Abraham
Jacob & Ors Vs. Union of India [1998] INSC 87 (11 February 1998)
S. Saghir
Ahmad, G.B. Pattanaik G.B.Pattanaik, J.
ACT:
HEAD NOTE:
WITH CIVIL
APPEAL NO.S 12388/96 AND 12387/96
These
three appeals are directed against the same judgment of Central Administrative
Tribunal, Erankulam Bench, one by the Union of India, and the others by the
affected employees who were the direct recruit Assistant Engineers in the
Telecommunication Wing of the Government of India. The inter se seniority
between the direct recruits and the promotees to the post of Assistant Engineer
during the period 1969 till 1976 was the subject matter of consideration before
the Tribunal, on an application being filed by a promotee challenging the
seniority list of Assistant Engineers dated 20th June, 1994 as well as the
provisional seniority list of Executive Engineers dated 25th November, 1994.
The Tribunal by the impugned judgment has quashed the seniority list of
Assistant Engineers and had directed to re-draw a fresh seniority list without
importing any quota/rota rule for the period prior to 9.9.1976.
Admittedly,
the post of Assistant Engineer in the erstwhile Civil Wing of Posts and
Telegraphs Department now nomenclatured as Telecommunication Department was
being filled up only by direct recruitment. There was no statutory rule
governing the service conditions of these Assistant Engineers. In 1969, a set
of rules was framed whereunder it was provided that the 50 per cent of the
vacancies in the post of Assistant Engineer will be filled up by direct
recruitment and 50 percent by promotion from amongst the Junior Engineers. The
draft rules thus framed in the year 1969 was ultimately approved by the
Government and became a statutory rule under Article 309 of the Constitution on
21st February, 1976. But even before the rules were
finally approved and became a statutory rule on 21st February, 1976 on being approved by the competent authority the
vacancies in the post of Assistant Engineer continued to be filled up both by
direct recruitment as well as by promotion on 50:50 basis by virtue of an
administrative decision. Thus the provisions in the draft rules by virtue of an
administrative decision continued to be applied in the matter of recruitment to
the post of Assistant Engineer. As the rules were in a draft stage, promotion
of the Junior Engineers to the post of Assistant Engineer was being made on ad
hoc basis. After the rules were approved on 21st February, 1976 the ad hoc promotion was regularised by order dated
20th of March, 1978 in the cadre of Assistant Engineer. At the time of regularisation
of the aforesaid promotees a departmental promotion committee was constituted
which committee screened the cases of all such ad hoc promotees and then drew
up the merit list for being regularised and the seniority of such promotees
inter se was drawn up on the basis of their respective position in the merit
list prepared for regularisation. The aforesaid decision of the Government was
challenged by some of promotees who were brought down in the merit list before
the Central Administrative Tribunal, Ernakulam Bench, claiming thereunder that
their continuous service in the rank of Assistance Engineer should be the basis
for their seniority amongst the promotee Assistant Engineers. The Tribunal accepted
their claim. It may be stated here that in the aforesaid proceedings before the
Central Administrative Tribunal the direct recruits between the period 1969
till 1976 were not parties nor the question of inter se seniority between such
direct recruits and the promotees was under consideration. The Government,
however, drew up the seniority list, in respect of those Assistant Engineers
who were recruited between 1969 till 1976 and those who were promoted from the
post of Junior Engineers between the said period on the basis of administrative
decision, to promote to the extent of 50 per cent as contained in the draft
rule following the Government Memorandum dated 22nd December, 1959. The
aforesaid principle on the basis of which the inter se seniority of the direct
recruits and promotees between the period 1969 till 1976 was made, was
challenged before the Ernakulam Bench of the Central Administrative Tribunal
and the Tribunal by the impugned judgment came to the conclusion that the
recruitment rules having been enforced only on 9.9.1976, the inter se seniority
between the direct recruits and promotees prior the said date cannot be
determined by following the quota/rota rule which is a part of the statutory
recruitment rule. The Tribunal further came to hold that since earlier it has
been decided by the Tribunal that these promotees will get the service counted
from the date of their ad hoc promotion and not from the date of their regularisation
the seniority list has been drawn up on a wrong basis and as such cannot be
sustained. With the aforesaid conclusion the Tribunal having set aside the
seniority list and having directed to re-draw the same without importing any
quota/rota rule for the period prior to 9.9.1976, these appeals have been
preferred.
Mr. N.N.Krishnamani,
learned senior counsel appearing for the direct recruits and Mr. N.N.Goswami,
learned senior counsel appearing for the Union of India contended that the
Tribunal committed gross error in issuing the impugned direction inasmuch as
the Junior Engineers could be promoted to the extent to 50 per cent of the
posts in the cadre of Assistant Engineer in enforcement of the provisions in
draft rules, and therefore, for determination of their inter se seniority as
between the direct recruits and the promotees for the period in question,
namely from 1969 till 1976, the Government Order dated 22.12.1959 has to be
followed. It was further contended that in fact the Hyderabad, Bombay and Delhi
Benches of the Tribunal have already take in the view that the general
principles for determination of seniority enunciated in eh order of Ministry of
Home Affairs date 22.12.1959 should be followed for drawing up the seniority
list and it is only the Ernakulam Bench by the impugned judgment had taken a
contrary decision. Mr. K.M.K. Nair, learned counsel appearing for the promotee
- respondent on the other hand contended that the respondent having rendered
long year of service as Junior Engineer the continuous length of service in the
cadre of Assistant Engineer should be the basis for determining the inter se
seniority between the direct recruits and promotees and as such there is no
infirmity with the impugned judgment of the Tribunal.
Having
heard the learned counsel for the parties it appears to us that the only question
for consideration is on what principle the inter se seniority between the
direct recruits and promotee Assistant Engineers will have to be determined for
the period 1969 till 1976 i.e. the period from which 50 per cent of the posts
were filled up by promotion till the enforcement of the statutory recruitment
rules? It is undisputed that prior to 1969 no Junior Engineer was being
promoted to the post of Assistant Engineer. From 1969 after formulation of set
of draft rules promotion was being given to the Junior Engineers to the post of
Assistant Engineer in accordance with the provisions contained in the draft
rules even before such draft rules were approved by the governmental authority
and became a statutory rule, by virtue of an administrative decision of the
Government. It is too well settled that the service conditions of employes, int
he absence of a statutory rule could be governed by administrative
instructions. There was, therefore, no illegality in giving promotion to the
Junior Engineers to the post of Assistant Engineer because of the aforesaid
administrative decision of the Government. It is also conceded that in the
statutory rules the principle of determination of inter se seniority between
the direct recruits and promotees has not been indicated. It is in this context
the Government of India followed the general principles for determining the
seniority enunciated in the order of Ministry of Home Affairs dated 22.12.1959.
Clause (6) of the aforesaid Memorandum which deals with relative seniority of
direct recruits and promotees stipulates that the relative seniority shall be
determined according to the rotation of vacancies between the direct recruits
and promotees which shall be based on the quota of vacancies reserved for
direct recruits and promotees respectively.
Since
the statutory rule had not come into force and yet promotion could be given on
the basis of the provisions contained in the draft rule by virtue of an
administrative order of the Government such promotees cannot claim a greater
advantage than the direct recruits having come into the cadre on the basis of
the aforesaid draft rules.
Further,
the inter se seniority of such direct recruits and promotees has to be
determined by taking recourse to the aforesaid office memorandum dated
22.12.1959 issued by the Government of India in the Ministry of Home Affairs.
Needless
to mention the at this principle has to be invoked for determination of inter
se seniority of the appointees bother direct recruits and promotees during the
period 1969 till 9.9.1976 and in fact the Government has drawn up the seniority
list on following the said principle. In the aforesaid premises, the direction
of the Tribunal in the impugned judgment to re-draw the seniority list without
importing any quota/rota rule for the period prior to 9.9.1976 is unsustainable
in law and we accordingly quash the said direction. Necessarily, therefore, the
inter se seniority of the direct recruits and promotees in the cadre of
Assistant Engineers for the period 1969 till 9.9.1976 has to be determined in
accordance with the Government Order dated 22.12.1959 issued by the Ministry of
Home Affairs.
We,
accordingly allow these appeals and set aside the impugned judgement of the
Central Administrative Tribunal, Ernakulam Bench. There will be no order as to
costs.
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