IMPORTANT POINT
When a person is brought from one cadre to other and joins a new cadre then he must be treated to be lowest in that cadre on that date, but he cannot be junior to all those who were not even born in that cadre on that date.

Headnote:Central Secretariat Clerical Services Rules, 1962-Rules 12 and 25 -Appellant appointed LDC on a competitive examination held by UPSC under Rule 12 in year 1966-Under zoning scheme promoted to UGC on long term basis-Respondents 3 to 30 also LDC later promoted as UDC on ad hoc basis but to be reverted later-In 1987 they were shown senior to appellant, but on representation shown junior to appellant-When fresh seniority list prepared in 1991 again respondents 3 to 30 made senior to appellant-Appellant approached Tribunal -Tribunal dismissed-Review also dismissed-Whether proper? (No)-Appeal allowed.
Held : 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. (Para 3)

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 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 regulat

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2001 Supreme(SC) 1018

IMPORTANT POINTWhen a person is brought from one cadre to other and joins a new cadre then he must be treated to be lowest in that cadre on that date, but he cannot be junior to all those who were not even born in that cadre on that date.

IMPORTANT POINT
When a person is brought from one cadre to other and joins a new cadre then he must be treated to be lowest in that cadre on that date, but he cannot be junior to all those who were not even born in that cadre on that date.