For Candidates Selected In Same Selection, Placement In Order Of Merit And In Seperate Selection, Date Of Appointment Will Determine Seniority: Supreme Court
A two-judge Bench of Justice Ajay Rastogi and Justice Abhay S. Oka has held that where the selection of candidates in public employment are held separately by different recruiting authorities, the principle of initial date of appointment or continuous officiation may be the valid principle to be considered for adjudging seniority and for candidates selected in one and the same selection, placement in the order of merit can be adopted as a principle for determination of seniority, in the absence of rules or guidelines to determine seniority.
Appeals were preferred against the judgment of Delhi High Court and Punjab Haryana High Court. Both the Courts through two different judgments have decided the case involving the same issue which arose before the Apex Court.
In this case, recruitments were made by the Chief Engineers of the Military Engineering Services of five different commands for the post of Superintendent Grade I and II. Their service conditions were governed by the Military Engineering Service (Non-Industrial Class III and IV Posts) Rules, 1971. In the Western Command, a select panel of 261 candidates was published on June 29, 1983, followed by appointments being made.
The problem arose when some of the candidates who were selected and placed in the select panel dated June 29, 1983, of the Western Command were appointed from April 1987 to April 1988. Their seniority was determined by the Respondents on the basis of their date of joining and not on the ground of their selection.
The Appellants claimed that they were selected by way of direct recruitment and their seniority was to be determined on the basis of the order of merit regardless of their date of joining. The incumbents who raised their grievance in claiming seniority were Sudhir Kumar Atrey, appellant in Civil Appeal @ SLP (C) No.6572 of 2014, and Satish Kumar Sharma and Jatinder Pal, respondents in Civil Appeal @ SLP (C) No.5275 of 2021.
Both the Central Administrative Tribunal and Delhi High Court had held that in order to determine seniority where the rules/guidelines were silent, the only way was to reckon the seniority from the date of entering into service when compared to another Command.
The Tribunal and Court also made strong observations about the manner in which the appointments were made by the Authority from a list that had expired, by holding that such appointments were nothing but clear abuse of the discretions vested with the competent authority.
The issue which was dealt with by the Court was to determine the inter se seniority of such persons who were selected in June 1983, whether their date of joining service at a later date will be a guiding factor to determine seniority when combined with All India seniority of the five commands.
While the other incumbents (Satish & Jatinder) had approached before the CAT at Chandigarh and succeeded in claiming seniority from the date of their placement in the selection panel on June 29th, 1983 which was confirmed by the Punjab and Haryana High Court. Jatinder Pal would retire in March 2022 and Satish Kumar Sharma had already retired in October 2018.
The Bench, while referring to a judgment of a Constitutional Bench in the matter of Direct Recruit Class II Engineering Officers' Association Vs. State of Maharashtra & Ors, observed, "The principle of initial date of appointment/continuous officiation may be the valid principle to be considered for determination of inter se seniority in the absence of any rule or guidelines to the contrary keeping in view the principles."
The Court opined that although it was not inclined to deliberate upon the way in which the appointments were made, 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 Court was in agreement with the decision of the Tribunal while recasting the inter se seniority of five commands based on the initial date of appointment/ from the date of entry into service. Further, the Court noted, "If any person is aggrieved with his placement in the re-casted seniority list prepared in compliance with the order of the Tribunal, he will always be at liberty to assail his placement in seniority in the independent proceedings in accordance with law."
The Court disapproved of the principles laid down by the Punjab and Haryana High Court in promoting the incumbents in terms of their revised seniority to higher promotional posts. However, the Court in exercise of its power under Article 142 of the Constitution to do complete justice, did not disturb the seniority assigned to them.
In the light of these observations, the Court dismissed Civil Appeal @ SLP(C) No.6572 of 2014 and allowed Civil Appeal @ SLP (C) No.5275 of 2021 and set aside the judgment of Punjab and Haryana High Court without disturbing the status of Respondents (Jatinder Pal and Satish Kumar Sharma).