SUDHIR KUMAR ATREY versus UNION OF INDIA & ORS.

[2021] 8 S.C.R. 835

SUDHIR KUMAR ATREY

UNION OF INDIA & ORS.

(Civil Appeal No. 6460 of 2021)

OCTOBER 26, 2021

[AJAY RASTOGI AND ABHAY S. OKA, JJ.]

Military Engineering Service (Non Industrial class III and IVPosts) Rules, 1971: The Army Headquarter directed on 09.12.1982the Chief Engineers of all the five commands to initiate recruitmentof Group ‘C” personnel – Process of selection was initiated in allthe five commands and separate select list in the order of merit ineach of the respective commands was published in the year 1983 –Dispute arose in respect of seniority of candidates who were selectedand placed in the select panel dated 29.06.1983 of the WesternCommand but were appointed from April 1987 to April 1988 in theWestern Command – Their seniority was determined by theauthorities on the basis of their date of joining – Their grievancewas that they were the candidates of the select panel of June 1983,their seniority is to be determined in the order of merit regardless totheir date of joining – Held: In the matter of adjudging seniority ofthe candidates selected in one and the same selection, placement inthe order of merit can be adopted as principle for determinationof seniority but where the selections are held separately by differentrecruiting authorities, the principle of initial date of appointment/continuous officiation may be the valid principle to be consideredfor adjudging inter se seniority of the officers in the absence ofany rule or guidelines in determining seniority to the contrary –The appointment of individual which was made at later stage afterfive years from the select panel notified on 29.06.1983 in the WesternCommand is not countenanced but in the peculiar circumstances,the dead issue is not opened at this stage – The authorities must beheld accountable for their arbitrary action and save the institutionfrom uncalled for litigation – Service law – Seniority.

Disposing of the appeals, the Court

Held: 1.1 It is an admitted position that at the given pointof time, selections were held independently by the respective

DEF

AChief Engineer to whom powers have been delegated to holdrecruitment in their respective Commands, but after theappointments are made, consolidated inter se seniority list ofthe Commands at All India level was to be notified and sinceofficers are holding transferable posts could be transferred fromone Command to the other in exigency of service and indisputedlyBthere is no provision under the Scheme of 1971 Rules orguidelines which would govern the seniority of persons who areappointed in their respective Commands, how their inter secombined seniority of Commands at All India level is to bepublished. [Para 7][842-C-E]

C1.2. Since 1971 Rules were silent in determining seniorityinter se of the candidates selected in their respective Commandat the stage when combined All India seniority list is to beprepared and for determination of seniority, reliance was placedon the DoPT OM dated 3[rd] July, 1986 which broadly examinedDthe determination of seniority between the direct recruits andpromotees, seniority of transferees, seniority of special type ofcases. The OM dated 3[rd] July, 1986 deals with determination ofseniority of direct recruits who are selected and placed in oneand the same select panel by the order of merit in the select listand those who are selected in the earlier selection shall remainEsenior to such persons who are appointed in the later selection.[Paras 9, 11][843-A-B; 844-B-C]1.3 In the facts of the instant case when all the fiveCommands have initiated the process of selection independentlyat the same time pursuant to the directives of the Engineer-in-FChief, Army Headquarters dated 9[th] December, 1982 whileadjudging their combined inter se seniority list, the principle ofinitial date of appointment/continuous officiation may be the validprinciple to be considered for determination of inter se seniorityin the absence of any rule or guidelines to the contrary. [ParaG19][846-F-H]

Direct Recruit Class II Engineering Officers’ Associationv. State of Maharashtra & Ors. (1990) 2 SCC 715 :[1990] 2 SCR 900 – followed.

1.4 The Division Bench of the High Court of Delhi in itsimpugned judgment has expressed its conformity with the viewexpressed by the Tribunal so far as the determination of combinedinter se seniority at the All India level is concerned, but at thesame time has made strong observations regarding the procedurebeing followed by the authority in making appointments from theselect panel of June 1983 after 5 years of the selection in theyear 1987/1988. The appointment of individual which was madeat later stage after five years from the select panel notified on29[th] June, 1983 in the Western Command is not countenancedby this Court but in the peculiar circumstances, the dead issue isnot opened at this stage. The authorities must be held accountablefor their arbitrary action and save the institution from uncalledfor litigation. [Paras 20, 21][847-A-C]

1.5 The Tribunal was right in recasting the inter seconsolidated seniority list of five Commands based on their initialdate of appointment/from the date of entry into service. If anyperson is aggrieved with his placement in the re-casted senioritylist prepared in compliance with the order of the Tribunal, he willalways be at liberty to assail his placement in seniority in theindependent proceedings in accordance with law. At the sametime, the view expressed by the High Court in its judgment isdisapproved. Since the seniority list of the respondents wasrevised pursuant to the judgment impugned, although theprinciples laid down are not approved by this Court, but the factremains that both the incumbents were promoted in terms oftheir revised seniority to the higher promotional post and one ofthem had retired from service in October 2018 and the otherincumbent is at the verge of retirement in March 2022, in thesepeculiar circumstances, this Court in exercise of its power underArticle 142 of the Constitution to do complete justice is notinclined to disturb the seniority which has been assigned tothem in compliance with the order of the Tribunal althoughon principle has not been accepted/approved by this Court.[Paras 22, 23][847-D-H]

Case Law Reference[1990] 2 SCR 900followedpara 19

ACIVIL APPELLATE JURISDICTION: Civil Appeal No.6460 of2021

From the Judgment and Order dated 27.08.2013 of the High Courtof Delhi at New Delhi in W.P. (Civil) No.4394 of 2008.

WithB

Civil appeal no.6461 of 2021

N. Natraj, ASG, Devadatt Kamat, R. Balasubramanium, VinayKumar Garg, Sr. Advs., Rohit Sharma, Rounak Nayak, Ms. ArjuChaudhary, Kumar Dushyant Singh, Abhishek Kumar, Vatsal Joshi,CVinayak Sharma, Arvind Kumar Sharma, Ms. Mayuri Raghuvanshi,Vyom Raghuvanshi, Ms. Purvat Wali, Parv Garg, Pawas Kulshreshtha,Advs. for the Appellant.

Yadav Narender Singh, Mukesh Kumar Verma, Vijay KumarSharma, Jagdish Parshad, Advs. for the Intervenor.D

The Judgment of the Court was delivered by

RASTOGI, J.

1. Leave granted.

E2. Both the above appeals, although have been decided by separatejudgment by the High Court of Delhi and the Punjab and Haryana HighCourt, but since the self-same question is being raised in the instantappeals, hence are being decided by the present judgment.

3. The undisputed facts in brief relevant for the purpose are thatFheaded by the Engineer-in-Chief since its inception, the MilitaryEngineering Service for administrative purposes was bifurcated into fiveCommands being the Eastern, Western, Northern, Southern and theCentral Command with an officer of the rank of Chief Engineer beingthe administrative head and controller of each Command. There existedGa separate cadre of Superintendents for buildings and roads and separatecadre for electrical and mechanical equipment having the posts ofSuperintendent (B/R) Grade II and Grade I as also Superintendent (E/M) Grade II and Grade I. The service conditions are governed by theMilitary Engineering Service (Non-Industrial Class III and IV Posts)Rules, 1971 (hereinafter being referred to as “1971 Rules”).H

4. On 9[th] December, 1982 letter was sent from the office of theEngineer-in-Chief Branch, Army Headquarters to the Chief Engineersof all the five Commands for initiating the recruitment of Group ‘C’personnel in the Grade of Superintendent (B/R) Grade II andSuperintendent (E/M) Grade II, intimating as under :

09 DEC 82B

“90027/A/E1C(I)

The Chief Engineer

HQ Southern Command, Pune

HQ Eastern Command, Calcutta

HQ Western Command, Simla

HQ Central Command, Lucknow

HQ Northern Command, C/o 56 APO

PLANNING OF RECRUITMENT OF PERSONAL IN THEGRADE OF SUPDT B/R AND SUPDT E/M GDE II

As result of the recent promotions of Supdt B/R and Supdt E/MGde II to Supdt Dde and keeping in view the likely increase in theestablishment during the next year it is expected that nearly 700 to 1000Supdt B/R and E/M Gde-II will have to be recruited to make good thedeficiencies in these categories. Command wise break down of theapproximate requirement of personal is estimated as under:

A2. In order to meet the requirement on the ground, it is essential toplan the recruitment action well in advance. Please therefore, advisedthe CE Zones to probe all State Govt/Central Govt. employmentexchanges and ascertain availability of suitable candidates (DiplomaHolders) for appointment to the above posts. Please also cause lettersto be issued by employment exchanges diploma courses institution onBopening available.

3.Board of officers with presiding officers not below the rankof Lt Col/SE will be convened by CE Command to interviewand select suitable candidates to be sponsored byemployment exchanges.C

4.In order to reduce the posting of personal from one State toanother to the barest minimum, it will be helpful if therecruitment is made from the concerned region for fillingup the vacancies existing/likely to occur in that regions.

D5.The result of the communication made to variousemployment exchanges as per para 2 above may beintimated to this HQ by 10 Mar 83.

6.Please acknowledge.”

E5. Pursuant to the directives issued from the Headquarters, processof selection at the same time was initiated by the office of Chief Engineerin all the five Commands followed with the separate select list in theorder of merit in each of the respective Commands came to be publishedin the year 1983. In Western Command, select panel of 261 candidateswas published on 29[th] June, 1983. In sequel thereof, appointments wereFmade as per the select list notified based on the order of merit in theirrespective Commands. The trouble arose when candidates who wereselected and placed in the select panel dated 29[th] June, 1983 of theWestern Command but curiously after 5 years down the line wereappointed from April 1987 to April 1988 in the Western Command andGtheir names are indicated from S. Nos.258 to 277 as under. It may benoticed that S. No.257 in Western Command was appointed on 2[nd]November, 1983 from the same select panel of 29[th] June, 1983.

“REVISED ALL INDIA SENIORITY LIST OF JE (CIV) ASON 01.04.2004H

6. These candidates were appointed from the select list of June1983 in the Western Command from April 1987 to April 1988. Theirseniority was accordingly determined by the respondents on the basis oftheir date of joining. Their grievance was that as they are the candidatesof the select panel of June 1983 and as per the consistent practice andas per the OM issued by the Government of India dated 3[rd] July, 1986,

Aseniority of the candidates who are selected by direct recruitment is tobe determined in the order of merit regardless to their date of joining areentitled to claim seniority with their counterparts who were appointedout of the select panel dated 29[th] June, 1983 of Western Command inthe year 1983 and after rounds of litigation before Central AdministrativeTribunal/High Court, the matter has travelled to this Court to determineBthe inter se seniority of such persons who, although selected in June1983 in Western Command, but whether their date of joining service ata later stage will be guiding factor when the combined All India seniorityof the five Commands is prepared or seniority will relate back to theirplacement assigned in the select panel of June 1983 of Western CommandCregardless to the fact of their joining at later stage, anterior to theperiod one has taken birth in the Department.

7. It is an admitted position that at the given point of time, selectionswere held independently by the respective Chief Engineer to whompowers have been delegated to hold recruitment in their respectiveDCommands, but after the appointments are made, consolidated inter seseniority list of the Commands at All India level was to be notified andsince officers are holding transferable posts could be transferred fromone Command to the other in exigency of service and indisputedly thereis no provision under the Scheme of 1971 Rules or guidelines whichwould govern the seniority of persons who are appointed in theirErespective Commands, how their inter se combined seniority ofCommands at All India level is to be published.8. To shorten the litigation, Central Administrative Tribunal,Principal Bench in OA No.164 of 2007, while examining the afore-statedquestion took note of the Scheme of Rules and posed the question as toFwhether such applicants, who although were approved in the panelprepared by the Western Command in 1983, but were appointed after agap of 5 years in 1987/1988, are they entitled for determination of theirseniority as per their placement in the order of merit in the select panelof the year 1983 or will be entitled to claim seniority from the date ofGtheir appointment, and to be more specific, the incumbents who raisedtheir grievance in claiming seniority are Sudhir Kumar Atrey, appellantin Civil Appeal @ SLP (C) No.6572 of 2014 and Satish Kumar Sharmaand Jatinder Pal, respondents in Civil Appeal @ SLP (C) No.5275 of2021 and their names in the list of candidates have been referred to inthe seniority list, at serial nos.258, 268 and 277 respectively.H

9. Since 1971 Rules were silent in determining seniority inter seof the candidates selected in their respective Command at the stagewhen combined All India seniority list is to be prepared and fordetermination of seniority, reliance was placed on the DoPT OM dated3[rd] July, 1986 which broadly examined the determination of senioritybetween the direct recruits and promotees, seniority of transferees,seniority of special type of cases, as adverted to.

10. The Office Memorandum dated 3[rd] July, 1986 issued by theDoPT laying down the principles for determination of seniority of personsappointed to service on posts in Central Government, of direct recruitsand promotees of one and the same select panel, seniority of transfereesand those who are recruited in special type of cases and the extract ofthe OM with which we are concerned is referred to hereunder:

“OFFICE MEMORANDUM

Subject : SENIORITY – Consolidated orders on.

The undersigned is directed to say that instructions havebeen issued by this Department from time to time laying down theprinciples for determining seniority of persons appointed to servicesand posts under the Central Government. For facility of reference,the important orders on the subject have been consolidated in thisOffice Memorandum. The number and date of the originalcommunication has been quoted in the margin so that the usersmay refer to it to understand fully the context in which the orderin question was issued.

SENIORITY OF DIRECT RECRUITS AND PROMOTEES

(MHA O.M. No.9/11/55-RPS dated 22.12.59)

2.1 The relative seniority of all direct recruits is determined by theorder of merit in which they are selected for such appointment onthe recommendations of the U.P.S.C. or other selecting authority,persons appointed as result of an earlier selection being seniorto those appointed as result of subsequent selection.

2.2 Where promotions are made on the basis of selection by aD.P.C., the seniority of such promotees shall be in the order inwhich they are recommended for such promotion by theCommittee. Where promotions are made on the basis of seniority,subject to the rejection of the unfit, the seniority of personsconsidered fit for promotion at the same time shall be the same as

Athe relative seniority in the lower grade from which they arepromoted. Where, however, person is considered as unfit forpromotion and is superseded by junior such persons shall not, ifhe is subsequently found suitable and promoted, take seniority inthe higher grade over the junior persons who had superseded him.”

B11. The OM dated 3[rd] July, 1986 deals with determination ofseniority of direct recruits who are selected and placed in one and thesame select panel by the order of merit in the select list and those whoare selected in the earlier selection shall remain senior to such personswho are appointed in the later selection.

C12. Admittedly, the different Commands carried out separateselections and published its select panel in the year 1983, the normalprinciple of adjudging seniority in their respective intra Command can beon the basis of placement in the order of merit, but this principle may notapply when the separate selections are held by the respective Commandand later combined inter se seniority list at the headquarters is to beDprepared at All India level is not meted out in OM dated 3[rd] July, 1986.

13. To sum up the situation, Central Administrative Tribunal,Principal Bench, in dealing with the situation as emerged afore-stated, inits order dated 26[th] May, 2008, observed in paras 23 and 24 as under:

E“23. From Annexure ‘O’, we can gather that the real issue requiredto be examined with reference to this dispute, had not beenattempted. Office Memoranda referred to in the order could nothave had any application as far as the case at hand was concerned.The applicants were entitled to get seniority from the date of theirinitial appointment and so far as this has been overlooked inFAnnexure ‘O’, the same is required to be appropriately modified.The general question, whether seniority from the date ofappointment, or the date of panel, cannot have application in thesecircumstances since appointments had not been made by one andthe same Command. Even if it was applicable by stretching, theGlong delay in conferment of appointment could not have been goneunnoticed.

24. However, we do not think it is necessary to unsettle the wholelist at this point of time. We direct that in the matter of adjudgingseniority, the principle of initial date of appointment/continuousofficiation should be borne in mind and the principle of panelH

seniority was inapplicable and not possible to be followed as faras claims of applicants and similarly situated are concerned vis-à-vis respondents 4 to 9. Consequently, we direct that appropriatemodification to the seniority list appended to Annexure ‘O’ is tobe brought, and circulated. The applicants will be entitled to theaforesaid benefits as declared by us and their seniority should bewith reference to their date of appointment. O.A. is disposed of.No costs.”

14. The Tribunal finally observed that while adjudging seniority insuch complex situation where scheme of Rules or guidelines are silentin determining inter se seniority of the Commands at All India level, theonly possibility and the rationale rule would be to have their seniorityreckoned from the date of entering into service when he is compared tothe person who belonged to yet another Command and it will be illogicalif the incumbent who was appointed earlier is pushed down below thepersons who were later appointed as in the instant case after almost 4 to5 years of the select panel being published in June 1983 and has noteven taken birth in the Department are allowed to claim seniority anteriorto the date of joining service.15. The Tribunal and the High Court in the judgment impugnedhas made strong observations and commented in regard to the mannerin which the appointments were made from the select panel of 1983after it has outlived its life in the year 1987-1988 and ordinarily it was notopen to be operated upon and such appointments are nothing but clearabuse of the discretion vested with the competent authority and we alsohave our serious reservation in regard to the procedure/manner whichwas adopted by the authority in making appointments in WesternCommand from the select panel of 29[th] June, 1983 after lapse of 4-5years in the year 1987-1988, when the successive selections are held inthe interregnum, but it reveals from the record that no one has questionedtheir appointments and by this time more than 34 years have rolled byand much water has flown in the Ganges and persons have later promotedto their promotional posts and few of them have retired and some ofthem are at the verge of retirement.

16. At the same time, two incumbents who approached the CentralAdministrative Tribunal at Chandigarh and succeeded in claiming seniorityfrom the date of their placement in the select panel of 29[th] June, 1983regardless of their appointment in the year 1987 or 1988 respectively

Aand confirmed by the High Court on dismissal of the writ petition filed atthe instance of the Union of India by judgment dated 17[th] September,2018, the seniority list qua them was revised and they were furtherpromoted on the higher promotional posts and after full term of servicebeing rendered, Jatinder Pal respondent no.1 in Civil Appeal arising outof SLP(C) No.5275 of 2021 is going to retire in March 2022 and SatishBKumar Sharma, respondent no.2 in Civil Appeal arising out of SLP(C)No.5275 of 2021 had retired from service in October, 2018.

17. It is not disputed that there is no rule or guidelines issued bythe respondents which may determine the inter se seniority when acombined seniority list at the All India level is to be prepared under theCScheme of 1971 Rules and the respondents were taking assistance ofOffice Memorandum of DoPT dated 3[rd] July, 1986 which deals with thedetermination of seniority of direct recruits who were selected and placedin one and the same select panel to be determined by the order of meritin the select list and those who are selected in the earlier selection shallDremain senior to such persons who were appointed in the later selectionand also with regard to relative seniority of direct recruits vis-a-vis thepromotees in the cadre.

18. We are also of the view that in the matter of adjudging seniorityof the candidates selected in one and the same selection, placement inEthe order of merit can be adopted as principle for determination ofseniority but where the selections are held separately by differentrecruiting authorities, the principle of initial date of appointment/continuousofficiation may be the valid principle to be considered for adjudging interse seniority of the officers in the absence of any rule or guidelines indetermining seniority to the contrary.F

19. Adverting to the facts of the instant case when all the fiveCommands have initiated the process of selection independently at thesame time pursuant to the directives of the Engineer-in-Chief, ArmyHeadquarters dated 9[th] December, 1982 while adjudging their combinedinter se seniority list, the principle of initial date of appointment/continuousGofficiation may be the valid principle to be considered for determinationof inter se seniority in the absence of any rule or guidelines to the contrarykeeping in view the principles laid down by the Constitution Bench ofthis Court inDirect Recruit Class II Engineering Officers’ Association1Vs. State of Maharashtra & Ors..20. The Division Bench of the High Court of Delhi in its impugnedjudgment has expressed its conformity with the view expressed by theTribunal so far as the determination of combined inter se seniority at theAll India level is concerned, but at the same time has made strongobservations regarding the procedure being followed by the authority inmaking appointments from the select panel of June 1983 after 5 years ofthe selection in the year 1987/1988.

21. The appointment of individual which was made at later stageafter five years from the select panel notified on 29[th] June, 1983 in theWestern Command cannot be countenanced by this Court but in thepeculiar circumstances, we are not inclined to open the dead issue atthis stage, but as matter of caution, we would like to observe that theauthorities must be held accountable for their arbitrary action and savethe institution from uncalled for litigation.

22. In compliance of the Tribunal’s order dated 26[th] May, 2008,seniority list was to be drawn with reference to para 24 of the judgmentof which reference has been made and we are in agreement with whathas been expressed by the Tribunal while recasting the inter seconsolidated seniority list of five Commands based on their initial date ofappointment/from the date of entry into service. If any person is aggrievedwith his placement in the re-casted seniority list prepared in compliancewith the order of the Tribunal, he will always be at liberty to assail hisplacement in seniority in the independent proceedings in accordancewith law.

23. At the same time, we disapprove the view expressed by theHigh Court of Punjab and Haryana in its judgment dated 17[th] September,2018. Since the seniority list of the respondents in Civil Appeal @ SLP(C) No.5275 of 2021 was revised pursuant to the judgment impugned,although the principles laid down have not been approved by this Court,but the fact remains that both the incumbents were promoted in terms oftheir revised seniority to the higher promotional post and one of themhad retired from service in October 2018 and the other incumbent is atthe verge of retirement in March 2022, in these peculiar circumstances,this Court in exercise of its power under Article 142 of the Constitutionto do complete justice is not inclined to disturb the seniority which hasbeen assigned to them in compliance with the order of the Tribunalalthough on principle has not been accepted/approved by this Court.

[2021] 8 S.C.R.

A24. Consequently, Civil Appeal @ SLP(C) No.6572 of 2014 isdismissed and Civil Appeal @ SLP (C) No.5275 of 2021 succeeds andis allowed and the impugned judgment dated 17[th] September, 2018 is setaside without disturbing the status of the respondents (Jatinder Pal andSatish Kumar Sharma).

B25. Pending applications, if any, stand disposed of.

Devika Gujral

Appeals disposed of.