R.K. Mamgaain vs Union Of India Through The Secretary And Other

L. Narasimha Reddy, J

The Central Secretariat Service (for short, CSS) happens to be one of the most important establishments in the Administration of the Country. It is this service which becomes pivotal, not only in the initiation of process for decision making but also for the implementation thereof. Unfortunately, the intense dispute among the officers within the CSS is so phenomenal that it has led to an observation to be made by the Hon'ble Supreme Court, which reads as under :-

"This Court has repeatedly noticed the fact that public officers are more in Court than in their offices. With a view to doing complete justice to the matter and being assured by counsel on either side and the representatives who have filled our Court hall that if a seal be given to this litigation, our expectation that Government business shall now be carried on and not litigation hereafter, we have agreed to make this further order providing certain guidelines for updating/modifying the list which was drawn up as referred to above."

To be precise, this observation is made in a litigation, concerning the very CSS, that too, regarding the post of Section Officer.

The Recruitment Rules of the CSS provided for the appointment to the post of Section Officer through three different methods, namely, Direct Recruitment, promotion on the basis of seniority and through Limited Departmental Competitive Examination (LDCE). The extent to which the direct recruitment can be made, varied from time to time, and as of now, it is 20%. In the remaining 80%, the share of promotion and LDCE is equal.

The manner in which the seniority list is prepared by interspersing the Section Officers appointed through different methods was also indicated under the relevant Recruitment Rules. It provided for a compact cycle of five. The first, the vacancy shall be filled up by promotee, the second by LDCE, in the third by promotee, in the 4th by LDCE and in the fifth, by direct recruitment.

Though the method of appointment and the preparation of seniority list, appear to be very simple and objective, the groups within the service, tried to over reach one another and the result is that no seniority list could be prepared for decades together. Once the seniority list emerged, litigation was started directly before the Hon'ble Supreme Court by filing Writ Petitions under Article 32 of the Constitution. Certain directions were issued, including those for amending relevant service rules.

In Amrit Lal Vs. Union of India 1990 Supp. SCC 694, a set of directions were issued, so much so, that the seniority list to be prepared on the basis of those directions was directed to be submitted to the Hon'ble Supreme Court so that further litigation does not ensue. The seniority list was prepared in the year 1997 and submitted before the Hon'ble Supreme Court.

Challenging the said seniority list, some of the Section Officers approached this Tribunal by filing the OA No.629/1994. The OA was allowed on 22.03.1995, directing that carrying forward of the vacancies meant for direct recruitment, as directed by the Hon'ble Supreme Court, shall be effective only from the year 1985 and thus vacancies, meant for that category available earlier to that period, shall be filled by way of promotion. Similar observation was made in respect of the vacancies carried forward but not filled, in the subsequent years. A review preferred by the Government in the OA was dismissed on 23.05.1996. Thereupon, the aggrieved parties approached the Hon'ble Supreme Court. The matter was dealt with in detail in Surjit Singh And Others Vs. Union of India and Others (1997) 10 SCC 592. Hon'ble Supreme Court took serious exception to the view taken by the Tribunal and its interference with the seniority list, which came to be prepared on the basis of the direction issued by the Hon'ble Supreme Court.

The applicants herein are appointed as Section Officers through LDCE between 1989 and 1995. Their names did not figure in the seniority list that was prepared on 03.12.1997. In a subsequent seniority list that was published on 01.11.2006, the names of applicants No.2,4,5&6 figured. Thereafter, another seniority list came into existence on 25.09.2008, in which, in addition to the applicants referred to above, name of third applicant figured. In yet another seniority list, published on 31.12.2008, the names of applicants No.7,8&9 figured.

The grievance of the applicants is that they were not assigned their proper place in the seniority list and added to that, the direct recruits of subsequent years were placed above them. As an illustration, it is stated that direct recruit of 1997 was placed above them, in the seniority list dated 01.11.2006.

The applicants contend that there cannot be any justification for placing a direct recruitee SO, appointed almost a decade after their promotion; above their names in the seniority list. Reference is made to the relevant service rules and the proceedings that ensued from time to time.

First respondent filed the detailed counter affidavit, narrating the circumstances under which, the successive seniority lists were prepared. It is stated that it was after a prolonged exercise that in compliance with the directions issued by the Hon'ble Supreme Court, the seniority list was prepared, and when attempt was made to interefere with the same by the Tribunal, serious exception was taken by the Hon'ble Supreme Court in Surjit Singh's case (supra). The private respondents have also filed counter affidavits almost on the same lines.

We heard Shri A.K. Behera, learned counsel for applicants and Shri D.S.Mahendru and Dr. D.B. Singh with Shri Arpit Shukla, learned counsel for respondents at length.

The grievance of the applicants is about the places assigned to them in the seniority list dated 01.11.2006, 25.09.2008 and 31.12.2008. Before the present round of litigation, the applicants filed OA No.4182/2011, in this Tribunal, ventilating their grievances. The OA was disposed of, leaving it open to the applicants to make a representation to the respondents, and the latter in turn, was directed to pass an order thereon. Accordingly, the applicants made a representation in December, 2011 and January, 2012. On consideration of the same, a detailed order dated 20.09.2012, was passed assigning the reasons. The said order as well as the seniority list, insofar as the applicants were not assigned the proper place, is challenged in this OA.

The nature and scope of the litigation that ensued in this behalf can be discerned from the following passage of the judgment of Hon'ble Supreme Court in Amrit Lal (supra) :-

"In spite of the decisions of this Court referred to above, some of the promotee officers in this cadre went before the Central Administrative Tribunal raising a fresh dispute on what may be said to be a covered field. The Tribunal had the handicap of a binding judgment in the field; yet on the basis of materials placed before it, it came to conclusions partly different from what had been reached by this Court and; rendered a judgment which is impugned before us in this group of case. We have heard parties at considerable length in the month of January this year and thereafter when we were satisfied that the representation made to this Court on the earlier occasion that there existed a seniority list was perhaps not correct, we called upon the Union of India to draw up such a list and for that purpose we adjourned the proceedings for a considerable period of time, it is not disputed that with the assistance of both the sides such a list has now been drawn up. We have again heard counsel appearing on the two sides and even allowed oral arguments to be addressed by an intervener in person. This Court has repeatedly noticed the fact that public officers are more in Court than in their offices. With a view to doing complete justice to the matter and being assured by counsel on either side and the representatives who have filled our Court hall that if a seal be given to this litigation, our expectation that Government business shall now be carried on and not litigation hereafter, we have agreed to make this further order providing certain guidelines for updating/modifying the list which was drawn up as referred to above. We are of the opinion that with a view to doing complete justice to the situation, the December 1984 Rules should be made operative from 1-7- 1984 instead of 1-7- 1985. These Rules have now a limited provision of carry forward of vacancies to be filled up by direct recruits and that is a two year period. The entitlement to substantive recruitment to the cadre is on an eight year period of qualifying service. Entitlement as qualified officers in the field is one matter and recruitment into the cadre on substantive basis is another. It may be noted that 20% is reserved for the direct recruits and the remainder is available to the promotees."

Accordingly, a seniority list emerged in the year 1997, after so much of effort was set at naught by the Tribunal, through its order dated 22.03.1995 in OA No.629/2004. The aggrieved parties approached the Hon'ble Supreme Court which came to be decided as Surjit Singh (supra). The Hon'ble Supreme Court took serious exception to the adjudication undertaken by the Tribunal. The same is evident from para 7 of the judgment, which reads as under :-

"In the light of these directions, it is obvious that the Government of India had prepared the seniority list. The contention of the promotees which was found acceptable to the Tribunal that preceding the date of amendment the Government was devoid of power to carry forward all unfilled vacancies to the direct recruits and that all these vacancies are meant to be thrown open to the promotees, is clearly a misinterpretation of the rules and on that basis the directions came to be issued by the Tribunal. This Court had suggested on earlier occasion that vacancies meant for the direct recruits may be carried forward for two years after the recruitment year and thereafter the unfilled vacancies would be thrown open to the respective cadres. Under these circumstance, the view of the Tribunal is clearly illegal; unfortunately, the Tribunal has wrongly stated that if they commit mistake, it is for this Court to correct the same. That view of the Tribunal is not conducive to the proper functioning of judicial service. When a patent error is brought to the notice of the Tribunal, the Tribunal is duty bound to correct, with grace, its mistake of law by way of review of the its order/directions."

Keeping in view the limitations in the matter, we did go through the seniority list, as desired by the learned counsel for applicant. We find that after the seniority list was prepared in terms of the judgment of the Hon'ble Supreme Court in Amrit Lal's case (supra), another seniority list was brought into existence in the year 1997. Detailed reasons, running into several pages, were assigned as a preamble to this seniority list. That constituted the basis and what ensued thereafter is only additions of the officers who are appointed, over the period. The methodology and the principles of maintenance of seniority list remained the same. If the applicants are of the view that the seniority list dated 03.12.1997 does not accord with the principles laid down by the Hon'ble Supreme Court, the forum is not this Tribunal. The applicants are not able to point out that the subsequent seniority list dated 01.11.2006, 25.09.2008 and 31.12.2008 were prepared in deviation from the principles, that governed the seniority list of the year 1997.

Therefore, we do not find any basis to interfere with the seniority lists. We leave it open to the applicants to approach the Hon'ble Supreme Court, if permissible in law, in case they are of the view that the seniority list was prepared in deviation from the principles laid down by the Hon'ble Supreme Court in Amrit Lal and Surjit Singh's cases (supra). The OA is accordingly, disposed of.

Pending MAs, if any, stand disposed of.

There shall be no order as to costs.