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CASE NO.: Appeal (civil)  2945 of 2001

PETITIONER: V. Siva Kumar & Ors.

RESPONDENT: Secretary, Ministry of Defence & Ors.

DATE OF JUDGMENT: 08/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of a Division  Bench of the Andhra Pradesh High Court dismissing the writ  petition filed by the appellants.  Challenge before the High  Court was to the order of the Central Administrative Tribunal,  Hyderabad (in short the \021Tribunal\022). By its order dated  18.2.1999 the Tribunal had directed that seniority list of Store  keepers was to be prepared on the principle that ; (1) the OM  dated 7.2.1986 is prospective in nature and not retrospective;  (2)  the employees recruited after 1.3.1986, even though they  were not empanelled and selected earlier to 1.3.1986, their   seniority will be in accordance with the aforesaid OM as they  were appointed to the service after 1.3.1986 and the impugned  seniority list was to be amended with consequential benefits in  terms of these principles.        2.      Background facts in a nutshell are as follows:               On 8.7.1983 notice for recruitment was issued for Store  keepers, Class-III in the materials organization of the  Vishakhapatnam Dockyard in the Direct Recruitment Quota  (in short the \021DR\022). In 1982-83, appellants, proforma  respondent Nos.45 to 55 had applied in response to this  notification. All of them were selected in the year 1984  according to the Navy Grade-C Non-Industrial Posts, Store  House Staff, Recruitment Rules, 1984 (in short the  \021Recruitment Rules\022), 87= % of the posts were to be filled up  by promotion and 12= % by direct recruitment.  Out of every  eight vacancies, the first seven are given to promotees and the  last one to DR by rotation.              On 7.2.1986, new principle of seniority was fixed in  supersession of OM dated 22.12.1959. As per para 7 thereof  the old principles contained in the OM dated 22.12.1959 were  held not applicable for any appointment made after 7.2.1986  for which recruitment process started before 7.2.1986. 99  candidates were selected for promotion in the promotional  quota.  Appellants who are direct recruits and respondent  Nos.45-55 who were also direct recruits were appointed as  Store Keepers on 1.12.1986. On 4.12.1989 inter se seniority  list was prepared in which the appellants were shown at serial  4 to 44.  The list was sent to all naval establishments for  circulation, verification and for pointing out any discrepancy  and corrections, if any.

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    On 21.10.1991 another seniority list was issued showing  the appellant and proforma respondent Nos. 45 to 55 below  respondent Nos.4-44 and they were pushed down by about  240 places.              On 21.11.1991 objections were submitted by the  appellants. On 12.3.1992 final seniority list was issued  showing the appellants and respondents 45 to 55 lower down.              O.A. No. 673 of 1992 was filed before the Tribunal by the  appellants and respondents 45 to 55 challenging the seniority  list on 25.4.1995.  The same was allowed. But the judgment  was not challenged by anybody and, therefore, it became final.   On 21.11.1996, the Full Bench of Tribunal in other O.As.  relating to Excise departments decided certain issues.  The  stand of the appellants was that the parameters indicated in  para 7 of the OM were not in issue before the Full Bench.             On 27.12.1996 revised seniority list was issued  purportedly in line with the judgment in OA No. 673 of 1992.   On 12.3.1997 appellants Nos.1, 4 and 7 were appointed as  store keeper on the basis of the revised seniority list.  On  13.2.1997 Division Bench of the Tribunal allowed OA No.1323  of 1993 relating to the Central Excise department. On  3.7.1997, OA No. 843 of 1997 was filed before the Central  Administrative Tribunal, Hyderabad challenging the revised  seniority list dated 27.12.1996 and the promotion order dated  12.3.1997.  In February, 1998 appellant Nos. 2,3,6,8 and 9  were promoted as store keepers on the basis of the revised  seniority List dated 27.12.1996.        3.      A Division Bench of a Tribunal held in O.A. No. 843 of  1997 by order dated 18.2.1999 that the Full Bench while  hearing the R.A. No. 103 of 1993 in OA No.1019 of 1992  did  not address itself to the question of persons selected prior to  7.2.1986 and appointed subsequent to 7.2.1986. However,  relying on the judgment of another Division Bench in OA  No.673 of 1992 it was held that OM dated 7.2.1986 is  prospective which upset the seniority of the appellants.  On  17.3.1999 appellants filed writ petition No. 5540 of 1999  challenging the said judgment of the Tribunal in OA No. 843 of  1997.  By order dated 3.3.2000 writ petition was dismissed  holding that the Full Bench\022s decision of the Tribunal applied  to the facts of the case.         4.      It is submitted that in the counter-affidavit in OA No.843  of 1997 the respondent had accepted the plea of the  appellants.       5.      In support of the appeal, it is submitted that in view of  the fact that the judgment in OA No. 673 of 1992 has become  final it was not open to be nullified by another Division Bench.   The true effect of para 7 of the OM dated 7.2.1986 has not  been correctly applied. The Full Bench of the Tribunal  considered only the first part of the para 7 and did not advert  to the second aspect highlighted in the OM. In the judgment in  OA No. 843 of 1997 a Division Bench observed that the Full  Bench did not deal with the aspect but proceed to rely on  another Division Bench\022s judgment and thereby ignoring the  reasoning of the earlier judgment of Kerala Bench of the  Tribunal. The second part of para 7 of 1986 was also not  considered.  It was also pointed out that the High Court did  not look into second part of the OM which is the only relevant  part so far as the present dispute is concerned.  The second  part of the OM was not challenged by anybody.

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     6.      It was submitted that the crucial expression in the OM is  \023recruitment action\024. Recruitment is not the same as  appointment.    Para 7 refers to both direct recruits as well as  promotees.       7.      In response, learned counsel for the respondents  submitted that the OM refers to actual appointment by direct  recruitment, promotion or by method of transfer.  Mere  inclusion in the select list confers no right and, therefore,  interpretation given by the Tribunal and the High Court is  rational.  It is also submitted that \023recruitment action\024 is  different from \023recruitment process\024.         8.      Para 7 of the OM so far as relevant reads as follows:

\023These orders shall take effect from 1st March,  1986. Seniority already determined in  accordance with the existing principles on the  date of issue of these orders will not be  reopened.  In respect of vacancies for which  recruitment action has already been taken, on  the date of issue of these orders either by way  of direct recruitment or promotion, seniority  will continue to be determined in accordance  with the principles in force prior to the issue of  this O.M.\024

     9.      It is correct as contended by learned counsel for the  appellants that before the Full Bench of the Tribunal the first  part of para 7 was under consideration and the effect of the  expression \023recruitment action\024 was not in issue.       10.     The relevant portion of para 7 refers to vacancies for  which recruitment action has already been taken.  There are  two aspects of significance, they are; (1) There must be  vacancy; and (2) the recruitment action must have already  been taken. Otherwise, there was no need to use the  expression \023for which recruitment action has already been  taken\024 because the appointment has to take effect from the  relevant date.

11.     In K. Narayanan v. State of Karnataka, [1994 Supp.(1)  SCC 44] at para 6 it was noted as follows:   \024Article 309 of the Constitution empowers the  appropriate Legislature to frame rules to  regulate recruitment to public services and the  post. \021Recruitment\022 according to the dictionary  means \021enlist\022. It is a comprehensive term and  includes any method provided for inducting a  person in public service. Appointment,  selection, promotion, deputation are all well- known methods of recruitment. Even  appointment by transfer is not unknown. But  any rule framed is subject to other provisions  of the Constitution.\024  

12.     There is no dispute in law and in fact none is raised that  mere inclusion in the select list does not confer a right on the  person whose name has been included in the select list.  But  that question has little significance in the present case.      

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13.     \023Recruitment action\024 obviously would mean an action  taken for recruitment.  That being so, the impugned judgment  of the High Court is clearly untenable and is set aside.       14.     The appeal succeeds but without any order as to costs.