Challenges to seniority fixation rejected as time-barred after long delay despite publication; constructive res judicata from prior identical OA applies; settled positions not disturbed to protect accrued rights.

ORDER

Hon’ble Mr. Manish Garg, Member (J) :

In the present Original Application, the applicant has prayed for the following reliefs:

“1. That this Hon'ble Tribunal may graciously be pleased to pass an order by directing the respondents to promote all the three petitioners according to their eligibility and Merit List by complying with the instructions contained in the Office Memorandum No. 22011/7/86-Estt.(D), dated the 3rd July, 1986 of Department of Personnel and Training, Government of India.

2. The Department has prepared the list of seniority (Seniority) Roll on the basis of Merit. In the Annexure- F of letter No. 20205/RTI/12/LC(JG) dt. 19.8.2017 on the column Order of Seniority if taken as per Merit at the Time of Initial Appointment". The applicants name appears at SNo. 8, 9 and 17. Therefore, respondents may be directed to consider their claim at par with the junior who got HS-II and HS-I promotion from the date 21.3.2003 and 1.1.2006 from the date of their juniors were promoted.

3. May please to grant all the consequential benefits by directing the respondents to grant respective promotion and MACP as applicable

4. Be pleased to grant any other relief or reliefs as may be deemed fit and proper under circumstances of the case.”

2. Highlighting the facts of the case, learned counsel for the applicants submitted that the present Original Application has been filed by the three applicants challenging the seniority roll prepared by the respondents after their appointment to the post of VM (MV) in the year 2000 pursuant to a competitive examination.

2.1. Learned counsel further submitted that although the applicants were selected through the same examination and joined service on different dates in the months of February and March 2000, their inter se seniority has wrongly been fixed on the basis of date of joining rather than on the basis of merit position in the select panel.

2.2. Learned counsel also submitted that the illegality came to light only when some of the juniors to the applicants were granted promotion while the applicants were ignored. On making inquiries, the applicants sought a copy of the select/merit list of the year 2000 examination, but the respondents did not provide the same. Thereafter, the applicants were constrained to seek the information under the RTI Act; however, even under the RTI Act the respondents failed to furnish the merit list. Thereafter, the applicants filed a first appeal which also remained unattended, compelling them to approach the Central Information Commission. The CIC, vide order dated 31.03.2017, passed strictures against the respondents and directed them to provide a copy of the merit list. It was only thereafter, on 24.04.2017, that the respondents supplied a copy of the selection panel, from which the actual merit position of the applicants was revealed.

2.3. Learned counsel pointed out that the merit list disclosed that Applicant No. 1, Jitender Garg, was placed at Serial No. 5 with 34/60 marks, Applicant No. 2, Diwan Singh, was placed at Serial No. 2 with 33/60 marks, and Applicant No. 3, Birham Prakash, was placed at Serial No. 3 with 31/60 marks. However, in the seniority roll, they were placed much lower, at Serial Nos. 35, 29 and 30 respectively, solely on the basis of date of joining. This clearly establishes that the seniority was not fixed in accordance with merit position but arbitrarily on the basis of joining dates.

2.4. Learned counsel further submitted that immediately after obtaining the merit list, the applicants made representations dated 18.05.2017 and 01.11.2017. The respondents themselves, through the office of Col. Admn., forwarded the case to HQs Base Workshop Group (their higher formation) on 12.07.2017, admitting that the seniority had been fixed on the basis of dates of joining and not as per the merit list.

2.5. Learned counsel cont