1. Recruitment of personnel across multiple commands — Dispute over seniority determination for candidates appointed significantly after their selection in a merit panel — Combined All India seniority list. (Para 3 , 4 , 5 , 6 , 7 )
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2021 Supreme(SC) 639
SUPREME COURT OF INDIA
AJAY RASTOGI, ABHAY S. OKA, JJ.
SUDHIR KUMAR ATREY - APPELLANT
VERSUS
UNION OF INDIA & ORS. - RESPONDENT
CIVIL APPEAL NO(S). OF 2021 (ARISING OUT OF SLP(CIVIL) NO(S).6572 OF 2014) WITH CIVIL APPEAL NO(S). OF 2021 (ARISING OUT OF SLP(CIVIL) NO(S).5275 OF 2021)
DECIDED ON : 26-10-2021
Important Points
.
Subject
Seniority - Inter Se Seniority
Act Referred
CONSTITUTION OF INDIA: Art.142
MILITARY ENGINEERING SERVICE NON-INDUSTRIAL CLASS III AND IV POSTS RULES: .
MILITARY ENGINEERING SERVICE NON-INDUSTRIAL CLASS III AND IV POSTS RULES: .
Headnote
Constitution of India,1950 - Article 142 - Military Engineering Service (Non-Industrial Class III and IV Posts) Rules, 1971 - Service for administrative purposes was bifurcated into five Commands - Administrative head and controller of each Command - Posts of Superintendent - Undisputed facts in brief relevant for the purpose are that headed by Engineer-in-Chief since its inception, Military Engineering Service for administrative purposes was bifurcated into five Commands being Eastern, Western, Northern, Southern and Central Command with an officer of rank of Chief Engineer being administrative head and controller of each Command - There existed a separate cadre of Superintendents for buildings and roads and a separate cadre for electrical and mechanical equipment having posts of Superintendent (B/R) Grade II and Grade I as also Superintendent (E/M) Grade II and Grade I - Recruitment action well in advance. Please therefore, advised CE Zones to probe all State Govt/Central Govt - Employment exchanges and ascertain availability of suitable candidates - Held, Remains that both the incumbents were promoted in terms of their revised seniority to the higher promotional post and one of them had retired from service in October 2018 and the other incumbent is at the verge of retirement - Court in exercise of its power under Article 142 of Constitution to do complete justice is not inclined to disturb the seniority which has been assigned to them in compliance with order of the Tribunal although on principle has not been accepted/approved by this Court - Civil Appeal @ SLP(C) No.6572 of 2014 is dismissed and Civil Appeal @ SLP (C) No.5275 of 2021 succeeds and is allowed.
Legal Category Hierarchy
Advocates Appeared:
For the Petitioner(s):Rohit Sharma, Raunak Nayak, Arju Chaudhary, Kumar Dushyant Singh, Arvind Kumar Sharma, Advocates
For the Respondent(s):Arvind Kumar Sharma, Rohit Sharma, Raunak Nayak, Arju Chaudhary, Kumar Dushyant Singh, Vinay Kumar Garg, Mayuri Raghuvanshi, Vyom Raghuwanshi, Purvat Wali, Yadav Narender Singh, Advocates
For the Petitioner(s):Rohit Sharma, Raunak Nayak, Arju Chaudhary, Kumar Dushyant Singh, Arvind Kumar Sharma, Advocates
For the Respondent(s):Arvind Kumar Sharma, Rohit Sharma, Raunak Nayak, Arju Chaudhary, Kumar Dushyant Singh, Vinay Kumar Garg, Mayuri Raghuvanshi, Vyom Raghuwanshi, Purvat Wali, Yadav Narender Singh, Advocates
Table of Contents
2. Whether seniority should be determined by merit position in the select panel or by the actual date of appointment/joining service. (Para 6 , 8 )
3. Merit-based seniority applies to a single select panel; however, for combined seniority across different recruiting authorities, the date of appointment is the rational guiding factor. (Para 11 , 12 , 14 , 18 , 19 )
4. In the absence of specific rules, inter se seniority for candidates selected by different recruiting authorities is determined by the initial date of appointment or continuous officiation. (Para 18 , 19 )
5. Appeal dismissed and allowed respectively — Combined seniority to be based on date of appointment — Status of specific respondents maintained under Article 142. (Para 22 , 23 , 24 )
6. How is seniority determined for direct recruits selected by different recruiting authorities for a combined seniority list?
In the absence of specific rules or guidelines, the valid principle for determining inter se seniority among candidates selected by different recruiting authorities is the initial date of appointment or continuous officiation. (Para 18 , 19 )
7. Does the principle of merit-based seniority from a select panel apply to combined seniority across different commands?
While merit-based seniority applies to candidates within the same select panel, it does not necessarily apply when separate selections are held by different commands and a combined All India seniority list is subsequently prepared. (Para 12 , 18 )
8. Can the court protect the seniority of employees who benefited from an incorrect legal principle if they have already retired or are about to retire?
Yes, the court may exercise its power under Article 142 of the Constitution to do complete justice by not disturbing the seniority and promotional benefits already granted, even if the underlying legal principle is disapproved. (Para 23 )
JUDGMENT :
Rastogi, J.
1. Leave granted.
2. Both the above appeals, although have been decided by separate judgment by the High Court of Delhi and the Punjab and Haryana High Court, but since the self-same question is being raised in the instant appeals, hence are being decided by the present judgment.
3. The undisputed facts in brief relevant for the purpose are that headed by the Engineer-in-Chief since its inception, the Military Engineering Service for administrative purposes was bifurcated into five Commands being the Eastern, Western, Northern, Southern and the Central Command with an officer of the rank of Chief Engineer being the administrative head and controller of each Command. There existed a separate cadre of Superintendents for buildings and roads and a separate cadre for electrical and mechanical equipment having the posts of Superintendent (B/R) Grade II and Grade I as also Superintendent (E/M) Grade II and Grade I. The service conditions are governed by the Military Engineering Service (Non-Industrial Class III and IV Posts) Rules, 1971 (hereinafter being referred to as “1971 Rules”).
4. On 9th December, 1982 a letter was sent from the office of the Engineer-in-Chief Branch, Army Headquarters to the Chief Engineers of all the five Commands for initiating the recruitment of Group ‘C’ personnel in the Grade of Superintendent (B/R) Grade II and Superintendent (E/M) Grade II, intimating as under :
| “90027/A/E1C(I) | 09 DEC 82 |
The Chief Engineer
HQ Southern Command, Pune
HQ Eastern Command, Calcutta
HQ Western Command, Simla
HQ Central Command, Lucknow
HQ Northern Command, C/o 56 APO
PLANNING OF RECRUITMENT OF PERSONAL IN THE GRADE OF SUPDT B/R AND SUPDT E/M GDE II
As a result of the recent promotions of Supdt B/R and Supdt E/M Gde II to Supdt Dde and keeping in view the likely increase in the establishment during the next year it is expected that nearly 700 to 1000 Supdt B/R and E/M Gde-II will have to be recruited to make good the deficiencies in these categories. Command wise break down of the approximate requirement of personal is estimated as under:
| Command | Approximate requirement of Superintendent | |
| B/R Gde II | E/M Gde II | |
| Southern Command | 250 | 60 |
| HQ Eastern Command | 50 | 25 |
| HQ Western Command | 280 | 20 |
| HQ Central Command | 160 | 50 |
| HQ Northern Command | 60 | 15 |
| Total | 800 | 170 |
2. In order to meet the requirement on the ground, it is essential to plan the recruitment action well in advance. Please therefore, advised the CE Zones to probe all State Govt/Central Govt. employment exchanges and ascertain availability of suitable candidates (Diploma Holders) for appointment to the above posts.
Please also cause letters to be issued by employment exchanges diploma courses institution on opening available.
3. Board of officers with presiding officers not below the rank of Lt Col/SE will be convened by CE Command to interview and select suitable candidates to be sponsored by employment exchanges.
4. In order to reduce the posting of personal from one State to another to the barest minimum, it will be helpful if the recruitment is made from the concerned region for filling up the vacancies existing/likely to occur in that regions.
5. The result of the communication made to various employment exchanges as per para 2 above may be intimated to this HQ by 10 Mar 83.
6. Please acknowledge.”
5. Pursuant to the directives issued from the Headquarters, process of selection at the same time was initiated by the office of Chief Engineer in all the five Commands followed with the separate select list in the order of merit in each of the respective Commands came to be published in the year 1983. In Western Command, a select panel of 261 candidates was published on 29th June, 1983. In sequel thereof, appointments were made as per the select list notified based on the order of merit in their respective Commands. The trouble arose when candidates who were selected and placed i
