Central Administrative Tribunal - Ahmedabad
Rameshchandra And Ors. vs Union Of India (Uoi) And Ors. on 13 May, 2004
Equivalent citations: 2005(2)SLJ94(CAT)
JUDGMENT A.S. Sanghvi, Member (J)
1. The applicants are the direct recruit IRS Officers and they are aggrieved by their seniority assigned to them in the civil list as on 23.8.96. According to them, they have not been assigned correct seniority/position in the civil list pertaining to the Indian Revenue Service circulated by the respondents in the year 1996. They have alleged that their seniority is depressed and they ought to have been shown senior above the private respondents. During the pendency of the O.A., they have amended the O.A. and also incorporated a challenge to the vires of O.M. dated 7.1.93 issued by the DOP and T contending that the O.M. violates fundamental rights guaranteed under Articles 14 and 16 of the Constitution. It is alleged by the applicant that the impugned O.M. dated 7.1.93 is the result of the wrong interpretation and application of the judgments of the Hon'ble CAT and Hon'ble SC and is issued without jurisdiction by the respondents and therefore, the same requires to be quashed and set aside. According to the case of the applicants, they are figured between 698 to 810 in the civil list of 1996. The seniority assigned to them is however, not in accordance with the rules and regulations and the directions issued by the Govt. of India. As per the instructions dated 3.7.86 of the Govt. of India, Department of Personnel and Training relative seniority of direct recruit is determined by the order of merit by which they are selected for such appointments on recommendations of the UPSC. Thus, persons appointed as a result of earlier selection will become senior to those appointed in the subsequent selection. They have alleged that the respondents have given seniority to the other employees who joined subsequent to the applicants with retrospective effect. Such action of the respondents would therefore adversely affect the promotion avenues of the applicant and therefore, the same is illegal. They have also contended that it is a settled law that employees get seniority from the date of actual working on the post and not prior to that. They are therefore, entitled to get the seniority above the employees who joined subsequent to them. They have also contended that they are victims of the wrong interpretation and application of the judgments of Principal Bench, Delhi in the case of Alok Kumar and also of the Supreme Court in the case of Mohan Kumar Singhania. The O.M. No. 13018/1/93 AIS (1) dated 7.1.93 of DOP and T giving retrospective effect, and saying it to have been issued on the basis of the aforesaid decisions, and withdrawing earlier instructions providing for loss of seniority of those persons who do not join in time even if they wanted to take next civil service examination, is violating the Articles 14 and 16 of the Constitution and as such is illegal and arbitrary. They have also contended that while fixing their seniority, the respondents have ignored various instructions issued by the DOP&T from 1961 onwards and as such, their seniority is not correctly shown by the respondents in the civil list. They have prayed for quashing of the O.M. dated 7.1.93 and also for assigning the correct seniority to them in the civil list of IRS.
2. The O.A. is resisted by official respondents as well as private respondents. They have raised the preliminary objection to the maintainability of the O.A. contending that the issued raised by the applicants in this O.A. has already been raised and answered by this Tribunal in O.A. 491/96 and as such, now this O.A. is not maintainable. They have further contended that the O.M. dated 5.6.78 on which the applicants seem to be relying and which prescribed for depressing the seniority of the probationers who had joined training (foundational course) with the candidates of the subsequent batch, after appearing in the next civil service examination has already been withdrawn vide DOP&T O.M. dated 7.1.93 with effect from the date of the earlier instructions notified i.e., retrospectively w.e.f. 1987. This was done in pursuance to the judgments rendered by the Hon'ble CAT, Principal Bench in the case of Alok Kumar on 20th August, 90 and confirmed by the Hon'ble Supreme Court in the case of Mohan Kumar Singhania and Ors. v. Union of India, 1992 Suppl. SCC 594. They have contended that DOP&T had reviewed the matter of depression of seniority of the candidates who joined late in the service after confirmation of the Apex Court in Singhania's case and it was decided that the candidates who obtained the permission to abstain from joining training to appear at the next civil service examination would retain his original seniority. This decision was made applicable with retrospective from the year 1987.
3. In their further reply to the amended O.A., the respondents have denied that the O.M, dated 7.1.93 is issued by the DOP&T without jurisdiction and that it is being issued by misinterpreting the decisions of CAT, Principal Bench in the case of Alok Kumar and also of the Hon'ble Supreme Court in the case of Mohan Singhania. According to them, the instructions issued in the O.M. dated 7.1.93 envisages restoration of the seniority of the candidates who imparted in the competitive examination on the basis of which they were appointed and as such, there is no illegality. They have also contended that the O.A. suffers from the vices of delay and latches and as such also is liable to be dismissed.
4. The private respondents have also raised similar contentions, contending inter alia that the O.A. is barred by delay and latches and that the issues raised in this O.A. stand decided by this Tribunal in the case of Manoj Kumar Gupta in O.A. 491/96 and as such, this O.A. is not maintainable. They have also contended that the seniority of the candidates recruited through the UPSC/Staff Selection Commission is regulated according to their position in the merit and not from the date of joining service and in such circumstances, the issued raised by the applicants cannot be allowed. They have also contended that the O.M. dated 7.1.1993 is nothing but the implementation of the direction of the Apex Court and calling upon this Tribunal to review the decision of the Apex Court and quashing and setting aside the same is nothing but an attempt to abuse the process of law. They have further pointed out that in a recent decision in the case of Bimlesh Tanwar v. State of Haryana (2003) 5 SCC 604=2003(2) SLJ 220 (SC) the Supreme Court has held that inter se seniority must be determined in case of direct recruitment on the basis of merit list and it is also stated that it is beyond any cavil that merit has a role to play in the matter of determination of inter se seniority. According to them, in view of the settled position of law, the O.A. is not maintainable and deserves to be rejected.
5. We have heard the learned Counsel of both the parties at length. They have submitted their written arguments also. We have duly considered the same.
6. Before we advert to the rival submissions made by the learned Counsel of both the parties, we may point out that the O.A. moved by the applicants, does not provide any particulars of their appearing in the CS examination for IRS Officers and their position in the select list on merit vis-a-vis the respondents. Though it is alleged in the O.A. that they have been assigned wrong seniority below the private respondents, it is nowhere pointed out in the O.A. itself what was their position on merit in the select list. The O.A. creates an impression that the private respondents had joined the service subsequent to the applicants but then no details are furnished as to when they joined the service and when the respondents joined the service. A lot of hue and cry is made about the official respondents not adhering to the general principle of seniority that the date of their joining or date of appointment should be considered as the date for assignment of the seniority but no attempt has been made to show when applicants joined their respective service and when the private respondents joined the service. The petition is singularly lacking in such particulars and as such, the contentions raised about the assignment of the seniority not on the basis of joining date, can hardly be accepted. The petitioners have stated in Para 6.3 of the petition that their names figure between 698 to 810 in the civil list. However, the extract of the civil list dated 23.8.96 produced by the applicants at Annexure A-2 reveals that petitioner No. 2 figures at Sr. No. 698, the petitioner No. 1 at 719 and petitioner No. 3 at 810. The petitioner No. 3 Mr. Sandip Pradhan is shown to have been appointed on 20.8.90 while petitioner No. 1 shown to have been appointed on 27.1.91 and petitioner No. 2 on 20.8.90. The list also discloses that several officers were appointed on 20.8.90, 27.3.91, 20.2.91, 16.9.91, etc. The fact however, remains that the applicant No. 1 has been shown to be senior to the applicant No. 3 though he was appointed later than the applicant No. 3 suggesting conflict of interest among the petitioners also. If the version of the applicants is that the seniority should be governed as per the date of the appointment and as per the date of joining the post then it is quite obvious that the applicant No. 1 cannot be senior to the applicant No. 3 and as such, there is a conflict of interest among the petitioners themselves. We are however, not rejecting the O. A. on this ground but we are trying to show that the argument of seniority to be governed from the date of the appointment or from the date of joining of the concerned post itself is self defeating. It is a matter of common knowledge that general principle of seniority is applicable only when the rules are silent about the assignment of the seniority. However, when the rules provide for assignment of the seniority either as per the select list prepared by the recruiting authority or as per the rota quota etc. The seniority is to be governed by these rules and not by the General principle of date of the appointment or the date of joining.
7. Mr. Tanna, learned Counsel appearing for the applicants has made strenuous efforts to convince us that the decision in the case of Alok Kumar delivered by the Principal Bench, CAT as well as the subsequent decision of the Supreme Court in the case of Mohan Kumar Singhania do not apply to the facts of the instant case. He has also tried to submit that the decision of this Tribunal in the case of Manoj Kumar Gupta v. Union of India in O.A. 4917 96 is not applicable to the facts of the instant case and that all these three decisions are distinguishable. The significant aspect of the submissions of the learned Counsel is that in the written argument submitted by him it is contended that the CAT had given erroneous decision which was not based on the relevant rules and was in fact given in ignorance of the applicable rules in the instant case and as such it can be disregarded. It is also stated that even otherwise there is no bar in the Administrative Act or in the Constitution to discard the erroneous decision even if of the same Bench. There is no provision to follow the decision of other Bench including that of Principal Bench.
8. So far as the decision in the case of Alok Kumar of the Principal Bench is concerned, the same was challenged before the Supreme Court and in the case of Mohan Singhania the said decision has been upheld by the Supreme Court and as such, to contend that the decision was erroneous and should be disregarded is difficult to swallow. In any case it is a settled position of law that a decision of the same Bench or other Bench of CAT is a binding precedent and if in a particular case the Bench does not agree with the earlier judgment, then the same is required to be referred to the full Bench but the Bench examining the same again can not ignore or disregard the same as contended by the learned Counsel. We may further point out that the applicability of the ratio laid down by the PB and by the Supreme Court in the case of Mohan Singhania has already been decided in the case of Manoj Kumar Gupta (supra) by this Tribunal. Since it was contended that the Manoj Kumar's case was on different footing we have carefully examined the decision in the case of Manoj Kumar as well in the case of Alok Kumar and find that in Manoj Kumar's case also the question of assignment of the correct seniority was raised and vires of Rule 9 (2) of IRS Rules, 1988 were challenged. In that case also seniority of the applicant therein was sought to be revised on the ground that large number of candidates who had not joined the service immediately after appointment were shown senior to him. It was also contended that the provision of Rule 9(2) are arbitrary and therefore ultra vires the Articles 14 and 16 of the Constitution and the merit is not to be considered but the date of the joining required to be considered for seniority purpose. If a candidate is selected and does not join the post in question, he cannot be given seniority over-the candidates who had already joined in time. If a candidate had not joined in time or decided to join late in the allotted services for any other reason best known to him, the seniority cannot be fixed on the basis of the merit in the selection. So far the instant case is concerned, same are the arguments advanced by the applicants. It is therefore, not possible to agree with the submission of Mr. Tanna that the facts of the present O. A. are distinguishable from the facts of the case of Manoj Kumar. In the case of Manoj Kumar though the vires of O.M. dated 7.1.93 was not challenged in view of some arguments advanced on his behalf the Tribunal had considered the legality and validity of the O.M. also.
9. Having examined the case of Manoj Kumar in detail, we have no hesitation in concluding that the reasoning given therein and the conclusion drawn therein apply with full force to the facts of the instant case. To demonstrate that this decision has direct application to the present case, we reproduce an extract from that decision. While referring to the contention of the applicant therein, regarding the depression of his seniority, the Tribunal in Para 8 and subsequent paras has observed as under:
"8. Now so far this part was concerned, the same was considered by the Principal Bench in the case of Alok Kumar in O.A. 206 of 1989. Alok Kumar was also selected for appointment to Central Services Group 'A' post in the year 1988 and a communication was sent to him on August 30th, 1988 whereas his attention was drawn to Rule 4 of Central Civil Service Rules, 1987 pointing out that if he intended to appear in the Civil Services (Main) Examination in 1988 he would not be allowed to join the probationers training along with the training of the 1987 group but would only be allowed to join the probationers training along with the candidates who would be appointed on the basis of the CSE 1988. The said letter also indicated that in the matter of seniority, he would be placed below all the candidates who would join training without postponement. He was therefore, required to furnish the information about his appearing in the CSE (Main) 1988 exams. to the cadre controlling authorities. He was further informed that only on the receipt of the above information the concerned cadre Controlling Authority would permit him to abstain from probationary training. He was also informed that once he joined the probationary training along with 1987 batch, he would not be eligible for consideration of appointment on the basis of subsequent CSE conducted by the UPSC. The case of Alok Kumar was that he did not intend to appear in the next CSE and he had already appeared for the CSE 1988 even before he received the offer of appointment dated January 2, 1989. He was then intimated that if he had already abstained from probationary training of 1987 batch he would not be eligible for consideration for appointment on the basis of subsequent CSE conducted by the UPSC. Challenging the second proviso to Rule 4 of the CSE Rules Alok Kumar contended that he was eligible for consideration for appointment on the basis of subsequent CSE conducted by the UPSC. The Tribunal after considering all other aspects of the matter held that the second proviso to Rule 4 of the Civil Services Exam. Rules was valid and the provisions of Rule 17 of the above rules was also valid. It also held that the above provisions are not sealed by the provisions of Articles 14 and 16 of the Constitution of India. However it laid down that the letter issued by the Ministry of Personnel and Public Grievances or Pensions dated 30th August, 1988 and in particular Paragraph 3.3 of Paragraph 4 of the letter dated January 2, 1989 issued by the cadre Controlling Authority, Ministry of Railways are bad in law and unenforceable. It also directed that a candidate who had been allowed to allocate to the IPS or to the Central Civil Service Group 'A' may be allowed to sit at the next Civil Service Exam, provided he is within the permissible age limit without having to resign from the service to which he has been allocated nor would he lose his original seniority in the service to which he is allocated if he is unable to take training with his own batch.
9. This judgment of the Principal Bench in the case of Alok Kumar and Ors. was challenged by way of appeal before the Supreme Court and in the case of Mohan Kumar Singhanla and Ors. v. Union of India, 1992 SCC (L and S) 455 upholding the findings of the Tribunal, the Supreme Court held that the impugned second proviso to Rule 4 of the CSE Rules introduced by the notification No. 13016/4/86-IS (1) dated December 13, 12986 is legally and constitutionally valid and sustainable in law and the said proviso neither travels beyond the intent of the main rule, namely, Rule 4 of the CSE Rules nor it is ultra vires Regulation 4(iii a) of Regulations, 1955, that it is neither arbitrary nor unreasonable and that there is a dynamic and rational nexus between the impugned second proviso and the object to be achieved. There is no discrimination whatsoever involved on account of the introduction of the second proviso in question and the said proviso is not ultra vires Article 14 or Article 16 of the Constitution of India. The Supreme Court also gave directions about the proper allocation and appointment to the candidates (on the basis of the ranking in the merit list) who had appeared in the Civil Service (Main) Exam, and thereby had qualified themselves for the interview.
10. It is an undisputed position that pursuant to the judgment of the Supreme Court, the DOP&T issued O.M. dated 7.1.93 on the subject of seniority of Group A services probationer who abstained from joining training to appear at the next exam. Para-3 of the said O.M. reads as under:
"In the light of the CAT judgment this department have reviewed the instructions issued earlier referred to above for amending rules applicable to service appointment to which is made through the CSE for depression of seniority of probationers joining service late. It has been decided that a candidate who obtained the permission to abstain from joining training to appear at the next CSE will retain his original seniority and this decision will be applicable to probationers appointed to different services on the basis of CSE held in 1987 onwards. If the relevant service rules have already been amended to depress the seniority of such probationers in light of instructions issued by this department earlier, necessary steps may kindly be taken immediately for restoring the seniority by carrying out suitable further amendment with retrospective effect wherever necessary."
11. We may point out that this O.M. dated 7.1.93 though within the knowledge of the applicant has not been challenged by the applicant. It is also quite clear that this O.M. was the result of the earlier litigation on the same subject. The question raised by the applicant stands decided by the decision of the Principal Bench in Alok Kumar's case as well as by the Supreme Court in the case of M.K. Singhania. The attempt made by the applicant is to obtain a review of these judgments from this Bench. This is clearly in the nature of the abuse of the process of law. When he has not challenged the O.M. dated 7.1.93 the applicant cannot be heard to say that his seniority requires to be re-fixed as per the earlier instructions or as per the Clause (viii) of his appointment order. Clause (viii) of the appointment order has become redundant in view of the O.M. dated 7.1.93 and also in view of the judgment of the Supreme Court in M.K. Singhania. He therefore, cannot be now head to say that he can be given seniority above others who were placed in the merit list by the UPSC, but who had failed to join the service in time or who did not join the service along with him. We therefore, do not find any merit in the contention of the applicant that his seniority deserves to be refixed and that the seniority given to others above him is arbitrary and illegal and unjustified."
10. The above decision in the case of Manoj Kumar leaves no room for doubt that the facts of Manoj Kumar's case and the instant case are similar and identical and the issue raised therein is also the same raised here. The Tribunal in that case has already given a finding that the question raised by the applicant therein stands decided by the decision of the Principal Bench in Alok Kumar's case as well as of the Supreme in the case of Singhania. We do not see any reason to take a different view than the one expressed by the Tribunal earlier. We are therefore not in agreement with the submissions made by the learned Counsel for the applicant that all three decisions are distinguishable and have no applicability so far the facts of the instant case is concerned. Several decisions have been referred to by Mr. Tanna learned Counsel for the applicants in support of his submissions that the date of joining should be considered for the seniority purpose or that the seniority begins from the date of joining:
They are:
1. 1993 Supp. (1) SCC 730
2. AIR 1987 SC 424
3. AIR 1988 SC 281
4. AIR 1994 SC 1506
5. AIR 1994 SC 2750
11. We are not discussing these decisions as they are based mainly on the general principle of seniority from the date of appointment. However, the rules provide for the seniority then the rules over ride the general principle of counting the seniority from the date of appointment. We may also point out that in recent decisions the Supreme Court has upheld the seniority given on the merit irrespective of the date of joining. In the case of P. Srinivas v. M. Radhakrishna Murthy, (2004) 2 SCC 459=2004(2) SLJ 205 (SC) the appellant was senior to respondent No. 1 in the merit list but he could not join his select post in time. The respondent No. 1 joined the service within the stipulated period of 60 days from the date of appointment. The appellant was however granted permission by the State Govt. to join thereafter. When the question of seniority was raised by the respondent No. 1, the Supreme Court held that the seniority given to the appellant over the respondent No. 1 based on performance during the selection cannot be disturbed merely because there was some delay in joining. In the case of Union of India v. Sudhir Kumar Jaiswal , AIR 1994 SC 2750=1994(3) SLJ 1 (SC) the principle of assigning seniority on the basis of performance on merit in the examination is upheld by the Supreme Court. In the case of Arti K. Chhabra and Ors. v. Union of India and Ors., AIR 1994 SC 1506 the Supreme Court has upheld the validity of Rule 17 of the Civil Service Examination Rules.
12. So far the challenge to the O.M. dated 7.1.93 is concerned, the same is challenged on the ground that DOP&T has misinterpreted the decision in the case of Alok Kumar decided by the Principal Bench and that of Supreme Court in Singhania's case. It is contended that O.M. has tried to amend the statutory and IRS rules promulgated under Article 309 of the Constitution and as such, the same is ultra vires the provisions of the Constitution. It is contended that the Govt. without proper legislation cannot change the service rules with the help of O.M. or notification. It is also contended that the O.M. clearly travels beyond what was held by the CAT and Supreme Court. It is also contended that the judgments in both the cases were only for the purpose of allowing the applicant therein to join the service allocated on the basis of previous CSE and also to allow the benefit of seniority to them. In the absence of such order of late joining, they would have lost the seniority. It is also the contention of the applicants that the judgments in Alok Kumar as well as Singhania apply only to the applicants therein and as such, it was not open on the part of the Govt. to issue O.M. with retrospective effect giving higher seniority to the belated joinder of the service.
13. We may point out that in the case of N.G. Singhania itself the Supreme Court has observed that an enactment is never to be held invalid unless it is beyond question, plainly and palpably in excess of legislative power or it is ultra vires or in consistent with the statutory or constitutional provisions or it does not conform to the statutory or constitutional requirements or is made arbitrarily with bad faith or/motives or opposed to public policy. These observations pertaining to a statutory enactment also applies to an executive order or circular. It cannot be denied that the impugned O.M. dated 7.1.93 came to be issued by the Govt. In view of the directions given by the Principal Bench in the case of Alok Kumar and confirmed by S.C. The Govt. had taken a decision in the light of the CAT's judgment that if a candidate who obtained the permission to abstain from joining training to appear at the next CSE will retain his original seniority and that this decision would be applicable to probationers appointed to different services on the basis of CSE held in 1987 onwards. Since the decision was taken as per interpretation of CSE Rules and consequent directions given by CAT, PB it cannot be said that the decision was arbitrary, ultra vires or made with bad faith or motives or was opposed to the public policy.
The O.M. clearly provides for the seniority to be awarded on the basis of merit as laid down in the Rule 9(2) of IRS Rules, 1988 itself and therefore it cannot be said that it is in conflict with IRS Rules. If a particular O.M. or circular is issued in consonance with the rule position and does not over ride the statutory rules, validity of the same cannot be questioned. It is a settled position that by executive instructions rules can be supplemented. In the absence of any statutory rules or when statutory rule is silent, there cannot be any bar for altering and amending one administrative order by another order. The impugned O.M. dated 7.1.93 while revising the instructions given in O.M. dated 24.2.89 has merely directed to follow the decision taken in the light of C.A.T. and S.C. decision, that a candidate who obtained permission to abstain from joining training to appear at the next CSE will retain his original seniority. The impugned O.M. therefore, cannot be held to be bad or invalid or issued in excess of the powers by the Govt. when it provides for a fixation of the seniority from 1987 onwards. In the case of A.S. Sangwan v. Union of India, AIR 1980 SC 559 the Supreme Court has observed as under:
"A policy once formulated is not good for ever. It is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the imperatives of national considerations.
It is entirely within the reasonable discretion of the Union of India. It may stick to the earlier policy or give it up. But one imperative of the Constitution implicit in Article 14 is that if it does change its policy, it must do so fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily."
14. These observations of the Supreme Court have direct application to the challenge to the impugned O.M. As observed earlier, the impugned O.M. was the result of the directions given by the Principal Bench in the case of Alok Kumar and by Supreme Court in the case of Mohan Kumar Singhania and since the Alok Kumar had to sit in the preliminary examination of 1988 and was seeking a direction to be allowed to sit at next Civil Service Examination and also assignment of the seniority, the O.M. appears to have provided a cut off date of 1987. Furthermore, the O.M. seeks to properly implement provision of Rule 4 of CSE Rules and since this provision was incorporated for the first time in the exam. held in 1987, the modification also appears to have been issued w.e.f. 1987. However, this cannot be termed as violating the provisions of Articles 14 and 16 of the Constitution as it does not seek to discriminate between one candidate and another. It is to be borne in mind that the O.M. is to be applied uniformly to all the candidates and therefore, the question of discrimination does not arise at all. The O.M. in fact seeks to apply Rules 4 and 17 effectively and as such, the same cannot be held to be arbitrary or unreasonable and having no rational nexus with the object to be achieved. We find that there is no discrimination whatsoever involved on account of issuance of this O.M. We therefore, do not find any substance in the challenge to the O.M.
15. The respondents have vehemently put forward the contention that the O.A. is barred by delay and latches as well as limitation. According to the respondents, the application seeks to challenge the seniority shown in the Civil List published in the year, 1992 and therefore, the application having been filed beyond the period of limitation under Section 21 of the Administrative Tribunals Act, 1985 is clearly time barred. It is also contended that the seniority once crystallised cannot be allowed to be disturbed after such a lapse of time and hence, the O.A. should be rejected on the ground of delay and latches. The applicants have pointed out that they are challenging the seniority shown in the civil list as on 23.8.96 and as such, there is no question of application being barred by limitation or delay and latches. We do not find any substance in the contention that the application is barred by limitation or suffers from the vices of delay and latches.
16. For the aforesaid reasons, we are of the opinion that none of the reliefs prayed for by the applicants can be granted. The O.A. therefore, deserves to be rejected. In the conclusion therefore, the O.A. is rejected with costs.