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V. Siva Kumar & Ors. Vs. Secretary, Ministry of Defence & Ors. [2008] Insc 26 (8 January 2008)

Dr. Arijit Pasayat & P. Sathasivam Dr. Arijit Pasayat, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the Andhra Pradesh High Court dismissing the writ petition filed by the appellants. Challenge before the High Court was to the order of the Central Administrative Tribunal, Hyderabad (in short the Tribunal). By its order dated 18.2.1999 the Tribunal had directed that seniority list of Store keepers was to be prepared on the principle that ;

(1) the OM dated 7.2.1986 is prospective in nature and not retrospective;

(2) the employees recruited after 1.3.1986, even though they were not empanelled and selected earlier to 1.3.1986, their seniority will be in accordance with the aforesaid OM as they were appointed to the service after 1.3.1986 and the impugned seniority list was to be amended with consequential benefits in terms of these principles.

2. Background facts in a nutshell are as follows:

On 8.7.1983 notice for recruitment was issued for Store keepers, Class-III in the materials organization of the Vishakhapatnam Dockyard in the Direct Recruitment Quota (in short the DR). In 1982-83, appellants, proforma respondent Nos.45 to 55 had applied in response to this notification. All of them were selected in the year 1984 according to the Navy Grade-C Non-Industrial Posts, Store House Staff, Recruitment Rules, 1984 (in short the Recruitment Rules), 87= % of the posts were to be filled up by promotion and 12= % by direct recruitment. Out of every eight vacancies, the first seven are given to promotees and the last one to DR by rotation.

On 7.2.1986, new principle of seniority was fixed in supersession of OM dated 22.12.1959. As per para 7 thereof the old principles contained in the OM dated 22.12.1959 were held not applicable for any appointment made after 7.2.1986 for which recruitment process started before 7.2.1986. 99 candidates were selected for promotion in the promotional quota. Appellants who are direct recruits and respondent Nos.45-55 who were also direct recruits were appointed as Store Keepers on 1.12.1986. On 4.12.1989 inter se seniority list was prepared in which the appellants were shown at serial 4 to 44. The list was sent to all naval establishments for circulation, verification and for pointing out any discrepancy and corrections, if any.

On 21.10.1991 another seniority list was issued showing the appellant and proforma respondent Nos. 45 to 55 below respondent Nos.4-44 and they were pushed down by about 240 places.

On 21.11.1991 objections were submitted by the appellants. On 12.3.1992 final seniority list was issued showing the appellants and respondents 45 to 55 lower down.

O.A. No. 673 of 1992 was filed before the Tribunal by the appellants and respondents 45 to 55 challenging the seniority list on 25.4.1995. The same was allowed. But the judgment was not challenged by anybody and, therefore, it became final.

On 21.11.1996, the Full Bench of Tribunal in other O.As. relating to Excise departments decided certain issues. The stand of the appellants was that the parameters indicated in para 7 of the OM were not in issue before the Full Bench.

On 27.12.1996 revised seniority list was issued purportedly in line with the judgment in OA No. 673 of 1992.

On 12.3.1997 appellants Nos.1, 4 and 7 were appointed as store keeper on the basis of the revised seniority list. On 13.2.1997 Division Bench of the Tribunal allowed OA No.1323 of 1993 relating to the Central Excise department. On 3.7.1997, OA No. 843 of 1997 was filed before the Central Administrative Tribunal, Hyderabad challenging the revised seniority list dated 27.12.1996 and the promotion order dated 12.3.1997. In February, 1998 appellant Nos. 2,3,6,8 and 9 were promoted as store keepers on the basis of the revised seniority List dated 27.12.1996.

3. A Division Bench of a Tribunal held in O.A. No. 843 of 1997 by order dated 18.2.1999 that the Full Bench while hearing the R.A. No. 103 of 1993 in OA No.1019 of 1992 did not address itself to the question of persons selected prior to 7.2.1986 and appointed subsequent to 7.2.1986. However, relying on the judgment of another Division Bench in OA No.673 of 1992 it was held that OM dated 7.2.1986 is prospective which upset the seniority of the appellants. On 17.3.1999 appellants filed writ petition No. 5540 of 1999 challenging the said judgment of the Tribunal in OA No. 843 of 1997. By order dated 3.3.2000 writ petition was dismissed holding that the Full Benchs decision of the Tribunal applied to the facts of the case.

4. It is submitted that in the counter-affidavit in OA No.843 of 1997 the respondent had accepted the plea of the appellants.

5. In support of the appeal, it is submitted that in view of the fact that the judgment in OA No. 673 of 1992 has become final it was not open to be nullified by another Division Bench.

The true effect of para 7 of the OM dated 7.2.1986 has not been correctly applied. The Full Bench of the Tribunal considered only the first part of the para 7 and did not advert to the second aspect highlighted in the OM. In the judgment in OA No. 843 of 1997 a Division Bench observed that the Full Bench did not deal with the aspect but proceed to rely on another Division Benchs judgment and thereby ignoring the reasoning of the earlier judgment of Kerala Bench of the Tribunal. The second part of para 7 of 1986 was also not considered. It was also pointed out that the High Court did not look into second part of the OM which is the only relevant part so far as the present dispute is concerned. The second part of the OM was not challenged by anybody.

6. It was submitted that the crucial expression in the OM is recruitment action. Recruitment is not the same as appointment. Para 7 refers to both direct recruits as well as promotees.

7. In response, learned counsel for the respondents submitted that the OM refers to actual appointment by direct recruitment, promotion or by method of transfer. Mere inclusion in the select list confers no right and, therefore, interpretation given by the Tribunal and the High Court is rational. It is also submitted that recruitment action is different from recruitment process.

8. Para 7 of the OM so far as relevant reads as follows:

These orders shall take effect from 1st March, 1986. Seniority already determined in accordance with the existing principles on the date of issue of these orders will not be reopened. In respect of vacancies for which recruitment action has already been taken, on the date of issue of these orders either by way of direct recruitment or promotion, seniority will continue to be determined in accordance with the principles in force prior to the issue of this O.M.

9. It is correct as contended by learned counsel for the appellants that before the Full Bench of the Tribunal the first part of para 7 was under consideration and the effect of the expression recruitment action was not in issue.

10. The relevant portion of para 7 refers to vacancies for which recruitment action has already been taken. There are two aspects of significance, they are; (1) There must be vacancy; and (2) the recruitment action must have already been taken. Otherwise, there was no need to use the expression for which recruitment action has already been taken because the appointment has to take effect from the relevant date.

11. In K. Narayanan v. State of Karnataka, [1994 Supp.(1) SCC 44] at para 6 it was noted as follows:

Article 309 of the Constitution empowers the appropriate Legislature to frame rules to regulate recruitment to public services and the post. Recruitment according to the dictionary means enlist. It is a comprehensive term and includes any method provided for inducting a person in public service. Appointment, selection, promotion, deputation are all well- known methods of recruitment. Even appointment by transfer is not unknown. But any rule framed is subject to other provisions of the Constitution.

12. There is no dispute in law and in fact none is raised that mere inclusion in the select list does not confer a right on the person whose name has been included in the select list. But that question has little significance in the present case.

13. Recruitment action obviously would mean an action taken for recruitment. That being so, the impugned judgment of the High Court is clearly untenable and is set aside.

14. The appeal succeeds but without any order as to costs.



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