Gyan Prakash and Others vs Union of India (UOI) and Others

Suresh Kait, J.—This present writ petition is directed against the order dated 25.2.2002 passed in OA No. 2012/1988 passed by the Central Administrative Tribunal, Principal Bench, New Delhi.

The petitioners were appointed on promotion to Grade II post, Indian Economic Services, hereinafter called �IES� in the year between 1974-78. The statutory promotion quota for Grade II is 75%, while for direct recruitment it is 25%. In the year 1980-82 several respondents were appointed to this Grade II post IES but were shown senior to the petitioner. The seniority list of Grade II officers was circulated in the year 1982 subject to final outcome of court cases pending in High Court/Supreme Court.. The main case out of those was that of Narender Chadha.

Somewhere in the year 1982-83 the petitioners were promoted in Grade I post but were shown junior to those who were appointed in 1983 as direct recruits. As per the judgment in the case of the Narender Chadha and Others Vs. Union of India and Others, , the Supreme Court directed for fixation of seniority in Indian Economic Service (Grade IV) as under:

Having given our anxious consideration to the submissions made on behalf of the parties and the peculiar facts present in this case we feel that the appropriate order that should be passed in this case is to direct the Union Government to treat all persons who are stated to have been promoted in this case to several posts in Grade IV in each of the two Services contrary to the Rules till now as having been regularly appointed to the said posts in Grade IV under Rule 8(1)(a)(ii) and assign them seniority in the cadre with effect from the dates from which they are continuously officiating in the said posts. Even those promotes who have been selected in 1970, 1982 and 1984 shall be assigned seniority with effect from the date on which they commenced to officiate continuously in the posts prior to their selection. For purposes of seniority the dates of their selection shall be ignored. The direct recruits shall be given seniority with effect from the date on which their names were recommended by the Commission for appointment to such grade or posts as provided in Clause (a) of Rule 9-C of the Rules. A sonority list of all the promotes and the direct recruits shall be prepared on the above basis treating the promotees as full members of the Service with effect from the dates from which they are continuously officiating in the posts. This direction shall be applicable only to officers who have been promoted till now. This is the meaning of the direction given by the court on February 1, 1984 which stated, �we wish to make it clear that there is no question of any rotation system being applied under the Rules, as they exist now�. All appointments shall be made hereafter in accordance with the Rules and the seniority of all officers to be appointed hereafter shall be governed by Rule 9-C of the Rules.

On 20.8.1986, seniority list of Grade II and Grade I officers was circulated in compliance with the judgment in the case of Narender Chadha (supra). The official respondent again fixed the seniority of Grade II and Grade I officers, showing direct recruits as seniors to the petitioners. On 23.4.1987 the petitioners made representation alleging wrong fixation of their seniority but the respondent did not reply to the same.

On 16.3.1988 appointment orders on non functional selection grade were issued. Aggrieved by the aforesaid seniority list, OA No. 2012/1988 was filed by the petitioner before the Central Administrative Tribunal against the wrong fixation of seniority list issued on 20.8.1986. The same was dismissed by order dated 5.12.1994. Against the aforesaid order of the CAT, the petitioners filed SLP before the Supreme Court. By judgment dated 25.7.2001 the Supreme Court set aside the Tribunal�s order dated 5.12.1994 and remitted the case back to the Tribunal for re-consideration and disposal of OA No. 2012/1988 in accordance with law. The aforesaid OA was again dismissed by impugned order dated 25.2.2002 which is under challenge in the present writ petition.

The main issues for consideration before the Tribunal and thus before us are as under:

i) Whether the seniority of petitioners has been fixed correctly when they were promoted to grade II as per Rules in 1974-78 while the several private respondents were appointed, much later, as Grade II Officer in 1981-82 and still shown senior to petitioners.

ii) Whether appointment of direct recruits exceeded 25% statutory quota.

iii)Whether seniority rules were correctly followed by official respondents.

iv) Whether law laid down by Hon�ble Supreme Court on seniority specially in Narender Chadha�s case was ignored by the respondents.

The main contention of the petitioners is that direct recruitment for the aforesaid post have not been done on the regular basis by the official respondents which has led to the breakdown of Quota-Rota Rules of 3:1 and accordingly the inter se seniority should have been based on continuous officiating in the grade. The relevant Rules, applicable to the facts of this case, are the Indian Economic Service (Recruitment) Rules, 1961 (hereinafter referred to as the �Rules�). The petitioner contended that Rule 8 provides for future maintenance of the service under Rule 8(C)(i) for Grade II of IES. Accordingly, 75%of vacancies of the grade were to be filled by promotion from amongst Grade III officers who had completed not less than six years of service on a regular basis and 25% of the vacancies were to be filled by direct recruited through Union Public Service Commission. They further contended that direct recruited officers had acceded the 25% quota who were placed in the impugned seniority list. According to them, the same position prevailed with regard to Grade I officers which has led to the break down of Quota-Rota Rules, as the 3:1 formula has not been followed. They have relied upon the Supreme Court�s judgment in Narender Chadha�s case (supra) whereby the inter se seniority list of direct recruits and promotees had to be determined from the date of their appointment as laid down in Rule 9(c) of the Rules i.e. in the case of direct recruits, from the dates when they were recommended by the UPSC for appointment, and in the case of promotee officers, from the dates when they were included in the select list for promotion to that grade. The contention of the petitioners is that the only correct interpretation of the Rule should have been that an officer, promoted in 1974 should be placed above an officer, recruited seven years later, in the year 1981.

The contention of the official respondent is that the relevant principle for determination of inter se seniority between promotees and direct recruits recorded under Rule 8 of the Rules is governed by provisions contained in Rule 9(A)(7)(i) & (ii), Sub-clauses (a) to (c). The respondents also filed additional affidavit on 6.9.1994 and claimed the seniority was determined keeping the provisions of Rules into view, applicable at the relevant time. They further submitted that Rules will be applicable to the facts of this case in recording inter se seniority of direct recruitment and promotee of this case which will be governed by Rule 9A Sub-rule 7,(i)(ii), (a) to (c) and not Rule 9(c). As per them, the determination of inter se seniority between such officers was to be governed by Quota-Rota principle as contained in Rule 9A of the Rules and subject to various factors, such as, non-availability of candidates with qualifications and experiences. Further, they contended that the UPSC did not recommend any candidate for appointment to either Grade I or Grade II of IES till 1990. When the direct recruit candidates became available in 1980 or 1981, they occupied slots of the year, 1985 or subsequent orders under the Quota-Rota principle.

The respondents contention is that the judgment in Narender Chadha�s (supra) is applicable only to the officer level i.e. Grade IV of IES and not grade I and II officers. As per them, in the year 1981 the Rules were amended so as to make the post of Grade I to be filled exclusively by promotion.

The above contention of the respondent was reiterated by the petitioner that the judgment in Narender Chadha�s case (supra) which was delivered on 11.2.1986 emphasised that this case itself dealt with the officers of IES. The effect of the judgment of the Hon�ble Supreme Court resulted in Grade IV officers being promoted to Grade III, Grade II and Grade I and even to selection grade. The date of appointment should have been, as laid down in Rule 9(c), followed as the Quota-Rota Rules have broken down. The Hon�ble Supreme Court vide order dated 25.7.2001, after referring the Notification dated 16.3.1988 issued by the respondent, remitted the case to the Tribunal for re-consideration on merits.

The interesting part of the present case is, both the parties are relying upon Narender Chadha�s case which deals with the fixation of seniority of the officers who belong to IES Grade IV, under Rule. Paragraph 25 of the judgment of Narender Chadha�s case (supra) specifically refers to Grade IV officers, who have been promoted to several posts in Grade IV, which reads as under:

... Even those promotees who have been selected in 1970, 1982 and 1984 shall be assigned seniority with effect from the date on which they commenced to officiate continuously in the posts prior to their selection. For purposes of seniority the dates of their selection shall be ignored. The direct recruits shall be given seniority with effect from the date on which their names were recommended by the Commission for appointment to such grade or posts as provided in Clause (a) of Rule 9-C of the Rules. A seniority list of all the members of the Service with effect from the dates from which they are continuously officiating in the posts. This direction shall be applicable only to officers who have been promoted till now. This is the meaning of the direction given by the court on February, 1, 1984 which stated, we wish to make it clear that there is no question of any rotation system being applied under the Rules, as they exist now. All appointments shall be made hereafter in accordance with the Rules and the seniority of all officers to be appointed hereafter shall be governed by Rule 9-C of the Rules.

The challenge before us is, whether the seniority of the officers should have been determined as per Rule 9A or Rule 9C of the Rules. Both the aforesaid Rules are reproduced as under:

9A. Seniority: (1) The seniority of an officer appointed under the provisions of Sub-rule (3A) of Rule 7, Rules 7A, 8 and 10 on or after the commencement of the Indian Economic Service (Amendment) Rules, 1973 shall be determined in the manner hereinafter provided.

(2) to (6) xxxxxxxxxxx

(7)(i) Where a person is appointed to grade I or grade II or grade III under the provisions of Rule 8, he shall, subject to the provisions of Clause (ii), be placed below the junior most officer who had been appointed on a regular basis to the grade concerned.

(ii) The inter-se seniority of persons appointed to grade I or grade II or grade III under the provisions of Rule 8 shall be determined in the following manner, namely:

(a) A direct recruit to any grade shall be placed below the junior most promoted officer who had been appointed on a regular basis to that grade on or before the date of appointment on a regular basis of such direct recruit;

Provided that the assignment of seniority to such promoted officers over direct recruits shall be restricted to the number remaining after subtracting the number of direct recruits appointed on a regular basis on that date from the number of regular vacancies, which have arisen since the date of appointment of the last direct recruit which are required to be filled up under the provisions of Rule 8;

Provided further that for the purpose of determining the seniority of a promoted officer in relation to a direct recruit the promoted officer shall not be deemed to have been appointed on a regular basis if he holds a vacancy which has arisen by deputation or a series of deputation not exceeding three years on the date of appointment of the direct recruit notwithstanding that by an order subsequent to the date of appointment of the direct recruit, the total period of deputation is extended beyond three years.

(b) As between direct recruits recommended by the Commission on different occasions, a direct recruit recommended earlier shall be placed above a direct recruit recommended later, and as between direct recruits recommended on the same occasion, a direct recruit placed higher in the Commission�s recommendation shall be placed above the direct recruit placed lower.

(c) As between promoted officers recommended for promotion on different occasions, a promoted officer whose promotion was recommended earlier by the Selection Committee shall be placed above a promoted officer recommended earlier, and as between promoted officer whose promotion was recommended on the same occasion, a promoted officer placed higher in the Select List shall be placed above a promoted officer placed lower.

(emphasis added)

Rule 9C of the Rules relied upon by the applicants provides as follows:

9C. Date of Appointment : The date of appointment of a person to any grade or post on a regular basis shall:

(a) In the case of a direct recruit to any grade or post be deemed to be the date on which he was recommended by the Commission for appointment to such grade or post, as the case may be, and

(b) In the case of promoted officer to any grade or post be the date on which he was included in the Select List for promotion to that grade or post as the case may be, or the date on which he was appointed to the grade of post as the case may be, whichever may be later.

. 13. Learned Counsel for the petitioner stated that the Rules quoted above, namely, Rule 9A(7) and Rule 9C, it is seen from Clause (I) and (II) of Sub-rule 7 of Rule 9A deal with inter se seniority of the person appointed to Grade I, II and III of the services under Rule 8 of Rules. Rule 9C deals with the date of appointment of a person to any grade or post on a regular basis i.e. for a direct recruit and a promotee, which is placed in this select list.

On the other hand, the respondents had contended that the judgment in Narender Singh�s case (supra) was applicable only to the initial level i.e. Grade IV level of IES, wherein, it was directed that all officers who are holding Grade IV IES post on ad hoc basis in the participating ministries/departments, should be including into the services from the date of their continuous officiation. Accordingly, the case of the petitioners belongs to the category of official constituents, who had been later promoted as Grade II and Grade I of IES. They, further contended that provision of Rule 9A deals with fixation of inter se seniority between direct recruits and promotees. But, for reasons best known to the petitioners, they have not challenged the validity of this Rule, although, they have contended that this Rule is based on Quota-Rota system. They further contended that so long the Quota-Rota principle is to be maintained, within the inter se seniority of the officers, it has to be fixed in accordance with the provision of Rule 9A of Rules, which provides a certain formula. According to them, Rule 9C is a determining factor for fixation of inter se seniority and not Rule 9A(7). According to them, the Quota-Rota Rule of 75% (Promotees) and 25% (direct) has not been maintained.

The petitioners have invited our attention to the seniority list maintained by the respondents as under:

The following illustration of grade II officers establishes this point:

S.No.in the Seniority list of grade II officers as circulated on 20.8.1986 Name Whether promotes or direct recruit in grade II Date of apptt. In grade II Remarks 1. Dr. P.N.Kaul Promotee N.A. 22. Sh.M.P.Gupta Direct Recruit N.A. 3 to 8. Sh.G.P.Kapoor Promotees N.A. 9. Sh.P.L.Aware Direct Recruit N.A. Resp. No.4 10. Sh. N.L.Meena N.A. N.A. 11. Dr. S.N.Kaul Direct Recruit N.A. 12. Smt. Mridule Krishna Promotee N.A. 13. Sh. P.S.Sharma Promotee N.A. 14. Smt. Purhpam Joseph Direct Recruit 30.9.78 Resp.No.6 15. Sh. M.V.Pavate Direct Recruit 6.11.78 Resp.No.7 16. Sh. Kamal Kishore Direct Recruit 13.10.78 Resp.No.8 17. Sh. S.M.Meena Direct Recruit 5.3.79 Resp.No.9 18. Sh. P.K.Ahuja Promotee N.A. 19. Dr. N.J.Kurian Direct Recruit N.A. Resp.No.10 20. Dr. V.N.Misra Direct Recruit 27.11.80 Resp. No.11 21. Sh. L.C.Mahajan Direct Recruit 5.12.80 Resp.No.12 22. Sh. A.K.Sarkar Direct Recruit 16.1.81 Resp.No.13 23. Sh.S.S.Rawat Direct 24.2.81 Resp.No.14 24. Sh. Ramesh Chandra Direct Recruit N.A. Resp.No.15 25. Sh.I.V.Ranga Rao Direct Recruit 31.7.81 Resp.No.16 26. Sh.T.K.Das Direct Recruit 1.4.81 Resp.No.17 27. Sh.Gopal Bihari Promotee 10.6.74 Petitioner No.2 28. Sh.O.P.Gugnani Promotee N.A. 29. Sh.S.I.H. Nagvi Promotee N.A. 30. Kum. Ranjan Ray Promotee N.A. 31. Sh.R.C.Sharma Promotee 19.8.77 App.No.3 Petitioner No.3 32. Sh.Gyan Prakash Promotee 1.5.78 App.No.1 Petitioner No.1 33. Sh.M.V.Narwani Promotee N.A. 34. Dr. M.L.Lakhera Direct Recruit 18.3.83 Resp.No.18 35. Dr. K.M.Raipuria Direct Recruit 1.1.83 Resp.No.19 36. Dr. M.S.Bhatia Direct Recruit 7.1.83 Resp.No.20. 37. Sh. Sharwan Kumar Direct Recruit 14.2.83 Resp.No.21 38. S.K.Pillai Direct Recruit 17.2.83 Died 39. Sh.J.R.Rao Direct Recruit 15.4.83 Resp.No.22 40. Sh.M.R.Mayya Promotee N.A. 41. Sh.S.B.Mathur Promotee N.A. 42. S.M.R.Zaidi Promotee 20.7.78 Select List Officers 43. Dr. D.P.Guhe Promotee N.A. 44. Dr.S.K.Gandhe Promotee N.A. 45. Sh.R.K.Parashar Promotee 12.7.79 46. Sh.J.V.S.R.Sastry Promotee N.A. 47. Sh.M.P.Agarwal Promotee N.A. 48. Sh.Y.S.Rao Promotee 1.10.80 49. Sh.C.S.Rao Promotee 1.2.81 50. Sh.G.A.Sastry Promotee N.A. 51. Sh.K.M.Balasubramanian Promotee Nov.,80 52. Sh.S.R.Sen Gupta Promotee N.A. 53. Sh.S.M.Kelkar Promotee N.A. 54. Sh.S.N.Krishnamachar Promotee 28.5.81

The learned Counsel for the petitioner, pointed out on the above table which indicates that out of 54 Grade II officers, 21 are direct recruits, more than the statutory quota, whereas the quota for direct recruits, according to IES service rules, is 25% only. Most of direct recruits were placed between serial No. 9 to 39. Similarly, in case of Grade I officers of IES, direct recruits who joined service at a later date had been shown senior to promotees who joined Grade I posts earlier. The illustration in the next table will establish the point:

S.No.in the Seniority list of grade II officers as circulated on 20.8.1986 Name Whether promotes or direct recruit in grade II Date of apptt. In grade II Remarks 23. Dr. K.M.Raipuria Direct Recruit 27.4.83 Resp.No.19 24. Sh.T.N.Jaitle Direct Recruit 29.4.83 Resp.No.23 25. Dr.M.L.Lakhera Direct Recruit 30.6.83 Resp.No.18 26. Sh.Kamal Kishore Direct Recruit N.A. Resp.No.8 27. Sh.K.V.Bansal Promotee N.A. 28. Smt. P.Joseph Promotee N.A. 29. Sh.M.V.Pavate Promotee N.A. 30 to 39. Sh.S.M.Meena & Ors. Promotee N.A. 40. Sh.Gopal Behari Promotee 1.1.82 App.No.2. Petitioner No.2. 41. Sh.R.C.Sharma Promotee 27.8.82 App.No.3 Petitioner No.3 42. Sh.Gyan Prakash Promotee 1.9.82 App.No.1 Petitioner 43. Sh.S.B.Mathur Promotee N.A. 44. S.M.R.Zaidi Promotee 29.10.82

We observe as per the above table that the promotees namely Shri Gopal Behari (applicant No. 2), Shri R.C.Sharma (Applicant No. 3), Shri Gyan Prakash (Applicant No. 1) joined as grade I in 1982. Dr. K.M.Raipuria (Respondent No. 19), Shri T.N.Jaitle (Respondent No. 23), Dr. M.L.Lakhers (Respondent No. 18) who joined, as grade I officers of IES, in 1983 were shown senior to petitioners. Therefore, we are of the considered opinion that the seniority rules were not correctly followed. Moreover, number of direct recruits are more than 25% statutory quota, which is total violation of Rules.

The above fixation of seniority in Grade I of direct recruit has resulted in the earlier appointment into non-selection functional grade and higher post as compared to promotees.

In our view, the Tribunal has taken a very narrow view as far as seniority is concerned. The Tribunal has further whittled down the scope of Narender Chadha�s judgment as applicable to Grade IV of IES only whereas Quota Rota Rules were operative in Grade I, Grade II and Grade IV of IES but not Grade III, where, there were no direct recruits. Therefore, when Rota and Quota was operating in Grade IV as well as in Grade II and Grade I, there cannot be two different rules for determining the seniority i.e. one for Grade IV and other for Grade II and Grade I.

We are of the considered view that seniority rules for all grades were governed by Rule 9A read with Rule 9C and there cannot be any separate rules for seniority of Grade IV only. Therefore, the ratio of judgment of the Supreme Court in Narender Chadha�s case is equally applicable to all grades of IES where Rota and Quota Rules were in operation and the petitioners herein are thereby fully covered by ratio of Narender Chadha�s judgment on seniority.

We are, thus, of the considered view that the Tribunal had misinterpreted Narender Chadha�s case which is not only applicable in Grade IV of IES officers but also to Grades II and Grade I. We, therefore, set aside the order and judgment passed by the Tribunal in OA No. 2012/1988 and direct the respondents to revise the seniority list and re-fix the pay from due dates and grant all consequential retiral benefits and revised pension to the petitioners. Accordingly, the writ petition is allowed. No costs.