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PETITIONER: A.N. PATHAK AND 5 OTHERS

       Vs.

RESPONDENT: SECRETARY TO THE GOVERNMENT, MINISTRY OFDEFENCE AND ANOTHER

DATE OF JUDGMENT12/02/1987

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) REDDY, O. CHINNAPPA (J)

CITATION:  1987 AIR  716            1987 SCR  (2) 281  1987 SCC  Supl.  763     JT 1987 (1)   414  1987 SCALE  (1)307

ACT:     Civil   Services--Defence  Production  (Directorate   of Production and Inspection, Naval) Group A and Group B  Tech- nical Post Recruitment Rules, 1976, clauses 10 and 11--Delay in  filling  direct  recruitment posts  causes  hardship  to promotees--Seniority List quashed.     Promotees--Come into service because they form part of a regular  cadre-- Entitled to benefit of length of  service-- Authorities  to be prompt in making direct  recruitment--Any delay should not visit promotees with adverse consequences.

HEADNOTE:     The  petitioners  who  are working in  the  Ministry  of Defence,  Department of Production, challenged the  validity of  The  Defence Production (Directorate of  Production  and Inspection,  Naval) Group A and Group B Technical  Post  Re- cruitment  Rules, 1976, on the grounds: (i) that  the  Rules discriminate  between  promotees and direct  recruits;  (ii) that  their seniority is not taken into consideration  while the seniority list is prepared and that the direct  recruits are given seniority over them undeservedly by virtue of  the operation  of  the method of recruitment  contained  in  the rules; (iii) that the seniority lists dated 25.7.77,  3.9.77 and 7.9.77 prepared according to rules are purely  arbitrary and  ignore  their  length of service. On  the  other  hand, counsel for the respondents contended that the principle  of fixing seniority on the basis of length of service and dates of confirmation  is not an inflexible rule and it is  possi- ble  in law that a direct recruit who is appointed later  in point of time is senior to a promotee because of the working out  of  the  quota rule and that in  certain  given  cases, seniority based on length of service can be ignored. Allowing the writ petition, this Court,     HELD: 1.1 The grievance of the petitioners is  justified in law. The rules enabling the authorities to fill in vacan- cies for direct recruits as and when recruitment is made and thereby destroying the chance of promotion to those who  are already in service cannot but be viewed with 282 disfavour.  If the authorities want to adhere to  the  rules strictly all that is necessary is to be prompt in making the

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direct recruitment. [287D-E]     1.2 The respondents are directed to redraw the  senority lists dated 25.7.77, 3.9.77 and 7.9.77 appended as Annexures C, D and E to the writ petition and prepare the list  afresh giving  the petitioners the positions they would  have  been entitled  to, but for the offending portions of  clauses  10 and 11 in the Schedule to the Rules. 1287H; 288A-B]     2.  The manner in which the provision contained in  col- umns  10  and 11 of the Schedule to the Rules works  to  the detriment of the promotees is as follows. The person who  is working  as a Senior Technical Officer must have  a  minimum service  of  five years in that grade for promotion  to  the higher  post. A direct recruit who joins service much  later and who does not have the requisite five years service  will be placed above him for promotion. The posts to be filled in by  direct recruitment are kept vacant and as when  recruit- ment  is made, the names of direct recruits are inserted  at the  places  reserved for them regardless of the  fact  that there  are many others who had put in more years of  service than  they. This method works an additional hardship to  the promotees  in  that they will not be  confirmed  though  the required  probation period has been completed by them,  only to  allow  the direct recruits to complete their  period  of probation. The combined operation of clause 10 and 11 of the Schedule  to the Rules causes a double damage to  the  peti- tioners  the promotees and the direct recruits  consequently have double advantage. [286C-F]     3.  Delay in making appointments by  direct  recruitment should  not visit the promotees with  adverse  consequences, denying them the benefit of their service. [287E]     A. Janardhana v. Union of India & Ors., AIR 1983 SC 769; O.P. Singla and Anr. v. Union of India and others, [1985]  1 SCR  351;  G.S. Lamba & Ors. v. Union of India &  Ors.,  AIR 1985 SC 1019; Narender Chadha v. Union of India, AIR 1986 SC 638  and G.K. Dudani and Ors. v. S.D. Sharma and  Ors.,  AIR 1986 SC 1455, relied upon.

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 1889 Of 1978. (Under Article 32 of the Constitution of India) A. Subba Rao for the Petitioners. 283     Govind   Das,  C.V.  Subba  Rao  G.D.  Gupta  and   J.P. Sharma-in-person for the Respondents. The Judgment of the Court was delivered by,     KHALID,  J. The petitioners, six in number, are  working in  the Ministry of Defence, Department of Production.  They joined their service on different dates ranging from 1963 to 1969.  The 1st, 2nd, 3rd and 5th petitioners joined  service as Senior Technical Assistant while 4th and 6th  petitioners joined  as Technical Assistant. The 1st and 2nd  petitioners are  now working as Senior Technical Officer  (officiating), 3rd  and  4th petitioners are working as  Technical  Officer (officiating) and 5th & 6th are working as Junior  Technical Officer. None of the petitioner have been confirmed in their respective posts to which they have been promoted.     The first respondent is the Secretary to the Government, Ministry  of  Defence and the second  respondent,  Director, Directorate of Production and Inspection, Naval.     The appointment and promotion of persons like the  peti- tioners  were governed by the department of Defence  Produc- tion (Directorate of Production and Inspection, Naval) Group A  and Group B Technical Post Recruitment Rules,  1976,  for

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short ’the Rules’. Prior to these rules, they were  governed by the Rules framed in 1965 and revised in 1972.     The  grievance of the petitioner is that the Rules  dis- criminate  between them and the direct recruits, that  their seniority is not taken into consideration while the seniori- ty  list is prepared and that the direct recruits are  given seniority over them undeservedly by virtue of the  operation of  the  method of recruitment contained in the  rules.  The petitioners  complain  that the list so prepared  is  purely arbitrary  and  ignores their length of service.  They  made representations to the first respondent complaining  against the injustice done to them and for redressal of their griev- ances.  There  were no favourable orders.  Hence  this  writ petition.     The  prayer in the petition is for a mandamus  declaring the  rules and the seniority list dated 25.7.1977,  3.9.1977 and 7.9.1977, prepared according to rules, as bad as  viola- tive of Articles 14 & 16. In  the counter affidavit filed by the respondents two  pre- liminary 284 objections were taken--(1) that the joint petition filed  by the petitioners is not maintainable inasmuch as it  involves determination  of  different  questions of  facts  based  on separate caused of action and (2) that the petitioners  have not  arrayed  as respondents all the officers who  would  be adversely affected by any order to be passed by this  Court. The rules in question are justified on the ground that  they were validly passed. It is stated that the offending  clause cannot be faulted as violative of Article 14 and Article  16 of  the Constitution. The rules were framed in  consultation with the Department of Personnel and Administrative Reforms, Cabinet Secretariat, in the light of the past experience. It is  stated that the rules, far from causing any  discrimina- tion,  seek  to  fix rationally  (i)  inter-seniority,  (ii) quotas for recruitment and (iii) norms whereby the cases  of all senior persons are to be considered. The preparation  of the offending lists is justified on the plea that the  prin- ciple of fixing seniority on the basis of length of  service and dates of confirmation is not an inflexible rule and that it is possible in law that a direct recruit who is appointed later  in point of time is senior to a promotee  because  of the  working  out of the quota rule. The  Counter  Affidavit continues  with the usual plea that in certain  given  cases seniority based on length of service can be ignored.     Before  dealing  with the merits of this  case  we  will dispose of the preliminary objections. We are not  impressed with the preliminary objections. The petitioners have clear- ly given the details about the dates of appointment,  promo- tion  etc.  The dates do differ. But nothing  prevents  this court  from modulating the relief and giving  directions  to the  respondents  to re-consider the  offending  lists  with reference  to each of the petitioners in the light  of  what follows.     The second objection has been met by the petitioners  by impleading  those who will be affected as respondent Nos.  3 to 8, as per orders of this Court dated 11.8.1983.     The  method of recruitment under challenge is  contained in  columns 10 and 11 of the schedule to the rules which  is given below: Method of recruitment        In case of recruitment whether by direct            by promotion/deputation recruitment or by            transfer grades from promotion or by              which promotion/deputation 285

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deputation/transfer             transfer to be made. and percentage of the vacancies to be filled by various methods. 10                              11 Senior Technical Officer          Promotion: (i)     50% by promotion          Technical Officer with         failing which by          5 years service in the         direct recruitment        grade rendered after                                   appointment thereto on (ii)    50% by direct recruitment a regular basis: (iii)   Failing (i) and (ii)   provided that if an officer         above, by re-employ-  is considered for promotion         ment.                     in accordance with the                                   provisions of these Rules/                                   all persons senior to him (iv)    Failing (iii) above    in that grade shall also be         by promotion.             considered notwithstanding                                   that they may not have                                   rendered the prescribed                                   number of years of regular                                   service in that grade. Technical Officers:             Promotion: (i)    50% by promotion     Junior Technical Officer with        failing which by         3 years service in the grade        direct recruitment.      rendered after appointment                                 thereto on a regular basis: (ii)   50% by direct recruit-   Provided that if an Officer        ment                     is considered for promotion                                 in accordance with the (iii)   Failing (i) and        provisions of these rules,         (ii) above, by         all persons senior to him         re-employment          in that grade shall also                                be considered notwithstanding 286 (iv)   Failing (iii) by        that they may not have ren-        promotion               dered the prescribed number                                of years of regular service                                in that grade. Note:  All eligible candidates have to qualify in a  written departmental examination of a degree standard. Re-employment:  ....... ............................     The  manner  in which the above provision works  to  the detriment  of the promotees is as follows. A person  who  is working  as a Senior Technical Officer must have  a  minimum service  of  five years in that grade for promotion  to  the higher  post. A direct recruit who joins service much  later and who does not have the requisite five years service  will be placed above him for promotion.     The posts to be filled in by direct recruitment are kept vacant  and  as and when recruitment is made, the  names  of direct recruits are inserted at the places reserved for them regardless  of the fact that there are many others  who  had put in more years of service than they. This method works an additional  hardship to the promotees in that they will  not be  confirmed though the required probation period has  been completed  by  them, only to allow the  direct  recruits  to complete  their period of probation. The combined  operation of  clause 10 and 11, according to the petitioner  causes  a double  damage to them and the direct recruits  consequently have double advantage.     Annexure ’C’ to the writ petition is the seniority  list relating  to  the Senior Technical Officers. In  this  list, places 4, 6, 8, 10, 12 and 14 are kept vacant. These  places

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will be filled in when direct recruits come. They will steal a  march  over those who have entered service  earlier.  The latter will be pushed down in the list.     We  do  not think it necessary to refer to  the  various decisions  rendered by this Court on this question.  In  the case of A. Janardhana v. Union of India and others, AIR 1983 SC  769; O.P. Singla and Anr. v. Union of India and  others, [1985] 1 SCR 351 and in G.S. Lamba & Ors. v. Union of  India & Ors., AIR 1985 SC 1019, length of service 287 was  given  due importance in dealing  with  promotions  and seniority. In the case of Narender Chadha v. Union of India, AIR 1986 SC 638 to which one of us was a party, it was  held that  to  treat  continuous officiation of  one  officer  as temporary  would be arbitrary and violative of  Articles  14 and 16, In G.K. Dudani and Ors. v.S.D. Sharma and Ors.,  AIR 1986  SC  1455 a three Judge Bench of this Court,  Madon  J, speaking  for  the Bench,, approved  the  settled  principle noted  above.  The promotees come into service, not  by  any fortuitous  circumstances but they form an integral part  of the regular cadre entitled to all benefits by the length  of their service.     The  learned counsel for the respondent found it  diffi- cult  to justify the validity of the rules and the lists  in the light of the various decisions of this Court which  have consistently  leaned  in favour of the  promotees  based  on their length of service and seniority, in cases where  there was inordinate delay in making direct recruitment. He  tried to justify the inequity saying that the new rules have tried to  rectify it. We are not satisfied with  this  explanation since that is little consolation to the petitioners. We  are of the view that the grievance of the petitioners is  justi- fied  in law. The rules enabling the authorities to fill  in vacancies  for  direct recruits as and when  recruitment  is made  and  thereby destroying the chances  of  promotion  to those  who are already in service cannot but be viewed  with disfavour.  If the authorities want to adhere to  the  rules strictly all that is necessary is to be prompt in making the direct  recruitment. Delay in making appointments by  direct recruitment  should  not visit the  promotees  with  adverse consequences, denying them the benefit of their service.     The learned counsel for the respondent Nos. 1 and 2 made a  fervent plea that, being a sensitive  department,  relief may be granted to the petitioners by way of monetary compen- sation  and requested us to desist from upsetting the  list. We cannot accede to this request.     The  petitioners  had sought stay of  operation  of  the list.  This  Court by its order dated 4.9.1978  declined  to grant stay, but ordered: "any action taken in the matter  in regard  to  the grievances of the petitioners in  this  case will be subject to the final result of this writ petition."     In  our Judgment, the petitioners are entitled  to  suc- ceed. We allow this writ petition and direct the authorities to  re-draw the senority list dated 25.7.1977, 3.9.1977  and 7.9.1977, appended as Anne- 288 xures  ’C’,  ’D’ and ’E’ the writ petition and  prepare  the list afresh giving the petitioners the positions they  would have  been  entitled to, but for the offending  portions  of clauses 10 and 11 in the schedule to the rules.       There will be no order as to costs. M.L.A.                                              Petition allowed. 289

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