A.N. Pathak & 5 Others Vs. Secretary To The Government, Ministry Of Defence & Another.
EmailAppeal: Writ Petition No.1889 of 1978.
Petitioner: A.N. Pathak & 5 Others
Respondent: Secretary To The Government, Ministry Of Defence & Another.
Apeal: Writ Petition No.1889 of 1978.
Judges: O.CHINNAPPA REDDY & V.KHALID, JJ.
Date of Judgment: Feb 12, 1987
Head Note:
DEFENCE PRODUCTION (DIRECTORATE OF PRODUCTION AND INSPECTION, NAVAL) GROUP A AND GROUP B TECHNICAL POST RECRUITMENT RULES, 1976:
Clauses 10 and 11 of the Schedule to the Rules – Constitution of India, 1950: Articles 14 and 16 – Method of promotion and recruitment – Discrimination between promotees and direct recruits in respect of seniority – Length of service ignored – Length of service to be given due importance in dealing with promotions and seniority – The promotees come into service, not by any fortuitous circumstance but they form an integral part of the regular cadre entitled to all benefits by the length of their service – Authorities directed to re-draw the seniority lists.
Cases Reffered:
1. A.Janardhana v. Union of India and Others AIR 1983 SC 769.
2. O.P. Singla and Anr. v. Union of India & Ors. 1985 (1) SCR 351.
3. G.S. lamba & Ors. v. Union of India & Ors., AIR 1985 SC 1019.
4. Narendar Chadha v. Union of India AIR 1986 SC 638.
5. G.K.Dudani and Ors. v. S.D. Sharma and Ors. AIR 1986 SC 1455.
2. O.P. Singla and Anr. v. Union of India & Ors. 1985 (1) SCR 351.
3. G.S. lamba & Ors. v. Union of India & Ors., AIR 1985 SC 1019.
4. Narendar Chadha v. Union of India AIR 1986 SC 638.
5. G.K.Dudani and Ors. v. S.D. Sharma and Ors. AIR 1986 SC 1455.
JUDGEMENT:
KHALID, J:
1. The petitioners, six in number, are working in the Ministry of Defence, Department of Production. They joined their service on different dates ranging from 1963 to 1969. The 1st, 2nd, 3rd, and 5th petitioners joined service as Senior Technical Assistant while 4th and 6th petitioners joined as Technical Assistant. The 1st and 2nd petitioners are now working as Senior Technical Officer (officiating), 3rd and 4th petitioners are working as Technical Officer (officiating) and 5th & 6th are working as Junior Technical Officer, None of the petitioners been confirmed in their respective posts to which they have been promoted.
2. The first respondent is the Secretary to the Government, Ministry of Defence and the second respondent, Director, Directorate of Production and Inspection, Naval.
3. The appointment and promotion of persons like the petitioners were governed by the department of Defence Production (Directorate of Production and Inspection, Naval) Group A and Group B Technical Post Recruitment Rules, 1976, for short ‘the Rules’. Prior to these rules, they were governed by the Rules framed in 1965 and revised in 1972.
4. The grievance of the petitioner is that the Rules discriminate between them and the direct recruits, that their seniority is not taken into consideration while the seniority list is prepared and that the direct recruits are given seniority over them undeservedly by virtue of the operation of the method of recruitment contained in the rules. The petitioners complain that the list so prepared is purely arbitrary and ignores their length of service. They made representations to the first respondent complaining against the injustice done to them and for redressal of their grievances. There were no favourable orders. Hence this writ petition.
5. The prayer in the petition is for a mandamus declaring the rules and the seniority list dated 25-7-1977, 3-9-1977 and 7-9-1977, prepared according to rules, as bad as violative of Articles 14 & 16.
6. In the counter affidavit filed by the respondents, two preliminary objections were taken -(1) that the joint petition filed by the petitioners is not maintainable inasmuch as it involves determination of different questions of facts based on separate causes of action and (2) that the petitioners have not arrayed as respondents all the officers who would be adversely affected by any order to be passed by this Court. The rules in question are justified on the ground that they were validly passed. It is stated that the offending clause cannot be faulted as violative of Article 14 and Article 16 of the Constitution. The rules were framed in consultation with the Department of Personnel and Administrative Reforms, Cabinet Secretariat, in the light of the past experience. It is stated that the rules, far from causing any discrimination, seek to fix rationally (i) inter-se seniority, (ii) quotes for recruitment and (iii) norms whereby the cases of all senior persons are to be considered. The preparation of the offending lists is justified on the plea that the principle of fixing seniority on the basis of length of service and dates of confirmation is not an inflexible rule and that it is possible in law that a direct recruit who is appointed later in point of time is senior to a promotee because of the working out of the quota rule. The Counter Affidavit continues with the usual plea that in certain given cases seniority based on length of service can be ignored.
7. Before dealing with the merits of this case we will dispose of the preliminary objections. We are not impressed with the preliminary objections. The petitioners have clearly given the details about the dates of appointment, promotion etc. The dates do differ. But nothing prevents this court from modulating the relief and giving directions to the respondents to re-consider the offending lists with reference to each of the petitioners in the light of what follows.
8. The second objection has been met by the petitioners by impleding those who will be affected as respondents Nos. 3 to 8, as per order of their Court dated 11-8-1983.
9. The method of recruitment under challenge is contained in columns 10 and 11 of the schedule to the rules which is given below:
———————————
Method of recruitment In case of recruitment by whether by direct promotion/deputation recruitment or by transfer grades from which promotion or by promotion/deputation deputation/transfer and transfer to be made. percentage of the vacancies to be filled by various methods.
——————————– 10 11
———————————
Senior Technical Officer: Promotion:
i)50% by promotion failing Technical Officers with which by direct 5 years service in the recruitment grade rendered after
appointment thereto on a
regular basis:
ii)50% by direct
recruitment
iii)Failing (i) and (ii) provided that if an above, by re-employment. officer is considered
for promotion in
iv)Failing (iii) above by accordance with the promotion. provisions of these
Rules/all persons senior
to him in that grade shall also be considered notwithstanding that they may not have rendered the prescribed number of years of regular service in thatgrade.
Technical Officers: Promotion:
i)50% by promotion failing Junior Technical Officer which by direct with 3 years service in recruitment. the grade rendered after
appointment thereto on a
regular basis:
ii)50% by direct Provided that if an
recruitment officer is considered
for promotion in
iii)Failing (i) and (ii) accordance with the above, by re-employment provisions of these
rules, all persons
iv)Failing (iii) by senior to him in that promotion grade shall also be
considered notwithstanding that they may not have rendered the prescribed number of years of regular service in that grade.
Note: All eligible candidates have to qualify in a written
departmental
examination of a degree standard.
Re-employment:………..
………………………
10. The manner in which the above provision works to the detriment of the promotees is as follows. A person who is working as a Senior Technical Officer must have a minimum service of five years in that grade for promotion to the higher post. A direct recruit who joins service much later and who does not have the requisite five years service will be placed above him for promotion.
11. The posts to be filled in by direct recruitment are kept vacant and as and when recruitment is made, the names of direct recruits are inserted at the places reserved for them regardless of the fact that there are many others who had put in more years of service than them. This method works an additional hardship to the promotees in that they will not be confirmed though the required probation period has been completed by them, only to allow the direct recruits to complete their period of probation. The combined operation of clauses 10 and 11, according to the petitioners causes a double damage to them and the direct recruits consequently have double advantage.
12. Annexure ‘C’ to the writ petition is the seniority list relating to the Senior Technical Officers. In this list, places 4, 6, 8, 10, 12, and 14 are kept vacant. These places will be filled in when direct recruits come. They will steal a march over those who have entered service earlier. The latter will be pushed down in the list.
13. We do not think it necessary to refer to the various decisions rendered by this Court on this question. In the case of A.Janardhana v. Union of India and Other AIR 1983 SC 769, O.P. Singla and Anr. v. Union of India & Ors. AIR 1985 (1) SCR 351 and G.N. Lamba & Ors. v. Union of India & Ors. AIR 1985 SC 1019, length of service was given due importance in dealing with promotions and seniority. In the case of Narendar Chadha v. Union of India AIR 1986 SC 638, to which one of us was a party, it was held that to treat continuous officiation of one officer as temporary would be arbitrary and violative of Articles 14 and 16. In G.K.Dudani and Ors. v. S.D.Sharma & Ors. AIR 1986 SC 1455, a three Judge Bench of this Court, Madon J, speaking for the Bench, approved the settled principle noted above. The promotees come into service, not by any fortuitous circumstances but they form an integral part of the regular cadre entitled to all benefits by the length of their service.
14. The learned counsel for the respondents found it difficult to justify the validity of the rules and the lists in the light of the various decisions of this Court which have consistently learned in favour of the promotees based on their length of service and seniority, in cases where there was inordinate delay in making direct recruitment. He tried to justify the inequity saying that the new rules have tried to rectify it. We are not satisfied with this explanation since that is little consolation to the petitioners. We are of the view that the grievance of the petitioners is justified in law. The rules enabling the authorities to fill in vacancies for direct recruits as and when recruitment is made and thereby destroying the chances of promotion to those who are already in service cannot but be viewed with disfavour. If the authorities want to adhere to the rules strictly all that is necessary is to be prompt in making the direct recruitment. Delay in making appointments by direct recruitment should not visit the promotees with adverse consequences, denying them the benefit of their service.
15. The learned counsel for the respondent Nos. 1 and 2 made a fervent plea that, being a sensitive department, relief may be granted to the petitioners by way of monetary compensation and requested us to desist from upsetting the list. We cannot accede to this request.
16. The petitioners had sought stay of operation of the list. This Court by its order dated 4-9-1978 declined to grant stay, but ordered: “any action taken in the matter in regard to the grievances of the petitioners in this case will be subject to the final result of this writ petition.”
17. In our Judgment, the petitioners are entitled to succeed. We allow this writ petition and direct the authorities to re-draw the seniority list dated 25-7-1977, 3-9-1977 and 7-9-1977, appended as annexures ‘C’, ‘D’ and ‘E’ to the writ petition and prepare the list afresh giving the petitioners the positions they would have been entitled to, but for the offending portions of clauses 10 and 11 in the schedule to the rules.
18. There will be no order as to costs.
1. The petitioners, six in number, are working in the Ministry of Defence, Department of Production. They joined their service on different dates ranging from 1963 to 1969. The 1st, 2nd, 3rd, and 5th petitioners joined service as Senior Technical Assistant while 4th and 6th petitioners joined as Technical Assistant. The 1st and 2nd petitioners are now working as Senior Technical Officer (officiating), 3rd and 4th petitioners are working as Technical Officer (officiating) and 5th & 6th are working as Junior Technical Officer, None of the petitioners been confirmed in their respective posts to which they have been promoted.
2. The first respondent is the Secretary to the Government, Ministry of Defence and the second respondent, Director, Directorate of Production and Inspection, Naval.
3. The appointment and promotion of persons like the petitioners were governed by the department of Defence Production (Directorate of Production and Inspection, Naval) Group A and Group B Technical Post Recruitment Rules, 1976, for short ‘the Rules’. Prior to these rules, they were governed by the Rules framed in 1965 and revised in 1972.
4. The grievance of the petitioner is that the Rules discriminate between them and the direct recruits, that their seniority is not taken into consideration while the seniority list is prepared and that the direct recruits are given seniority over them undeservedly by virtue of the operation of the method of recruitment contained in the rules. The petitioners complain that the list so prepared is purely arbitrary and ignores their length of service. They made representations to the first respondent complaining against the injustice done to them and for redressal of their grievances. There were no favourable orders. Hence this writ petition.
5. The prayer in the petition is for a mandamus declaring the rules and the seniority list dated 25-7-1977, 3-9-1977 and 7-9-1977, prepared according to rules, as bad as violative of Articles 14 & 16.
6. In the counter affidavit filed by the respondents, two preliminary objections were taken -(1) that the joint petition filed by the petitioners is not maintainable inasmuch as it involves determination of different questions of facts based on separate causes of action and (2) that the petitioners have not arrayed as respondents all the officers who would be adversely affected by any order to be passed by this Court. The rules in question are justified on the ground that they were validly passed. It is stated that the offending clause cannot be faulted as violative of Article 14 and Article 16 of the Constitution. The rules were framed in consultation with the Department of Personnel and Administrative Reforms, Cabinet Secretariat, in the light of the past experience. It is stated that the rules, far from causing any discrimination, seek to fix rationally (i) inter-se seniority, (ii) quotes for recruitment and (iii) norms whereby the cases of all senior persons are to be considered. The preparation of the offending lists is justified on the plea that the principle of fixing seniority on the basis of length of service and dates of confirmation is not an inflexible rule and that it is possible in law that a direct recruit who is appointed later in point of time is senior to a promotee because of the working out of the quota rule. The Counter Affidavit continues with the usual plea that in certain given cases seniority based on length of service can be ignored.
7. Before dealing with the merits of this case we will dispose of the preliminary objections. We are not impressed with the preliminary objections. The petitioners have clearly given the details about the dates of appointment, promotion etc. The dates do differ. But nothing prevents this court from modulating the relief and giving directions to the respondents to re-consider the offending lists with reference to each of the petitioners in the light of what follows.
8. The second objection has been met by the petitioners by impleding those who will be affected as respondents Nos. 3 to 8, as per order of their Court dated 11-8-1983.
9. The method of recruitment under challenge is contained in columns 10 and 11 of the schedule to the rules which is given below:
———————————
Method of recruitment In case of recruitment by whether by direct promotion/deputation recruitment or by transfer grades from which promotion or by promotion/deputation deputation/transfer and transfer to be made. percentage of the vacancies to be filled by various methods.
——————————– 10 11
———————————
Senior Technical Officer: Promotion:
i)50% by promotion failing Technical Officers with which by direct 5 years service in the recruitment grade rendered after
appointment thereto on a
regular basis:
ii)50% by direct
recruitment
iii)Failing (i) and (ii) provided that if an above, by re-employment. officer is considered
for promotion in
iv)Failing (iii) above by accordance with the promotion. provisions of these
Rules/all persons senior
to him in that grade shall also be considered notwithstanding that they may not have rendered the prescribed number of years of regular service in thatgrade.
Technical Officers: Promotion:
i)50% by promotion failing Junior Technical Officer which by direct with 3 years service in recruitment. the grade rendered after
appointment thereto on a
regular basis:
ii)50% by direct Provided that if an
recruitment officer is considered
for promotion in
iii)Failing (i) and (ii) accordance with the above, by re-employment provisions of these
rules, all persons
iv)Failing (iii) by senior to him in that promotion grade shall also be
considered notwithstanding that they may not have rendered the prescribed number of years of regular service in that grade.
Note: All eligible candidates have to qualify in a written
departmental
examination of a degree standard.
Re-employment:………..
………………………
10. The manner in which the above provision works to the detriment of the promotees is as follows. A person who is working as a Senior Technical Officer must have a minimum service of five years in that grade for promotion to the higher post. A direct recruit who joins service much later and who does not have the requisite five years service will be placed above him for promotion.
11. The posts to be filled in by direct recruitment are kept vacant and as and when recruitment is made, the names of direct recruits are inserted at the places reserved for them regardless of the fact that there are many others who had put in more years of service than them. This method works an additional hardship to the promotees in that they will not be confirmed though the required probation period has been completed by them, only to allow the direct recruits to complete their period of probation. The combined operation of clauses 10 and 11, according to the petitioners causes a double damage to them and the direct recruits consequently have double advantage.
12. Annexure ‘C’ to the writ petition is the seniority list relating to the Senior Technical Officers. In this list, places 4, 6, 8, 10, 12, and 14 are kept vacant. These places will be filled in when direct recruits come. They will steal a march over those who have entered service earlier. The latter will be pushed down in the list.
13. We do not think it necessary to refer to the various decisions rendered by this Court on this question. In the case of A.Janardhana v. Union of India and Other AIR 1983 SC 769, O.P. Singla and Anr. v. Union of India & Ors. AIR 1985 (1) SCR 351 and G.N. Lamba & Ors. v. Union of India & Ors. AIR 1985 SC 1019, length of service was given due importance in dealing with promotions and seniority. In the case of Narendar Chadha v. Union of India AIR 1986 SC 638, to which one of us was a party, it was held that to treat continuous officiation of one officer as temporary would be arbitrary and violative of Articles 14 and 16. In G.K.Dudani and Ors. v. S.D.Sharma & Ors. AIR 1986 SC 1455, a three Judge Bench of this Court, Madon J, speaking for the Bench, approved the settled principle noted above. The promotees come into service, not by any fortuitous circumstances but they form an integral part of the regular cadre entitled to all benefits by the length of their service.
14. The learned counsel for the respondents found it difficult to justify the validity of the rules and the lists in the light of the various decisions of this Court which have consistently learned in favour of the promotees based on their length of service and seniority, in cases where there was inordinate delay in making direct recruitment. He tried to justify the inequity saying that the new rules have tried to rectify it. We are not satisfied with this explanation since that is little consolation to the petitioners. We are of the view that the grievance of the petitioners is justified in law. The rules enabling the authorities to fill in vacancies for direct recruits as and when recruitment is made and thereby destroying the chances of promotion to those who are already in service cannot but be viewed with disfavour. If the authorities want to adhere to the rules strictly all that is necessary is to be prompt in making the direct recruitment. Delay in making appointments by direct recruitment should not visit the promotees with adverse consequences, denying them the benefit of their service.
15. The learned counsel for the respondent Nos. 1 and 2 made a fervent plea that, being a sensitive department, relief may be granted to the petitioners by way of monetary compensation and requested us to desist from upsetting the list. We cannot accede to this request.
16. The petitioners had sought stay of operation of the list. This Court by its order dated 4-9-1978 declined to grant stay, but ordered: “any action taken in the matter in regard to the grievances of the petitioners in this case will be subject to the final result of this writ petition.”
17. In our Judgment, the petitioners are entitled to succeed. We allow this writ petition and direct the authorities to re-draw the seniority list dated 25-7-1977, 3-9-1977 and 7-9-1977, appended as annexures ‘C’, ‘D’ and ‘E’ to the writ petition and prepare the list afresh giving the petitioners the positions they would have been entitled to, but for the offending portions of clauses 10 and 11 in the schedule to the rules.
18. There will be no order as to costs.
