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PETITIONER: ABRAHAM JACOB & ORS

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT:       11/02/1998

BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                             WITH           CIVIL APPEAL NO.s 12388/96 AND 12387/96                       J U D G M E N T G.B.PATTANAIK, J.      These three  appeals  are  directed  against  the  same judgment  of   Central  Administrative  Tribunal,  Erankulam Bench, one  by the  Union of  India, and  the others  by the affected employees  who were  the direct  recruit  Assistant Engineers in the Telecommunication Wing of the Government of India. The  inter se  seniority between  the direct recruits and the  promotees to  the post of Assistant Engineer during the  period  1969  till  1976  was  the  subject  matter  of consideration before  the Tribunal,  on an application being filed by  a  promotee  challenging  the  seniority  list  of Assistant Engineers  dated 20th  June, 1994  as well  as the provisional seniority list of Executive Engineers dated 25th November, 1994.  The Tribunal  by the  impugned judgment has quashed the  seniority list  of Assistant  Engineers and had directed to re-draw a fresh seniority list without importing any quota/rota rule for the period prior to 9.9.1976.      Admittedly, the  post  of  Assistant  Engineer  in  the erstwhile Civil  Wing of Posts and Telegraphs Department now nomenclatured  as  Telecommunication  Department  was  being filled up only by direct recruitment. There was no statutory rule governing  the service  conditions of  these  Assistant Engineers. In  1969, a set of rules was framed whereunder it was provided  that the  50 per  cent of the vacancies in the post of  Assistant Engineer  will be  filled  up  by  direct recruitment and  50 percent  by promotion  from amongst  the Junior Engineers.  The draft  rules thus  framed in the year 1969 was  ultimately approved by the Government and became a statutory rule under Article 309 of the Constitution on 21st February, 1976.  But even  before  the  rules  were  finally approved and became a statutory rule on 21st  February, 1976 on being  approved by  the competent authority the vacancies in the  post of Assistant Engineer continued to be filled up both by  direct recruitment as well as by promotion on 50:50 basis by  virtue of  an administrative  decision.  Thus  the provisions in the draft rules by virtue of an administrative decision  continued   to  be   applied  in   the  matter  of

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recruitment to  the post of Assistant Engineer. As the rules were in  a draft stage, promotion of the Junior Engineers to the post  of Assistant  Engineer was  being made  on ad  hoc basis. After  the rules were approved on 21st February, 1976 the ad  hoc promotion was regularised by order dated 20th of March, 1978  in the cadre of Assistant Engineer. At the time of regularisation  of the aforesaid promotees a departmental promotion committee was constituted which committee screened the cases  of all such ad hoc promotees and then drew up the merit list  for being  regularised and the seniority of such promotees inter  se was  drawn up  on  the  basis  of  their respective  position   in  the   merit  list   prepared  for regularisation. The aforesaid decision of the Government was challenged by some of promotees who were brought down in the merit  list  before  the  Central  Administrative  Tribunal, Ernakulam Bench,  claiming thereunder  that their continuous service in  the rank  of Assistance  Engineer should  be the basis for  their seniority  amongst the  promotee  Assistant Engineers. The  Tribunal accepted  their claim.  It  may  be stated here  that in  the aforesaid  proceedings before  the Central Administrative  Tribunal the direct recruits between the period  1969 till 1976 were not parties nor the question of inter  se seniority  between such direct recruits and the promotees was  under consideration. The Government, however, drew up  the seniority  list, in  respect of those Assistant Engineers who  were recruited  between 1969  till  1976  and those who  were promoted  from the  post of Junior Engineers between the  said period  on  the  basis  of  administrative decision, to  promote to  the  extent  of  50  per  cent  as contained  in   the  draft  rule  following  the  Government Memorandum  dated   22nd  December,   1959.  The   aforesaid principle on  the basis  of which  the inter se seniority of the direct  recruits and  promotees between  the period 1969 till 1976  was made,  was challenged  before  the  Ernakulam Bench  of   the  Central  Administrative  Tribunal  and  the Tribunal by  the impugned  judgment came  to the  conclusion that the  recruitment rules  having been  enforced  only  on 9.9.1976, the inter se seniority between the direct recruits and promotees  prior the  said date  cannot be determined by following the  quota/rota  rule  which  is  a  part  of  the statutory recruitment  rule. The  Tribunal further  came  to hold that  since earlier it has been decided by the Tribunal that these  promotees will  get the service counted from the date of  their ad  hoc promotion  and not  from the  date of their regularisation the seniority list has been drawn up on a wrong  basis and  as such  cannot be  sustained. With  the aforesaid conclusion  the  Tribunal  having  set  aside  the seniority list  and having  directed  to  re-draw  the  same without importing  any quota/rota  rule for the period prior to 9.9.1976, these appeals have been preferred.      Mr. N.N.Krishnamani,  learned senior  counsel appearing for the  direct recruits and Mr. N.N.Goswami, learned senior counsel appearing  for the Union of India contended that the Tribunal committed  gross  error  in  issuing  the  impugned direction inasmuch as the Junior Engineers could be promoted to the  extent to  50 per  cent of the posts in the cadre of Assistant Engineer in enforcement of the provisions in draft rules, and  therefore, for  determination of  their inter se seniority as  between the  direct recruits and the promotees for the  period in question, namely from 1969 till 1976, the Government Order dated 22.12.1959 has to be followed. It was further contended  that in  fact the  Hyderabad, Bombay  and Delhi Benches  of the Tribunal have already take in the view that the  general principles  for determination of seniority enunciated in  eh order  of Ministry  of Home  Affairs  date

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22.12.1959 should  be followed  for drawing up the seniority list and  it is  only the  Ernakulam Bench  by the  impugned judgment had  taken a  contrary decision.  Mr. K.M.K.  Nair, learned counsel  appearing for  the promotee - respondent on the other hand contended that the respondent having rendered long year  of service  as  Junior  Engineer  the  continuous length of  service in the cadre of Assistant Engineer should be the  basis for determining the inter se seniority between the direct  recruits and  promotees and  as such there is no infirmity with the impugned judgment of the Tribunal.      Having heard  the learned  counsel for  the parties  it appears to us that the only question for consideration is on what principle  the inter  se seniority  between the  direct recruits and  promotee Assistant  Engineers will  have to be determined for  the period  1969 till  1976 i.e.  the period from which  50 per  cent of  the posts  were  filled  up  by promotion till  the enforcement of the statutory recruitment rules? It  is  undisputed  that  prior  to  1969  no  Junior Engineer  was  being  promoted  to  the  post  of  Assistant Engineer. From  1969 after formulation of set of draft rules promotion was  being given  to the  Junior Engineers  to the post of Assistant Engineer in accordance with the provisions contained in  the draft  rules even  before such draft rules were approved  by the  governmental authority  and became  a statutory rule,  by virtue  of an administrative decision of the Government.  It is  too well  settled that  the  service conditions of  employes, int  he absence of a statutory rule could be governed by administrative instructions. There was, therefore, no  illegality in  giving promotion to the Junior Engineers to  the post  of Assistant Engineer because of the aforesaid administrative  decision of  the Government. It is also conceded  that in  the statutory rules the principle of determination of  inter  se  seniority  between  the  direct recruits and promotees has not been indicated. It is in this context  the   Government  of  India  followed  the  general principles for  determining the  seniority enunciated in the order of  Ministry of  Home Affairs dated 22.12.1959. Clause (6) of  the aforesaid  Memorandum which  deals with relative seniority of  direct recruits  and promotees stipulates that the relative  seniority shall be determined according to the rotation  of  vacancies  between  the  direct  recruits  and promotees which  shall be  based on  the quota  of vacancies reserved for  direct recruits  and  promotees  respectively. Since the  statutory rule  had not  come into  force and yet promotion could  be given  on the  basis of  the  provisions contained in  the draft  rule by virtue of an administrative order of  the  Government  such  promotees  cannot  claim  a greater advantage  than the direct recruits having come into the cadre  on  the  basis  of  the  aforesaid  draft  rules. Further, the  inter se seniority of such direct recruits and promotees has  to be  determined by  taking recourse  to the aforesaid office  memorandum dated  22.12.1959 issued by the Government  of  India  in  the  Ministry  of  Home  Affairs. Needless to  mention the at this principle has to be invoked for determination  of inter  se seniority  of the appointees bother direct  recruits and promotees during the period 1969 till 9.9.1976  and in  fact the  Government has drawn up the seniority list  on following  the  said  principle.  In  the aforesaid premises,  the direction  of the  Tribunal in  the impugned judgment  to re-draw  the  seniority  list  without importing any  quota/rota  rule  for  the  period  prior  to 9.9.1976 is  unsustainable in  law and  we accordingly quash the said  direction. Necessarily,  therefore, the  inter  se seniority of  the direct recruits and promotees in the cadre of Assistant  Engineers for  the period   1969 till 9.9.1976

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has to be determined in accordance with the Government Order dated 22.12.1959 issued by the Ministry of Home Affairs. We, accordingly  allow  these  appeals  and  set  aside  the impugned judgement  of the  Central Administrative Tribunal, Ernakulam Bench. There will be no order as to costs. Dr. (Mrs.) Meera Massey Dr. Abha Malhotra