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CASE NO.:

Appeal (civil) 4995-4996 of 1997

PETITIONER:

SUSHMA MUTREJA

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT: 01/08/2001

BENCH:

G.B. Pattanaik & Ruma Pal

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

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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 regulations made

thereunder, the matter shall be referred to the

Central Government whose decision thereon shall

be final.

While this was the position, a fresh seniority list was drawn

up in the year 1991 and the position of seniority of the

appellant vis-a-vis respondents 3 to 30 again was altered. It

may be stated that when a fresh seniority list of 1991 was

drawn up, no reasons were ascribed and even there is nothing

on record to indicate as to what necessitated the drawing up

of a fresh seniority list of Upper Division Clerks in the

Ministry of Labour, particularly, when the earlier seniority

list of 1989 had been drawn up after considering the

objections of the appellant to the provisional select list of

1987 and after due consultation with the Department of

Personnel, in accordance with Rule 25 of the Rules. It may

be stated further that the Union of India, neither before the

tribunal, nor in this Court, has indicated the reasoning for

which a fresh seniority list was required to be drawn up and

further, on what basis, it was re-drawn up and also the fact

whether the Labour Ministry consulted the Department of

Personnel, before re-drawing up of the seniority list in 1991.

Being aggrieved by the seniority list re-drawn up in the year

1991, the appellant approached the Tribunal. Before the

Tribunal, it was contended on behalf of the appellant, that the

seniority list having been drawn up in the year 1989 after

obtaining the advice of the Personnel Department with regard

to the interpretation of the relevant Rules governing the

seniority, the same could not have been altered in the year

1991, without even obtaining further advice from the

Personnel Department. It was also contended, that the case

of Mr. Sota, who also had been similarly nominated to the

post of UDC in the Labour Department from Commerce

Department is almost identical with the case of the appellant,

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but in the matter of determining the seniority while Mr.

Sotas case has been disposed of granting him the seniority at

the lowest of the existing cadre on the date he was brought on

transfer from Commerce Department to Labour Department,

the said principle has not been followed in the case of the

appellant, and on the other hand, arbitrarily in re-drawing up

the list in the year 1991 she has been shown junior to

respondents 3 to 30. It was the contention of the appellant

that the relevant Rules governing the inter se seniority of the

appellant vis-a-vis the existing employees in the Labour

Ministry have not been properly interpreted , accordingly the

conclusion of the Tribunal was erroneous. The Tribunal,

however, dismissed the application filed by the appellant on

the ground that the seniority list of 1991 has been prepared in

accordance with the relevant Rules and Regulations and

observed that the earlier seniority list was prepared contrary

to the Rules even if, had been prepared on the advice of the

Personnel Department, the same will not out-weigh the

seniority list prepared in accordance with the Rules. Against

the order of the Tribunal a Review Application had been filed

and Review Application also was dismissed, hence the

appellant has approached this Court.

Mrs. Rani Chhabra, learned counsel appearing for the

appellant, vehemently contended that the Tribunal committed

serious error in not examining the case of Mr. Sota, whose

case was identical to that of the appellant, and erroneously

dismissed the application filed before it. The learned counsel

further urged that the promotion on the basis of nomination

from different other cadre in accordance with the Zoning

Scheme, which is a subsequent innovation to the Rules in

force, and therefore, when a person is brought from one cadre

to the other on promotion and possesses the requisite

qualification for being promoted to the post of UDC then

there is no rhyme or reason not to treat such employee to be

born in the cadre with effect from the date he is brought into

the new cadre. Judged from the aforesaid stand point the

appellant having brought in the cadre of UDC in Labour

Department her services in the cadre of UDC in the Labour

Ministry has to be reckoned with effect from 3.11.1982 and

she would be senior to all those LDCs on that date as well as

those of the LDCs who might have got promotion on ad hoc

basis with the condition that they may be reverted back to the

parent post of LDC when qualified persons become available.

According to the learned counsel, Tribunal therefore,

committed serious error in deciding the inter se seniority

between the appellant and respondent nos. 3 to 30. The

counsel also further urged, that the seniority list was drawn

up in the year 1989 after due consultation with the

Department of Personnel, whose advice has the effect of

some finality with regard to interpretation of Rules as

indicated in Rule 25. The seniority list thus drawn out, could

not have been arbitrarily altered even without obtaining fresh

advice from the Personnel Ministry and in the absence of any

denial on the assertion made by the appellant the seniority list

drawn up in the year 1991 is bound to be set aside. Mr.

C.V.S. Rao, learned counsel appearing for Union of India, on

the other hand contended, that the seniority list drawn up in

the year 1991 is in accordance with the relevant Rules and

Regulations and, therefore, the Tribunal rightly refused to

interfere with the same. He further contended that the so

called consultation with Personnel Ministry under Rule 25

will not out-weigh the statutory provisions contained in the

Recruitment Rules and, as such if under the Rules the

appellant cannot claim seniority over respondent nos. 3 to 30,

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the list drawn up in the year 1991 cannot be interfered with.

The learned counsel, however, was not in a position to assail

the assertions made by the appellant that her case and the

case of Mr. Sota stand on the same footing and there is no

justification for deciding the seniority in a different way. Mr.

Rao also was not in a position to indicate the reasons for

which the seniority determined in the year 1989 was altered

again in the year 1991. In fact there does not exist an iota of

material to indicate what necessitated re-drawing up of

seniority list in the year 1991 and what was the basis of the

same.

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.

......................J.

(G.B. PATTANAIK)

......................J.

(RUMA PAL)

1st August, 2001.

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