shri narayana rao battu vs union of india on 11 october, 2013

Central Administrative Tribunal - DelhiCentral Administrative Tribunal - DelhiShri Narayana Rao Battu vs Union Of India on 11 October, 2013CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH

O.A. No. 3594/2011

M.A. No.2410/2012

Reserved on:17.09.2013

Pronounced on:11:10.2013

HON�BLE MR. G. GEORGE PARACKEN, MEMBER (J)

HON�BLE MR. SHEKHAR AGARWAL, MEMBER (A)

Shri Narayana Rao Battu

Deputy Legislative Counsel

Legislative Department,

Ministry of Law and Justice,

Shastri Bhawan, New Delhi. �Applicant

(By Advocate: Shri Sanjay Ghosh and Mohd. Farruk)

Versus

1. Union of India

Through the Secretary,



Shastri Bhawan, New Delhi.

2. Shri Saji Kumar

Deputy Legislative Counsel



Shastri Bhawan, New Delhi.

Shri Narayana Rao Battu vs Union Of India on 11 October, 2013

Indian Kanoon - http://indiankanoon.org/doc/81992719/ 1

.. Respondents

(By Advocate: Shri Rajesh Katyal for Respondent No.1.

Shri Naresh Kaushik for Respondent No.2).

ORDER

Shri G. George Paracken:

Applicant�s grievance in this Original Application is that his position in the seniority list of DeputyLegislative Counsel (�DLC� for short) has been altered to his disadvantage after several years, that too,without any notice.

2. The brief facts of the case are that in the recruitment year 2002-03, there were 2 vacancies for the post ofDLCs, i.e., 1 under direct recruitment quota and other under the promotion quota. For recruitment of theDirect Recruit quota candidate, the UPSC issued advertisement on 26.04.2003. From amongst the candidatesapplied for the aforesaid post, the UPSC, on 25.09.2003, recommended one Shri Ashok G. Pawade forappointment and he accordingly joined the said post on 19.08.2000. However, the vacancy earmarked underthe Promotion Quota could not be filled due to non-availability of eligible candidates. Later on, one Shri N.K.Ambastha was promoted as DLC against the aforesaid carried forward vacancy of 2003-04. The PrivateRespondent No.2, Shri Saji Kumar, Assistant Legislative Counsel (�ALC� for short), was also promoted asDLC against the Direct Recruit vacancy for the year 2003-04 converted into the promotee quota vacancy. ShriAshok G. Pawade, later on resigned from the post on 09.11.2004 and the Ist Respondent, vide its letter dated16.11.2004, informed the aforesaid position to the UPSC and requested them to provide a substitute in hisplace from the reserved list of candidates. Thereafter, the UPSC informed the Applicant, vide their letter dated27.12.2004, that the Commission found it possible to recommend his name to the Secretary, Ministry of Lawand Justice for appointment to the aforesaid post on the basis of his interview held on 25.09.2003. Further, theUPSC informed him that the offer of appointment will be made to him only after the Respondent No.1 issatisfied themselves after such enquiry, as may be considered necessary that he is suitable in all respects forappointment to the service and he has good mental and bodily health and also subject to such other conditionsprescribed by the Government. The Applicant accepted the aforesaid offer and joined the Respondent No.1 asDLC on 25.02.2005.

3. Thereafter, the Respondent No.1 issued the provisional seniority list dated 8.8.2005 of DLCs as on01.08.2005. While the Applicant was shown at Sl.No.6 of the said list, the Respondent No.2 was shown atSl.No.8. Their respective dates of appointment to the grade of DLC in the Indian Legal Service were alsoshown as 25.02.2005 and 04.12.2003 respectively. The aforesaid seniority list was finalised in accordancewith the rules and instructions vide final seniority list on 29.12.2005. Again, the Respondent No.1 issued theprovisional seniority list of DLCs dated 30.01.2008 as on 01.01.2008. The Applicant was again shown seniorto the Respondent No.2 at Sl.No.4 and at Sl.No.5 respectively.

4. In the meanwhile, the Ministry of Personnel, Public Grievances and Pension, Department of Personnel andTraining issued Office Memorandum dated 3.03.2008 consolidating the instructions on seniority contained intheir earlier OM No.22011/7/1986-Estt.(D) dated 3-7-1986 and the clarifications issued there on. In para 3 ofthe said OM, they have clarified that while the inter-se seniority of direct recruits and promotees is to be fixedon the basis of the rotation of quota of vacancies, the year of availability, both in the case of direct recruits aswell as the promotees, for the purpose of rotation and fixation of seniority, shall be the actual year ofappointment after declaration of results/selection and completion of pre-appointment formalities as prescribed.They have also clarified that when appointments against unfilled vacancies are made in subsequent year oryears either by direct recruitment or promotion, the persons who are so appointed shall not get seniority of anyearlier year (viz. year of Vacancy/panel or year in which recruitment process is initiated) but should get the



seniority of the year in which they are appointed on substantive basis. Further, they have stated that the yearof availability will be the vacancy year in which a candidate of a particular batch of selected direct recruits oran officer of the particular batch of promotees joins the post/service. However, they have also stated in theaforesaid OM that the cases of seniority already decided with reference to any other interpretation of the term�available� as contained in OM dated 3.7.1986 need not be reopened. For the sake of ready reference, thesaid OM dated 3.03.2008 is reproduced here as under: � No.20011/1/2006-Estt.(D)

Government of India

Ministry of Personnel, Public Grievances

and Pension

Department of Personnel & Training

New Delhi, dated the 3rd March, 2008

OFFICE MEMORANDUM

Subject: Consolidated instructions on seniority contained in

DOP&T O.M. No.22011/7/1986-Estt.(D) dated 3.7.1986

- Clarification regarding

The undersigned is directed to refer to this Department's consolidated instructions contained in O.M.No.22011/7/1986-Estt.(D) dated 3.7.1986 laying down the principles on determination of seniority of personsappointed to services/posts under the Central Government.

2. Para 2.4.1 and 2.4.2 of the O.M. dated 3.7.1986 contains the following provisions:

2.4.1 The relative seniority of direct recruits and of promotees shall be determined according to the rotation ofvacancies between direct recruits and promotees, which shall be based on the quota of vacancies reserved fordirect recruitment and promotion respectively in the Recruitment Rules.

2.4.2 If adequate number of direct recruits does not become available in any particular year, rotation of quotasfor the purpose of determining seniority would take place only to the extent of available direct recruits and thepromotees.

3. Some references have been received seeking clarifications regarding the term 'available' used in thepreceding para of the OM dated 3.7.1986. It is hereby clarified that while the inter-se seniority of directrecruits and promotees is to be fixed on the basis of the rotation of quota of vacancies, the year of availability,both in the case of direct recruits as well as the promotees, for the purpose of rotation and fixation of seniority,shall be the actual year of appointment after declaration of results/selection and completion ofpre-appointment formalities as prescribed. It is further clarified that when appointments against unfilledvacancies are made in subsequent year or years, either by direct recruitment or promotion, the persons soappointed shall not get seniority of any earlier year (viz. year of vacancy/panel or year in which recruitmentprocess is initiated) but should get the seniority of the year in which they are appointed on substantive basis.The year of availability will be the vacancy year in which a candidate of the particular batch of selected directrecruits or an officer of the particular batch of promotees joins the post/service.



4. Cases of seniority already decided with reference to any other interpretation of the term 'available' ascontained in O.M. dated 3.7.1986 need not be reopened.

5. Hindi version will follow.

Sd/-

(Smita Kumar)

Director (Estt.I)

To

All Ministries/Departments of the Government of India�.

5. Thereafter also, Respondent No.1 updated the seniority of DLCs as on 01.01.2010 and forwarded theprovisional seniority list to all concerned vide its note dated 15.02.2010 maintaining the seniority position ofthe Applicant as well as the Respondent No.2 in tact, as in the earlier lists. The Applicant�s name was shownabove the name of Respondent No.2 at Sl. No.2 and that of the Respondent No.2 at Sl.No.3. However, in themeanwhile, the Respondent No.2 had made a representation on 18.01.2010 to the Respondent No.1 pointingout that in terms of DOP&T OM dated 3.3.2008 (supra), his position in seniority list of DLCs, shouldhave been refixed and shown above the Applicant considering the respective dates of their joining as DLCsunder the Promotee Quota and Direct Recruitment quota respectively. Therefore, while issuing the aforesaidprovisional seniority, vide note dated 15.02.2010, there was asterisk against the name of Respondent 2 andremarks at the bottom of the list that �*Representation on seniority above Shri N.R. Battu is underconsideration�. As the Respondent No.2 made a subsequent representation, the Respondent No.1 decided toseek the opinion of the Department of Personnel and Training before a decision on it is taken andcommunicated to him. However, the DOP&T vide its note dated 11.06.2010, advised the Respondent �Legislative Department, Ministry of Law to meticulously follow the provisions contained in para 3 of theaforesaid OM dated 3.3.2008. Accordingly, the Additional Secretary in the Legislative Departmentrecommended that the Respondent No.2 shall be shown senior to the Applicant and the said recommendationwas accepted by the Secretary, Ministry of Law and Justice as well as the Hon�ble Minister concerned.Thereafter, the Respondent No.1 without any notice to the Applicant, issued the impugned seniority list dated25.10.2010 showing the Applicant at Sl.No.3 and the Respondent No.2 at Sl.No.2.

6. Thereafter, the Applicant made a representation on 07.01.2011 to restore his seniority as in the earlierseniority lists. The aforesaid representation was examined in the Department and the factual position wasnoted. According to copy of the departmental note made available to the Applicant under Right to InformationAct, 2005, it is observed that the Respondent No.1 has re-considered the seniority position of the Applicant aswell as Respondent No.2. It has been observed in the said note that the Respondent No.2 was appointed to thepost of DLC by promotion with effect from 04.12.2003 and the Applicant joined the said post only on25.02.2005 against the vacancy which occurred due to resignation of Shri Ashok G. Pawade who was DirectRecruit in the grade of DLC and thus the second or subsequent incumbent cannot claim the same seniority asthat opportunity had already been exhausted by the first incumbent. It was also mentioned therein that theApplicant inadvertently could not be given opportunity to show cause before issuing of final seniority list andthe issue is now being revisited in view of his representation. They have considered submission of theApplicant in his representation that the DOP&T, vide its OM dated 13.06.2000, issued instructionsregarding operation of the reserved panels made on the basis of selections made by the UPSC, SSC etc. etc.and the procedure to be followed as under:- ��.In future, where a selection has been made through UPSC, arequest for nomination from the reserve list, if any, may be made to the UPSC in the event of occurrence of avacancy caused by non-joining of the candidate within the stipulated time allowed for joining the post orwhere a candidate joins but he resigns or dies within a period of one year from the date of his joining, if a



fresh panel is not available by then. Such a vacancy should not be treated as fresh vacancy�. Therefore, theobservation made in the said office note was that against the direct recruit vacancy of the year 2002-03, ShriAshok G. Pawade was selected through UPSC and he was appointed as DLC in the Legislative Department.He joined the department on 19.08.2004 and tendered his resignation and left the department on 09.11.2004,i.e., within a span of less than 3 months from the date of joining. Against the said vacancy, Applicant wasappointed against the reserved panel prepared by the UPSC. Applicant joined the Legislative Department on25.02.2005. In view of the above position, Applicant�s appointment should not be treated against any freshvacancy and he should occupy the same position in the seniority list to which Shri Pawade was entitled to inthe recruitment year 2002-03. Since the Respondent No.2 was appointed as DLC against the vacancy year2003-04, he cannot be shown senior to the incumbent of the recruitment year 2002-03. However, afterdetailed examination, the Respondent No.1 decided to grant seniority to the Respondent No.2 above theApplicant and by the impugned note dated 27.06.2011, the Respondent No.1 has also informed the Applicantthat his representation dated 07.06.2011 has been examined but it has not been found that there was anyspecific point in his representation which necessitates any change in the decision already taken by theDepartment with the approval of the competent authority, after obtaining specific opinion of the DOP&Tin the matter.

7. The applicant has challenged the aforesaid decision of the Respondent No.1 on the ground that the settledseniority position which has been in operation for several years cannot be unsettled. In this regard, he hasrelied upon the judgment of the Apex Court in Rajendra Pratap Singh Yadav and Others Vs. State of U.P. andOthers 2011 (7) SCC 743. The relevant part of the said order reads as under:- �2. We deem it appropriate toreiterate that in service jurisprudence there is immense sanctity of a final seniority list. The seniority list oncepublished cannot be disturbed at the behest of person who chose not to challenge it for four years. The sanctityof the seniority list must be maintained unless there are very compelling reasons to do so in order to dosubstantial justice. This is imperative to avoid avoidable litigation and unrest and chaos in the services�.

He has also relied upon the DOP&T�s own OM dated 03.03.2008 based on which the impugnedseniority list has been issued. In the said OM, it has been clearly stated that �cases of seniority alreadydecided with reference to any other interpretation of the term �available� as contained in OM dated 3.7.1986need not be reopened�.

8. The other submission of the learned counsel for the Applicant is that the interpretation of the aforesaid OMdated 03.03.2008 has already been clarified by the Apex Court in the judgment of Union of India and OthersVs. N.R. Parmar & Others JT 2012 (12) SC 99. The relevant part of the said order reads as under:- �0.Since it is the case of the rival parties before us, that the OM dated 7.2.1986 is the principal instruction, on thebasis whereof the present controversy is to be settled, the same is being extracted hereunder in its entirety.

�The 7 February, 1986.

Office Memorandum

Subject: General Principles for determining the seniority of various categories of persons employed in CentralServices.

As the Ministry of Finance etc. are aware, the General Principles for determination of seniority in the CentralServices are contained in the Annexure to Ministry of Home Affairs O.M. No. 9/11/55-RPS dated 22ndDecember 1959. According to Paragraph-6 of the said Annexure, the relative seniority of direct recruits andpromotees shall be determined according to rotation of vacancies between the direct recruits and thepromotees, which will be based on the quota of vacancies reserved for direct recruitment and promotionrespectively in the Recruitment Rules. In the Explanatory Memorandum to these Principles, it has been statedthat a roster is required to be maintained based on the reservation of vacancies for direct recruitment andpromotion in the Recruitment Rules. Thus where appointment to a grade is to be made 50% by direct



recruitment and 50% by promotion from a lower grade, the inter-se seniority of direct recruits and promoteesis determined on 1:1 basis.

2. While the above mentioned principle was working satisfactorily in cases where direct recruitment andpromotion kept pace with each other and recruitment could also be made to the full extent of the quotas asprescribed, in cases where there was delay in direct recruitment or promotion, or where enough number ofdirect recruits or promotees did not become available, there was difficulty in determining seniority. In suchcases, the practice followed at present is that the slots meant for direct recruits or promotees, which could notbe filled up, were left vacant, and when direct recruits or promotees became available through laterexaminations or selections, such persons occupied the vacant slots, thereby became senior to persons whowere already working in the grade on regular basis. In some cases, where there was short-fall in directrecruitment in two or more consecutive years, this resulted in direct recruits of later years taking seniority oversome of the promotees with fairly long years of regular service already to their credit. This matter had alsocome up for consideration in various Court Cases both before the High Courts and the Supreme Court and inseveral cases the relevant judgement had brought out the inappropriateness of direct recruits of later yearsbecoming senior to promotees with long years of service.

3. This matter, which was also discussed in the National Council has been engaging the attention of theGovernment for quite some time and it has been decided that in future, while the principle of rotation ofquotas will still be followed for determining the inter-se seniority of direct recruits and promotees, the presentpractice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving themunitended seniority over promotees who are already in position, would be dispensed with. Thus, if adequatenumber of direct recruits do not become available in any particular year, rotation of quotas for purpose ofdetermining seniority would take place only to the extent of the available direct recruits and the promotees. Inother words, to the extent direct recruits are not available, the promotees will be bunched together at thebottom of the seniority list, below the last position upto which it is possible to determine seniority on the basisof rotation of quotas with reference to the actual number of direct recruits who become available. The unfilleddirect recruitment quota vacancies would, however, be carried forward and added to the corresponding directrecruitment vacancies of the next year (and to subsequent years where necessary) for taking action for directrecruitment for the total number according to the usual practice. Thereafter, in that year while seniority will bedetermined between direct recruits and promotees, to the extent of the number of vacancies for direct recruitsand promotees as determined according to the quota for that year, the additional direct recruits selectedagainst the carried forward vacancies of the previous year would be placed en-bloc below the last promotee(or direct recruit as the case may be) in the seniority list based on the rotation of vacancies for that year. Thesame principle holds good in determining seniority in the event of carry forward, if any, of direct recruitmentor promotion quota vacancies (as the case may be) in the subsequent years.

Illustration:

Where the Recruitment Rules provide 50% of the vacancies in a grade to be filled by promotion and theremaining 50% by direct recruitment, and assuming there are 10 vacancies in the grade arising in each of theyears 1986 and 1987 and that 2 vacancies intended for direct recruitment remained unfilled during 1986 andthey could be filled during 1987, the seniority position of the promotees and direct recruits of these two yearswill be as under:

1986 1987

1. P1 9. P1

2. D1 10. D1

3. P2 11. P2



4. D2 12. D2

5. P3 13. P3

6. D3 14. D3

7. P4 15. P4

8. P5 16. D4

17. P5

18. D5

19. D6

20. D7

4. In order to help the appointing authorities in determining the number of vacancies to be filled during a yearunder each of the methods of recruitment prescribed, a Vacancy Register giving a running account of thevacancies arising and being filled from year to year may be maintained in the proforma enclosed.

5. With a view to curbing any tendency of under-reporting/suppressing the vacancies to be notified to theconcerned authorities for direct recruitment, it is clarified that promotees will be treated as regular only to theextent to which direct recruitment vacancies are reported to the recruiting authorities on the basis of the quotasprescribed in the relevant recruitment rules. Excess promotees, if any, exceeding the share falling to thepromotion quota based on the corresponding figure, notified for direct recruitment would be treated only asad- hoc promotees.

6. The General Principles of seniority issued on 22nd December, 1959 referred to above, may be deemed tohave been modified to that extent.

7. These orders shall take effect from 1st March 1986. Seniority already determined in accordance with theexisting principles on the date of issue of these orders will not be reopened. In respect of vacancies for whichrecruitment action has already been taken, on the date of issue of these orders either by way of directrecruitment or promotion, seniority will continue to be determined in accordance with the principle in forceprior to the issue of this O.M.

8. Ministry of Finance etc. are requested to bring these instructions to the notice of al l theAttached/Subordinate Offices under them to whom the General Principles of Seniority contained in O.M.dated 22.12.1959 are applicable within 2 week as these orders will be effective from the next month.

Sd/-

Joint Secretary to the Govt. of India�

(emphasis is ours)

20.1. Since the OM dated 7.2.1986 would primarily constitute the determination of the present controversy, itis considered just and appropriate to render an analysis thereof. The following conclusions are apparent to us,from a close examination of the OM dated 7.2.1986:



(a) Paragraph 2 of the OM dated 7.2.1986 first records the existing manner of determining inter se senioritybetween direct recruits and promotees (i.e., as contemplated by the OM dated 22.11.1959), namely, ��theslots meant for direct recruits or promotees, which could not be filled up, were left vacant, and when directrecruits or promotees become available through later examinations or selections, such persons occupied thevacant slots, (and) thereby became senior to persons who were already working in the grade on regular basis.In some cases, where there was shortfall in direct recruitment in two or more consecutive years, this resultedin direct recruits of later years taking seniority over some of the promotees with fairly long years of regularservice to their credit�.�. The words, �when direct recruits or promotees become available through laterexamination or selections�, clearly connotes, that the situation contemplated is one where, there has been anearlier examination or selection, and is then followed by a �later� examination or selection. It is implicit, thatin the earlier examination or selection there was a shortfall, in as much as, the available vacancies for theconcerned recruitment year could not all be filled up, whereupon, further examination(s) or selection(s) had tobe conducted to make up for the shortfall. In the instant situation, the earlier OM dated 22.11.1959contemplated/provided, that slots allotted to a prescribed source of recruitment which remained vacant, wouldbe filled up only from the source for which the vacancy was reserved, irrespective of the fact that a candidatefrom the source in question became available in the next process of examination or selection, or eventhereafter. In other words the �rotation of quotas� principle was given effect to in letter and spirit under theOM dated 22.11.1959, without any scope of relaxation.

(b) The position expressed in the sub-paragraph (a) above, was sought to be modified by the OM dated7.2.1986, by providing in paragraph 3 thereof, that the earlier ��principle of rotation of quotas would still befollowed for determining the inter se seniority of direct recruits and promotees�� except when the directrecruit vacancies were being �� filled up by direct recruits of later years��. Read in conjunction withparagraph 2 of the OM dated 7.2.1986, the words ��direct recruits of later years�� must be understood tomean, direct recruits who became available through �later� examination(s) or selection(s). Essentially the�later� examination(s) or selection(s) should be perceived as those conducted to fill up the carried forwardvacancies, i.e., vacancies which could not be filled up, when the examination or selection for the concernedrecruitment year was originally/ first conducted. This change it was clarified, was made to stop direct recruitsof �later� years, from gaining ��unintended seniority over promotees who are already in position��, as HighCourts and the Supreme Court had ��brought out the inappropriateness�� thereof. It is therefore apparent,that the OM dated 7.2.1986 partially modified the �rotation of quotas� principle in the determination of interse seniority originally expressed in the OM dated 22.11.1959. The OM dated 7.2.1986, provided that the�rota� (rotation of quotas) would be adhered to ��only to the extent of available direct recruits andpromotees��, i.e., for promotee and direct recruit vacancies which could be filled up through the original/firstprocess of examination or selection conducted for the recruitment year in which the vacancies had arisen.

(c) For the vacancies remaining unfilled when the same were originally/first sought to be filled up, the slotsavailable under the �rota� principle under the OM dated 22.11.1959, would be lost to the extent of theshortfall. In other words, the �rotation of quotas� principle would stop operating after, ��the last positionupto which it is (was) possible to determine seniority on the basis of rotation of quotas��, for the concernedrecruitment year.

(d) Paragraph 3 of the OM dated 7.2.1986 provided, the manner of assigning seniority to vacancies carriedforward on account of their having remained unfilled in the original/first examination or selection process.The change contemplated in the OM dated 7.2.1986, referred to hereinabove, was made absolutelyunambiguous by expressing that, �The unfilled direct quota vacancies would �be carried forwarded andadded to the corresponding direct recruitment vacancies of the next year.�.�. It is therefore apparent, thatseniority of carried forward vacancies would be determined with reference to vacancies of the recruitmentyear wherein their selection was made, i.e., for which the �later� examination or selection was conducted.

(e) The OM dated 7.2.1986 formulated the stratagem to be followed, where adequate number of vacancies in arecruitment year could not be filled up, through the examination or selection conducted therefor. The OM



provided, ��to the extent direct recruits are not available, the promotees will be bunched together at thebottom of the seniority list, below the last position upto which it is (was) possible to determine the seniorityon the basis of rotation of quotas with reference to the actual number of direct recruits who becomeavailable...�.

(f) Paragraph 3 of the OM dated 7.2.1986 further postulated, that the modification contemplated therein wouldbe applied prospectively, and that, ��the present practice of keeping vacant slots for being filled up by directrecruits of later years, �over promotees who are (were) already in position, would be dispensed with��. It istherefore apparent, that the slots assigned to a particular source of recruitment, would be relevant fordetermining inter se seniority between promotees and direct recruits, to the extent the vacancies couldsuccessfully be filled up (and the unfilled slots would be lost) only for vacancies which arose after the OMdated 7.2.1986, came to be issued.

(g) The illustration provided in paragraph 3 of the OM dated 7.2.1986 fully substantiates the analysis of theOM dated 7.2.1986 recorded in the foregoing sub-paragraphs. In fact, the conclusions drawn in the foregoingsub-paragraphs have been drawn, keeping in mind the explanatory illustration narrated in paragraph 3 of theOM dated 7.2.1986.

(h) In paragraph 6 of the OM dated 7.2.1986 it was asserted, that the general principles for determiningseniority in the OM dated 22.11.1959 were being �modified� to the extent expressed (in the OM dated7.2.1986). The extent of modification contemplated by the OM dated 7.2.1986 has already been delineated inthe foregoing sub-paragraphs. Para 6 therefore leaves no room for any doubt, that the OM dated 22.11.1959stood �amended� by the OM dated 7.2.1986 on the issue of determination of inter se seniority between directrecruits and promotees, to the extent mentioned in the preceding sub-paragraphs. The said amendment wasconsciously carried out by the Department of Personnel and Training, with the object of remedying theinappropriateness of direct recruits of �later� examination(s) or selection(s) becoming senior to promoteeswith long years of service, in terms of the OM dated 22.11.1959.

21. The O.M. dated 7.2.1986, was followed by another Office Memorandum issued by the Government ofIndia, Department of Personnel and Training, dated 3.7.1986 (hereinafter referred to as, �the O.M. dated3.7.1986�). The purpose of the instant O.M., as the subject thereof suggests, was to �consolidate� existinggovernmental orders on the subject of seniority. Paragraphs 2.4.1 to 2.4.4 of the O.M. dated 3.7.1986 dealtwith the issue of inter se seniority between the direct recruits and promotees. The same are accordingly beingreproduced hereunder:-

�.4.1 The relative seniority of direct recruits and of promotees shall be determined according to the rotationof vacancies between direct recruits and promotees which shall be based on the quota of vacancies reservedfor direct recruitment and promotion respectively in the Recruitment Rules.

2.4.2 If adequate number of direct recruits do not become available in any particular year, rotation of quotasfor the purpose of determining seniority would take place only to the extent of the available direct recruits andthe promotees.

In other words, to the extent direct recruits are not available the promotees will be bunched together at thebottom of the seniority list below the last position upto which it is possible to determine seniority, on the basisof rotation of quotas with reference to the actual number of direct recruits who become available. The unfilleddirect recruitment quota vacancies would, however, be carried forward and added to the corresponding directrecruitment vacancies of the next year (and to subsequent years where necessary) for taking action for directrecruitment for the total number according to the usual practice. Thereafter in that year while seniority will bedetermined between direct recruits and promotees, to the extent of the number of vacancies for direct recruitsand promotees as determined according to the quota for that year, the additional, direct recruits selectedagainst the carried forward vacancies of the previous year would be placed en-bloc below the last promotee



(or direct recruit as the case may be), in the seniority list based on the rotation of vacancies for that year. Thesame principle holds good for determining seniority in the event of carry forward, if any, of direct recruitmentor promotion quota vacancies (as the case may be) in the subsequent year.

ILLUSTRATION: Where the Recruitment Rules provide 50% of the vacancies of a grade to be filled bypromotion and the remaining 50% by direct recruitment, and a assuming there are ten vacancies in the gradearising in each of the year 1986 and 1987 and that two vacancies intended for direct recruitment remainunfilled during 1986 and they could be filled during 1987, the seniority position of the promotees and directrecruits of these two years will be as under:

1986 1987

1. P1 9. P1

2. D1 10. D1

3. P2 11. P2

4. D2 12. D2

5. P3 13. P3

6. D3 14. D3

7. P4 15. P4

8. P5 16. D4

17. P5

18. D5

19. D6

20. D7

2.4.3. In order to help the appointing authorities in determining the number of vacancies to be filled during ayear under each of the methods of recruitment prescribed, a Vacancy Register giving a running account of thevacancies arising and being filled from year to year may be maintained in the proforma enclosed.

2.4.4 With a view to curbing any tendency of under- reporting/suppressing the vacancies to be notified to theconcerned authorities for direct recruitment, it is clarified that promotees will be treated as regular only to theextent to which direct recruitment vacancies are reported to the recruiting authorities on the basis of the quotasprescribed in the relevant recruitment rules. Excess promotees, if any, exceeding the share failing to thepromotion quota based on the corresponding figure, notified for direct recruitment would be treated only asad-hoc promotees.�

21.1. The following conclusions have been drawn by us from the O.M. dated 3.7.1986:-

(a) If adequate number of direct recruits (or promotees) do not become available in any particular year,�rotation of quotas� for the purpose of determining seniority, would stop after the available direct recruitsand promotees are assigned their slots for the concerned recruitment year.



(b) To the extent direct recruits were not available for the concerned recruitment year, the promotees would bebunched together at the bottom of the seniority list, below the last position upto which it was possible todetermine seniority, on the basis of rotation of quotas. And vice versa.

(c) The unfilled direct recruitment quota vacancies for a recruitment year, would be carried forward to thecorresponding direct recruitment vacancies of the next year (and to subsequent years, where necessary). Andvice versa. In this behalf, it is necessary to understand two distinct phrases used in the OM dated 3.7.1986.Firstly, the phrase �in that year� which connotes the recruitment year for which specific vacancies areearmarked. And secondly, the phrase �in the subsequent year�, which connotes carried forward vacancies,filled in addition to, vacancies earmarked for a subsequent recruitment year.

(d) The additional direct recruits selected, against the carried forward vacancies of the previous year, would beplaced en-bloc below the last promotee. And vice versa.

21.2. It is, therefore, apparent, that the position expressed in the O.Ms. dated 7.2.1986 and 3.7.1986, on thesubject of inter se seniority between direct recruits and promotees, was absolutely identical. This is indeedhow it was intended, because the OM dated 3.7.1986 was only meant to �consolidate� existing governmentalinstructions, on the subject of seniority.

22. Chronologically, it is necessary, at the present juncture to refer to an Office Note of the Department ofPersonnel and Training, Establishment (D) Section, dated 20.12.1999 (hereinafter referred to as, �the O.N.dated 20.12.1999�). Undoubtedly, an office note has no legal sanction, and as such, is not enforceable in law.Yet an office note is certainly relevant for determining the logic and process of reasoning which prevailed atthe relevant point of time. These would aid in the interpretation of the binding office memoranda, only whenthe language of the office memoranda is ambiguous. Ofcourse, only where there is no conflict between thetwo i.e., the office note and the office memoranda sought to be interpreted. In the aforesaid background, andfor the aforesaid limited purpose, reference is being made to the O.N. dated 20.12.1999. The same is beingreproduced hereunder:-

xxxx xxxx xxxx

23.1. The logic and process of reasoning emerging from the OM dated 2.2.2000, as is apparent to us, is beinganalysed below:

(a) If the process of recruitment has been initiated during the recruitment year (in which the vacancies havearisen) itself, even if the examination for the said recruitment is held in a subsequent year, and the result isdeclared in a year later (than the one in which the examination was held), and the selected candidates joined ina further later year (than the one in which the result was declared), the selected candidates will be entitled tobe assigned seniority, with reference to the recruitment year (in which the requisition of vacancies was made).The logic and reasoning for the aforesaid conclusion (expressed in the ON dated 2.2.2000) is, if the process ofdirect recruitment is initiated in the recruitment year itself, the selected candidate(s) cannot be blamed for theadministrative delay, in completing the process of selection.

(b) The words �initiation of action for recruitment�, and the words �initiation of recruitment process�, wereexplained to mean, the date of sending the requisition to the recruiting authority.

xxxx xxxx xxxx

25.1. The following conclusions, in our view, can be drawn from the OM dated 3.3.2008:

(a) The OM dated 3.3.2008 is in the nature of a �clarification�, to the earlier consolidated instructions onseniority, contained in the OM dated 3.7.1986 (referred to and analysed, in paragraph 21 above).



(b) The term �available� used in para 2.4.2 in the OM dated 3.7.1986 has been �clarified� to mean, both incase of direct recruits as well as promotees, for the purpose of fixation of seniority, would be the actual yearof appointment ��after the declaration of the result/selection, i.e., after the conclusion of the selectionprocess, and after the ��completion of the pre-appointment formalities�� (medical fitness, policeverification, etc.).

(c) As per the OM dated 3.7.1986, when appointments are made against unfilled vacancies in subsequentyear(s), the persons appointed would �not� get seniority with reference to the year in which the vacancyarose, or the year in which the recruitment process was initiated, or the year in which the selection processwas conducted.

(d) As per the OM dated 3.3.2008, when appointments are made against unfilled vacancies in subsequentyear(s), the persons appointed would get seniority of the year in which they are appointed �on substantivebasis�.

XXX XXX XXX

26.1. In view of the above, it is not possible for us to accept that the OM dated 3.3.2008, would only applyprospectively. We are also satisfied, that the OM dated 3.3.2008 which is only a �clarification� of the earlierOM dated 3.7.1986, would relate back to the original instrument, namely, the OM dated 3.7.1986.

��..the OM dated 7.2.1986 is in the nature of an amendment/modification. The Department of Personneland Training consciously �amended� the earlier OM dated 22.11.1959, by the later OM dated 7.2.1986. Thesaid amendment was consciously carried out, with the object of remedying the inappropriateness of directrecruits of later years becoming senior to promotees with long years of service. It is not the case of any of theparties before us, that the OM dated 7.2.1986, has ever been �amended� or �modified�. It is thereforeimperative to conclude, that the OM dated 7.2.1986 is binding for the determination of the issues expressedtherein, and that, the same has the force of law. The OM dated 3.7.1986 is in the nature of consolidatoryinstruction, whereby, all earlier instructions issued from time to time were compiled together. This isapparent, not only from the subject of the aforesaid OM dated 3.7.1986, but also, the contents of paragraph 1thereof. Paragraph 1 of the OM dated 3.7.1986, is being reproduced hereunder:

�Dated 3.7.86

OFFICE MEMORANDUM

Subject: SENIORITY - consolidated orders on

The undersigned is directed to say that instructions have been issued by this Department from time to timelaying down the principles for determining seniority of persons appointed to services and posts under theCentral Government. For facility of reference, the important orders on the subject have been consolidated inthis office memorandum. The number and date of the original communication has been quoted in the marginso that the users may refer to it to understand fully the context in which the order in question was issued.�(emphasis is ours)

27.1. It is therefore clear, that the OM dated 3.3.2008 is neither in the nature of an �amendment� nor in thenature of a �modification�. Since the OM dated 3.3.2008, is a mere �consolidation� or compilation of earlierinstructions on the subject of seniority, it is not prudent to draw any inferences therefrom which could not bedrawn from the earlier instruction/office memoranda being �consolidated� or compiled therein, or which iscontrary thereto.



28. It is relevant to notice, that there is a marginal note against paragraph 2.4.2 in the OM dated 3.7.1986. Theaforesaid marginal note is being extracted hereunder:

�DOPT No.35014/2/80-Estt(D) dt.7.2.86�

28.1. Therefore, paragraph 2.4.2 must be deemed to have been recorded in the consolidating OM, on the basisof the OM dated 7.2.1986. The instant assertion has been made on account of it having been expresslymentioned in the opening paragraph of the OM dated 3.7.1986 (extracted above), that the number and date ofthe original communication has been quoted in the margin, so that the user may refer to it, to understand fullythe context in which the order in question was issued. Therefore, for all intents and purposes the OM dated3.3.2008 is with reference to the OM dated 7.2.1986. It is for this reason, that while debating the exact purportof the OM dated 3.3.2008, it has been our endeavour to examine the same, with reference to the earlier OMsdated 7.2.1986 and 3.7.1986, which were inter alia �consolidated� in the OM dated 3.3.2008.

29. A perusal of the OM dated 3.3.2008, would reveal, that a reference to paragraphs 2.4.1 and 2.4.2 of theOM dated 3.7.1986, has been made therein. Thereupon, the meaning of the term �available� used inparagraph 2.4.2 of the OM dated 3.7.1986, is statedly �clarified�. In view of the conclusion drawn in theforegoing paragraph, the said clarification must be deemed to be with reference, not only to the OM dated3.7.1986 but also the OM dated 7.2.1986. We have already noticed, in an earlier part of the instant judgment,the essential ingredients of a �clarification� are, that it seeks to explain an unclear, doubtful, inexplicit orambiguous aspect of an instrument, which is sought to be clarified or resolved through the �clarification�.And that, it should not be in conflict with the instrument sought to be explained. It is in the aforesaidbackground, that we will examine the two queries posed in the preceding paragraph. We have alreadyanalysed the true purport of the OM dated 7.2.1986 (in paragraph 20 hereinabove). We have also recorded ourconclusions with reference to the OM dated 3.7.1986 wherein we have duly taken into consideration the truepurport of paragraph 2.4.2 contained in the OM dated 3.7.1986 (in paragraph 21 hereinabove). The aforesaidconclusions are not being repeated again for reasons of brevity. We have separately analysed the effect of theOM dated 3.3.2008 (in paragraph 26 of the instant judgment). It is not possible for us to conclude that theposition expressed in the earlier office memoranda is unclear, doubtful, inexplicit or ambiguous. Certainly noton the subject sought to be clarified by the OM dated 3.3.2008. A comparison of the conclusions recorded inparagraph 20 (with reference to the OM dated 7.2.1986) and paragraph 21 (with reference to OM dated3.7.1986) on the one hand, as against, the conclusions drawn in paragraph 26 (with reference to OM dated3.3.2008) on the other, would lead to inevitable conclusion, that the OM dated 3.3.2008 clearly propounds, amanner of determining inter se seniority between direct recruits and promotees, by a method which isindisputably in conflict with the OMs dated 7.2.1986 and 3.7.1986. Ofcourse, it was possible for theDepartment of Personnel and Training to �amend� or �modify� the earlier office memoranda, in the samemanner as the OM dated 7.2.1986 had modified/amended the earlier OM dated 22.11.1959. A perusal of theOM dated 3.3.2008, however reveals, that it was not the intention of the Department of Personnel andTraining to alter the manner of determining inter se seniority between promotees and direct recruits, as hadbeen expressed in the OMs dated 7.2.1986 and 3.7.1986. The intention was only to �clarify� the earlier OMdated 3.7.1986 (which would implicitly include the OM dated 7.2.1986). The OM dated 3.3.2008 has clearlybreached the parameters and the ingredients of a �clarification�. Therefore, for all intents and purposes theOM dated 3.3.2008, must be deemed to be non-est to the extent that the same is in derogation of the earlierOMs dated 7.2.1986 and 3.7.1986. Having so concluded, it is natural to record, that as the position presentlystands, the OMs dated 7.2.1986 and 3.7.1986 would have an overriding effect over the OM dated 3.3.2008 (tothe extent of conflict between them). And the OM dated 3.3.2008 has to be ignored/omitted to the extent thatthe same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. In the light of the conclusionsrecorded hereinabove, we are satisfied that the OM dated 3.3.2008 is not relevant for the determination of thepresent controversy.

XXX XXX XXX



33. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paragraphs 20 and 21hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitmentwas issued by the SSC in the recruitment year in which direct recruit vacancies had arisen. The said factualposition, as confirmed by the rival parties, is common in all matters being collectively disposed of. In all thesecases the advertised vacancies were filled up in the original/first examination/selection conducted for thesame. None of the direct recruit Income Tax Inspectors herein can be stated to be occupying carried forwardvacancies, or vacancies which came to be filled up by a �later� examination/selection process. The facts onlyreveal, that the examination and the selection process of direct recruits could not be completed within therecruitment year itself. For this, the modification/amendment in the manner of determining the inter-seseniority between the direct recruits and promotees, carried out through the OM dated 7.2.1986, and thecompilation of the instructions pertaining to seniority in the OM dated 3.7.1986, leave no room for any doubt,that the �rotation of quotas� principle, would be fully applicable to the direct recruits in the presentcontroversy. The direct recruits herein will therefore have to be interspaced with promotees of the samerecruitment year.

34. In view of the above, the Civil Appeals, the Transferred Case, as well as, the Transfer Case (filed by thedirect recruits and the Union of India) are hereby allowed. The claim of the promotees, that the direct recruitIncome Tax Inspectors, in the instant case should be assigned seniority with reference to the date of theiractual appointment in the Income Tax Department is declined�.

9. The Official Respondents No.1, i.e. Union of India have filed their reply. The factual position has not beendisputed. However, they have submitted that in terms of provisions contained in DOP&T OM dated03.03.2008 they were required to revise the seniority of the Applicant and the Respondent No.2. In thisregard, they have specifically referred to para 3 of the said OM which reads as under:- �. Some referenceshave been received seeking clarifications regarding the term �available� used in the preceding para of theOM dated 3.7.1986. It is hereby clarified that while the inter-se seniority of direct recruits and promotees is tobe fixed on the basis of the rotation of quota of vacancies, the year of availability, both in the case of directrecruits as well as the promotees, for the purpose of rotation and fixation of seniority, shall be the actual yearof appointment after declaration of results/ selection and completion of pre-appointment formalities asprescribed. It is further clarified that when appointments against unfilled vacancies are made in subsequentyear or years either by direct recruitment or promotion, the persons so appointed shall not get seniority of anyearlier year (viz. year of Vacancy/panel or year in which recruitment process is initiated) but should get theseniority of the year in which they are appointed on substantive basis. DoP&T�s O.M.No.20011/1/2008-Estt.(D) Dated 11th November 2010 The year of availability will be the vacancy year inwhich a candidate of the particular batch of selected direct recruits or an officer of the particular batch ofpromotees joins the post/service�.

10. They have also stated that the Applicant has made a representation against the refixation of the senioritybut the same has been examined in the light of decision taken by this department and it was found he has notmade any specific point which warranted a revisit to the decision taken by the Department.

11. The Respondent No.2 has also filed his reply stating that the present Original Application is misconceivedand misplaced. He had referred to the advice of the DOP&T in its noting dated 08.06.2010 which readsas under:-

�This stipulation simply means that the Department concerned on its own would take up an exercise ofrecasting the seniority until there is any grievance/complaint of the officer against his/her placement in theseniority list brought out by the Department on the basis of its interpretation of the term �available� asopening up a �Pandora�s box could only lead to administrative chaos�.

�On receipt of a reference involving a controversy/dispute from the officer concerned, within a reasonableperiod of 2 years from the date of issue of his/her first seniority placement on the substantive issue of seniority



or on the direction of CAT/Court or any other public authority concerned in the matter, the Departmentconcerned may take necessary action about revising his/her seniority and further incidental action, ifnecessary, if it is in tune with the principles of relative seniority between Direct Recruits and Promotees asenunciated in the OM dated 3.7.1986 as stands clarified by OM dated 3.3.2008. Para 3 of the OM dated3.3.2008 may, therefore, be meticulously followed in the matter�. Therefore, the first respondent is justifiedin revising the seniority and assigning his due seniority. He has also pointed that the sanctioned strength ofDeputy Legislative Counsel (DLC-Grade III of Indian Legal Service) in the Legislative Department of theMinistry of Law and Justice is ten. In the year 2003, four vacancies existed out of the total ten vacancies andout of which, one was reported to UPSC for direct recruitment and the other three were filled up by promotionon 04-12-2003 from the feeder grade (Assistant Legislative Counsel- Grade IV of ILS), including RespondentNo.2. The direct recruitment vacancy was filled up by the selection and appointment of Shri Ashok Pawadeon 19-04-2004. Thus all the ten sanctioned posts of DLC were filled up as on 19-04-2004. That means, theposts were filled up according to the rotation of vacancies as 50% by promotion and 50% by way of directrecruitment. Accordingly, there were five Promotees and five Direct Recruits as per the seniority list dated21-09-2004. Thus the rota quota was complete with regard to the posts of DLCs as on the said date. While so,after serving for about three months, Shri Pawade resigned on 08-11-2004, thereby creating a new vacancy ofDLC in the year 2004. When the direct recruitment vacancy arose in 2004, out of the nine filled up posts, fivewere already filled up by promotees and four were by direct recruits. The Department had the option to fill upthe vacancy created owing to his resignation, either by promotion or by direct recruitment. However, noperson was eligible to be promoted as DLC from the feeder grade of ALC. Hence, the Department decided tofill up the vacancy by way of direct recruitment again, and, consequently, the Applicant was appointed on25-02-2005 from the wait list.

12. He has further submitted that vacancy to which the Applicant was appointed arose only on 08-11-2004,the date on which Shri Ashok Pawade resigned. That means, the vacancy meant for the Applicant actuallyarose only after 14 months of the actual substantive appointment of the Respondent No.2 on 04-12-2003. TheApplicant who was appointed against a vacancy which actually arose only 14 months later than the date ofsubstantive appointment of the Respondent No.2 cannot in any way claim seniority over the Respondent No.2.

13. He has also stated that the facts, law and the circumstances in the case of N.R. Parmar and Ors. aredifferent from the case on hand. In Parmar�s case the inter-se seniority between a bunch of promotees and agroup of direct recruits was involved. It was a case where vacancies by way of promotion and directrecruitment existed at the same time and were referred to the Departmental Promotion Committee and theStaff Selection Commission simultaneously for selection whereas in the instant case, the vacancy to which theApplicant was recruited arose only after 14 months of substantive appointment of the Respondent No.2.Further, in Parmar�s case, the Hon�ble Supreme Court was considering as to whether clarification OM dated03/03/2008 was in conflict with OM dated 03/07/1986 and OM dated 07/02/1986. Parties to the instant casenever challenged, disputed the OM dated 03/07/1986, OM dated 03/03/2008 or OM dated 07/02/1986. Theinstant case is not one that challenges the rotation of quotas between direct recruits and promotees but onlyseeks to clarify the inter-se seniority between the Applicant and Respondent No.2. As far as the instant case isconcerned, OM dated 03/03/2008 is not in derogation of OM dated 03/07/1986 as even according to OMdated 03/07/1986 and OM dated 07/02/1986, the Respondent No. 2 is entitled to be held senior to theApplicant. The instant case is distinguishable from N.R. Parmar�s case wherein examination and otherselection processes for a group of direct recruits and promotees were initiated simultaneously. In the instantcase, the recruitment processes were completed within time and the person who was offered appointment(Shri Ashok Pawad) did join and occupy the post and hence the post in question was already filled up and thevacancy was already exhausted. In N.R. Parmar�s case, the slots meant for direct recruits were not filled in byway of any appointment. But in the instant case, the slot was consumed by the appointment and by the joiningof Shri Ashok G. Pawade it has been exhausted. Once the slot has been exhausted by the joining of the directand subsequently vacated the same, the rota was changed and the next slot could only have gone to theRespondent No.2. The date of vacancy or recruitment year has no relevance after the resignation of ShriAshok G Pawade as retrospective seniority cannot be given to a person who would not otherwise get



appointed, had the person who consumed the slot not resigned. Once the slot is filled up by rotation, it cannotbe claimed again by another person in the reserve list. When the Respondent No.2 was already appointed in2003 and Shri Pawade who joined in 2004 subsequently resigned, the vacancy position of the year 2004cannot be considered as the same vacancy position as of 2003. The rotation for a direct recruit would beavailable only after the promotee, and, in this case, after the Respondent No.2. In fact, the judgment inParmar�s case (supra) did not change the pith and substance of the intention behind OM dated 07/02/1986.Further, it only cements the earlier position held by various High Courts and the Hon�ble Supreme Court thata person who joined later should not be given seniority over the promotees having long standing service.Seniority is based on continuous substantive service held by a person on the post. A direct recruit cannot beassigned seniority when he is never born in any service. In short, seniority cannot be reserved for a personwho was still in school or college. In Parmar�s case (supra), the Hon�ble Supreme Court only distinguishedthe effect of OM dated 03/03/2008 vis-`-vis OM dated 03/07/1986 and also OM dated 07/02/1986 and it didnot unsettle the settled position that whoever joins first is senior to all others.

14. However, in this case, the Applicant challenged the seniority of Respondent No.2, who was promoted asDLC (Grade III of Indian Legal Service) on 04/12/2003, whereas the Applicant was born in the service onlyon 25/02/2005 as a direct recruit against a vacancy which arose owing to the resignation of Shri Ashok G.Pawade who was appointed and who subsequently resigned. There is no rule that a person who joins a post asa reserve list candidate in place of another who had occupied and exhausted the slot and subsequently vacatesthe slot, should also be assigned the same seniority position assignable to the person who first occupied it. Inother words, a reserve list cannot determine seniority but it is the actually vacancy arising in each year and theprinciples of rota quota that would decide the seniority. The lawful seniority position of Respondent No. 2cannot be violated merely for the reason that the Department made use of a reserve list to appoint a wait listedcandidate. Since the existing vacancy was already filled up by the joining of Shri Ashok Pawade, theApplicant was not actually available in that year. His slot would have been `available� only after the dueseniority of Respondent No.2 was fixed as on the date of vacation of the slot meant for direct recruits after theresignation of Shri Ashok Pawade on 08/11/2004. Hence, it can be seen that the rotation of the Applicant, whojoined after exhausting the rota meant for Shri Pawade, would begin only after the rotation of Respondent No.2 in the seniority list. OM dated 07/02/1986 clearly mandates that ��.principle of rotation of quotas will stillbe followed for determining the inter se seniority of direct recruits and promotees�.� In view of the above, itis seen that as the slot meant for direct recruit was consumed by Shri Ashok Pawade, the next slot in the rotasystem should naturally be assigned to the Respondent No.2. After the slot meant for Shri Ashok Pawade wasexhausted by his occupying the slot, the appointment of the Applicant should be treated as fresh selection.

15. The Respondent No.2 has also relied upon the following settled legal positions by the Hon�ble SupremeCourt:

Seniority is to be accorded from the date of substantive appointment and not from the accrual of vacancies(State of UP v/s Dinesh Kumar Sharma, 2006 (13) SCALE 248).

Date of entry in a particular service or date of substantive appointment is the safest criterion for fixingseniority (Pawan Pratap Singh and Ors. v/s Reevan Singh & Ors. (2011 (3) SCC 267).

The State cannot make retrospective appointment so as to effect seniority of existing incumbents, whicheventually may result in reducing their chances of promotion (Ramendra Singh and Ors. v/s Jagdish Prasadv/s Jagdish Prasad (1984 (Supp) SCC 142).

No person can be promoted with retrospective effect from a date when he was not born in the cadre so as toadversely effect others. (Vinodanand Yadav v/s State of Bihar, 1984 (Supp) 2 SCC 44.)

The year in which vacancy arose and against which vacancy the recruitment has been made is no at all to belooked into for determining of the inter-se seniority between direct recruits and promotes (Jagdish C.Patnaik



v/s State of Orissa, 1988 (4) SCC 456)

Since, no vacancy has arisen earlier after the preparation of the seniority list, mere rejection of the saidrepresentation held, would not disentitle the employee concerned to file the said writ petition to claimseniority over the superseding candidate (1995 (5) SCC 680).

Continuous officiating in the post of Assistant in the determining factor to fix the inter-se seniority (AIR 1997SC 406).

Notifications issued inviting applications was in respect of one post and the first candidate in the select panelwas not only offered but on his own acceptance of offer came to be appointed and it was only subsequently hecame to resign. With the appointment of the first candidate for the only post in respect of which theconsideration came to be made and select panel prepared, the panel ceased to exist and has outlined its utility.(2002 (1) SCC 113). Right to get particular position in the seniority list is not a vested or accrued right (1997(8) SCC 522), Bola v/s B.D. Sardana)

The promotees come into service, not by any fortuitous circumstances but they form an integral part of theregular cadre entitled to all benefits by the length of their service. Delay in making appointments by directrecruitment should not visit the promotees with adverse consequences, denying them the benefit of theirservice. (1987 (Supp) SCC 763). Inter-se seniority among the directly recruited candidates and promotees �Quota and Rota system � places for directly recruited candidates kept vacancy in the roster � no candidatesdirectly recruited for few years � candidate later appointed cannot steal a march over promotees � quotasystem broken down as recruitment was not simultaneous � rotational system also collapse � directrecruitment in subsequent years cannot claim seniority over promotees (HC of Delhi (1994) 28 DRJ 593). Noperson can claim a right to be promoted from the date when the vacancy accrued and he must take thepromotion with its benefits from the date of actual promotion (HC of Delhi WP (c) 1188-90/2005).

16. Besides, he has also relied upon the orders of this Tribunal in (i) OA 56/2009 dated 30/09/2010, MohitKumar Sharma & Ors. vs. UOI & Ors., (ii) OA 779/2006 with OA 1626/2006 and OA 1349/2006Avtar Singh & Ors. vs. UOI & Ors. with connected cases, (iii) OA 911/2007 A.K. Dahiya &Ors. vs. The Secretary, UPSC & Ors. and (iv) OA 3191/2009 Adil Rashid Siddiqui vs. UOI & Ors.wherein the aforesaid judgments of the Apex Court have been followed.

17. Further according to the Respondent no.2, he has been disputing the seniority lists since the year 2005.But there was no occasion for him to challenge them in any court of law because of the fact that the Applicantwas not being considered for promotion for the next higher post thereby not affecting his legal rights. He wasrather waiting for a cause of action to challenge the seniority earlier assigned to the Applicant. It was onlyafter the clarification OM dated 03/03/2008 was issued by the DOPT and that the Respondent No. 1 wasattempting to promote the Applicant, he filed the last representation on 18/01/2010 and on the basis of whichthe Respondent No. 1 corrected the mistake the crept in the seniority list. Had his representation dated18/01/2010 been rejected by Respondent No.1, he would have approached this Tribunal for the rectification ofthe error in the seniority list and to secure his valid legal right, before the present OA was filed by theApplicant.

18. We have heard the learned counsel for the Applicant Shri Sanjay Ghosh and Mohd. Farruck, the learnedcounsel for Respondent No.1 Shri Rajesh Katyal and the learned counsel for Respondent No.2 Shri NareshKaushik.

19. Admitted position in this case is that Shri Ashok G. Pawade and the Applicant have applied for the solepost of DLC under DR quota which has arisen during the recruitment year 2002-03 and after interviewingthem on 25.09.2003, the UPSC prepared the panel of selected candidates in which the former was at Sl.No.1and the latter at Sl.No.2. On his recommendation by the UPSC, Shri Pawade joined as DLE on 19.08.2010



and worked for less than three months and resigned from that post on 09.11.2011. The executive instructionsto be followed in such a situation by the Ministries/Departments has been prescribed by the DOP&T intheir OM dated 13.06.2000 (supra). According to the said OM, the Union Public Service Commission,wherever possible, maintains a reserve panel of candidates found suitable on the basis of selections made bythem for appointment on direct recruitment, transfer on deputation, transfer basis and it is operated by it, on arequest received from the Ministry/ Department concerned when the candidate recommended by it either doesnot join, thereby causing a replacement vacancy or he joins but resigns or dies within six months of hisjoining. Ministries/ Departments have also been advised that whenever such a contingency arises, they shouldfirst approach the UPSC for nomination of a candidate from the reserve panel, if any. The recruitment processbe treated as completed only after hearing from the UPSC and the Ministry/ Department concerned may resortto any alternative method of recruitment to fill up the vacancy thereafter. Later on, the Fifth Central PayCommission, in para 17.11 of its Report, recommended that with a view to reduce delay in filling up of thepost, vacancies resulting from resignation or death of an incumbent within one year of his appointment shouldbe filled up immediately by the candidates from the reserve panel, if a fresh panel is not available by then.Such a vacancy should not be treated as a fresh vacancy. The Government has accepted the saidrecommendations and issued directions to the Ministries/ Departments accordingly for future compliance. TheRespondent No.1 acted accordingly and vide its letter dated 16.11.2004, requested the UPSC to provide asubstitute from its reserve panel. Thereafter, the UPSC, vide its letter dated 27.12.2004, ascertained thewillingness of the Applicant and on his acceptance he was recommended and accordingly he joined as DLCon 25.02.2005 in the place of Shri Pawade. The aforesaid OM dated 13.06.2000 clearly stipulates that such avacancy should not be treated as fresh vacancy. Therefore, undoubtedly the vacancy which was available forthe Applicant was the vacancy which has arisen in the year 2002-03. It is also not the case of RespondentNo.1 and Respondent No.2 that the Applicant was appointed against any other vacancy. The Respondent No.2has never challenged the aforesaid OM dated 13.06.2000 in this OA or in any other proceedings. Therefore,the contention of the Respondent No.2 that with the resignation of Shri Pawade on 08.11.2004 a new vacancyhas arisen in the year 2004 is absolutely wrong and unfounded. As far as the Respondent No.1 is concerned,their contention was also that in such situation DOP&T�s OM dated 03.03.2008 would apply. They havealso got confirmation in this regard from the DOP&T itself. Despite the above position, they advised theRespondent No.1 in the present case to go according to the instructions contained in Para 3 of the aforesaidOM dated 3.32008. By giving such an advice, they have violated their own advice in the next para of the saidOM, i.e., Para 4 which reads as under:- �. Cases of seniority already decided with reference to any otherinterpretation of the term `available� as contained in OM dated 3.07.1986 need not be reopened.�

Admittedly, the Respondent No.1 had issued the Draft Seniority List of DLCs at least 3 times, firstly on29.12.2005, secondly on 31.08.2005 and thirdly on 15.02.2010. Following their wrong advice, RespondentNo.1 has upset the seniority list which was in operation for 5 years and issued the impugned seniority listdated 25.10.2010 showing the Applicant for the first time junior to Respondent No.2. Moreover, the aforesaidstipulation in Para 4 of the said OM is in fact in conformity with the Apex Court�s judgment in D. P. SharmaVs. Union of India 1989 Supp (1) SCC 244. In the said judgment, the Supreme Court held that �the generalrule is if seniority is to be regulated in a particular manner in a given period, it shall be given effect to and itshall not be varied to disadvantage retrospectively�. In the case of Rajendra Pratap Singh Yadav and Other�scase (supra) also, the Apex Court held that the seniority list once published cannot be disturbed at the behestof the persons who chose not to challenge it for four years. The relevant part of the said judgment is as under:�2. We deem it appropriate to reiterate that in service jurisprudence there is immense sanctity of a finalseniority list. The seniority list once published cannot be disturbed at the behest of person who chose not tochallenge it for four years. The sanctity of the seniority list must be maintained unless there are verycompelling reasons to do so in order to do substantial justice. This is imperative to avoid avoidable litigationand unrest and chaos in the services�.

20. Apart from the above position, the interpretation given by the Respondent No.1 to para 3 of the OM dated3.03.2008 itself is wrong. The Apex Court in N.R. Parmar�s case (supra) has clearly held that the said OM isonly clarifying the earlier OMs of the Department of Personnel dated 7.02.1986 and 3.07.1986. The OM dated



7.02.1986 is on the issue of determination of inter-se seniority between direct recruits and promotees. The OMdated 3.07.1986 was issued for the purpose of consolidating the existing government orders on the subject.The Apex Court has further held that there is nothing new in OM dated 3.03.2008 as the is only theclarification of the aforesaid OMs. Accordingly, the Apex Court held that �as per the OM dated 3.3.2008,when appointments are made against unfilled vacancies in subsequent year(s), the persons appointed wouldget seniority of the year in which they are appointed �on substantive basis�. Further, it has been held in thesaid judgment that �the OM dated 3.3.2008 has clearly breached the parameters and the ingredients of a�clarification�. Therefore, for all intents and purposes the OM dated 3.3.2008, must be deemed to be non-estto the extent that the same is in derogation of the earlier OMs dated 7.2.1986 and 3.7.1986. Having soconcluded, it is natural to record, that as the position presently stands, the OMs dated 7.2.1986 and 3.7.1986would have an overriding effect over the OM dated 3.3.2008 (to the extent of conflict between them) and theOM dated 3.3.2008 has to be ignored/omitted to the extent that the same is in derogation of the earlier OMsdated 7.2.1986 and 3.7.1986�.

21. We, in the above facts and circumstances of the case, allow the OA. Consequently, we quash and set asideOM dated 27.06.2011, seniority lists dated 25.10.2010 and 15.09.2011 respectively and direct the RespondentNo.1 to restore the seniority of the Applicant to the actual position as on 2005 and 2008. We further direct theRespondent No.1 to restore the position of the Applicant in its seniority lists dated 25.12.2005, 31.8.2008 and15.2.2010 when he has been shown senior to Respondent No.2. The Respondent No.1 shall also issueappropriate orders/seniority list in compliance of the aforesaid directions within 2 months from the date ofreceipt of a copy of this order.

22. There shall be no order as to costs.

(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)

MEMBER (A) MEMBER (J)

Rakesh



shri narayana rao battu vs union of india on 11 october, 2013

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