Full Judgment Text
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CASE NO.:
Appeal (civil) 4995-4996 of 1997
PETITIONER:
SUSHMA MUTREJA
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 01/08/2001
BENCH:
G.B. Pattanaik & Ruma Pal
JUDGMENT:
PATTANAIK, J.
The appellant, on the basis of a competitive
examination held by the Union Public Service Commission
was selected in the year 1966 under Rule 12 of the Central
Secretariat Clerical Service Rules, 1962 (hereinafter referred
to as the Rules) and joined in the Ministry of Commerce as
Lower Division Clerk on 7.3.1967. While she was so
continuing, in November 1969, the Government of India,
Ministry of Home Affairs, introduced a Zoning Scheme for
promotion to the post of Upper Division Clerk from that of
the Lower Division Clerk. The aforesaid scheme had been
promulgated, as it was found that there exist considerable
disparities in the promotional prospects of the different
categories of staff in different cadres, because of
decentralisation. It was decided that while the decentralised
set up would continue, but unevenness of promotion could be
remedied by prescribing zones for promotion in the
decentralised grades. Recruitment to the post of Upper
Division Grade is required to be made in accordance with
Rule 11 of the Rules. Under the aforesaid Rule, substantive
vacancies in the Upper Division Grade in any cadre can be
filled up by substantive appointments of persons included in
the select list for the grade in that cadre. The select list is
prepared and is revised from time to time, as provided in sub-
rule (3) of Rule 11, and the procedure for preparing such list
is set out in the Third Schedule to the Rules. Sub-rule (2) of
Rule 11, however provides that even temporary vacancies in
the Upper Division Grade in any cadre shall be filled up by
appointment of persons, included in the select list and if any
vacancies remain unfilled after exhausting the list, then it
can be filled up by temporary promotion, on the basis of
seniority subject to rejection of the unfit of permanent
officers of the lower division grade in that cadre, who have
rendered not less than eight years approved service in the
grade. But such promotions would be terminated when
persons included in the select list for the upper division grade
become available to fill in the vacancies. On 30th July,
1982, two Lower Division Clerks from the Ministry of
Commerce, including one Shri Y.N.Sota had been nominated
for being promoted to the Upper Division Clerk in the
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Labour Ministry under the Zoning Scheme. On 2.11.1982,
the appellant on the basis of seniority in the Commerce
Ministry was nominated and appointed to the Post of UDC in
the Labour Ministry under the aforesaid zoning scheme on
long term basis. The appellant continued in the Labour
Ministry with effect from that date. It is the case of the
appellant that respondents 3 to 30, who had been recruited to
the post of Lower Division Clerk in the Labour Ministry
itself, were allowed to officiate in the post of Upper Division
clerk, on ad hoc basis, since posts in the Upper Division
Clerks were lying vacant and they could be reverted to their
post of Lower Division Clerk, as and when regular select list
candidates are available for being posted as Upper Division
Clerk. There is no dispute that the Upper Division Clerks of
the Labour Ministry, constitute a cadre. A seniority list
provisionally was drawn up in the year 1987 of the Upper
Division Clerks in the Labour Ministry, whereunder, the
appellant was shown junior to respondents 3 to 30 on the
basis of erroneous datas. The appellant, therefore, made a
representation to the employer and after due consideration, a
fresh seniority list of the Upper Division Clerks in the
Department of Labour was issued in 1989. In that seniority
list, the appellant was shown senior to respondents 3 to 30
and the list had been drawn up, after due consultation with
the Department of Personnel and after obtaining clarifications
from the Personnel Department, in accordance with Rule 25
of the Rules. It may be quoted hereunder:
Rule 25. Interpretation. Where a doubt
arises as to the interpretation of any of the
provisions of these rules, or the regulations made
thereunder, the matter shall be referred to the
Central Government whose decision thereon shall
be final.
While this was the position, a fresh seniority list was drawn
up in the year 1991 and the position of seniority of the
appellant vis-a-vis respondents 3 to 30 again was altered. It
may be stated that when a fresh seniority list of 1991 was
drawn up, no reasons were ascribed and even there is nothing
on record to indicate as to what necessitated the drawing up
of a fresh seniority list of Upper Division Clerks in the
Ministry of Labour, particularly, when the earlier seniority
list of 1989 had been drawn up after considering the
objections of the appellant to the provisional select list of
1987 and after due consultation with the Department of
Personnel, in accordance with Rule 25 of the Rules. It may
be stated further that the Union of India, neither before the
tribunal, nor in this Court, has indicated the reasoning for
which a fresh seniority list was required to be drawn up and
further, on what basis, it was re-drawn up and also the fact
whether the Labour Ministry consulted the Department of
Personnel, before re-drawing up of the seniority list in 1991.
Being aggrieved by the seniority list re-drawn up in the year
1991, the appellant approached the Tribunal. Before the
Tribunal, it was contended on behalf of the appellant, that the
seniority list having been drawn up in the year 1989 after
obtaining the advice of the Personnel Department with regard
to the interpretation of the relevant Rules governing the
seniority, the same could not have been altered in the year
1991, without even obtaining further advice from the
Personnel Department. It was also contended, that the case
of Mr. Sota, who also had been similarly nominated to the
post of UDC in the Labour Department from Commerce
Department is almost identical with the case of the appellant,
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but in the matter of determining the seniority while Mr.
Sotas case has been disposed of granting him the seniority at
the lowest of the existing cadre on the date he was brought on
transfer from Commerce Department to Labour Department,
the said principle has not been followed in the case of the
appellant, and on the other hand, arbitrarily in re-drawing up
the list in the year 1991 she has been shown junior to
respondents 3 to 30. It was the contention of the appellant
that the relevant Rules governing the inter se seniority of the
appellant vis-a-vis the existing employees in the Labour
Ministry have not been properly interpreted , accordingly the
conclusion of the Tribunal was erroneous. The Tribunal,
however, dismissed the application filed by the appellant on
the ground that the seniority list of 1991 has been prepared in
accordance with the relevant Rules and Regulations and
observed that the earlier seniority list was prepared contrary
to the Rules even if, had been prepared on the advice of the
Personnel Department, the same will not out-weigh the
seniority list prepared in accordance with the Rules. Against
the order of the Tribunal a Review Application had been filed
and Review Application also was dismissed, hence the
appellant has approached this Court.
Mrs. Rani Chhabra, learned counsel appearing for the
appellant, vehemently contended that the Tribunal committed
serious error in not examining the case of Mr. Sota, whose
case was identical to that of the appellant, and erroneously
dismissed the application filed before it. The learned counsel
further urged that the promotion on the basis of nomination
from different other cadre in accordance with the Zoning
Scheme, which is a subsequent innovation to the Rules in
force, and therefore, when a person is brought from one cadre
to the other on promotion and possesses the requisite
qualification for being promoted to the post of UDC then
there is no rhyme or reason not to treat such employee to be
born in the cadre with effect from the date he is brought into
the new cadre. Judged from the aforesaid stand point the
appellant having brought in the cadre of UDC in Labour
Department her services in the cadre of UDC in the Labour
Ministry has to be reckoned with effect from 3.11.1982 and
she would be senior to all those LDCs on that date as well as
those of the LDCs who might have got promotion on ad hoc
basis with the condition that they may be reverted back to the
parent post of LDC when qualified persons become available.
According to the learned counsel, Tribunal therefore,
committed serious error in deciding the inter se seniority
between the appellant and respondent nos. 3 to 30. The
counsel also further urged, that the seniority list was drawn
up in the year 1989 after due consultation with the
Department of Personnel, whose advice has the effect of
some finality with regard to interpretation of Rules as
indicated in Rule 25. The seniority list thus drawn out, could
not have been arbitrarily altered even without obtaining fresh
advice from the Personnel Ministry and in the absence of any
denial on the assertion made by the appellant the seniority list
drawn up in the year 1991 is bound to be set aside. Mr.
C.V.S. Rao, learned counsel appearing for Union of India, on
the other hand contended, that the seniority list drawn up in
the year 1991 is in accordance with the relevant Rules and
Regulations and, therefore, the Tribunal rightly refused to
interfere with the same. He further contended that the so
called consultation with Personnel Ministry under Rule 25
will not out-weigh the statutory provisions contained in the
Recruitment Rules and, as such if under the Rules the
appellant cannot claim seniority over respondent nos. 3 to 30,
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the list drawn up in the year 1991 cannot be interfered with.
The learned counsel, however, was not in a position to assail
the assertions made by the appellant that her case and the
case of Mr. Sota stand on the same footing and there is no
justification for deciding the seniority in a different way. Mr.
Rao also was not in a position to indicate the reasons for
which the seniority determined in the year 1989 was altered
again in the year 1991. In fact there does not exist an iota of
material to indicate what necessitated re-drawing up of
seniority list in the year 1991 and what was the basis of the
same.
Having considered the rival submissions and bearing in
mind the peculiar facts and circumstances under which the
appellant was appointed as UDC in the Labour Department,
on being nominated by the Commerce Department, after she
has acquired necessary qualification for such promotion we
are of the considered opinion that the re-drawing up of the
seniority list in the year 1991 must be held to be an arbitrary
exercise of power and the employer has failed to indicate any
reason for altering the seniority list which had been drawn up
in the year 1989. That apart, on first principle also when a
person is brought from one cadre to other and joins a new
cadre then he must be treated to be lowest in the cadre on that
date, but he cannot be junior to all those who were not even
born in the cadre on that date. In other words, respondent
nos. 3 to 30 were in the Lower Division Clerks and some
were officiating on ad hoc basis, not being born in the Select
List in the post of Upper Division Clerks in the Commerce
Ministry, whereas the appellant was brought after being
nominated by the Commerce Ministry to the Labour Ministry
and was allowed to join the post of UDC on 3.11.1982. That
being the position, rightly she was shown senior to
respondent nos. 3 to 30 in the seniority list of the year 1989.
That list could not have been altered without any reason by
the employer. In the aforesaid premises, we set aside the
impugned judgment of the Tribunal, allow this appeal and
hold that the appellant would be senior to respondent nos. 3
to 30 in the cadre of UDC in the Labour Ministry. If she
would be entitled to any consequential benefits on that score,
then her case may be duly considered and given accordingly.
......................J.
(G.B. PATTANAIK)
......................J.
(RUMA PAL)
1st August, 2001.
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