Principle Of Initial Date Of Appointment Valid Principle To Determine Inter-Se Seniority In Absence Of Rules To Contrary : Supreme Court
Srishti Ojha
5 Nov 2021 11:23 AM
The Supreme Court of India has held that the principle of initial date of appointment or continuous officiation will be the valid principle to be considered for determination of inter se seniority in the absence of any rule or guidelines to the contrary.
A Bench compromising Justice Ajay Rastogi and Justice Abhay Oka has made the observations while delivering its judgement in appeals challenging judgments of both the Delhi and Punjab & Haryana High Court raising the same question of determination of seniority inter se of the candidates selected in their respective Command at the stage when a combined All India seniority list is to be prepared.
The present case involves candidates/applicants for post of Group 'C' personnel of Military Engineering Services who were selected and placed in the select panel dated 29th June, 1983 of the Western Command but appointed after 5 years down the line were appointed from April 1987 to April 1988.
Their seniority was determined on the basis of their date of joining. Their grievance was that as they are the candidates of the select panel of June 1983, seniority of the candidates who are selected by direct recruitment is to be determined in the order of merit regardless of their date of joining and that they are entitled to claim seniority with their counterparts who were appointed out of the 1983 select panel.
The question to be decided by the Apex Court was " In case of applicants selected in June 1983 in Western Command, whether their date of joining service at a later stage will be a guiding factor when the combined All India seniority of the five Commands is prepared or seniority will relate back to their placement assigned in the select panel of June 1983 of Western Command regardless to the fact of their joining at a later stage, anterior to the period one has taken birth in the Department."
While delivering its judgement, the Bench took note of the fact that there is no rule or guidelines issued by the respondents including Union of India which may determine the inter se seniority when a combined seniority list at the All India level is to be prepared under the Scheme of 1971 Rules.
Further, the Bench noted that the respondents were taking assistance of Office Memorandum of DoPT dated 3rd July, 1986 which deals with the determination of seniority of direct recruits who were selected and placed in one and the same select panel to be determined by the order of merit in the select list and those who are selected in the earlier selection will remain senior to such persons who were appointed in the later selection.
Taking note of the above mentioned points, the Bench therefore observed that "We are also of the view that in the matter of adjudging seniority of the candidates selected in one and the same selection, placement in the order of merit can be adopted as a principle for determination of seniority but where the selections are held separately by different recruiting authorities, the principle of initial date of appointment/continuous officiation may be the valid principle to be considered for adjudging inter se seniority of the officers in the absence of any rule or guidelines in determining seniority to the contrary."
The Bench has upheld the order of the Central Administrative Tribunal whereby it observed that while adjudging seniority in silent in determining inter se seniority of the Commands at All India level, the only possibility and the rationale rule would be to have their seniority reckoned from the date of entering into service when he is compared to the person who belonged to yet another Command
According to the Tribunal, it would be illogical if the incumbent who was appointed earlier is pushed down below the persons who were later appointed as in the present case after almost 4 to 5 years of the select panel being published in June 1983 and has not even taken birth in the Department are allowed to claim seniority anterior to the date of joining service.
The Bench has also upheld the order of the Delhi High Court where it expressed its conformity with the view expressed by the Tribunal so far as the determination of combined inter se seniority at the All India level is concerned,
With regard to the strong observations made by the Delhi High Court regarding the procedure being followed by the authority in making appointments from the select panel of June 1983 after 5 years of the selection, the Top Court as a matter of caution, observed that the authorities must be held accountable for their arbitrary action and save the institution from uncalled for litigation.
"The appointment of individual which was made at a later stage after five years from the select panel notified on 29th June, 1983 in the Western Command cannot be countenanced by this Court but in the peculiar circumstances, we are not inclined to open the dead issue at this stage, but as a matter of caution, we would like to observe that the authorities must be held accountable for their arbitrary action and save the institution from uncalled for litigation." the Bench said
Case title: Sudhir Kumar Atrey vs Union of India & ors
