K.P. Dubey and Others vs Union of India (UOI) and Others

Dipak Misra, C.J.—The Petitioner was offered an appointment to the post of Section Officer (Horticulture) in the Central Public Works Department (CPWD) on the basis of selection in open competition through direct recruitment. By communication dated 18th July, 1983, he was asked to report for duty to the Deputy Director of Horticulture, West Division, CPWD, New Delhi by the forenoon of 1st August, 1983 and if he failed to report for duty latest by 10th August, 1983, the offer of appointment would stand cancelled.

As the Petitioner was away from Delhi and the communication did not reach him, he submitted an application on 19th August, 1983 requesting the Director of Horticulture to grant him extension of time for joining the duty which was granted allowing him to join the duty by 23rd August, 1983 vide letter dated 20th August, 1983 enclosed as Annexure P-2. Thereafter, the Petitioner joined the duty on 20th August, 1983.

In September, 1992, the Petitioner came to know that the second Respondent had taken a decision to prepare a seniority list on the basis of date of joining and, accordingly, he sent a representation on 29th September, 1992 stating, inter alia, that the determination of seniority in the grade of Sectional Officer (Horticulture) on the basis of date of joining of an individual is contrary to the instructions contained in the office memorandum of the Ministry of Home Affairs dated 22nd December, 1959, which enumerates the principles for determination of seniority. On the basis of the said representation, a memorandum dated 14th January, 1993 was served on him seeking certain clarification and as set forth, the Petitioner had sent his clarification on 17th March, 1993 as per Annexure P-6. Be it noted, a clarification that was sought from the Petitioner was that he was not supplied a copy of the merit list.

The reply that was given by the Petitioner categorically stated that the merit list was in the custody of the department and it was obligatory on the part of the department to follow the instructions dated 22nd December, 1959 which clearly stipulates that a seniority list is to be prepared on the basis of order of merit as reflected in the merit list. As the Petitioner did not receive any communication, he submitted further representation seeking a copy of the merit list but he was time and again asked to submit the documentary proof in support of his claim. Eventually, the Director of Horticulture, vide office memorandum dated 21st July, 1994, informed the Petitioner that in view of the instructions of the Ministry of Personnel and Public Grievances dated 18th March, 1988, the seniority would follow the order of confirmation and not the original order of merit when an employee was confirmed subsequently in an order which was different from the order of merit.

When the matter stood thus, the Petitioner thought it appropriate to approach the Central Administrative Tribunal, Principal Bench, New Delhi (for short "the tribunal") in OA No. 780/1995. As pleaded, eventually, a seniority list was issued in the year 1995. The tribunal took note of the fact that the Petitioner had not produced any documentary proof to substantiate his claim about his merit position and further the seniority list has been prepared in accordance with the length of service and, therefore, there was no scope for interference by the tribunal. The tribunal eventually came to hold that as the seniority list had been prepared on the basis of length of service, which was founded on the date of joining, there was no merit in the application and an application for review was filed which did not meet with success.

Being dissatisfied with the aforesaid order, the Petitioner invoked the jurisdiction of this Court. It is worth noting, as the merit list was produced before this Court and in view of the undisputed position that the seniority is required to be determined in accordance with merit, this Court dislodged the order of the tribunal and directed that the seniority has to be determined in the order of merit. The Division Bench further opined that where the seniority is governed by the statutory rules, the doctrine of continuous officiation would not apply. After the decision was rendered, the persons who were affected and not impleaded as party approached the Supreme Court in Civil Appeal No. 1274/2004 whereby the Apex Court set aside the order of this Court and remitted the matter for disposing of the same after impleading all the necessary parties and by giving them a proper hearing. Thereafter, an application for impleadment has been filed and the parties have been brought on record.

We have heard Mr. G.D. Gupta, learned senior counsel along with Mr. Satya Mitra Garg, learned Counsel for the Petitioners. Criticizing the order of the tribunal, the learned Counsel have raised the following contentions:

(a) The instructions dated 22nd December, 1959 governs the procedure of determination of seniority and, therefore, the same has to prevail and not the date of joining. The continuous officiation is not a ground for determining the seniority.

(b) Though the letter of appointment dated 8th July, 1983 was issued in favour of the Petitioner with a condition that he was to report latest by 10th August, 1983, yet on the basis of a request made by the Petitioner, the same was extended and the Petitioner had accordingly joined and, therefore, the date of joining cannot be pressed into service by the department. That apart, the grant of extension is covered by Clause 4 of the Office Memorandum dated 6th June, 1978 and, hence, there was no illegality or irregularity in grant of extension to join.

(c) In case of a direct recruitment by selection, merit is the criteria for determination of seniority and the date of joining has no role to play and, hence, the tribunal has committed a grave irregularity by treating the date of joining to be the date of reckoning for fixation of seniority.

(d) When the seniority was finally determined in the year 1995, the Petitioner approached the tribunal within the period of limitation and, therefore, his claim cannot be thrown out or he cannot be unsuited on the ground of delay and laches as put forth by the Respondents who have been treated senior to him on erroneous basis.

To bolster the aforesaid proposition, Mr. G.D. Gupta, learned senior counsel, has placed reliance on Chairman, Puri Gramya Bank and Another Vs. Ananda Chandra Das and Others, , Kuldip Chand Vs. Union of India and others, , V.P. Shrivastava and Others Vs. State of M.P. and Others, and Suresh Chandra Jha Vs. State of Bihar and Others, .

Mr. R.K. Kapoor, learned Counsel appearing for the contesting Respondents No. 8, 22, 25 and 31, resisted the aforesaid submissions and contended as follows:

(a) The offer of appointment clearly laid a postulate that the offer of appointment shall be cancelled in case of non-joining and, therefore, the question of granting extension in relaxation of the aforesaid appointment does not arise inasmuch as the offer stood annulled and once a particular thing becomes extinct, it cannot be brought back to life.

(b) The seniority list was prepared in the year 1987 and 1989 but the Petitioner approached the tribunal in the year 1995 after expiry of eight years, and such enormous delay in assail of fixation of seniority cannot be permitted as that would unsettle the settled position relating to seniority and other promotional prospects.

(c) The Petitioner had accepted the seniority position from the date of his joining and, therefore, the cause of action for the same arose in the year 1983 or maximum in the year 1989 when the seniority list was prepared and, hence, the claim before the tribunal was barred u/s 21 of the Administrative Tribunals Act, 1985 (for brevity "1985 Act"). Therefore, the tribunal could not have dealt with the matter on merits and the writ petition deserves to be dismissed on the ground that the tribunal lacked the jurisdiction to entertain a petition after expiry of three years.

(d) The department has been following the date of joining as the date of reckoning for seniority and, therefore, it could not have taken a somersault to determine the seniority on the grounds of merit. The said practice, as contended by Mr. Kapoor, is in vogue since 1965.

(e) The Petitioner, in the relief clause before the tribunal, has not challenged any seniority list or seniority of any person and, therefore, the tribunal could not have addressed to the same. Hence, this Court in exercise of extraordinary jurisdiction should not interfere.

To buttress the aforesaid submissions, Mr. R.K. Kapoor, learned Counsel for the Respondents, has placed reliance on Dr. Amarjit Singh Ahluwalia Vs. The State of Punjab and Others, , B.S. Bajwa and Another Vs. State of Punjab and Others, , G.N. Nayak Vs. Goa University and Others, , State of Punjab and Another Vs. Balkaran Singh, , Union of India (UOI) Vs. Dharam Pal Etc., , and H.S. Vankani and Others Vs. State of Gujarat and Others, .

Mr. Sachin Datta, learned standing counsel for the Union of India, submitted that the merit list has been prepared on the basis of the merit following the instructions and both the Petitioner and the Respondents have been promoted to the cadre of Assistant DirectOrs.

First, we shall deal with the issue whether by virtue of not joining within the time frame given in the initial offer of appointment, the order of appointment stood annulled and, therefore, the Petitioner cannot put forth his claim for seniority and has to resign to his fate. It is not in dispute that the Petitioner, as per the terms of the offer of appointment, was to join on 1st August, 1983 or latest by 10th August, 1983. It is evincible that he had sought an extension on the ground that he was out of Delhi. On the basis of his letter, the competent authority, vide letter dated 20th August, 1983, communicated to him as follows:

DIRECTORATE OF HORTICULTURE

CENTRAL PUBLIC WORKS DEPARTMENT

No.8(2)/83-DH/Estt./6184-86.

New Delhi, dated the 20th Aug'' 83

To,

Shri Kesho Prashad Dubey,

Quarter No. G-726, Sriniwaspuri,

NEW DELHI.

Sub: Recruitment of Sectional Officers (Hort.) - Extension of Joining time.

Ref.: Your letter dated 19.8.83

Please refer to this office Memo. No. 8(2)/83-DH-Estt./

5341, dated 18-7-83. Instead of joining on 1-8-83 or latest by 10-8-83, you are hereby allowed to join duty as Sectional Officer (Hort.) in the Office of Deputy Director of Horticulture, West Division, I.P. Bhawan, C.P.W.D., New Delhi on or before 23-8-83 failing which the vacancy will be allotted elsewhere.

Other terms and conditions of the offer of appointment will remain unaltered.

Sd/-

K. SADDY

DIRECTOR OF HORTICULTURE

C.P.W.D. C-117, I.P. BHAWAN,

NEW DELHI-110002

On the basis of the aforesaid letter, he joined on 23rd August, 1983. It is a matter of fact that extension was granted. The question that emerges is whether the extension could have been granted and whether by virtue of his joining, as stipulated in the letter of appointment, his seniority would be affected. Mr. G.D. Gupta, learned senior counsel for the Petitioner, invited our attention to the office memorandum dated 6th June, 1978. The relevant clauses of the said memorandum read as follows:

(i) In the offers of appointment issued by different Ministries/Departments, it should be clearly indicated that the offer would lapse if the candidates did not join within a specified period not exceeding two or three months.

(ii) If, however, within the period stipulated, a request is received from the candidates for extension of time, it 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.

On scrutiny of the aforesaid clauses, it is clear as day that if a candidate requests for an extension of time and an extension is granted, the same cannot exceed a period of nine months and the candidates who joined within the said period would have their seniority fixed under the seniority rules. Thus, the argument in oppugnation by Mr. Kapoor that the appointment stood annulled and the Respondent has to resign to his fate to accept his seniority position melts into insignificance as the office memorandum clearly saves the appointment and also the fixation of seniority as per the rules and norms because the Petitioner had joined within the period postulated in the office memorandum dated 6th June, 1978.

We may also note with profit that the prayer for extension was made on 19th August, 1983 and the authorities passed the order on 20th August, 1983. On a reading of the office memorandum, on a first blush, one may think that the application for extension could not have been entertained but the fact remains, in the present case that the extension was granted.

The next aspect that requires to be addressed to is whether the tribunal is justified in holding that the date of joining is the criterion for determination of seniority. The office memorandum dated 22nd December, 1959 issued by the Government of India, Ministry of Home Affairs provides for the general principle for determination of seniority in the central services. Clause 4 of the said instructions, which deals with direct recruits, stipulates as follows:

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, persons 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.

On a scrutiny of the said clause, there cannot be any doubt that merit is the criteria. In the merit list, the name of the Petitioner featured at serial No. 8. In this context, we may refer to the decision in Ananda Chandra Das (supra) wherein it has been held as follows:

...It is settled law that if more than one are selected, the seniority is as per the 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.

In G. Deendayalan Ambedkar Vs. Union of India (UOI) and Others, , a two-Judge Bench of the Apex Court has held thus

The learned Counsel for the Appellant contended that as per the Rule then in vogue, there was no option left to the authorities to determine the inter se seniority in the light of Rule 303(1)(a) of the Code, but on 31.5.1993, the Rule came to be amended amplifying what was latent with potential mischief for the arbitrary exercise of power in picking up and sending the candidates batchwise for training and giving them accelerated seniority over the candidates who were put below in the order of select list by the Railway Recruitment Board or any of the competent authority; that Rule cannot be applied to the case of the Appellant and the Respondents as the Rule in vogue in 1985 alone has to be considered. Though prima facie we found force in the contention of the learned Counsel for the Appellant, but on deeper consideration of the legality and justice, we find that there is no force in the contention. It is not in dispute that Respondents 6 and 7 were selected in the same batch and rank; in the order of merit they were seniors to the Appellant. Under these circumstances, since they had not been sent for training, necessarily their ranking given in the list of candidates selected in the order of merit by the Recruitment Board cannot be given a go-by and they cannot be given accelerated seniority to the Appellant and the like by picking and choosing the persons as per the whim of the authorities empowered to send them for training. It is settled legal position that the order of merit and ranking given by the Recruitment Board should be maintained when more than one person are selected, the same inter se seniority should be maintained for future promotions unless Rules prescribe passing of departmental test as a condition for confirmation but was not passed as on the date of determining of inter se seniority.

In the case of Suresh Chandra Jha (supra), the Apex Court referred to the decision in Ananda Chandra Das (supra) and thereafter held thus:

Since there was no rule in operation, obviously the ranking in the merit list was to decide the respective seniority. The ratio in Chairman, Puri Gramya Bank case has full application to the facts of the case. The Appellant''s claim that he was to be treated as senior to Respondent 8 was rightly accepted by learned Single Judge. Unfortunately, the Division Bench did not address itself to the specific question and has placed undue stress on Respondent 8 having joined earlier.

In view of the aforesaid enunciation of law and in view of the fact that there are instructions of 1959 with regard to the procedure for determination of inter se seniority, there cannot be any scintilla of doubt that merit would be the governing factor for determination of seniority.

The next issue that requires to be addressed to is whether the claim of the Petitioner pertaining to seniority is to be thrown overboard on the ground of delay and laches and also on the ground that the tribunal could not have entertained the original application as it was barred u/s 21 of the 1985 Act. On a perusal of the order passed by the tribunal, it is perceptible that the tribunal has take note of the fact that the seniority list pertains to the year 1995 which was sought to be revised by the Petitioner. Mr. G.D. Gupta, learned senior counsel, has also drawn our attention to paragraph 7 of the counter filed by the Respondents therein wherein it has been stated that the seniority list of Sectional Officers in CPWD was issued vide office memorandum dated 10th January, 1995 and the same has been circulated in all the departments, divisions, etc.

In the case of R.M. Ramual Vs. State of Himachal Pradesh and Others, , the Apex Court took note of the fact that the cause of action arose in the year 1982 when the seniority list was changed and the challenge was made in quite promptitude and hence the petition. The petition could not have been thrown overboard on the ground that the seniority list was finalized earlier. The emphasis was laid on the cause of action. In the case at hand, when the seniority list was published in the year 1995 and the Petitioner had approached the tribunal in 1997, the principle of delay and laches or, for that matter, limitation does not create a dent in the challenge. Mr. R.K. Kapoor, learned Counsel for the Respondents, though has commended us to the decisions in B.S. Bajwa (supra), Balkaran Singh (supra), H.S. Vankani (supra), Dharam Pal (supra), G.N. Nayak (supra) and Dr. Amarjit Singh Ahluwalia (supra), yet they really have no assistance to throw the claim of the Petitioner overboard.

At this juncture, we may note with profit that a seniority list has already been drawn on the basis of the merit list and promotions have been conferred. We have noted this fact as this has been brought to our notice. The conclusion, we are disposed to think, has to be that the seniority list should have been fixed on the criterion of merit and if the same has been done on the basis of the merit, it cannot be found fault with. Needless to emphasize, we are concerned with the initial seniority list in the cadre of Section Officer.

Consequently, the writ petition is allowed, the order passed by the tribunal is quashed and the writ petition is disposed of giving the stamp of approval to the drawing of the seniority list on the basis of merit in the cadre of Section Officer. There shall be no order as to costs.