Sadhan Kumar Kundu vs Union of India and Others

Nishita Mhatre, J.—1. The perennial dispute between direct recruits and promotees regarding their inter se seniority has given rise to the present litigation. The seniority list which was published on 1st April, 2008 led the petitioner and several other direct recruits to file the applications before the Central Administrative Tribunal challenging the seniority list which showed the promotees were placed higher than the direct recruits. The petitioner filed Original Application being O.A. 1325 of 2011, Respondent No. 16 preferred O.A.1132 of 2011, Respondent No. 17 filed O.A.1133 of 2011 and Respondent No. 18 filed O.A.1232 of 2011 before different Benches of the Central Administrative Tribunal. All the aforesaid applications were transferred to the Principal Bench of the Central Administrative Tribunal and heard together. By a common judgment dated 25th August, 2011 the applications were dismissed. Although the Respondent Nos. 16, 17 and 18 are aggrieved by the impugned order, they have been impleaded as proforma respondent and they have not filed separate petitions.

The petitioner was initially recruited in 1985 to the post of Console Operator in Eastern Railway. In 1990 the Recruitment Rules for recruitment of Director of Income Tax (Systems)/Deputy Director/Computer Manager/Assistant Director/System Analyst and Programmer were published. The Recruitment Rules for Programme Assistant-cum-Console Operator were published on 1st June, 1990. A notification was published on 27th April, 1996 for recruitment in the Income Tax Department. The Petitioner and Respondent Nos. 16, 17 and 18 applied and after due selection, were recruited and designated as Programmers under the Central Board of Direct Taxes on a temporary basis. They were all later confirmed in service.

In the year 2000 the Principal Bench of the Central Administrative Tribunal entertained the challenge of the Programme Assistant-cum-Console Operators on deputation alleging that the Union of India had failed to treat them in accordance with law. The issue raised was whether the service rendered by the applicants during the period of deputation till the date of absorption can be counted for considering the eligibility of the applicants for promotion from the post of Programme Assistant/Console Operator, which was later designated as Data Processing Assistant, Grade A, to the post of Programmer, later designated as Assistant Director (Systems). Respondent Nos. 5, 13 and 14 of the present petition were the applicants in that Original Application being O.A.2516 of 2000. There is no dispute that the petitioner and Respondent Nos. 16, 17 and 18 were not made parties to that application although they were in service and any order passed by the Administrative Tribunal would have affected them in their placement in seniority list. The Tribunal considered the judgment in the case of K. Madhavan and Anr v. Union of India and Ors reported in , (1987) 4 SCC 566 and several other judgments of the Supreme Court and held that the appointment of the applicants before them to the post of Programme Assistant/Console Operator (Data Processing Assistant, Grade A) on deputation would have to be considered as an appointment on regular basis. The period spent on deputation was directed to be counted for the purpose of considering the eligibility of the applicants for promotion to the post of Programmer/Assistant Director (Systems). The Tribunal passed an order allowing the following prayers:

"(i) Declare that the service rendered by the applicants as Programme Assistant/Console Operator from the date of their initial deputation to the date of their absorption is regular service for the purpose of being considered for promotion as programmer, Group ''A''/Assistant Director System;

(ii) Direct the Respondents to consider the applicants for promotion as Programmer Group ''A''/Assistant Director systems from the date, if found fit by the DPC/review DPC with all consequential benefits;

(iii) Direct the Respondents to consider the applicants for promotions as Programmer Group ''A''/Assistant Director, Systems from the due date and to promote them as such from the said date, if found fit by the DPC/review DPC with all consequential benefits;"

Immediately thereafter on 27th June, 2002 an order was issued promoting the applicants which included the Respondent Nos. 13, 14 and 15 with immediate effect to the post of Assistant Director (Systems) on an ad hoc basis and subject to the regular DPC that could be held by the UPSC on the basis of the seniority.

The Recruitment Rules of 1990 provide that for promotion to the post of Assistant Director/Systems Analyst the requisite criteria is as follows:

"Promotion:

Programmers with 5 years regular service in the grade. Transfer on Deputation including short-term contract : Officers under the Central Government failing which officers under the State Governments/Universities/Research Institutions/Public Sector Undertakings/Statutory of Autonomous Organisations:

(a) (i) holding analogous posts on regular basis or

(ii) with 5 year''s regular service in posts in the scale of Rs. 2200-4000 or equivalent or

(iii) with 8 year''s regular service in posts in the scale of Rs. 2000-3500 or equivalent and

(b) possessing the educational qualifications and experience, prescribed for direct recruits under Col.8.

The departmental officers in the feeder category who are in the direct line of promotion will not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion. Period of deputation/contract including the period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other organisation/department of the Central Government shall ordinarily not exceed 4 years."

A new seniority list was published and circulated on 1st April, 2008. The respondents were placed higher in the seniority list than the petitioner and respondent Nos. 16, 17 and 18. They were shown higher in the list although the date of regular appointment to the grade was much after the appointment of the petitioner and respondent Nos. 16, 17 and 18 who were appointed as direct recruits in 1997 and 1999. This list was prepared on the basis of the judgment of the Principal Bench of the Central Administrative Tribunal in O.A. 2516 of 2000 in S.R. Gautam and Ors v. Union of India and Ors (hereinafter referred to as S.R. Gautam''s case).

Aggrieved by seniority list which was published and circulated on 1st April, 2008, the petitioner challenged it before the Calcutta Bench of the Central Administrative Tribunal. Respondent Nos. 16, 17 and 18 preferred their respective Original Applications before different Benches of the Central Administrative Tribunal. All the applications pending before various Benches were transferred for adjudication before the Principal Bench of the Tribunal. As mentioned earlier the applications were dismissed giving rise to the present petition.

When this petition came up for admission before this Court, the respondents raised a preliminary objection contending that the Calcutta High Court had no jurisdiction to entertain the writ petition in which the decision of the Principal Bench of the Administrative Tribunal sitting in Delhi had been questioned. That issue was decided in favour of the petitioner and it was held by an order dated 26th March, 2012 that the writ petition is maintainable in view of the principle of forum conveniens. This was because the petitioner had filed his application before the Calcutta Bench of the Tribunal whereas the Respondent Nos. 16, 17 and 18 had also filed their respective applications before the different Benches of the Central Administrative Tribunal. All these applications were transferred and heard by the Principal Bench of the Tribunal for administrative convenience. Since the effect of the order of the Administrative Tribunal was felt by the petitioner in Kolkata, it was decided that the petition was maintainable in this Court.

At this stage it would be relevant to mention that after the judgment in S.R. Gautam''s case (supra) which was delivered on 19th April, 2001 and was confirmed by the Delhi High Court on 4th April, 2002, some direct recruits filed O.A.2412 of 2002 (Jayanta Barua & Ors v. Union of India & Ors) which was decided on 21st September, 2006. The same contention as raised by the petitioner in this case was argued on behalf of the applicants before the Tribunal. The Original Application was dismissed and the contention that persons junior to them had been promoted earlier and were higher in the seniority list was not accepted although the applicants had not been added as parties in S.R. Gautam''s case (supra). The seniority list of 1996 was circulated amongst the employees in 2003. The names of the Petitioner and Respondent Nos. 16, 17 and 18 were not included in this list as they were not in service. However, the seniority list of 31st December, 1996 was challenged by Devindra Kumar and others before the Central Administrative Tribunal by filing O.A.1941 of 2003. In that application the applicants pleaded that the respondent Nos. 5 to 15 had been granted notional promotion with retrospective effect, illegally, because they had joined the department in lower post of Programme Assistant/Console Operator on deputation and was subsequently absorbed as Data Processing Assistant on 14th September, 1995. According to Devindra Kumar and others, they had joined service earlier as Programmer Group A/Assistant Director. All other contentions which were raised by the petitioner Nos. 16, 17 and 18 in their applications before the Tribunal were also raised by Devindra Kumar and others. Devindra Kumar and others were appointed as Assistant Director in 1994 whereas the Petitioner and Respondent Nos. 16, 17 and 18 were appointed as Assistant Director in the year 1997. In short, the issues raised by the Petitioner and Respondent Nos. 16, 17 and 18 in their applications before the Tribunal had already been decided by the Tribunal in Jayanta Barua and others (supra) and Devindra Kumar and others (Supra).

Arguments on behalf of the Petitioner

Mr. R.N. Majumder, the learned Counsel for the petitioner, argued: (i) the period spent on deputation cannot be treated as regular service in the post to which an employee is deputed; (ii) the period of service spent on deputation cannot be reckoned for the purpose of seniority in the new cadre; (iii) the Principal Bench of the Central Administrative Tribunal did not issue any directions in S.R. Gautam''s case (supra) with respect to the fixation of the seniority of the direct recruits and promotees. If the Petitioner and Respondent Nos. 16, 17 and 18 were recruited in 1997 as direct recruits to the cadre of Assistant Director (Systems) at which point of time the respondents were not borne in that cadre; (iv) the Petitioner and Respondent Nos. 16, 17 and 18 learnt of the order passed in S.R. Gautam''s case (supra) only after the seniority list was published on 1st April, 2008. S.R. Gautam''s case (supra) had been decided without giving a hearing to the Petitioner and Respondent Nos. 16, 17 and 18 and other similarly situated, although they were in service when the application was filed by S.R. Gautam and the judgment was delivered. Only the Union of India and its officers had been made party respondent to S.R. Gautam''s case (supra) and none of the direct recruits were heard when S.R. Gautam''s case (supra) was decided. This, in itself, is an illegality as the rights of the direct recruits have been adversely affected without hearing them.

Arguments on behalf of Respondent No. 16

Mr. Arjun Roy Mukherjee, the learned Counsel appearing for the Respondent No. 16, submits that the order of the Tribunal in S.R. Gautam''s case (supra) clearly stipulated that the promotees would be officiating for one year as Assistant Director (Systems) subject to the result of the DPC. He points out no DPC was held till 2008. Therefore, the notional seniority granted to S.R. Gautam and others from 1993 is illegal. He supports Mr. Majumder in his submission that no notice was ever given to the direct recruits in S.R. Gautam''s case (supra) and therefore, any order passed without hearing the persons who are likely to be vitally affected is nullity and cannot bind them.

The arguments of Mr. R.N. Majumder and Mr. Mukherjee had been adopted by Mr. Samiran Giri, appointed for Respondent Nos. 17 and 18.

Arguments on behalf of Union of India

Mr. D.N. Roy, the learned Counsel appearing for Union of India and its officers, submits: (i) the seniority list was finalised in the year 2008 and therefore no directions should be issued upsetting that list after a period of almost eight years; (ii) the Petitioner and Respondent Nos. 16, 17 and 18 did not bother to implead themselves as parties in S.R. Gautam''s case either before the Tribunal or before the Delhi High Court when the judgment of the Tribunal in S.R. Gautam''s case (supra) was confirmed; (iii) the respondents barring those who are supporting the Petitioners were wrongly denied promotion from 1995 despite the fact that they were eligible to be considered for promotion; (iv) if the applications filed by the Petitioner and Respondent Nos. 16, 17 and 18 had been allowed, they would have had to be placed senior to Devindra Kumar and others and Jayanta Barua and others which could again be in violation of the rights of those persons who are not before this Court.

Arguments on behalf of Respondent No. 9

Mr. Ayan Banerjee, the learned counsel appearing for the Respondent No. 9 who was a respondent in O.A.1132 of 2011 filed by Respondent No. 16, contends: (i) a single writ petition is not maintainable to challenge the common order passed in three different applications; (ii) the DPC for Respondent No. 9 was held in 2008 whereas the Respondent Nos. 5, 13 and 14 appeared before the DPC in 2002; (iii) promotions have been granted to the Respondent Nos. 3 to 15 only after the DPC was held and they were found fit for promotion.

Certain judgments have been cited at the bar which deal with the manner in which the periods spent on deputation is to be considered while reckoning the seniority of an employee. In State of Bihar & Ors v. Sri Akhouri Sachindra Nath & Ors reported in , AIR 1991 SC 1244, a dispute arose regarding the seniority and promotion in the Bihar Sub-ordinate Engineering Service. The Court held that as the promotee/respondents were borne in the cadre of Assistant Engineer in the Bihar Engineering Service at that time when the other respondents were directly recruited to the post of Assistant Engineer, they could not be granted seniority in service of Assistant Engineer over those who had been directly recruited. The Court further held that it was well-settled that no person could be promoted with retrospective effect from the date when he was not borne in the cadre so as to adversely affect service and that seniority list has to be reckoned from the date of the initial entry into the service.

In Pawan Pratap Singh & Ors v. Reevan Singh & Ors reported in , (2011) 3 SCC 267, the issue raised was whether the seniority should be reckoned from the date of vacancy or from the date of substantive appointment in a particular post. After considering its earlier judgments the Supreme Court held thus:

"44. The Constitution Bench of this Court in Direct Recruit Class II Engineering Officers'' Association v. State of Maharashtra stated the legal position with regard to inter se seniority of direct recruits and promotees and while doing so, inter alia, it was stated that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.

From the above, the legal position with regard to determination of seniority in service can be summarized as follows:

(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.

(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from the different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.

(iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.

(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.

In light of the legal position summed up above and rule 8 of the 1991 Rules, it is plain that 1991 appointees who were selected and appointed in accordance with the service rules cannot be made junior to 1994 appointees even if it is assumed that the selection and appointment of 1994 appointees was for earlier vacancies. The 1991 appointees having been appointed substantively much prior in point of time, they are entitled to rank senior to 1994 appointees."

A similar view has been taken by the Supreme Court in the case of State of Uttar Pradesh and Ors v. Ashok Kumar Srivastava & Anr reported in , AIR 2013 SC (Supp) 513. The Court observed that conferment of retrospective seniority was untenable and that the High Court had fallen into error of granting that benefit. In the case of K. Madhavan and Anr (supra), the Supreme Court considered the controversy between the direct recruits and promotees in the Delhi Police and whether the promotees could be placed at a lower run merely because the DPC which was scheduled to be held had been arbitrarily and mala fide cancelled. The Court observed that in such a case where the DPC has been cancelled without any reasonable justification, promotion can be granted to such an employee with retrospective effect so that he is not subjected to a lower position in the seniority list. The Supreme Court added a caveat that where the cancellation or postponement of the DPC was not arbitrary or was supported by good reasons, the employee concerned would have no grievance and the Government would not be justified in appointing the employee to a higher post with retrospective effect. The Court also observed that although an employee may become eligible for a certain post he cannot claim appointment to that post as a matter of right.

Bearing in mind the principles elucidated in the aforesaid judgment we will now turn to the factual matrix in the present case. The Recruitment Rules of 1989 were replaced by the Recruitment Rules of 1990 for the post of Assistant Director (Systems) and several other categories of employees. The Recruitment Rules of 1990 are applicable to the facts in the present case although these Rules were replaced by the 2003 Rules. The Rules were not gazetted at the point when the Petitioner and Respondent Nos. 16, 17 and 18 were recruited or when the respondent were granted promotions on the basis of S.R. Gautam''s case (supra). It appears from a letter dated 5th November, 2008 that several representations had been received by the Income Tax Department where the petitioner and respondents were working, due to which after obtaining the advice of the DoPT, the issue with respect to fixation of seniority was examined and a revised seniority list was issued on 5th November, 2008. This list showed the respondents higher in the seniority list of Assistant Director (Systems) than the petitioner and Respondent Nos. 16, 17 and 18. Although they had obtained regular appointment in their grade much after the petitioner and Respondent Nos. 16, 17 and 18 who had been appointed directly to the cadre, the Tribunal decided that S.R. Gautam''s case (supra) granted them appointment on a regular basis notionally with retrospective effect.

We have no manner of doubt that the direct recruits ought to have been considered higher in the seniority list than the promotees who were in fact on deputation in the cadre and had not been regularly appointed. It was only after S.R. Gautam''s case (supra) was decided in 2001 that the promotees were given a regular date of appointment, that appointment was from the post of Programme Assistant/Console Operators which had been re-designated as DPA Grade A and B to the post of promotion on an ad hoc basis to officiate in the cadre of Programmer Group A which was re-designated as Assistant Director (Systems) with immediate effect. The promotion was subject to the regular DPC which was to be held by the UPSC and on the basis of seniority. There is no material on record before us to show that regular DPC was held. The judgment in S.R. Gautam''s case (supra) does not direct the Union of India to grant the post to the promotees without holding DPC. We repeatedly enquired from Mr. D.N. Roy as to whether a DPC had been held as the seniority list which was published in 2008 indicated that it was revised only because of the various representations received. There was no reference to any DPC being held in that letter. Despite Mr. Mukherjee''s insistence on behalf of Respondent Nos. 16, 17 and 18 that no DPC was held prior to the revision of the seniority list which was published in 2008, neither Mr. Roy on behalf of Union of India nor Mr. Banerjee on behalf of the Respondent No. 9 were able to place on record any document showing that the DPC was held.

It is apparent from S.R. Gautam''s case (supra) that the Tribunal had declared that the service rendered by S.R. Gautam and others as Programme Assistant/Console Operator from the date of the initial deputation in that service to the date of their regular absorption must be taken into account for the purposes of promotion to the post of Programmer Group A/Assistant Director (Systems). This was because the requirement or eligibility for the post of Assistant Director (Systems) was service in the post of Programme Assistant/Console Operators for five years, and since S.R. Gautam and others had worked earlier on deputation in this post, that period was directed to be reckoned for the purpose of calculating the five year qualifying service. The Tribunal had further directed the Union of India to consider S.R. Gautam and others for promotion to the post of Assistant Director (Systems) from the due date if found fit by the DPC with all consequential benefits. The promotions were to be granted to them from the due date, i.e., from the date they became eligible to be promoted provided that the DPC found them fit for promotion. Since there is no record before us to show that the DPC had been held, in our opinion, the seniority list of 2008 is invalid.

The argument of Mr. Roy that if relief is granted to the Petitioner and Respondent Nos. 16, 17 and 18 they would be shown higher than Devindra Kumar and others and Jayanta Barua and others whose applications had been dismissed by the Administrative Tribunal, is unsustainable. From the selection list which is on record, it appears that Devindra Kumar and others and Jayanta Barua and others have already been promoted to a higher post after working as Assistant Director (Systems) and therefore, there would be no hurdle in readjusting the seniority list. In any event since Devindra Kumar and Jayanta Barua were recruited directly in 1994, they would appear higher in the seniority list than the Petitioner and Respondent Nos. 16, 17 and 18.

S.R. Gautam''s case (supra) has been decided without any direct recruits being heard. It is true that the judgment of the Tribunal has been confirmed by the Delhi High Court. However, a perusal of the judgment of the Delhi High Court indicates that it was because the Government had consented to implement the judgment in S.R. Gautam''s case (supra) that it did not consider the merits of S.R. Gautam''s case (supra). In any event, with respect, we are unable to persuade ourselves to agree with the view of the Delhi High Court.

It is true that today after almost eight years we will be overturning a seniority list which was published in 2008. However, all those who may be affected adversely by the judgment have been impleaded as party respondents. Only Respondent No. 9 has chosen to appear and contest the matter. We cannot permit an illegality to be perpetuated only because it has been continued for a long period of time.

Accordingly the impugned order of the Tribunal is set aside. The petition is allowed. The respondent/Union of India is directed to revise the seniority list within 12 weeks.

Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.