1. Dispute over inter se seniority between direct recruits and promotees in the cadre of Inspectors, involving the application of quota-rota rules and executive memorandums. (Para 1 , 2 , 31 )
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2022 Supreme(SC) 284
SUPREME COURT OF INDIA
(From the High Court of Andhra Pradesh at Hyderabad)
Uday Umesh Lalit, Hemant Gupta, S. Ravindra Bhat, JJ.
B.S. Murthy & Ors. – Appellants
Versus
A. Ravinder Singh & Ors. – Respondents
Civil Appeal No. 3968 of 2009 with Civil Appeal No. 3967 of 2009, Civil Appeal Nos. 3969-3982 of 2009, Writ Petition (Civil) No. 1380 of 2020
Decided On : 15-03-2022
Important Points
Inter se seniority between direct recruits and promotees is determined by actual vacancies. A government ban on direct recruitment does not constitute 'under-reporting' under the 1986 OM; thus, promotees appointed within their quota cannot be treated as ad-hoc or bunched solely because no indents were placed for direct recruits.
Subject
Service Law - Seniority and Promotion
Act Referred
Headnote
The Supreme Court held that the High Court erred in setting aside the order of the Central Administrative Tribunal (CAT), which had allowed the applications of promotee inspectors (PRIs) and directed proper fixation of inter se seniority of Inspectors of Central Excise, as between direct recruits and promotees. The court held that the High Court overlooked the fact that the Chairperson of the Committee which was constituted pursuant to the decision of the Full Bench (of CAT) submitted its first report to the Chief Commissioner by letter dated 28.3.2000 suggesting that direct recruit/promotee register of Inspectors maintained from 1884 to 1996 should be taken as the basis to arrive at number of vacancies year-wise to determine the seniority since in terms of 1986 OM. The method of calculation of vacancies should be based on vacancy register. The court also held that the vacancy register had no relevance for the purpose of promotion of in-service candidates and such promotions could be only in proportion to the respective quota, based on indents placed by the department with the Staff Selection Board for direct recruitment. It also held that length of continuous service followed by regularisation cannot be counted for the purpose of seniority since the quota rule had not been infringed.
Fact of the Case:
Recruitment to the posts of Inspectors of Central Excise is from two sources: direct recruitment (to the extent of 75% of the cadre) and promotions (to the extent of 25% of the cadre). Promotions are made from seven feeder grade cadre posts. The rules are silent about the principle on which inter se seniority of DRIs and PRIs is to be fixed.
Finding of the Court:
The court held that the High Court erred in setting aside the order of the CAT, which had allowed the applications of PRIs and directed proper fixation of inter se seniority of Inspectors of Central Excise, as between direct recruits and promotees. The court held that the High Court overlooked the fact that the Chairperson of the Committee which was constituted pursuant to the decision of the Full Bench (of CAT) submitted its first report to the Chief Commissioner by letter dated 28.3.2000 suggesting that direct recruit/promotee register of Inspectors maintained from 1884 to 1996 should be taken as the basis to arrive at number of vacancies year-wise to determine the seniority since in terms of 1986 OM. The method of calculation of vacancies should be based on vacancy register. The court also held that the vacancy register had no relevance for the purpose of promotion of in-service candidates and such promotions could be only in proportion to the respective quota, based on indents placed by the department with the Staff Selection Board for direct recruitment. It also held that length of continuous service followed by regularisation cannot be counted for the purpose of seniority since the quota rule had not been infringed.
Issues: Whether the High Court erred in setting aside the order of the CAT, which had allowed the applications of PRIs and directed proper fixation of inter se seniority of Inspectors of Central Excise, as between direct recruits and promotees.
Ratio Decidendi: The court held that the High Court erred in setting aside the order of the CAT, which had allowed the applications of PRIs and directed proper fixation of inter se seniority of Inspectors of Central Excise, as between direct recruits and promotees. The court held that the High Court overlooked the fact that the Chairperson of the Committee which was constituted pursuant to the decision of the Full Bench (of CAT) submitted its first report to the Chief Commissioner by letter dated 28.3.2000 suggesting that direct recruit/promotee register of Inspectors maintained from 1884 to 1996 should be taken as the basis to arrive at number of vacancies year-wise to determine the seniority since in terms of 1986 OM. The method of calculation of vacancies should be based on vacancy register. The court also held that the vacancy register had no relevance for the purpose of promotion of in-service candidates and such promotions could be only in proportion to the respective quota, based on indents placed by the department with the Staff Selection Board for direct recruitment. It also held that length of continuous service followed by regularisation cannot be counted for the purpose of seniority since the quota rule had not been infringed.
Final Decision: The court allowed the appeals by the PRIs in the terms of the above findings. The consequential action, by way of drawing and publishing a final seniority list, in accordance with the present findings, shall be completed within three months. The writ petition is also disposed of in the above terms. There shall be no order on costs.
Legal Category Hierarchy
Advocates appeared:
For the Parties : Mr. Anil Kumar, AOR Mr. Yash Pal Dhingra, AOR Ms. Ritika Sethi, AOR Mr. Nithin Pavuluri, Adv. Ms. Ameya Thanvi, Adv. Ms. Manisha Chava, Adv. Ms. Chitrangda Rastravara, Adv. Mr. Manvendra Singh, Adv. Mr. Dashrath Singh, Adv. Gp. Capt. Mr. Karan Singh Bhati, AOR Mr. Vadlamani Seshagiri, Adv. Mr. Shreyuss Shankar Joshi, Adv. Ms. Bela Maheshwari, AOR Mr. Arvind Kumar Sharma, AOR
For the Parties : Mr. Anil Kumar, AOR Mr. Yash Pal Dhingra, AOR Ms. Ritika Sethi, AOR Mr. Nithin Pavuluri, Adv. Ms. Ameya Thanvi, Adv. Ms. Manisha Chava, Adv. Ms. Chitrangda Rastravara, Adv. Mr. Manvendra Singh, Adv. Mr. Dashrath Singh, Adv. Gp. Capt. Mr. Karan Singh Bhati, AOR Mr. Vadlamani Seshagiri, Adv. Mr. Shreyuss Shankar Joshi, Adv. Ms. Bela Maheshwari, AOR Mr. Arvind Kumar Sharma, AOR
Table of Contents
2. Whether promotee seniority should be determined based on actual vacancies or indents placed for direct recruitment, and if a recruitment ban justifies treating promotees as ad-hoc. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 )
3. A recruitment ban is an executive policy and not under-reporting of vacancies; therefore, promotees within their actual quota cannot be treated as ad-hoc under the 1986 OM. (Para 43 , 46 , 56 , 57 , 58 , 59 , 60 , 61 )
4. Seniority cannot be reckoned retrospectively from the date of vacancy; promotees within their actual quota are not ad-hoc despite a ban on direct recruitment. (Para 54 , 55 , 60 )
5. High Court judgment set aside and the order of the Central Administrative Tribunal restored, directing the refixation of the seniority list. (Para 62 , 63 )
6. Can seniority be granted retrospectively from the date a vacancy arose?
No. Seniority must be reckoned from the date of appointment, not retrospectively from the date the vacancy occurred, unless expressly provided by service rules. (Para 54 , 55 )
7. Does a government ban on direct recruitment justify treating promotees as ad-hoc under the bunching rule?
No. The bunching rule in the 1986 OM applies to under-reporting or suppression of vacancies. An executive ban on recruitment is not under-reporting, and promotees within their actual quota remain regular. (Para 58 , 59 , 60 )
8. How is the inter se seniority of direct recruits and promotees determined when recruitment rules are silent?
It is determined via executive instructions (Office Memorandums) using the rotation of vacancies based on the prescribed quota ratio between direct recruits and promotees. (Para 2 , 32 , 33 )
9. When are promotees treated as ad-hoc for seniority purposes?
Promotees are treated as ad-hoc only when they exceed their prescribed quota or when direct recruit vacancies are deliberately under-reported to give promotees an unfair advantage. (Para 34 , 58 )
JUDGMENT :
S. Ravindra Bhat, J.
1. The appellants are aggrieved by a common judgment and order of the erstwhile unified High Court of Andhra Pradesh in several writ petitions.1[W.P.Nos.11620/2004, 10601/2004; 13525/2004, 12970/2004, 21863/2004, 1834/2005, 1836/2005, 1838 of 2005, 1858/2005, 1861/2005, 2011/2005, 1348/2005, 18149/2004, W.P. No.6098/2005, 6099/2005; 6100/2005, & 6097/2005; all were decided on 16.03.2005.] The High Court allowed those writ petitions and set aside the order2[Dated 29.12.2003] of the Central Administrative Tribunal (CAT) in a batch of ten original applications. The CAT’s order had allowed those applications and directed proper fixation of inter se seniority of Inspectors of Central Excise, as between direct recruits and promotees. The promotee inspectors are aggrieved, and are appellants before this court.
2. Recruitment to the posts of Inspectors of Central Excise is from amongst two channels- one, direct recruitment and the other, by promotion from in-service candidates: in accordance with the provisions of the Central Excise and Land Customs Group-C Recruitment Rules, 1979 (hereafter the “1979 Rules” or “the Rules”) framed by the President of India under proviso to Article 309 of Constitution of India. The ratio between the direct recruits and the promotions -from amongst various in-service cadres on the ministerial line- was fixed under the Rules at 75%:25% (or 3:1). The Rules however, did not provide guidance for determination of inter se seniority of direct recruit inspectors (DRIs) and promotee inspectors (PRIs). Seniority lists were prepared on the basis of executive instructions issued by the Government of India from time to time. It is an undisputed fact that inter se seniority was governed by an office memo3[Office Memo No. 9/11/55 RSP dated: 22.12.1959] dated 22.12.1959 (hereafter “1959 OM”) stipulating general guidelines to determine the seniority of various category of employees in the Central Secretariat. The Central Excise Department too followed it. The 1959 OM stipulated that seniority was determinable by the order indicated at the time of initial appointment (and not date of confirmation). Permanent Officers of each grade were to be ranked seniors to those officiating to that grade. The inter se seniority of the direct recruits was to be determined by the order of merit in which they are selected for such appointment on the recommendations of the U.P.S.C. or such selecting authority. Paras 2-5 of the 1959 OM provided the principles for determining inter se seniority of direct recruits and promotees. In the light of experience, the 1959 OM was changed, and another OM was issued, on 07.02.19864[OM No. 35014/2/80- Estt. (D), dated: 7.2.1986] (hereafter “1986 OM”).
3. Five Revenue Inspectors, from the promotion cadre (hereafter called generically also- apart from PRIs as “promotees”), promoted in 1983-1984 filed an application5[O.A.NO. 156/1986], challenging the inter se seniority list dated 08.07.1985 (hereafter “the 1985 list”) issued by the department on the ground that the length of their continuous service was not taken into consideration while fixing seniority. This application however did not implead the direct recruit employees; it was allowed on 05.07.1988 (hereafter “CAT 1988 order”). CAT directed the department to recast seniority in accordance with the 1986 OM after giving notice to the affected parties. A revised list was thereafter issued. DRIs, whose seniority was affected by the revised seniority list filed review applications6[R.A. No. 29/1994 etc.] in the disposed of applications. The CAT reiterated its main order, dated 05.07.1998 (hereafter “CAT review order”). The department then issued a final seniority list (as on 1.1.1992) on 30.4.1993 (hereafter “1993 final list”). Those promoted before 1986 also requested the department to fix their seniority in terms of the CAT’s 1998 order.
4. CAT’s 1998 order was in the context of the 1986 OM, which was in-applicable to pre-19
