JUDGMENT
Shankar Prasad, Member (A)
1. Aggrieved by the action of the respondents in showing respondent No. 04 to 09 as senior to the applicant in the seniority list, the applicant has preferred the present O.A. He has sought for the following relief:
(A) The Hon. Tribunal be pleased to declare the impugned decision of respondent No. 2 to treat the respondent Nos. 4 to 9 as seniors to the applicant, as illegal, unjust, arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India, therefore, be pleased to direct the official respondents to place the applicant above the private respondents in the seniority-list of UDCs and grant him all consequential benefits.
(B) Be pleased to declare that the respondent Nos. 4, 6 and 7 who got the benefits of relaxation in educational qualification cannot get seniority with retrospective date as per the judgment of the Hon’ble Supreme Court in Sitlaprasad’s case and direct the respondents to refix the seniority of the applicant accordingly and grant him all the benefits as per law.
(C) Be pleased to declare that the respondent No. 5 is junior to the applicant and hence, direct the respondent Nos. 1 to 3 to regularise the applicant as Assistant and grant benefit of promotion as Assistant to the applicant with retrospective date with all consequential benefits with 18% interest.
(D) Any other relief to which the Hon’ble Tribunal deems fit and proper in interest of justice.
When the respondents published the final seniority list dated 5.11.2003 of the U.D.Cs. as on 01.11.89, the same was also challenged by amending the O.A. as the name of the applicant did not appear therein, while the name of some of his juniors were included. The following further relief was sought for:
(B. 1) This Hon’ble Tribunal be pleased to declare the impugned seniority-list circulated vide letter dated 5.11.2003 by the respondent No. 2, as illegal, unjust, non-application of mind and direct the respondents to show name of the applicant as per the date of his promotion as U.D.C. from 25.9.85 and grant all consequential benefits to the applicant which is granted to juniors to the applicant.
2. The case of the applicant in brief is that the applicant was working as U.D.C. on ad-hoc basis w.e.f. 25.9.85 and from 01.8.86 on substantive basis in the Posts and Telegraph Department. He joined CAT, Ahmedabad Bench on deputation on 31.3.87. The private respondent No. 4 joined CAT, Ahmedabad Bench on 11.5.87. They were absorbed in CAT on 1.3.91 and 1.11.89 respectively. The applicant had submitted a representation against the draft seniority list in 1995 relying amongst others on the Full Bench decision in O.A. 1093 and 1094 of 1989 (Calcutta Bench) 1995(1) ATJ Vol. 18 page 375. It was rejected. Thereafter, with the approval of Hon’ble Chairman, O.A. 833/95 was filed before Mumbai Bench. The private respondent Nos. 4 and 5 were joined as respondents. The said was transferred to Principal Bench under orders of Hon’ble Chairman and re-numbered as O.A. 2112/97. It was re-tansferred to Mumbai Bench and re-registered as O.A. 833/95. The Tribunal noted that the respondents themselves have made him senior to Mr. Dixon (Respondent No. 4 here) and left the matter to Registrar, Ahmedabad/Principal Registrar, Principal Bench to finalise the seniority about the other respondents. As this private respondent has since died, her name is deleted from this O. A.. While the applicant has been promoted as Assistant on ad hoc basis w.e.f. 01.2.2000, the said private respondent Smt. Razia Govali, who had been promoted on ad hoc basis w.e.f. 07.6.98, pending finalisation of the O.A. before the Mumbai Bench, was promoted on regular basis within six month.
The respondents have circulated a centralised draft seniority list of UDCs as on 31.3.2000 in which Shri A.J. Dixon is shown senior. A representation has been submitted against the said list drawing attention to Mumbai Bench decision and decision of Apex Court in Shitlaprasad Shukla v. State of Uttar Pradesh, 1986 ATC 2361. The private respondent could not have been shown senior as either they do not have the requisite educational qualification or were substantively appointed as UDC after the appointment of the applicant. The seniority list was finalised without considering these issues. It, therefore, requires to be quashed. Mr. Dixon, though junior to me as per Mumbai Bench decision, has been promoted as Assistant w.e.f. 01.01.2001.
The respondents did not publish any draft seniority list of UDCs’ absorbed on 01.11.89. When the respondents published the final seniority list dated 5.11.2003 having regard to the decision of Ernakulam Bench in M.K. Balchandran Pillai v. CAT, Principal Bench and decision of Apex Court in M. Ramchandran v. Govind Ballabh and GOI’s instruction and subject to outcome of W.P. 25280/2002 before Andhra Pradesh High Court and other Courts, the name of the applicant did not appear at all. The name of the applicant appeared at Serial No. 06 of the draft seniority list of UDCs as on 31.3.2000 and at Serial No. 09 of the finally published list. This list of November, 2003 is of 59 persons. The O.A. was amended to challenge the same.
Registrar, Ahmedabad Bench had issued the order dated 15.3.2001 showing respondent No. 5 as senior to the applicant. UDC cadre has been centralised w.e.f. 08.2.2000.
Rejoinder was filed.
3. The respondents in their reply have stated that the final decision taken by respondents No. 1 and 2 in respect of private respondent Nos. 4 and 5 in furtherance to the decision of Mumbai Bench is not open to challenge in this O.A. The same is hit by the principles of res judicata. The Contempt Petition filed in O.A. 833/95 had become infructuous as the same was withdrawn.
The final seniority list of UDCs dated 07.11.2000 is legal and proper and is in accordance with the Apex Court decision in the case of M. Ramchandran v. Govind Ballabh and Ors.. It is further stated that the private respondent, R.M. Govali was appointed as UDC prior to the applicant. Private Respondent Nos. 7 and 8 have been absorbed prior to the applicant. Respondent No. 4 has been shown as senior to the applicant in terms of the Apex Court decision. Ad hoc promotion granted to the applicant does not confer any right vis-avis private respondent No. 4. Educational qualification are not relevant in case of employees appointed on deputation basis. Respondent Nos. 6, 7 and 8 are senior on the basis of length of service and norms.
Objections against the draft seniority list of UDCs as on 01.11.89 were invited only from those whose names appeared in that list and the same was finalised after considering the objections received from them on the merits of each case. The question of consideration of the objections from those who names did not figured in the said seniority list did not arise. The name of the applicant could not and did not figure in the said draft seniority list.
4. Private respondent No. 5 was deleted on account of her death. Rest of the respondents have been served. We note that private respondent Nos. 4 and 5 were also parties before the earlier O.A. 833/95 before Mumbai Bench. The private respondent No. 4 has not filed any reply before Mumbai Bench in that O.A..
The private respondent Nos. 4 and 6 to 9 have not filed any reply. We, however, note that respondent No. 8 had also been impleaded as a party respondents in O.A. 160/2000. He had made out a case in that O.A. was barred by res judicata as the applicant therein had agitated the same issues earlier in O.A. 900/93. It was also contented that the applicant in the said O.A. cannot count his service as a LDC for computing seniority in the UDC grade.
The O.A. has proceeded ex parte against them.
5. We have heard the learned Counsels.
6. We have also gone through the CAT (Ahmedabad Bench) file No. 1/41/Estt./CAT/ A ‘bad/97, Vol.II and l/42/Estt./CAT/A’bad/2001, Vol.II. The following picture emerges:
(a) During the pending of the earlier O.A., the Principal Bench (PB) vide its letter No. PB/7/1/97-Est.-II, dated 6.4.98 informed that it has been decided to postpone the decision for preparing the seniority list of all categories of staff on All India basis. The Benches were advised to finalise the seniority list as per DOPT O.M. dated 3.7.86. The Principal Bench, thereafter, issued fresh guidelines vide their letter No. PB/7/4/99-Estt-II dated 3.11.99 following the Apex Court in M. Ramchandran v. Govind Ballabh and Ors., 1999(5) SLR 318. It stated:
Having regard to the fact that the Supreme Court has overruled the judgment of the Principal Bench and laid down a fresh norms giving benefit to the past service, it is requested that the seniority in the grade of UDC and below may be revised with respect to all the officials absorbed in terms of the Rule 5(1) w.e.f. 1.11.89, counting their past service in the analogous grade and not with effect from the date of deputation as was done earlier. This may kindly be done expeditiously with top most priority, but in any case latest by 30.11.99 and a copy of the revised Seniority List in each cadre from UDC and below may be sent to us for our records to enable us to report the compliance to the Hon’ble Supreme Court.
(b) The Principal Bench also advised Ahmedabad Bench vide its letter dated 29.11.99 to file a M.A. to obtain leave of the Mumbai Bench to revise the seniority list of UDC Grade in accordance with this judgment. Ahmedabad Bench advised its Counsel vide its letter dated 28.1.2000 to move a M.A. before Mumbai Bench in this regard.
(c) The Principal Bench informed vide its letter No. PB/7/2/99-Est-II that Chairman has taken a decision that w.e.f. 8.2.2000 promotion/recruitment in any Group-C post will be made by the order of Hon’ble Chairman. It was indicated that the seniority in Group-C Cadres will be maintained on centralised basis. The letter contains the following reasons for this decision.
However, the decentralised system is found to be not in conformity with the rules. Moreover, with the introduction of the latest order dated 02nd July, 1997 on the subject of reservation, possibility of maintaining reservation roster is found to be difficult. Beside DOPT which happens to be our administrative Ministry never accepted our proposal regarding decentralisation. In fact, DOPT has been pressing that CAT being one unit, all the existing cadres, regardless of the group, be maintained on centralised basis.
In these circumstances, the Hon’ble Chairman was pleased to make a reference to Rules Committee to examine the matter in detail. On the basis of the material on record and on the basis of opinion received from the Hon’ble Vice Chairman dealing with the administrative matters, the Rules Committee is of the view that the existing Group ‘C cadre in the Tribunal should be maintained on centralised basis as is done in respect of Group ‘A’ and ‘B’ posts. The Rules Committee is of the view that it would be appropriate and equitable to centralise the Group ‘C cadre in the Tribunal as this would give greater opportunity to the employees for career advancement/promotion.
The letter also asked for information. The Ahmedabad Bench sent the following information in respect of the applicant and private respondent No. 4, Shri A.J. Dixon. The name of the private respondent No. 5, Smt. Razia Govali does not appear in the list of UDCs as she appears to have been promoted as Assistant earlier.
Name
Edu. Qual.
Parent
Date of
Date of
Date of
Remarks
Dept. Regular Appt. in Absorption
Appt. in CAT in CAT
Parent Dept.
D.J. Panchal BA., LL.B., D/o 1.8.86 31.3.87 1.3.91 Ad hoc
DLP, DTP Post Asst.
1.2.2002
A.J. Dixon SSLC M/o 1.1.83 11.5.87 1.1.89
Defence
(d) The Mumbai Bench gave its decision on 11.4.2000. The Principal Bench vide its letter No. PB/7/2/99-E-II, dated 30.5.2000 circulated the draft seniority list of UDCs on 31.3.2000.
(e) The applicant submitted his representation dated 13.6.2000. This representation was forwarded by letter dated 26.6.2000. It was indicated therein that though the recommendation of the then Vice Chairman had been sent for relaxation of recruitment rules in matter of educational qualification of Mr. Dixon, the order absorbing Shri A.J. Dixon does not reflect it. The final seniority list has been circulated vide Letter No. PB/7/ 2/99-Est.-II, dated 7.11.2000. It has been indicated that the same has been prepared as per the Supreme Court judgment in M. Ramchandran v. Govind Ballabh and Ors., and that no separate intimation about the rejection will be sent to representationists. Thus, letter has been seen by the applicant with protest. But while informing the Principal Bench, the information regarding this protest is not given.
The relative position in final seniority list in respect of the applicant and respondents except respondent No. 5 is as follows:
Name of Officer and Education Qualification
Post held in Parent Dept. on regular basis with date and pay scale
Post and Date of Joining the CAT
Date of Absorption/Regular Promotion in Grade of UDC in CAT
Positionin Draft Seniority list
Position in Seniority liston 5.11.03
K.K. Narayanan
UDC 18.3.81
15.9.87 as UDC
1.11.89 Absorbed as UDC
27 5
A.J. Dixson SSCL
UDC 2.5.83 330-560
11.5.87 as UDC
1.11.89 Absorbed as UDC
1
36
M.K. Balchandran B.Sc.
UDC 12.4.84
14.4.87 as UDC
1.11.89 Absorbed as UDC
2
12
P.T. Johnson B.Sc.
LDC 10.3.80
18.11.85,as LDC NBR 12.9.86
1.11.89 Absorbed as UDC
3
19
A. Thomeena
LDC
20.11.85,
1.11.89
4 40
PUC 15.9.82 as LDC NBR 3.12.86 Absorbed as UDC
Selvraj B.Sc. LDC 20.1.81 1.10.85, as LDC NBR 10.2.87 1.11.89 Absorbed as UDC 5 22
D.J. Panchal BA. LL.B. DLP DTP
UDC 1.8.86
31.3.87 as UDC 1.3.91 Absorbed as UDC 6 —
They are at SI. Nos. 03 to 09 of finally published seniority list.
(f) The details in respect of applicant and Smt. Razia Govali were sent vide letter dated 28.9.2000. Principal Bench vide its letter dated 14.2.2001 informed as follows:
PB is in agreement with the conclusion arrived at. In fact, based on this Shri Panchal was placed in the seniority list in the grade of UDC maintained w.e.f. 08.2.2000 on centralised basis, at Serial No. 7. The said seniority list was issued by the Principal Bench vide its letter dated 7.11.2000. Hence, as far as the implementation of the judgment is concerned, that has already been done with the issuance of the seniority list on 7.11.2000.
Office order dated 5.3.2001 was thereafter issued that Smt. Razia Govali is senior to Shri D.J. Panchal.
(g) CP/65/2000 was also filed by this applicant for non-implementation of order dated 11.4.2000 and for showing Shri Dixon as senior to the applicant. It was subsequently withdrawn.
(h) It appears that pursuant to the decision of Ernakulum Bench in O.A. 160/2000, M. Balchandran Pillai v. CAT, Principal Bench a revised seniority list in respect of UDCs is circulated vide PB/7/2/02-Estt-II, dated 02.04/27.05.2002. It has been seen by applicant under protest but this information is also not sent to Principal Bench.
(i) Principal Bench again sought information about UDCs absorbed/regularised as on 01.11.89 alongwith documents vide its letter dated 7.11.2002. Necessary information/ documents is sent vide out letter dated 15.11.2002. Following letters are also enclosed:
(I) Office order dated 10.9.90 absorbing Shri Dixon as a UDC w.e.f. 1.11.89 in terms of Principal Bench Letter dated 18.5.90.
(II) Office order dated 19/24.7.91 absorbing Shri D.J. Panchal as a UDC w.e.f. 1.3.91. The order further indicates that inter se seniority of the official will be determined separately.
(j) Thereafter, the final seniority list of UDCs as on 1.11.89 is published vide Principal Bench letter No. PB/15/l/2000-Estt-II-8545/A, dated 5.11.2003. Para 2 of this letter is as follows:
The seniority list is being issued in implementation of Court order dated 18.4.2001 and 02.09.2002 passed by the Hon’ble Ernakulam Bench of the Central Administration Tribunal in O.A. 160/2000 and M.A. No. 632/2002 respectively in the matter of M.K. Balchandran Pillai v. CAT, PB and Ors. The seniority list has been prepared in terms of the directions of the Hon’ble Tribunal’s order in the aforesaid case read with the decision of Hon’ble Supreme Court in the matter C. A. No. 2704/97 M. Ramchandra v. Govind Ballabh and Ors. and Govt. of India instructions on the subject issued from time to time. A copy of the seniority list is sent herewith for circulation amongst the concerned UDCs/officials. It is being made clear that this is subject to the outcome of the decision of the Hon’ble Andhra Pradesh High Court in W.P. No. 25280/2002 and any other Court case pending, if any, on the issue.
This letter further indicates that 12 out of 59 persons have been absorbed in relaxation of educational qualification. Shri A.J. Dixon is one of them.
(k) It is also found that a Division Bench of Principal Bench in O.A. 2112/97, D.J. Panchal v. U.OI, in its daily order dated 30.7.98 has noted that Principal Bench has passed orders to reassign seniority vide order dated 10.3.98 and it is submitted on behalf of respondents that this is also the relief sought for by the applicant. Principal Bench letter indicates that as Smt. Razia Govali, Shri D.J. Panchal and Shri A.J. Dixon were holding the post of UDC on regular basis, their seniority will be from the date of absorption in CAT and this was the order of these persons. Ahmedabad Bench finalises the inter se seniority of UDCs as on 01.11.89 and sends it to Principal Bench along with a representation of the applicant for seniority vis-a-vis Smt. Govali. The order dated 3.9.98 shows that this objection is under consideration. It further appears from GOI’s reply dated 9.12.98 that seniority is finalised on 31.8.98. It further indicates that his representation was rejected vide order dated 14.6.95. The seniority has to be fixed as per Rule 5(2) read with DOPT O.M. Dated 3.7.86.
7. It appears that the applicant had challenged the tentative UDC seniority list published in 1995 on the ground that only regular promotion can count for seniority and if the promotion is not regular, the seniority can be reckoned only from the date of absorption. The said representation has been rejected vide order dated 22.6.95 indicating that the seniority in the case of an employee on deputation, who is subsequently absorbed has to be determined from the date of his regular appointment. The earlier O.A. was filed against this order. It further appears that Principal Bench was considering the matter relating to centralisation of all Group-C Cadre, but vide its order dated 06.4.98, it indicated that the seniority list in UDC cadre can be maintained at the bench level and that the seniority of the employees should be decided in accordance with the DOPTOM. Dated 03.7.86. During the pendency of the said O.A., the Principal Bench on the administrative side had opined that the applicant was senior to Shri A.J. Dixon, but was junior to Smt. Razia Govali on the basis of date of joining. A seniority list was also published accordingly. Similar was the view of the Central Government in the reply vetted by them for filing before the Bench.
8. The O.A. 833/95 before the Mumbai Bench in which private respondent Nos. 4 and 5 were also parties was decided on 11.4.2000. The Mumbai Bench in Para 2 of its order is as follows:
The point for consideration in this case is whether the applicant is senior to respondent Nos. 3 and 4?
At this stage, we may notice that the CAT Office itself has revised the seniority list as the latest seniority list as on 1.11. 1989 which is page 56 of the paper book. Here Shri A.J. Dickson, respondent No. 3 is shown at Sr. No. 3, the applicant at Sr. No. 2 and Smt. A.S.M. Govali, respondent No. 4 is shown at Sr. No. 1. Therefore, his prayer that respondent No. 3, Shri A.J. Dixson is shown below the applicant in the seniority list does not survive, since Administration has put applicant above resplendent No. 3 in the seniority list dated 1.11.1989. In view of this position, now the Tribunal has to decide only a short point, whether the applicant is senior to respondent No. 4 or not?
It further held that Registrar, Ahmedabad Bench or Principal Registrar whosoever is the Competent Authority shall decideinfer seseniority list of the applicant vis-a-vis Smt. Razia Govali.
Whether the M.A. seeking leave of the bench to modify the seniority list was moved before the Tribunal in light of Apex Court decision in M. Ramchandran v. Govind Ballabh is not clear. The order refers to only one M.A. for production of documents.
9. The matter was examined and it was finally decided that Smt. Razia Govali is senior to the applicant. It was also indicated that the said aspect has already been reflected in the seniority list of UDC finally published by order dated 7.11.2000.
The applicant had also preferred CP/65/2000 before the Mumbai Bench which has been subsequently withdrawn.
10. The Principal Bench took a decision to centralised all the Group-C cadre with effect from 08.2.2000. They also called for information in the prescribed format which is referred to in Para 6(c) above. The Apex Court in M. Ram Chandran v. Govind Ballabh and Ors., had interpreted Rule 5( 1) and 5(2) of CAT (Group B and C Employees Recruitment Rules, 1989) regarding fixation of seniority of persons who had been absorbed. A draft seniority list was also published vide letter dated 30.5.2000 against which the applicant has preferred the representation dated 13.6.2000. Thereafter, the present O.A. is filed.
11. During the pendency of this O.A., the Ernakulum Bench in O.A. 160/00 and the M.A. filed therein gave certain directions pursuant thereto which the final revised seniority list of UDCs absorbed on 1.11.89 was published vide order dated 5.11.2003. The name of the applicant does not appear therein as he has not been absorbed w.e.f. 1.11.89. The name of his junior, Shri A.J. Dixon appears as he has been shown to be absorbed w.e.f. 1.11.89. This order includes the name of 12 persons including Shri A.J. Dixon, who have been absorbed on relaxation of educational qualification.
12. Rule 5 of CAT (Group ‘B’ and ‘C Miscellaneous Posts) Recruitment Rules, 1989 is as follows:
Absorption/regularisation of existing employees:
Notwithstanding anything contained in the provisions of these rules, the persons holding the posts of Court Officer, Section Officer, Hindi Translator, Assistant, Junior Librarian, Caretaker, Upper Division Clerk/Receptionist/Store-Keeper and Lower Division Clerk on the date of commencement of the rules either on transfer or on deputation basis or, as the case may be, on direct recruitment basis and who fulfill the qualifications and experience laid down in the rules and who are considered suitable by Departmental Promotion Committee shall be eligible for absorption/regularisation in the respective grade subject to condition that such persons exercise their option for the absorption and that their Departments do not have any objection to their being absorbed in the Tribunal.
2. The seniority of officers mentioned in Sub-rule (1) shall be determined with reference to the dates of their regular appointment to the posts concerned:
Provided that the seniority of officers recruited from the same source and in the posts held by them in the parent Department shall not be disturbed.
3. The suitability of persons for absorption may be considered by a Departmental Promotion Committee.
13. Rule 7 regarding the power to relax the education qualification is as under:
Where the Chairman, Central Administration Tribunal is of the opinion that it is necessary or expedient so to do, he may, by order and for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons.
14. The schedule to the said recruitment rules provides that the post of UDCs shall be filled up 25% by Limited Departmental Examination, 25% by promotion failing which by transfer/transfer on deputation and 50% by direct recruitment. Degree of a recognised University or its equivalent is the prescribed education qualification as per Column-8. Sub-Clause 3 under Col. 12 is as follows:
In the case of transfer/transfer on deputation:
Officer possessing a degree from a recognised University and holding:
(a) analogous post in the Central Government/State Government/High Courts or Courts subordinate thereto;
(b) Post on the Central Government/State Government or High Court or subordinate Court thereto in the scale of Rs. 950-1600 with 8 years regular service.
NOTE: The period of deputation including the period of deputation in another ex cadre post held immediately preceding this appointment in the same or some other organisation/department/blockquote of….
15. We first note that the Apex Court in M. Hara Bhupal v. Union of India, 1997(2) SLR 387=1997(2) SLJ 177 (CAT-Hyd.) was considering an appeal of the applicant from the order of CAT, Hyderabad Bench. The appellant who was Section Officer in the Intelligence Bureau, Home Affairs, Government of India, had come on deputation as Private Secretary to a Member and was seeking absorption as a Private Secretary. An option was given to him to get absorbed as Section Officer. He opted for absorption unconditionally as a Section Officer. He filed an O. A. claiming seniority as Section Officer in CAT with reference to the date of his promotion as Section Officer in his Parent Department or the alternatively from the date of his deputation in CAT. The Tribunal pointed out that as the method of recruitment to the post of Section Officer and Private Secretary were different and distinct, they cannot be treated as analogous and rejected his claim. The said order was challenged on the ground that the word “analogous”, in respect of posts on which transfer on deputation or transfer is a mode of recruitment, should have been interpreted as defined in DOPT O.M. dated 3.10.89.
The Apex Court held as follows:
He contents that since the analogous posts, i.e. Private Secretaries and Section Officers, carry, admittedly the same scale of pay, the petitioner is entitled to the transposed and treated as S.O. right from the date of absorption and, therefore, he is entitled to seniority from the date when he was holding the post of S.O. in his parent department or alternatively from the date of his deputation. We find no force in the contention. It is true that under the above instructions, as indicated above, if the post held in the parent department from which he came on deputation and the post the incumbent holds in deputation service are analogous, certainly he is entitled to have the benefit of the above instructions. But when the candidates are governed by two different sets of rules in the deputation service, even if they are analogous posts, one cannot be transposed from the service of one set of rules into the service of another set of rules. The object of the rules made was to regulate the conditions of service in each cadre/grade and to provide method of direct recruitment or by promotion from one ladder to the higher ladder. If the adoption of this transposition by analogous situation is given acceptance, necessarily one can, by manipulation, get into another service and seek promotional avenues or recruitment by back door method, which can never be given acceptance. Under those circumstances, we think that the Tribunal was right in not accepting the contention of the petitioner that he should be given the seniority as Section Officer w.e.f. the date when he was holding that post in parent department or from the date of his deputation to the CAT, though, admittedly, he had not held the post as Section Officer in the CAT.
The special leave petition is accordingly dismissed.
It further held that it will be open to the applicant to avail of directions given by the Tribunal or to get himself repatriated to parent department and in event of his repatriation, he will be entitled to all the benefits of parent department on par with him immediate junior.
16. The Apex Court in M. Ramachandran v. Govind Ballabh, (supra) was concerned with interpretation of Rule 5(2) referred to above. Both the parties had been absorbed on 01.11.89 while one set of employees claimed seniority from the date of deputation in CAT, the other set of employees prayed for counting the period of service in the equivalent post held by them in their parent department before their deputation and absorption in service. CAT had accepted the former plea and directed determination of seniority from the date of their deputation.
The Central Administration Tribunal found that the guidelines issued by it, which were sought to be quashed, were not legal and thus, not sustainable. It also noticed that the correctness of the impugned guidelines had been doubted by the CAT itself who withdrew the same vide its letter dated 5.5.1995. No party is aggrieved by such findings of the Central Administration Tribunal.
6. There is no dispute that appointment/recruitment to any service can be made from different sources, i.e. by direct appointment, by promotion or by absorption/transfer. The source of recruitment can either be internal or external. Internal source would relate to cases where the appointment are made by promotion or by transfer and by absorption. External source would conceive the recruitment of eligible persons who are not already in service in the organisation to which the recruitment is to be made. For the purposes of posts in the service regarding which the dispute has arisen, the source of recruitment for the purposes of Sub-rule (1) of Rule (5) are : (i) promotion (ii) transfer of deputation/transfer. Person specific in the aforesaid categories possessing requisite qualification prescribed therein are eligible for appointment. Reference to the persons and the department cannot be held to mean that such reference was to the ‘source’ as admittedly the sources are either promotion or by transfer on deputation/transfer. It is not disputed that in the instant case, all the contesting parties have been recruited to the service from source (ii). It is also conceded that before their retirement on deputation they possessed the requisite qualifications as prescribed under Column No. 12 (ii) (a)(i)(ii)(b). The Tribunal was therefore, not justified in holding that the source of appointment of parties to the dispute was either the Central or State Government or the High Court or the Subordinate Courts. The proper interpretation of the Rules read with Schedule is that all such parties were recruited from the same source, i. e. Transfer on deputation/ Transfer and possessed requisite qualifications for recruitment to the new service.
10. We are of the considered opinion that Sub-rule (2) of Rule 5 is the relevant rule relating to the determination of the seniority of the officers recruited to the service under Sub-rule (1) of Rule 5. The seniority of such recruited officers is required to be determined with reference to the dates of their regular appointment to the posts. The proviso to Sub-rule (2) shall cover the case of such officers whose seniority cannot be determined under Sub-rule (2) as is the present case of the persons appointed/recruited on the same date. In such a case, the seniority of the officers recruited from the same source has to be determined by giving them the benefit of the equivalent post held by them in their parent departments. Sub-rule (2) and its proviso is based upon the general principle of service jurisprudence. It is not correct to say that the rules do not provide any method of determining the seniority of the persons recruited to the service and that in the absence of there being specific rule, resort be had to the official memorandum relied upon by the respondents. Seniority is the relevant term having reference to the class, category and the grade to which the reference is made. Length of service is a recognised method of determining the seniority. Such length of service shall have reference to the class, category or grade which the parties were holding at the relevant time. It, therefore, follows that total length of service is not relevant for determining the seniority but the length of service to a particular class, category or grade is relevant consideration for the purpose of counting the period with respect to length of service for the purpose of determining the seniority. In other words, the period of holding the equivalent post in the parent department would be the relevant period to be taken note of for the purpose of determining the seniority under Rule 5(2) and its proviso. Any other interpretation would be against the settled rules of service jurisprudence and is likely to create many anomalies resulting in failure of justice and defeating the acquired rights of the civil servants based upon their length of service. A authority had never intended to take away the benefit of the length of service of a person in his parent department before his deputation and absorption in the service.
11. We are of the opinion that the Tribunal has taken a very casual approach while passing the order impugned in this appeal and completely ignored the basic principles of service jurisprudence as confirmed and applied by this Court by way of pronouncements in various cases, some of which have been noted hereinabove. We are of the view that all the employees recruited in the service under Rule 5(1) are entitled to the benefit of the service on equivalent post in their parent departments.
12. Under the circumstances, the appeal is allowed and the order impugned is set aside. The official-respondents are directed to finalise the seniority list of all the employees recruited in the service under Rule 5(1) of the Rules strictly applying the provisions of Sub-rule (2) and its proviso keeping in mind the observations made hereinabove. All orders passed consequent upon the order of the Tribunal impugned herein shall be deemed to be non-est and not given effect to. Fresh seniority list be finalised at the earliest and if possible within a period of three months from today. Till the finalisation of the seniority list, the parties shall be permitted to hold the posts presently held by them.
17. As a matter of fact that Mumbai Bench in O.A. 833/95 and the Ernakulam Bench in O.A. 160/2000 and O.A. 632/2002 have also referred to this very decision of the Apex Court. The decision of Ernakulum Bench has also been upheld by the Hon’ble High Court of Kerala in O.P. 20900/2001.
18. Nothing has been brought on record to indicate as to when were the options called for by Ahmedabad Bench. Was it only on one occasion or more than one opportunity was given? Did the applicant apply in response to first notice, in case options were invited on more than one occasion? Even if he had applied on second occasion, why was he not considered for absorption w.e.f. 01.11.89. Was it because no posts of UDCs were subsequently available? Even if that no so, whether the applicant was entitled to be considered for absorption on 01.11.89 as the fulfilled the educational qualifications, which Mr. Dixon did not possess. We note that decision of Mumbai Bench is in terms of seniority list of UDCs as on 01.11.89.
19. It has been asserted in the O.A. that private respondent No. 4 has accepted the Mumbai Bench decision. Private Respondent Nos. 4, 6 and 7 were not qualified for being appointed as UDC and had been granted relaxation. It was asserted that respondent Nos. 7, 8 and 9 have been appointed as UDCs in their parent department after the applicant was appointed.
The respondents have stated that educational qualification are not relevant as they had been appointed on deputation basis. The respondent Nos. 6, 7 and 8 have been placed above the applicant in view of the past length of service in the grade and as per norms.
20. We have noted in Para 6(e) above, that the applicant in his representation dated 13.6.2000 has raised the question that Mr. Dixon did not fulfill the requisite educational qualification. While forwarding the said letter, Ahmedabad Bench indicated that though the educational qualifications were relaxed in the case of Shri A.J. Dixon, the same is not shown in the letter. The Principal Bench circulating the draft seniority list has indicated that they are following principles laid down by Apex Court in M. Ramchandran. The Apex Court was considering competing claims of employees absorbed on 01.11.89. It has held that the seniority has to be reckoned from the date of appointment unless they are appointed on the same date in date when length of service will apply. The question that whether relaxation could have been granted from educational qualification when qualified people were available is not specified answered.
When the Principal Bench asks for information regarding UDCs absorbed/regularised on 01.11.89, only the letters are forwarded.
21. Mr. P.H. Pathak, learned Counsel for the applicant has relied on the decision of three Judges Bench of Apex Court in S.I. Rooplal v. Lt. Governor through Chief Secretary, New Delhi, 2000 SCC (L&S) 213=2000(2) SLJ 395 (SC), Union of India v. Kuldip Singh Parmar and Ors., 2003 SCC (L&S) 1132=2004(1) SLJ 274 (SC) and Full Bench decision in Bijan Bihar Goswami v. Union of India, 1995( 1) ATJ 375 that his seniority has to be granted from the date he was born in the cadre of UDC in his parent department. He has particularly drawn our attention to the following paragraph of Apex Court in S.I. Rooplal’s case.
22. We first note that Rule 5 is providing for initial constitution as on 01.11.89. It refers to employees on direct recruitment basis also. We find that this question was agitated before the Apex Court in M. Ramchandran v. Govind Ballabh (supra). The rival contentions were seniority from the date of absorption or from the date of substantive appointment in parent cadre. The word source in proviso was explained. It has held that where people are absorbed on the same date in CAT, the length of service criterion will apply. It has also directed that the fresh seniority list in respect of all employees were prepared in accordance with that decision.
23. The length of service criterion does not apply in isolation in case of initial constitution. The Tribunal is bound by the specific decision in M. Ramchandran case. It has also been held that as rules contain the provisions O.M. is not attracted.
24. Mr. Pathak has also drawn our attention to the decision of Ernakulam Bench in O. A. 134/2002 M.N. Vijayan v. Union of India. He says that the said decision has also been implemented.
We note that the applicant in this case has been absorbed w.e.f. 19.6.97. The Tribunal has given him seniority from 31.5.90, the date he was appointed to analogous post in Department of Expenditure, Ministry of Finance. He is also governed by the same recruitment rules which were before the Apex Court in M. Ramchandran’s case. The Ernakulam Bench has proceeded on the basis that the applicant has been absorbed in accordance with recruitment rules. Rule 5 of the recruitment rules provides for absorption/ regularisation only on the date of coming into force of the recruitment rules. The specific recruitment rules for the post of Court Officer/Section Officer provide for 50% by Direct Recruitment failing which by transfer/transfer on deputation and 50% by promotion failing which by transfer on deputation. The question as to whether the three Judges Apex Court indirectly overrules M. Ramchandran and the decision given earlier by Ernakulam Bench in O.A. 160/2000 and confirmed by Hon’ble Krrala High Court has not been considered. Though 28 persons are likely to be affected, none of them is a party.
It is in any case, not a case of initial constitution and hence, the decision is distinguishable.
25. It is further indicated by the learned Counsel for the applicant that respondents themselves had accepted before Mumbai Bench that the applicant is senior to respondent No. 4, Shri A.J. Dixon. Neither Mr. Dixon nor official respondents have contested that decision. It was accordingly not open to the official respondents to revise his seniority visa-vis Mr. Dixon.
The official respondents in their reply have stated that seniority list has been finalised in furtherance of the decision of Mumbai Bench and in accordance with the decision of Apex Court in M. Ramchandran v. Govind Ballabh and Ors.
26. We note in this connection that the decision of the respondents to give him seniority over Mr. Dixon appear to have been taken on the principles of date of joining the CAT. Thereafter, the Apex Court decision in the case of M. Ramchandran v. Govind Ballabh was delivered on 21.9.99. The rival contention before the Apex Court were that the seniority is to be counted from the date of deputation to CAT or the date of promotion as UDC in the parent department. The Apex Court interpreted Rule 5 of the recruitment rules. The Principal Bench also circulated modified guidelines in accordance with the said decision (Para 6(a) above). The Counsel representing CAT in the above mentioned case had also been advised to move a Miscellaneous Application to obtain the leave of the Court to modify the seniority list in accordance with these decisions. Whether this M. A. was moved or what were the order passed thereon is not clear from the decision of the Mumbai Bench passed by the applicant. Mumbai Bench had noted that the reply filed by the official respondents that the applicant is senior to Mr. Dixon and has observed that of the prayer does not survive.
27. We note that the Apex Court in last paragraph of its decision in M Ramchandran’s case had directed finalisation of seniority list of all the employees recruited in terms of Rule 5(1) by strictly applying the provisions of Sub-rule (2) and its proviso keeping in mind the observations made therein. It is to be noted that both the contestants therein possessed the requisite educational qualifications. The applicant had specifically raised the question of Mr. Dixon not possessing the requisite educational qualifications and that his seniority could be counted from 01.11.89 only. The decision on this aspect is not reflected in the letter forwarding the final seniority list. Nor is a specific decision communicated to the applicant. The applicant and respondent No. 4 are at SI. No. 06 and 01 of the draft seniority list and SI. No. 09 and 04 of the final seniority list.
28. The Mumbai Bench decision has not been challenged either by the official respondents or by the private respondent No. 4 in higher judicial forums. Thus, even if the seniority list produced before the Mumbai Bench had been prepared on the basis of earlier policy of date of deputation to CAT. The decision in the said case had become final. It was accordingly no more open to official respondents to disturb the applicant’s inter seseniorily vis-a-vis respondent No. 4, Mr. A.J. Dixon.
29. The respondents, thereafter, have published the draft and final seniority list of UDCs as on 01.11.89. This exercise has been done on the basis of decision of Kerala Bench in O.A. 160/2000, M.R. Balchandran Pillai v. Registrar, Principal Bench. The position in respect of applicant and private respondents except respondent No. 5 is shown in the table in Paragraph 6(e). The name of the applicant does not appeared in this list at all. It appears that it is so because even though as per Mumbai Bench decision, the applicant is shown as senior to Mr. AJ. Dixon, his date of absorption is not antedated to 01.11.89.
It is the case of the respondents that objections against the said list had only been called for from persons whose name appeared in the list. The name of the applicant could not and did not figure in the said list.
The applicant had raised the question in his representation dated 13.6.2000 that as private respondent No. 4 had been appointed by relaxation of educational qualification, his seniority could be reckoned from 01.11.89 only. We find that final published seniority list of UDC as on 01.11.89, dated 05.11.2003 has 12 persons who have been appointed in relaxation of educational qualification. The official respondents have stated that educational qualifications are not relevant because respondent Nos. 4, 6 and 7 were appointed initially on deputation basis. It also includes the name of one Shri K.M. Patel, whose name appeared at SI. 18 of the final published list in November, 2000.
30. The application of O. A. 160/2000, M.K. Balchandran Pillai v. Registrar, Principal Bench, New Delhi and Registrar, Ernakulam Bench, and respondent No. 8 herein as one of the private respondents, was Lower Divisional Assistant in High Court w.e.f. 01.2.83. The pay scale of this post was 1350-2200 w.e.f. 01.1.86. He joined CAT as LDC on 07.8.86 on deputation basis and was thereafter appointed as UDC in CAT on deputation basis on 18.11.87 and was absorbed on 01.11.89.
He had preferred O.A. 900/93 for a declaration on the ground that he was entitled to be appointed as UDC w.e.f. 07.8.86 in the Tribunal and following the principle followed that the date of joining in CAT determines the seniority was entitled to seniority from that date. The said O.A. was dismissed on 28.6.94.
Registrar, Ernakulam, thereafter published a final seniority list after rejecting the applicant’s representation. It had been contended therein while the date of entry into equivalent or higher grade had been taken into account for determining the inter seseniority list of others, but in the case of applicant, the date of entry had only been considered. The applicant filed O.A. 1471/96 which was transferred to Hyderabad Bench/Principal Bench and finally transferred back to Ernakulam Bench as O.A. 633/99. The applicant has sought for a declaration that his past service w.e.f. 01.2.83 be taken into account for the purpose of assigning of seniority. During the pendency of the said O.A., the Apex Court judgment in the case of M. Ramchandran v. Govind Ballabh, was delivered and the Tribunal closed the case. Thereafter, his representation was rejected on the ground that the issue involved was barred by principles of res judicata. Thereafter, O.A. 160/2000 was filed.
The applicant had claimed that services in the grade of Lower Division Assistant from 01.2.83 should have been taken into account for the purposes of determining seniority. The official respondents had taken the plea that due to his appointment as LDC on deputation from 07.8.86 to 17.11.87, the applicant could not have been granted seniority from that date.
31. The Tribunal rejected the plea of res judicata advanced by official respondents and private respondent No. 8. It held:
In the face of the dictum laid down by the Hon’ble Supreme Court that the inter se seniority of the employees of the Tribunal absorbed on 01.11.89 is to be decided on the basis of the period of holding equivalent post in the parent department and that would be the relevant period for being taken into account for the purpose of seniority in the case of employees absorbed under Rule 5(2) and its proviso, the action of the respondents have to be held as without any authority of law. The applicant has been admittedly recruited under Rule 5( 1) of the Rules. The inter se seniority of all the employees absorbed on 01.11.89 has to be decided strictly applying Sub-rule 5(2) and its proviso. This has not been done in the case of the applicant. Therefore, we hold that taking the date of his appointment on deputation basis in the CAT as UDC viz. 18.11.87 as the date of determining his inter se seniority, the respondents have acted without any authority of law. Further, if the interpretation given by the official respondents is accepted it would mean that the applicant’s regular service prior to 18.11.87 as UDC or an equivalent post in his parent department would get wiped out just because he had initially came on deputation as LDC. This is not supported by any rule or instructions. Hence, Annexure A-6 order dated 17.12.99 rejecting the applicant’s representation cannot be sustained and is liable to the quashed and set aside. Accordingly, we set aside and quash A-6 memorandum dated 17.12.99 issued by the second respondent. We also quash and set aside A-7 seniority list to the extent it denied the applicant the benefit of his past service in his parent department in an analogous post. We direct the official respondents to correctly assign seniority to the applicant taking into account the period of holding an equivalent or higher post by the applicant in his parent department under Rule 5(2) and its proviso and give all consequential benefits to which he would become entitled to by this revision of seniority. The monetary benefits if any shall be given within a period of three months from the date of receipt of a copy of this order.
32. We, therefore, come to the crucial question as to whether the persons, who did not possess the requisite education qualification, could have been absorbed by relaxing rules in preference to deputationist who possessed requisite qualifications and in case they could have been absorbed having regard to the number of available posts could they rank senior to deputationists possessing educational qualifications and absorbed on that date.
We have noted above that 12 out of 59 persons in this seniority list of UDCs as on 01.11.89 do not possess the requisite education qualification and have been absorbed by relaxing the educational qualification. Some of them also appear to have been promoted as regular/ad hoc Assistant and regular/ad hoc Section Officer.
33. The provisions of Rule 5 have been reproduced in Paragraph 12 above. The underlined portion of Rule 5(1), as indicated therein, makes it clear that deputationist must fulfill the educational qualification and experience laid down in Recruitment Rules and must be considered suitable by the DPC. The Apex Court in Ramchandran’s case has held that persons possessing requisite qualification are eligible for appointments. Relaxation in education qualification has been granted in terms of Rule 7 of the Recruitment Rules. In the case of respondent No. 4, the grant of such exemption in 1990 has related back to 01.11.89.
34. The Apex Court in R.N. Nanjundappa v. Thimmaiah, has considered the scope of regularisation. It held PS follows:
The contention on behalf of the State that a rule under Article 309 for regularisation of the appointment of a person would be a form of a recruitment read with reference to power under Article 162 is unsound and unacceptable. The executive has the power to appoint. That power may have its source in Article 162. In the present case the rule which regularised the appointment of the respondents with effect from 15th February, 1958 notwithstanding any rules cannot be said to be in exercise of power under Article 162. First Article 162 does not speak of rules whereas Article 309 speaks of rules. Therefore, the present case touches the power of the State to make rules under Article 309 of nature impeached here. Secondly, when the Government acted under Article 309, the Government cannot be said to have acted also under Article 162 in the same breath. The two Article operates in different areas. Regularisation cannot be said to be a form of appointment. Counsel on behalf of the respondents contended that regularisation would mean conferring the quality of permanence on the appointment whereas Counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.
35. The Apex Court in Union of India v. Kishan Gopal Vyas, 1996 SCC (L&S) 468 was considering the matter of regularisation of the casual labour in the Railways in Class-III post in Civil Engineering Department. The Tribunal had partly allowed the claim of regularisation of the applicant and directed that arrears of difference on account of post he was working be paid and the pay already drawn be restricted the arrears of three years before the filing of the O.A. The Apex Court held:
Appointment to the post of Storekeeper/Store Issuer/Clerk is regulated by certain rules governing recruitment to the post in the Department. The respondents, if eligible, is entitled to be considered for the same along with all others who may be candidates for the appointment. That is the only correct way of filling these posts which would ensure equal opportunity in the matter of employment as required of Articles 14 and 16 of the Constitution of India to all eligible persons who are candidate for these posts. A direction like the one given by the Tribunal in favour of the respondent or anyone like him has the effect of denying equal opportunity to the other eligible candidates by appointing a person not in accordance with the rules. Any order of absorption and regularisation of a person not appointed in accordance with the rules, given in the matter contained in the impugned order of the. Tribunal would result in denial of equal opportunity in the matter of employment to the other eligible candidate for the public office. Such a course must obviously be eschewed. The Tribunal’s order is, therefore, set aside.
36. A three Judges Bench of the Apex Court in R.N. Nagarajan and Ors. v. State of Karnataka, was considering the case of promotees who had been subsequently regularised and the question of their inter se seniority vis-a-vis direct recruits appointed before their regularisation. It held as follows:
The argument however, is unacceptable to us for two reasons. Firstly the words “regular” or “regularisation” do not connote permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments. They cannot be constructed so as to convey an idea of the nature of tenure of the appointments. In this connection, reference may with advantage be made to State of Mysore v. S.V. Narayanappa, and R.N. Nanjundappa v. T. Thimmaiah, . In the former this Court observed:
Before we proceed to consider the construction placed by the High Court on the provisions of the said order, we may mention that in the High Court, both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently, it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties, the High Court equated regularisation with permanence.
In Nanjundappa’s case also the question of regularisation of an appointment arose and this Court dealt with it thus:
…Counsel on behalf of the respondent contended that regularisation would mean conferring the qualify of permanence on the appointment whereas Counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in definance or rules or it may have the effect of setting at naught the rules.
Apart from repelling the contention that regularisation connote permanence, these observations furnish the second reasons for rejection of the argument advanced on behalf of the promotees and that reason is that when rules framed under Article 309 of the Constitution of India re-inforce, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 thereof in contravention of the rules. The regularisation order was made long after the Probation Rules, the Seniority rules and the Recruitment Rules were promulgated and could not therefore direct something which would do violence to any of the provisions thereof. Regularisation in the present case, if it meant permanence operative from the 01st of November, 1956 would have the effect of giving seniority to promotes over the direct recruits who in the absence of such regularisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotes a right of priority in the matter of sharing the quota under the Recruitment Rules. In other words, the regularisation order, in coloring the appointments of promotees as Assistant Engineer with permanence would run counter to the rules framed under Article 309 of the Constitution of India. What could not be done under the three sets of rules as they stood, would thus be achieved by an executive flat. And such a course is not permissible because an act done in the exercise of the executive power of the Government, as already stated, cannot override rules framed under Article 309 of the Constitution.
37. The Apex Court in R.R. Verma v. Union of India, was considering Rule 3 of All India Services (Condition of Service-Residuary Matters) Rules, 1960. It held:
The Central Government is vested with a reserve power under Rule 3 to deal with unforeseen unpredictable situation, and to relieve civil servant from the infliction of undue hardship and to do justice and equity. It does not mean that the Central Government is free to do what they like, regardless of right or wrong; nor does it mean that the Courts are powerless to correct them. The Central Government is bound to exercise the power in the public interest with a view to secure civil servants of efficiency and integrity. When and only when undue hardship is caused by the application of the rules, the power to relax is to be exercised in a just and equitable manner but again only to extent necessary for so dealing with the case. The exercise of the power of relaxation like all other administrative actions affecting right of parties is subject to judicial review on grounds now well known. Viewed in this light Rule 3 is not unconstitutional on ground that it vests an unfettered discretion in the Government.
38. The Apex Court in case of State of Punjab v. Dr. Rajeev Sarwal, 1999 SCC (L&S) 1171 was considering the interpretation of Rule 5 of Study Leave Rules of 1963. The Government had rejected the claim of the respondents for grant of study leave in order to join postgraduate course. The respondent applied for leave to study D.M. in Gastroenterology and his name had been sponsored after obtaining a bond. It was rejected on the ground that the applicant had already availed 24 months of study leave. The High Court allowed the writ petition on the ground that rules could have been relaxed to extend the benefits of study leave as had been done in several other cases.
Paras 4 and 6 of the Apex Court’s decision are as follows:
4. The rule provides that the maximum amount of study leave which may be granted to a Government employee shall be:
(i) Ordinarily twelve months at any one time, which shall not be exceeded save for exceptional reasons, and
(ii) Twenty-four months (inclusive of study leave granted under any other rules) in all during the entires service.
The contention put forth on behalf of the respondents that the period of study leave could be granted at a time not exceeding 24 months does not stand to reasons at all because the rule is very clear that 24 months is relatable to the entire services and not to any part of service. The validity of the rule was not challenged before the High Court. Therefore, that aspect could not be gone into by the High Court. Nor could it be said that the exercise of power by the appellant was arbitrary, in any manner, merely because that power of relaxation was used in certain cases. In our opinion, relaxation also cannot be read into a provision of this nature where the rule itself mandates the maximum period of 24 months from the entire service. The order made by the High Court is, therefore, not sustainable.
39. The subject matter of dispute in Saroj Rani and Anr. v. State of Punjab and Ors., 1979 SCC (L&S) 1198 was consideration of the notification dated 21.1.91 issued under Rule 12 of Punjab State Assistant Grade Examination exempting all the employees, who had completed 18 years’ of service as Clerk from the requirement of passing the said examination. The examination was absolished in March 1998. There were numbers of persons who had qualified in the said examination and were waiting for their promotion.
Prima facie after hearing the learned Counsel for the parties, we felt impressed by this submission. It is also settled, an exception to the rule cannot efface the rule itself, similarly, an exemption clause in a rule cannot obliterate the very rule itself When a clause exempts a class or category of persons from application of any rule, the exemption itself denotes it to be of persons in a small circle out of the bigger circle. But can it be said that exemption can destroy the bigger circle from which it owes its own existence? Now we proceed to test this submission, whether it is true or not that the exemptees will occupy almost cent-percent vacancies and in case yes, whether there is any Government guidelines or if not whether the State feels to consider to lay down some principles or guidelines to save from this attack on the validity of the said notification.
We ourselves, scrutinised the details given in the annexures; we find barring very few departments, almost in every department, the exemptees’ number is far more than the vacancies during the said period. The annexure also reveals that during 21.1.91 to 3.3.98 the total number of exemptees is 7609 (seven thousand six hundred and nine) and the total numbers of vacancies available for promotion is only 3328 (three thousand three hundred twenty-eight). In this figure, the affidavit almost admits that the qualifiers in the examination would have no chance or very remote chance in only a few departments for promotion. In other words, the sphere of exemption destroys any chance of the qualifier to be promoted.
40. The Apex Court in Smt. Swaran Lata v. Union of India and Ors., 1979 SCC (L&S) 237=1979 SLJ 170 (SC) was amongst other seized of the question as to whether the relaxation of essential qualification by the UPSC was violative of Articles 14 and 16 of the Constitution.
It appears from Para 16 of the judgment that following were the essential qualification:
On January 2.4.1975, the Chandigarh Administration forwarded a fresh requisition revising the qualifications for the post as under:
ESSENTIAL
(i) Degrees in Technology with one year professional teaching experience in a reputed concern/training institutes; and
(ii) Three years experience in administrative capacity.
OR
(i) Degree in Arts or Science
(ii) Diploma in Technology of three years duration or Diploma of Industrial Training of two years duration with one year teachers’ training/C.T.I.
(iii) Five years professional/teaching experience in a reputed concern/training institute; and
(iv) Three years experience in Administrative capacity.
The UPSC while issuing notification given relaxation clause to the following effect.
On February 1, 1975, the Union Public Service Commission advertised the post with the aforementioned essential qualification as suggested. It, however, added a relaxation clause to the following effect:
Qualifications relaxation at Commission’s discretion in case of candidates otherwise well-qualified.
The late date of receipt of applications was March 3, 1979.
The UPSC recommended the name of one Smt. Premlata Dewan by relaxing the qualification No. II i.e. Diploma in Technology of three years duration as she fulfilled other qualifications.
The Apex Court held:
Lastly, the contention of respondent No. 7 Smt. Usha Wadhwa that the failure of the Union Public Service Commission to re-advertise the post prevented her from applying for the post and thereby there was denial of equal opportunity to her in violation of Article 16( 1) can be easily disposed of. It is true that no relaxation in qualifications can be made when an advertisement has duly been issued inviting applications and persons possessing the qualification advertised prescribed by the rules, are available and have submitted their application. If a relaxation has to be made there is a duty cast to re-advertise the post. In the instant case, however, the advertisement itself contained a relaxation clause and, therefore, nothing prevented respondent No. 7 from making an application, if she felt that she was better, if not equally qualified as respondent No. 6. The contention appears to be an after though and must be rejected.
41. The Appellant in Shitla Prasad Sukla v. State of Uttar Pradesh, (supra), was an Assistant Teacher in a institution which was subsequently upgraded into an intermediate college. Even though, he was not qualified to be appointed as a lecturer as he did not possess the requisite qualification, he continue to teach. An exemption from educational qualification was granted on 23rd July, 1963. The case of the applicant was that he should be deemed to be exempted from 4th November, 1960 i.e. the date of application. The respondent in the said Civil appeal has been appointed during intervening period. The Apex Court held as follows :
An employee must belong to the same stream before he can claim seniority vis-a-vis others, One who belongs to the stream of lawfully and regularly appointed employees does not have to contend with those who never belonged to that stream, they having been appointed in an irregular manner. Those who have been irregularly appointed belong to a different stream, and cannot claim seniority visa-vis those who have been regularly and properly appointed, till their appointment became regular or are regularised by the Appointing Authority as a result of which their stream joins the regular stream. At that point of confluence with the regular stream, from the point of time they join the steam by virtue of the regularisation, they can claim seniority vis-a-vis those who join the same stream later. The latecomers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellants cannot therefore succeed. What is more in matters of seniority the Court docs not exercise jurisdiction akin to appellate jurisdiction against the determination by the Competent Authority, so long as the Competent Authority has acted bonafide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is no one, but is not violated, the Court will not overturn the determination unless it would be unfair not to do so. In any view of the matter, the appellant who did not even belong to the stream of regularly (he was allowed to teach only in an irregular and unauthorised manner) and lawfully appointed lecturers cannot claim seniority against any one already in the stream before he joined the stream himself. The view taken by the High Court is unexceptionable.
42. We also note that a three Judges Bench of the Apex Court in State of Haryana v. Piara Singh, , in the context of casual labour, has held as follows:
The proper course would be that each State prepares a scheme, if one is not already in vogue, for regularisation of such employees consistent with its reservation policy and if a scheme is already framed, the same may be consistent with our observations herein so as to reduce available litigation in his behalf. If and when such person is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service, as the case may be.
43. It would thus be clear from the foregoing discussion that regularisation/absorption cannot be a mode of recruitment and can be resorted to only when there is defect of procedure or manner of appointment which does not go to the root of appointment. It has to be in accordance with rules and should not result in denail of equal opportunity in the matter of employment to other eligible candidates. The power of relaxation is to be exercised in the case of undue hardship and in a just and equitable manner to the extent necessary. It cannot be so exercised so as to obliterate the main rule. And not at all if the language of rule is like that no relaxation of qualification can be made when an advertisement has been duly issued. It has also been held that the grant of relaxation of education qualification does not relate back to the date of initial engagement of such persons and that such person cannot claim seniority vis-a-vis a regularly appointed persons prior to that of such regularisation.
44. Coming to the facts of the present case, we find that 12 out of 59 persons, including respondent No. 4, whose name appear in the seniority list of UDC as on 1.11.89, do not possess requisite education qualification and they are absorbed/regularised by relaxing of rule relating to the educational qualification. Rule 5 relating to initial Constitution makes it absolutely clear that deputationists must possess requisite educational qualifications. The persons in whose favour the rules have been relaxed, thus, could not have been considered earlier to the applicant. The reasons for the same are also not forthcoming.
45. We have also referred to the Apex Court decision that a persons in whose favour educational qualification is relaxed can reckon his seniority only from that date. The other decisions show that regularised persons will rank junior to regularly appointed persons before that. This means that persons absorbed on 01.1.89 in relaxation of educational qualifications can reckon their seniority only from 01.11.89 and more so, if posts are available for each of such persons. Otherwise, they can be considered for absorption from a later date and only by further relaxation of Recruitment Rule.
46. Nothing has been brought on record to indicate as to how many posts of UDC were available for regularisation/absorption as on 01.11.89 and whether the regularisation of applicant w.e.f. 01.11.89 will require pushing out of one of the persons absorbed on 01.11.89 in relaxation of rules.
47. In view of what has been discussed above, we are of the view that the applicant was entitled to be absorbed from 01.11.89 if need be by pushing out of one of the persons absorbed on 01.11.89 by relaxation of rules. He is, thereafter, entitled to Have his seniority fixed in accordance with the decision in Ramchandran’ case. Persons, who have been appointed by relaxation of educational qualification and absorbed on 01.11.89 can reckon their service only from 01.11.89 or from the date of relaxation of educational qualification whichever is later for the purpose of inter seseniority. We direct the respondents to correctly assign his seniority in the finally published seniority list dated 07.11.2000 and 05.11.2003 and to grant him all consequential benefits to which he would become entitled to by revision of this seniority. This exercise be completed within three months of the receipt of the order. Actual monetary benefits on account of consequential promotion shall be restricted to one year before the filing of O. A.
48. In view of the disposal of the O.A., M.A. 113/2003 also stands disposed off. No order as to costs.