A.N. Pathak
& Ors Vs. Secretary to The Government, Ministry of Defence & Anr [1987]
INSC 44 (12 February
1987)
Khalid,
V. (J) Khalid, V. (J) Reddy, O. Chinnappa (J)
CITATION:
1987 AIR 716 1987 SCR (2) 281 1987 SCC Supl. 763 JT 1987 (1) 414 1987 SCALE (1)307
ACT:
Civil
Services--Defence Production (Directorate of Production and Inspection, Naval)
Group A and Group B Technical Post Recruitment Rules, 1976, clauses 10 and
11--Delay in filling direct recruitment posts causes hardship to promotees--Seniority
List quashed.
Promotees--Come
into service because they form part of a regular cadre-Entitled to benefit of
length of service-Authorities to be prompt in making direct recruitment--Any
delay should not visit promotees with adverse consequences.
HEAD NOTE:
The
petitioners who are working in the Ministry of Defence, Department of
Production, challenged the validity of The Defence Production (Directorate of
Production and Inspection, Naval) Group A and Group B Technical Post
Recruitment Rules, 1976, on the grounds:
(i) that
the Rules discriminate between promotees and direct recruits;
(ii)
that their seniority is not taken into consideration while the seniority list
is prepared and that the direct recruits are given seniority over them
undeservedly by virtue of the operation of the method of recruitment contained
in the rules;
(iii) that
the seniority lists dated 25.7.77, 3.9.77 and 7.9.77 prepared according to
rules are purely arbitrary and ignore their length of service. On the other
hand, counsel for the respondents contended that the principle of fixing
seniority on the basis of length of service and dates of confirmation is not an
inflexible rule and it is possible in law that a direct recruit who is
appointed later in point of time is senior to a promotee because of the working
out of the quota rule and that in certain given cases, seniority based on
length of service can be ignored.
Allowing
the writ petition, this Court,
HELD:
1.1 The grievance of the petitioners is justified in law. The rules enabling
the authorities to fill in vacancies for direct recruits as and when
recruitment is made and thereby destroying the chance of promotion to those who
are already in service cannot but be viewed with 282 disfavour. If the
authorities want to adhere to the rules strictly all that is necessary is to be
prompt in making the direct recruitment. [287D-E]
1.2
The respondents are directed to redraw the senority lists dated 25.7.77, 3.9.77
and 7.9.77 appended as Annexures C, D and E to the writ petition and prepare
the list afresh giving the petitioners the positions they would have been
entitled to, but for the offending portions of clauses 10 and 11 in the
Schedule to the Rules. 1287H; 288A-B]
2. The
manner in which the provision contained in columns 10 and 11 of the Schedule to
the Rules works to the detriment of the promotees is as follows. The person who
is working as a Senior Technical Officer must have a minimum service of five
years in that grade for promotion to the higher post. A direct recruit who joins
service much later and who does not have the requisite five years service will
be placed above him for promotion. The posts to be filled in by direct
recruitment are kept vacant and as when recruitment is made, the names of
direct recruits are inserted at the places reserved for them regardless of the
fact that there are many others who had put in more years of service than they.
This method works an additional hardship to the promotees in that they will not
be confirmed though the required probation period has been completed by them,
only to allow the direct recruits to complete their period of probation. The
combined operation of clause 10 and 11 of the Schedule to the Rules causes a
double damage to the petitioners the promotees and the direct recruits
consequently have double advantage. [286C-F]
3.
Delay in making appointments by direct recruitment should not visit the promotees
with adverse consequences, denying them the benefit of their service. [287E] A.
Janardhana v. Union of India & Ors., AIR 1983 SC
769;
O.P. Singla
and Anr. v. Union of India and others, [1985] 1 SCR 351; G.S. Lamba & Ors. v. Union of India & Ors., AIR 1985 SC 1019; Narender Chadha
v. Union of India, AIR 1986 SC 638 and G.K. Dudani and Ors. v. S.D. Sharma
and Ors., AIR 1986 SC 1455, relied upon.
ORIGINAL
JURISDICTION: Writ Petition No. 1889 Of 1978.
(Under
Article 32 of the Constitution of India) A. Subba Rao for the Petitioners.
283 Govind
Das, C.V. Subba Rao G.D. Gupta and J.P. Sharma-in-person for the Respondents.
The
Judgment of the Court was delivered by, KHALID, J. The petitioners, six in
number, are working in the Ministry of Defence, Department of Production. They
joined their service on different dates ranging from 1963 to 1969. The 1st,
2nd, 3rd and 5th petitioners joined service as Senior Technical Assistant while
4th and 6th petitioners joined as Technical Assistant. The 1st and 2nd
petitioners are now working as Senior Technical Officer (officiating), 3rd and
4th petitioners are working as Technical Officer (officiating) and 5th &
6th are working as Junior Technical Officer. None of the petitioner have been
confirmed in their respective posts to which they have been promoted.
The
first respondent is the Secretary to the Government, Ministry of Defence and
the second respondent, Director, Directorate of Production and Inspection,
Naval.
The
appointment and promotion of persons like the petitioners were governed by the
department of Defence Production (Directorate of Production and Inspection,
Naval) Group A and Group B Technical Post Recruitment Rules, 1976, for short
'the Rules'. Prior to these rules, they were governed by the Rules framed in
1965 and revised in 1972.
The
grievance of the petitioner is that the Rules discriminate between them and the
direct recruits, that their seniority is not taken into consideration while the
seniority list is prepared and that the direct recruits are given seniority
over them undeservedly by virtue of the operation of the method of recruitment
contained in the rules. The petitioners complain that the list so prepared is
purely arbitrary and ignores their length of service. They made representations
to the first respondent complaining against the injustice done to them and for redressal
of their grievances. There were no favourable orders. Hence this writ petition.
The
prayer in the petition is for a mandamus declaring the rules and the seniority
list dated 25.7.1977, 3.9.1977 and 7.9.1977, prepared according to rules, as
bad as violative of Articles 14 & 16.
In the
counter affidavit filed by the respondents two preliminary 284 objections were
taken--(1) that the joint petition filed by the petitioners is not maintainable
inasmuch as it involves determination of different questions of facts based on
separate caused of action and (2) that the petitioners have not arrayed as
respondents all the officers who would be adversely affected by any order to be
passed by this Court.
The
rules in question are justified on the ground that they were validly passed. It
is stated that the offending clause cannot be faulted as violative of Article
14 and Article 16 of the Constitution. The rules were framed in consultation
with the Department of Personnel and Administrative Reforms, Cabinet
Secretariat, in the light of the past experience. It is stated that the rules,
far from causing any discrimination, seek to fix rationally (i)
inter-seniority, (ii) quotas for recruitment and (iii) norms whereby the cases
of all senior persons are to be considered. The preparation of the offending
lists is justified on the plea that the principle of fixing seniority on the
basis of length of service and dates of confirmation is not an inflexible rule
and that it is possible in law that a direct recruit who is appointed later in
point of time is senior to a promotee because of the working out of the quota
rule. The Counter Affidavit continues with the usual plea that in certain given
cases seniority based on length of service can be ignored.
Before
dealing with the merits of this case we will dispose of the preliminary
objections. We are not impressed with the preliminary objections. The
petitioners have clearly given the details about the dates of appointment,
promotion etc. The dates do differ. But nothing prevents this court from
modulating the relief and giving directions to the respondents to re-consider
the offending lists with reference to each of the petitioners in the light of
what follows.
The
second objection has been met by the petitioners by impleading those who will
be affected as respondent Nos. 3 to 8, as per orders of this Court dated
11.8.1983.
The
method of recruitment under challenge is contained in columns 10 and 11 of the
schedule to the rules which is given below:
Method
of recruitment In case of recruitment whether by direct by promotion/deputation
recruitment or by transfer grades from promotion or by which
promotion/deputation 285 deputation/transfer transfer to be made. and
percentage of the vacancies to be filled by various methods.
10 11
Senior Technical Officer Promotion:
(i)
50% by promotion Technical Officer with failing which by 5 years service in the
direct recruitment grade rendered after appointment thereto on (ii) 50% by
direct recruitment a regular basis:
(iii)
Failing (i) and (ii) provided that if an officer above, by re-employis
considered for promotion ment. in accordance with the provisions of these
Rules/ all persons senior to him (iv) Failing (iii) above in that grade shall
also be by promotion. considered notwithstanding that they may not have
rendered the prescribed number of years of regular service in that grade.
Technical
Officers: Promotion:
(i)
50% by promotion Junior Technical Officer with failing which by 3 years service
in the grade direct recruitment. rendered after appointment thereto on a
regular basis:
(ii)
50% by direct recruit Provided that if an Officer ment is considered for
promotion in accordance with the (iii) Failing (i) and provisions of these
rules, (ii) above, by all persons senior to him re-employment in that grade
shall also be considered notwithstanding 286 (iv) Failing (iii) by that they
may not have renpromotion dered the prescribed number of years of regular
service in that grade.
Note:
All eligible candidates have to qualify in a written departmental examination
of a degree standard.
Re-employment:
.......
............................
The
manner in which the above provision works to the detriment of the promotees is
as follows. A person who is working as a Senior Technical Officer must have a
minimum service of five years in that grade for promotion to the higher post. A
direct recruit who joins service much later and who does not have the requisite
five years service will be placed above him for promotion.
The
posts to be filled in by direct recruitment are kept vacant and as and when recruitment
is made, the names of direct recruits are inserted at the places reserved for
them regardless of the fact that there are many others who had put in more
years of service than they. This method works an additional hardship to the promotees
in that they will not be confirmed though the required probation period has
been completed by them, only to allow the direct recruits to complete their
period of probation. The combined operation of clause 10 and 11, according to
the petitioner causes a double damage to them and the direct recruits
consequently have double advantage.
Annexure
'C' to the writ petition is the seniority list relating to the Senior Technical
Officers. In this list, places 4, 6, 8, 10, 12 and 14 are kept vacant. These
places will be filled in when direct recruits come. They will steal a march
over those who have entered service earlier. The latter will be pushed down in
the list.
We do
not think it necessary to refer to the various decisions rendered by this Court
on this question. In the case of A. Janardhana v. Union of India and others,
AIR 1983 SC 769; O.P. Singla and Anr. v. Union of India and others, [1985] 1
SCR 351 and in G.S. Lamba & Ors. v. Union of India & Ors., AIR 1985 SC
1019, length of service 287 was given due importance in dealing with promotions
and seniority. In the case of Narender Chadha v. Union of India, AIR 1986 SC
638 to which one of us was a party, it was held that to treat continuous officiation
of one officer as temporary would be arbitrary and violative of Articles 14 and
16, In G.K. Dudani and Ors. v.S.D. Sharma and Ors., AIR 1986 SC 1455 a three
Judge Bench of this Court, Madon J, speaking for the Bench,, approved the
settled principle noted above. The promotees come into service, not by any
fortuitous circumstances but they form an integral part of the regular cadre
entitled to all benefits by the length of their service.
The
learned counsel for the respondent found it difficult to justify the validity
of the rules and the lists in the light of the various decisions of this Court
which have consistently leaned in favour of the promotees based on their length
of service and seniority, in cases where there was inordinate delay in making
direct recruitment. He tried to justify the inequity saying that the new rules
have tried to rectify it. We are not satisfied with this explanation since that
is little consolation to the petitioners. We are of the view that the grievance
of the petitioners is justified in law. The rules enabling the authorities to
fill in vacancies for direct recruits as and when recruitment is made and
thereby destroying the chances of promotion to those who are already in service
cannot but be viewed with disfavour. If the authorities want to adhere to the
rules strictly all that is necessary is to be prompt in making the direct
recruitment. Delay in making appointments by direct recruitment should not
visit the promotees with adverse consequences, denying them the benefit of
their service.
The
learned counsel for the respondent Nos. 1 and 2 made a fervent plea that, being
a sensitive department, relief may be granted to the petitioners by way of
monetary compensation and requested us to desist from upsetting the list.
We
cannot accede to this request.
The
petitioners had sought stay of operation of the list. This Court by its order
dated 4.9.1978 declined to grant stay, but ordered: "any action taken in
the matter in regard to the grievances of the petitioners in this case will be
subject to the final result of this writ petition." In our Judgment, the
petitioners are entitled to succeed. We allow this writ petition and direct the
authorities to re-draw the senority list dated 25.7.1977, 3.9.1977 and
7.9.1977, appended as Anne288 xures 'C', 'D' and 'E' the writ petition and
prepare the list afresh giving the petitioners the positions they would have
been entitled to, but for the offending portions of clauses 10 and 11 in the
schedule to the rules.
There
will be no order as to costs.
M.L.A.
Petition allowed.
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