Reserve list candidates, even with higher marks, cannot be placed senior to main list candidates who joined earlier in interview-based UPSC recruitment; seniority follows main list first, then reserve list by recommendation date.

ORDER

By Justice M.G. Sewlikar, Member (J)

Challenge in this OA is to the Seniority list dated 03^rd March, 2021 and 04^th October, 2021 whereby the applicants have been placed below the private respondent nos. 6 to 15.

2. Facts leading to this application are that the applicants are currently working as Examiner of Trade Marks and GI under the respondents.

3. Advertisement No.05/2016 was published for the post of Examiner of Trade Marks & Geographical Indications in the Office of the Controller General of Patents, Designs and Trade Marks, Ministry of Commerce & Industry, Department of Industrial Policy & Promotion. The vacancies advertised were 58. The selection process was conducted by UPSC and the process of selection was by interview only. The applicants were selected and their names were recommended by UPSC in May, 2017. The names of the applicants appeared at serial no. 32 onwards in the list of recommended candidates. Accordingly, all the applicants joined as Examiner of Trade Marks and GI on 07^th August, 2017.

4. The respondents have prepared Reverse / Waiting List also on account of non-joining of some of the recommended candidates in which private respondents came to be recommended first and they joined duties between October, 2018 and February, 2019.

5. The respondents have prepared Provisional Seniority list on 25^th April, 2019. The names of the applicants appeared between serial no. 39 to serial no. 58. The names of the private respondents were appearing from serial no. 59 onwards. On 19th September, 2019, Final Seniority List was published. For the year 2020, Provisional Seniority List was published on 15th June, 2020. According to the applicants, this was never finalized. Thereafter, on 20^th January, 2021, another Provisional Seniority List was published. Till this date, the private respondents were shown junior to the applicants. On 03^rd March, 2021, Final Seniority List was published and the private respondents were shown above the applicants in the said list. Some of the candidates in the Recommended / Main List made representations which came to be decided on 04^th October, 2021. The contention of the applicants that date of entry in the particular service or the date of substantive appointment should be the criteria for fixing the inter se seniority and the applicants appointed from the reserve/ waitlisted panel be placed as per their date of appointment in the cadre did not find favour with the respondents. These two orders are the subject matter of this OA.

6. We have heard learned counsel for the applicants and learned counsel for the respondents at length.

7. The issue involved in this OA is whether the candidates in Reserve List who have scored more marks than the candidates in the Main list (who have joined prior to the candidates in the Reserve List) can be placed above the candidates in the Main List. This issue is no longer res integra. Learned counsel for the applicant placed reliance on the case of Union of India and Anr. versus Pallavi Gupta and Ors. W.P.(C) 14908/2022 (Delhi High Court) decided on 12th July, 2023. Relying on the judgement of the Supreme Court in the case of Gujarat State Deputy Executive Engineers’ Association versus State of Gujarat and Others, 1994 Supp (2) Supreme Court Cases 591, Delhi High Court in the case of Pallavi Gupta (supra) has recorded following observations:-

“37. Having noted the aforesaid instructions, it is necessary at this juncture to highlight the stand taken by the UPSC before this Court, inasmuch as, when the selection process is through examination conducted by UPSC or any other authority, the selection process is said to be completed on the date of publication / announcement of the result. However in a case where direct recruitment is through the process of interview conducted by the UPSC, it is on the date when the UPSC issues the letter of recommendation of the candi