with Shri V.K. Sharma) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Commissioner of Police, Police Headquarters, I.P. Estate, M.S.O.Building, New Delhi. 3. Jt. Commissioner of Police (Hdqrs.), Police Headquarters, I.P. Estate, M.S.O.Building, New Delhi. 4. Shri Satvinder Singh, S/o Lashkar Singh, H.No. 20, Double Storey, PS Parliament Street, New Delhi-110001. (Presently posted as PA to Jt. CP/NDR, PHQ). Respondents (By Advocate: Shri Ajesh Luthra for respondents No.2 & 3 Shri V.S.R.Krishna for respondent No.4) ORDER
Mr. L.K.Joshi, Vice Chairman (A) This OA, filed under Section 19 of the Administrative Tribunals Act, 1985 is a fall out of the order dated 8.02.2008 in OA Number 973/2005. ASI (Stenographer) Satvinder Singh, applicant in OA Number 973/2005 and the fourth Respondent in the instant OA had approached this Tribunal challenging the order dated 6.05.2004 by the competent authority of Delhi Police by which his date of confirmation was changed from 14.05.1989 to 25.09.1989. The Tribunal had held thus:
11. On the basis of above discussion, the OA succeeds. The impugned orders are quashed and set aside. The Applicant would count his seniority from the date of confirmation, which is 14.05.1989. The Applicant would be entitled for all consequential benefits as a result of this direction. The Respondents are directed to comply with the above direction within three months from the date of receipt of a certified copy of this order. No costs.
Ms. Ritambra Prakash, the Applicant herein, who was also selected as ASI (Steno.) along with the fourth Respondent in 1987, has taken exception to the direction given in OA No. 973/2005, quoted above, on the ground that she was not made a party in the aforesaid OA No. 973/2005 and the order in this OA would unsettle her seniority over the fourth Respondent, especially considering that she has already been promoted as Sub Inspector (Steno.) by order dated 24.02.2006. She has prayed for the following reliefs:
(I) Declare that the act of the respondents in issuing the offer of appointment was performed arbitrarily and in a discriminatory, illegal and unfair manner and hence the date of joining on the basis of such illegal and unfair manner of issue of offers of appointment cannot be made the basis of determination of seniority between the selected candidates.
(II) The respondents be directed not to disturb the settled seniority of the applicant as Inspector (Steno) (III) The respondents be directed to grant seniority to the applicant in accordance with her position/placement in the merit list.
(IV) The respondent 4 be directed to be junior to the applicant on the basis of his placement in the merit list/select list and therefore be held as not entitled to any promotion prior to the applicant.
(V) The order dt.8.2.05 in OA 973/05 be recalled and the OA 973/05 be decided after giving the applicant an opportunity of being heard being necessary and affected party.
(VI) Any other relief which this Honble Court may deem fit and proper in the facts and circumstances of the case may also be granted in favour of the applicant.
The applicant had approached the Honourable Delhi High Court in Writ Petition number 2339/2008 challenging the aforesaid order in OA No. 973/2005. The Honourable High Court passed the following order:
WP ( C) No. 2339/2008After some arguments, learned counsel for the petitioner does not press the petition and seeks leave to approach the Tribunal in terms of judgment of the Supreme Court in K. Ajit Babu Vs. UOI AIR 1997 SC 3277 as the petitioner was not made a party in the concerned OA.
Writ petition is dismissed as withdrawn. The Tribunal shall expeditiously deal with the OA as and when filed by the petitioner before it and also consider such prayer as may be admissible in law for interim relief.
2. The facts, as are necessary for adjudication in this case, are delineated hereafter. The Applicant and the fourth Respondent appeared in 1987 for direct recruitment to the post of ASI (Steno.) under the second Respondent. The fourth Respondent, who was already working under the Respondents on ad hoc basis, joined in his post on 14.05.1987. The Applicant joined the service on 23.06.1987. It is not in dispute that the Applicant was first in the merit list of ASI (Steno.)s selection test. On 19.12.1988 a seniority list captioned as under was issued:
No. 13985/Estt. (R ): Fixation of inter-se-seniority in.. The Inter-se-Seniority (sic) of the following candidates, appointed as Temporary Asstt. Sub Inspector (Stenog.) in Delhi Police during 1980 and thereafter is fixed as under :- The Applicant is at serial number 15 in this list and the Respondent is at serial number 20 in the aforesaid list.
3. By an order dated 4.01.1990 the ASIs (Steno.), appointed in 1987, were confirmed in their appointments two years from the date of their appointment. The Applicant was confirmed from 23.06.1989, whereas the fourth Respondent was confirmed with effect from 14.05.1989. One Ms. Urmila, who was at serial number 7, just above the fourth Respondent was confirmed from 1.07.1989. It may be noted that in the list the Applicant was shown above the fourth Respondent although the latter was confirmed from an earlier date than the Applicant.
4. In the year 2000, a list of ASI (Steno.) was prepared for considering them for list E for promotion to the post of SI (Steno.). ASI (Steno.) Ms. Urmila made a representation that she joined Delhi Police as ASI (Steno.) on 1.07.1987 and was declared confirmed on 1.07.1989, as adverted to above. Her name was placed at serial number 18 in the inter se seniority list issued by the Recruitment Cell of the Police Headquarters (PHQ). In the said order her name was placed just below the names of ASIs (Steno.) Prem Ballabh and Manju Bala. In the order of confirmation also her name was shown just below ASI (Steno.) Prem Ballabh. Ms. Urmila had been aggrieved by the fact that in the list of ASI (Ministerial)/(Stenographer) prepared for consideration for inclusion of names in the promotion list E, the name of ASI (Steno.), Prem Ballabh had been shown at serial number 52, whereas her name stood at serial number 66 instead of serial number 53. She requested that her name might be placed at the right place. On 22.05.2000 the office of the Confidential Branch of PHQ recorded the following note in File Number 6/15/2000:
In this regard it is submitted that W/ASI (Steno) Urmila No. 1816/D was appointed as ASI (Steno.) in Delhi Police w.e.f. 1.7.1987 and was declared confirmed as such w.e.f. 1.7.1989. Prior to 4.11.1992, the seniority of an employee was determined on the basis of confirmation, but after the issue of instructions as contained in GOIs O.M.No. 2011/5/90-Estt. (D) dated 4.11.1992, it was decided by the Govt. of India that the seniority of a person regularly appointed to a post according to rules would be determined by the order of merit indicated at the time of their initial appointment and it was also decided that the seniority will continue to be determined on the basis of principle already existing prior to the date of issuance of these orders.
In the instant case the applicant ( Ms. Urmila ) was declared confirmed in her appointment w.e.f. 1.7.1989 whereas ASIs (Steno.) Satvinder Singh 1973-D, Rajni Gupta, 1727-D, Rajni Makhija, 1811-D, Rakesh Kumar 1812-D, Padam Singh 1813-D, Jagdish Kumar 1814-D, Neerja Kumari 1720-D, Satya Narain 1670-D, Kamlesh Kumari, 1815-D, Ritambara Prakash 1818-D and Virender Kumar 1819-D were declared confirmed in the rank of ASI (Steno.) prior to the applicant, so their names have rightly been shown above the name of the applicant in the list of officers, whose service particulars have been called for Promotion List E (Min.) The matter was re-examined vide note dated 24.06.2000, when Ms. Urmila, ASI (Steno.) submitted a circular dated 27.07.1992 by the Establishment Branch of PHQ. The note is extracted below:
..vide which (the circular dated 27.07.1992) it was decided in this Hdqrs. that we should consider one date for confirmation of Head Constable (Min.) by fixing a date of last joining candidate within one year, who were selected in one recruitment batch and confirm them from the date when last candidate joined the post. In this way, the inter-se-seniority fixed on the basis of merit will not be disturbed.
... The name of the representationist [Ms. Urmila, ASI (Steno.) is at Sl. No. 3 and she is not the last candidate in her batch who joined Delhi Police on 1.7.1987 and completed the prob. period of 2 years i.e. on 30.6.1989.
In order to protect her seniority in the rank of ASI (Steno.) we have to cancel our earlier notification dated 4.1.1990 regarding confirmation of ASI (Steno.) i.e. in respect of Sl. No. 5 to 18 and we have to issue a fresh order regarding their confirmation in their appointments w.e.f. 25.9.1989 i.e. the date from which the last candidate completed the prob. period of 2 years by following the same principle adopted by this Hdqrs. in the case of Head Constable (Min.). By doing so, the applicant and other stenographers would gain their seniority according to the inter-se-seniority circulated by R. Cell/PHQ.
Following the approval of the above proposal on the file, an order dated 3.07.2000 was issued, amending the order dated 4.01.1990 by which the service of the ASIs (Steno.) had been confirmed from dates two years after their respective appointment in service. By the aforesaid order, the date of confirmation was made 25.09.1989, uniform in all cases. In this list also the name of the Applicant has been shown at serial number 1 and the fourth Respondents name was at serial number 4. It would also be noted from the foregoing note dated 24.06.2000 that this principle has been followed in case of Head Constables (Ministerial) also. A copy of order dated 16.03.1993 passed in respect of the Head Constable (Ministerial) has been placed at Annex A-7 ( page 32 of the paper book).
5. The fourth Respondent challenged the order dated 3.07.2000 in OA No. 2619/2002. The applicant had not been made a party in that OA and she filed an MA Number 941/2003 for her impleadment also as her rights were getting affected. The Tribunal, confining itself to the contention that the order dated 3.07.2000 was passed without giving any show cause notice to the applicant therein, quashed the order dated 3.07.2000 directing that the respondents therein should issue show cause notice to the applicant therein before amending the date of confirmation as fixed by the earlier order dated 4.01.1990. A show cause notice dated 17.1.2004 was issued ( Annex A-11) to show cause why the date of confirmation of ASI Satvinder Singh, the fourth Respondent herein, should not be changed from 14.05.1989 to 25.09.1989. The Applicant raised the following points in his reply ( Annex A-12) dated 3.02.2004 to the show cause notice
(i) He was appointed ASI (Steno.) on ad hoc basis in Delhi Police on 29.10.1985. The ad hoc appointment was extended till he was appointed as ASI (Steno.) on regular basis by order dated 14.05.1987.
(ii) He was confirmed on 14.05.1989 after two years of probation. Rule 22 of Delhi Police (Appointment and Recruitment) Rules, 1980 provides that seniority is finally settled by confirmation. The DOP&T, vide O.M. No. 22011/7/86-Estt. (D) dated 3.07.1986 provided that:
Where persons recruited or promoted initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their appointment, seniority shall follow the order of confirmation and not the original order of merit.
(iii) The above provision regarding seniority from the date of confirmation was challenged before the Honourable Supreme Court. In the case of Class-II Direct Recrcuits Engineering Officers Association Vs. State of Maharashtra, JT 1990 (2) SC 264 laid down the ratio that seniority should be governed by the order of merit at the time of initial appointment and not by the date of confirmation. Pursuant to the aforesaid judgment, the DOP&T issued an OM No. 22011/5/90- Estt. (D) dated 4.11.1992. In paragraph 3 of the OM it was laid down that seniority of a person regularly appointed to a post would be determined by the order of merit at the time of initial appointment and not according to date of confirmation. However, paragraph 4 of the said OM read thus:
4.These orders shall take effect from the date of issue of this OM. Seniority already determined according to existing principles on the basis of issue of these orders will not be reopened even if in some cases seniority has already been challenged or is in dispute and it will continue to be determined on the basis of principles already existing prior to the date of issue of these orders.
(iv) The Central Administrative Tribunal by its order dated 7.08.2001 in OA No. 2076/2000 , HC (MT) Mulak Raj Vs. Union of India and others also held that prior to 4.11.1992, seniority as fixed on the basis of confirmation would prevail.
6. The representation was examined. On 17.07.2000 a note was recorded, which read thus:
On the other hand, the applicant ASI (Steno) Satvinder Singh, No. 1973-D, was appointed in Delhi Police on 14.5.87. His name was existing at Sl. No. 20 i.e. above the name of Steno. Rajni Gupta, No. 1727-D. In the earlier order dated 4.1.1990, regarding confirmation, his name was also shown above the name of Steno. Rajni Gupta. Due to change in the date of confirmation of ASI (Steno.) Satvinder Singh and others, it may be seen that their names are in order of their inter-se-seniority fixed by PHQ at the time of their initial appointment.
In view of the position explained above, it is submitted that no junior ASI (Steno.) to the applicant has been made senior to him and the said applicant was junior to ASIs (Steno.) Ritambra Prakash, No. 1818-D and Urmila No. 1816-D, whose seniority has now been protected according to the merit/inter-se-seniority fixed in their appointment. Therefore, the action of the Police Hdqrs. seems to be in accordance with the policy decision of this Hdqrs.
The fourth Respondent then submitted another representation in which he raised that under Rule 22 of Delhi Police (Appointment & Confirmation) Rules 1980, subordinates promoted from a lower rank be considered senior to a person appointed direct to the same rank on the same day till the seniority is finally settled by confirmation. The fourth Respondents contention was that in such situation a person appointed to the Department in the same rank i.e. ASI (Steno.) must be given seniority over the direct recruits. He was serving as ASI (Steno.) on ad hoc basis and was regularized on 14.05.1987.
7. This contention of the fourth Respondent was rejected by noting that he was appointed as temporary ASI (Steno) w.e.f. 14.05.1987 and he was not promoted from a lower rank. He was appointed on direct recruitment. It was further noted in the aforesaid note that as per the Governments OM dated 22.12.1959 the relative seniority of all direct recruits would be determined by the order of merit in which they were selected for such appointment. Reference has also been made to the OM of Ministry of Home Affairs No.9/23/71-Estt.(D) dated 6.06.1978, which provides procedure for fixing seniority in case of delay in reporting for duty after selection. According to this OM the candidates who joined duty within two to three months of the selection would not suffer any loss in their seniority. Reference has also been made to Ministry of Home Affairs OMs No.1/1/55/RPS dated 17.02.1955, 1/9/58/RPS dated 16.05.1969 and 12/10/63/Estt.(D) dated 27.01.1973 in which it has been stated that the seniority would be fixed on the basis of order of merit in the selection and not on the basis of date of confirmation. The case of Head Constable Mulak Raj (supra) was also considered by the Legal Advisor to the Commissioner of Police in his note dated 29.10.2001 opining that the facts in the case of ASI (Steno), Satvinder Singh, the fourth Respondent, were different from the facts of the case of Mulak Raj. Therefore, it was recorded that no relief could be given to the fourth Respondent, on the basis of the case of Mulak Raj. Thereafter the matter has been discussed and examined in great detail in the file. It is recorded by DCP, Headquarters, Establishment that he had a meeting with the concerned officers of DOP&T on 11.04.2002 regarding the matter of the representations by ASI (Steno) Satvinder Singh. It is recorded that he was informed by the DOP&T officials during their meeting that paragraph 4 of the DOP&Ts OM dated 4.11.1992, which stated that the policy of delinking of confirmation from seniority would apply prospectively and those who have been given seniority prior to 4.11.1992 on other principles would retain their seniority, was found to be unsound by the Honourable Supreme Court in the judgment in CWP No.12410-12413/1996, Chief Commissioner of Income Tax and others Vs. V.Suubarao and others with other connected cases. This judgment was delivered on 23.11.2000. The aforesaid judgment is quoted below in extenso:-
This batch of appeals and Special Leave Petition are directed against the orders of the Central Administrative Tribunal ( for short the Tribunal) in different cases but the point involved is one and the same. Some of these matters relate to the seniority of the employees in the Income Tax Department and some others relate to the seniority of the employees of the Central Excise Department. In all these cases the seniority of the employees was being determined in accordance with the Office Memorandum (OM) dated 22nd of December, 1959 issued by the Government of India, Ministry of Home Affairs. The applications before the Tribunal having been filed challenging the validity of the proviso to paragragh 4 as well as proviso to paragraph 5 of the OM, on consideration of the submissions made by the parties, the Tribunal has struck down the aforesaid two proviso and hence the Income Tax Department as well as the Central Excise Department have preferred appeals before this Court. In the impugned judgments, the Tribunal has come to the conclusion that the appointments having been made in accordance with the rules providing for substantive appointment, the proviso indicating that the date of confirmation should be the basis of inter se seniority is unconstitutional and must be held to be arbitrary as has already been held by this Court in the Case of Direct Recruit Class II Engineering Officers Association v. State of Maharashtra & Ors ( (1990) 2 SCC 715) ( for short Direct Recruit case ). At this stage it would be appropriate to extract paragraph 4 and 5 of the OM dated 22nd of December, 1959.
4. Direct Recruits Notwithstanding the provisions of para 3 above, the relative seniority of all direct recruits shall be determined by the order of merit in which they are selected for such appointment, on the recommendations of the UPSC or other selecting authority, person appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection:
Provided that where persons recruited initially on temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their appointment seniority shall follow the order of confirmation and not the original order of merit.
5. Promotees. (1) The relative seniority of persons promoted to the various grades shall be determined in the order of their selection for such promotions:
Provided that where persons promoted initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their promotion, seniority shall follow the order of confirmation and not the original order of merit.
(ii) Where promotions to a grade are made from more than one grade the eligible persons shall be arranged in separate lists in the order of their relative seniority in their respective grades. Thereafter, the Departmental Promotion Committee shall select persons for promotion from each list up to the prescribed quota and arrange all the candidates selected from different lists in a consolidated order of merit which will determine the seniority of the persons on promotion to the higher grade.
The learned Additional Solicitor General appearing for the Income Tax Department and Mr. Malhotra, the learned senior counsel appearing for the Excise Department contended before us that the question of confirmation being linked with seniority as per the proviso could not have been held to be arbitrary or irrational since confirmation is made by the authority on the basis of the suitability and efficiency of the person concerned and as such in the efficient administration of the service the confirmation has a vital role and, therefore, the proviso to paragraph 4 and proviso to paragraph 5 of the aforesaid OM could not have been held to be arbitrary. It was also further contended that the decision of this Court in the Constitution Bench decision in the Direct Recruit case must be applied to the facts of that case and could not have been made applicable for testing the validity of the OM, which is in vogue since 1959. The learned Additional Solicitor General also further urged that the said OM having been allowed to operate since 1959, the seniority already determined prior to the impugned decisions of the Tribunal should not have been unsettled and the judgments should have been allowed to operate prospectively only and in fact the Union of India has already issued an OM to that effect on 4.11.1992 and paragraph 4 of that OM unequivocally indicates that the seniority already determined according to the existing principles on the date of issue of this order will not be re-opened. Even if in some cases seniority has already been challenged or is in dispute it will continue to determine on the basis of the principle already existing prior to the date of issue of this order.
Mr. Nageshwar Rao and all other learned counsel appearing for the respondents however refuted the submissions made by the learned Additional Solicitor General contending inter alia that in view of the judgment of this Court in S.B. Patwardhan v. State of Maharshtra [(1977) 3 SCC 399 ) which has been reaffirmed by the Constitution Bench in the Direct Recruit case, the conclusion is irresistible that proviso to paragraph 4 and the proviso to paragraph 5 of the OM is arbitrary and irrational and, therefore, the Tribunal rightly struck down the same. On the submission of the learned Additional Solicitor General that the seniority already determined should not be unsettled, it was contended that no data and particulars have been placed before the Court to indicate the effect of the seniority being redetermined. In the eye of law once a particular proviso is struck down by a Court, it tantamounts to holding that such proviso never stood on the statute until and unless the Court specifically directs that the effect of the judgment would be from the date of the judgment or from a future date depending upon the contingency of the case. That being the position, according to the learned counsel appearing for the respondents, the Tribunal was wholly justified in striking down proviso to paragraph 4 and proviso to paragraph 5 of the OM.
Having regard to the submissions made by the learned counsel appearing for the parties and in view of the authoritative pronouncement of this Court both in Patwardhans case as well as in the Direct Recruit case, we have no manner of doubt that the Tribunal rightly held the proviso to the aforesaid two paragraphs of the OM to be arbitrary and accordingly struck down the same. In the Constitution Bench decision of this Court in the Direct Recruit case, this Court has held that if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for the purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary. The two paragraphs of the OM namely paragraph 4 dealing with the direct recruitment and paragraph 5 dealing with the promotion and the proviso thereto, the validity of the same has to be determined in view of the aforesaid pronouncement of this Court. It has been held in Patwardhans case that the principle that seniority should be determined on the basis of confirmation is a wholly unsound principle and therefore it was indicated that the seniority has to be determined on the test of continuous service and not on the basis of confirmation, inasmuch as confirmation is one of the inglorious uncertainties of Government service which does not necessarily depend upon efficiency of the incumbent nor on the availability of the substantive vacancies. The learned Additional Solicitor General appearing for the Income Tax Department and Mr Malhotra appearing for the Excise Department wanted to urge before us that the confirmation of these employees being dependent upon their passing of the departmental test it cannot be said that the said confirmation has no connection with their efficiency and, therefore, the aforesaid ratio would not apply to the case in hand. We are unable to persuade ourselves to agree with the aforesaid submission inasmuch as non-passing of departmental examination will entail not getting of any increment in the service and, in fact, so far as the Income Tax Department is concerned, the earlier practice of terminating the services stood abandoned since 1985. That being the position and the appointees having been appointed on the basis of competitive test through a process of selection and having been allowed to continue in service, there would be no rhyme or reason not to take the continuous service into account for the purpose of their seniority by taking recourse to the proviso to the OM as stated earlier and such proviso has rightly been held to be unconstitutional and discriminatory.
It is, no doubt, true that sometimes the Court, while striking a particular provision, gives retrospective effect to the same, but that would depend upon the facts of each case. Though a contention has been advanced before us that in implementing the decision of the Tribunal by way of redetermining the seniority of these employees there will be a total administrative chaos, but there has been no material placed before us on the basis of which we can come to the aforesaid conclusion. That being the position, we are not persuaded to accept the submission of the learned Additional Solicitor General that the seniority already determined may not be unsettled because of the impugned judgment of the Tribunal. In the premises aforesaid, we see no infirmity with the conclusion arrived at by the Tribunal so as to be interfered with by us in exercise of our jurisdiction under Article 136 of the Constitution of India.
These appeals and S.L.P. stand dismissed accordingly. (emphasis added).
The Applicants reply to the show cause notice (Annex A-12), alluded to in paragraph 5 was rejected by the order dated 6.05.2004.
8. The aforesaid order was challenged by the Applicant in OA No.973/2005 decided on 8.02.2008. A coordinate bench of this Tribunal, in which one of us, namely, Mr. L.K.Joshi, Vice Chairman (A) was also a member considered the case of Head Constable/MT (Welder) Mulak Raj Vs. Union of India and others, OA No.2276/2000 decided on 7.08.2001 and also the instructions in the DOP&Ts OM of 4.11.1992 that seniority would be delinked from confirmation prospectively. The Tribunal also considered in the aforesaid OA No. 973/2005 the earlier Rule 22 of Delhi Police (Appointment and Recruitment) Rules, 1980 which reads as follows:
Seniority in the case of upper and lower subordinate shall be initially reckoned from the date of first appointment, and officer of subordinating rank promoted from a lower rank being considered senior, to persons appointed directed to the same rank on the same day, till seniority is finally settled by confirmation
9. The above quoted judgment in the case of V.Subbarao (supra) had not been brought to the notice of this Tribunal, while adjudicating OA No.973/2005. It is in these circumstances that this Tribunal allowed the OA of ASI (Steno) Satvinder Singh and directed that he would count his seniority from the date of confirmation which is 14.05.1989 and that he would be entitled for all consequential benefits as a result of this direction.
10. The learned counsel for the Applicant has argued that the fourth Respondent was already serving in the Delhi Police on ad hoc basis and when he was selected on direct recruitment as ASI (Steno) in 1987, he joined immediately in the post. The Applicant, however, was given her letter of appointment much later and as a result could join only on 23.06.1987. The letter of appointment was issued to the Applicant on 16.06.1987 (Annex-A-2) and she was asked to join on 23.06.1987. He would contend that it is not the fault of the Applicant that she joined on 23.06.1987. It was only a result of fortuitous circumstances that the Applicant joined later than the fourth Respondent. It is argued that fixing the seniority on the basis of such fortuitous circumstances would be illogical and unjust. The Applicant was topper in the selection of ASI (Steno) and her name was at the top of her batch in the inter-se seniority list issued on 19.12.1988. It is contended that this list has been maintained all through and the representations of the fourth Respondent have been repelled by the second and third Respondents. The learned counsel has placed reliance of Chairman, Puri Gramya Bank and another Vs. Ananda Chandra Das and others, Civil Appeal No.6308/1994 decided on 12.09.1994. The Honourable Supreme Court held thus in the aforesaid judgment:-
2. This appeal arises from the judgment of the High Court of orissa in OJC No. 1007 of 1988, dated 4/3/1992. The respondent and others were selected by direct recruitment as managers of Rural Bank. His rank was No. 9 in the merit list. He was directed to be given seniority on the basis of the date of his reporting to duty. It is reported that the first respondent is dead. The only question in this case is that what shall be the ranking among the direct recruits? Is it the date on which they joined duty or according to the ranking given by the Selection Board? On comparative evaluation of the respective merits of the candidates for direct recruitment, the Board had prepared the merit list on the basis of the ranking secured at the time of the selection. It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High court is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis. The view, therefore, is wrong. However, we need not interfere with the order, since the first respondent has died. (emphasis added).
11. The learned counsel would further contend that the Applicant had already been promoted as Sub Inspector (Steno) on 24.02.2006. The fourth Respondent did not make her a party in the aforesaid OA No.973/2005 and had kept the Tribunal in the dark about the seniority list of 19.12.1988, adverted to in the preceding paragraphs. He would also contend that the fourth Respondent had filed the aforesaid OA on false grounds by stating that he was regularized as ASI (Stenographer) from 14.05.1987 after his ad hoc stint in the same post. He would contend that the Applicant was not regularized on the basis of his ad hoc service but was like the Applicant, a direct recruit.
12. Per contra, the learned counsel for the fourth Respondent would contend that the Rule 22 of Delhi Police (Appointment and Recruitment) Rules, 1980 as it existed in 1987, provided for seniority on the basis of confirmation. It was only amended in the year 2003. He would further contend that the fourth Respondent had been confirmed from 14.05.1989 whereas the Applicant had been confirmed from 23.06.1989 vide order dated 4.01.1990. Therefore, by the application of the aforesaid Rule 22, the fourth Respondent has to be senior to the Applicant. The Rule 22 was amended only in the year 2003, and therefore, it would not be retrospectively applied. He would strenuously urge that the second and third Respondents, could not have changed the confirmation of the fourth Respondent after 11 years of the order of confirmation. He would strongly urge that the inter-se seniority prescribed in the order dated 19.12.1988 is not a seniority list. All the officials mentioned in the list were temporary at that time and there could not be a seniority list comprising temporary officials. He would place reliance on the case of Head Constable/MT (Welder) Mulak Raj (supra) in which Rule 22 of Delhi Police (Appointment and Recruitment) Rules, 1980 as is existed before the year 2003 has been quoted and relied upon to uphold the plea of HC Mulak Raj for seniority based on confirmation.
13. The learned counsel for the Respondents 2 & 3 has confined himself to stating that the department has considered the Applicant senior to the fourth Respondent on the basis of seniority as is stated in paragraph 4.3 of the reply affidavit of the Respondents 2 & 3.
14. We have heard the rival contentions and perused the record in the OA with the assistance of learned counsel for all parties. We have also minutely gone through file of Delhi Police including file No.A-6/15/2000 dealing with the representations of ASI (Steno) Ms. Urmila and ASI (Steno) Satvinder Singh, F.No. A1/8/2000 (Pt.I & Pt.II).
15. The question of seniority has remained a vexed question over several years till it was decided finally by the Honourable Supreme Court in Clause II Direct Recruits Engineering Officers Association Vs. State of Maharashtra (supra). The OM dated 3.07.1986 of DOP&T reads as follows:
Where persons recruited or promoted initially on a temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their appointment, seniority shall follow the order of confirmation and not the original order of merit. (Emphasis added).
16. The DOP&T, on the basis of the judgment of the Honourable Supreme Court in the aforementioned case, issued an OM dated 4.11.1992 in paragraph 3 of which the directions for delinking seniority from confirmation and determining it by the order of merit indicated at the time of initial appointment were given. Paragraph 4 of the aforesaid OA which has already been adverted to in preceding paragraphs, however, stated that the seniority already settled on the basis of confirmation prior to coming into force of this OM should not be unsettled. Rule 22 of Delhi Police (Appointment & Recruitment) Rules, 1980 was also amended in 2003 by which the seniority was to be determined on the basis of merit. Prior to that, the Rule also provided for seniority on the basis of confirmation. It is on the basis of Rule 22 as it existed prior to the year 2003 and also the prospective application of the OM dated 4.11.1992 that this Tribunal took a view in OA No.973/2005 that ASI (Steno) Satvinder Singh, the fourth Respondent would count his seniority from 14.05.1989. However, the judgment of the Honourable Supreme Court in V.Subbarao and others (supra) had neither been brought to our notice in OA No.973/2005 nor surprisingly in the OA in hand. The learned counsel for the Applicant in the instant case has also not cited this judgment which according to us, holds the key to the riddle of seniority prior to 4.11.1992. It is for this reason that we have quoted the judgment in full in a preceding paragraph of this order. Reference has also been made in the aforesaid judgment to paragraph 4 of the OM dated 4.11.1992 adverted to above, which has apparently not found favour with the Honourable Supreme Court. This judgment of the Honourable Supreme Court, however, does not consider Rule 22 of Delhi Police (Appointment & Recruitment) Rules, 1980 as it existed prior to the year 2003. However, we are of the view that the ratio laid down in the aforesaid judgment of the Honourable Supreme Court would apply as much to Rule 22 of Delhi Police (Appointment & Recruitment) Rules, 1980 as to the various memoranda issued by the Government, which have been considered in the aforesaid judgment. It is also to be noted that in the instant case the settled position of seniority is more likely to be unsettled by holding that the seniority should be decided on the basis of confirmation and not on the basis of merit. The reason for this is that the Applicant has already been promoted on the basis of principle of merit, whereas the principle of seniority on the basis of confirmation has not given any benefit to any official so far.
17. However, since a coordinate bench of this Tribunal has held in OA No.973/2005 (supra) and in OA-2276/2000 (supra) that prior to 4.11.1992 the seniority would be decided by the date of confirmation and not on the basis of merit in the initial selection, judicial propriety demands that the matter should be referred to a Larger Bench for consideration of this issue especially also considering that the judgment of the Honourable Supreme Court in V.Subbaraos case (supra) has not considered Rule 22 of Delhi Police (Appointment & Recruitment) Rules, 1980. The issue to be considered would be:
whether the seniority of upper and lower subordinates of Delhi Police would be based on the date of their confirmation or on the basis of merit in the selection test for the initial appointment prior to the amendment of Rule 22 of the Delhi Police (Appointment & Recruitment) Rules, 1980 in 2003. The matter may be placed before the Honourable Chairman on the administrative side for orders about constitution of Full Bench.
( Meera Chhibber ) ( L.K. Joshi ) Member (J) Vice Chairman (A) `sd