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2017 DIGILAW 853 (CAL)

Nemai Chandra Halder v. Union of India

2017-11-07

DEBASISH KAR GUPTA, SHEKHAR B.SARAF

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JUDGMENT : 1. This is an application filed under Article 226 of the Constitution of India assailing the judgment dated October 4, 2002 passed by the Central Administrative Tribunal, Calcutta Bench, Calcutta in O.A. No. 886 of 1993. By virtue of the impugned judgment, the prayer of the petitioner for setting aside the modification order of confirmation dated April 22, 1993 restoring the order dated June 23, 1990 in connection with his service in the Grade of Labour (USK) with effect from April 1, 1988 was rejected. 2. The learned Tribunal took into consideration the following facts and circumstances in order to arrive at its conclusion. 3. The petitioner joined in the service under the respondent authority on and from April 11, 1985 in the post of 'Mazdoor' under Scheduled Caste Category. His above service was confirmed with effect from April 1, 1988 by virtue of an order dated June 23, 1990 passed on recommendation of the Departmental Promotion Committee (IV) of the respondent authority, his name appeared against Serial No. 17 in the above list. The trade test for promotion of Mazdoor/Labour (SSK) to the post of Tradesman (SSK) took place on September 26, 1991. 4. The petitioner was not allowed to participate in the above trade test. Two labours (USK) whose name had been appearing against Serial Nos. 40 and 42 in the above list, namely, Sri K.P. Ram and Sri B. Purakait respectively, both belonging to the Scheduled Caste Category were allowed to participate in the above trade test for consideration for promotion in the list of Tradesman (SSK). 5. Necessary to point out here that Sri K.P. Ram joined in the above service on and from April 30, 1985 while Sri B. Purakait joined in the above service on and from May 6, 1985. 6. Subsequently, by an order dated April 22, 1993 passed by the respondent authority the gradation list of Labour (USK) was rectified with effect from April 1, 1988 in cancellation of the earlier order dated June 23, 1990. It appears from the above list that the names of the aforesaid Sri K.P. Ram and Sri B. Purakait appeared against Serial Nos. 24 and 28 respectively and the name of the petitioner appeared against Serial No. 46. 7. It appears from the above list that the names of the aforesaid Sri K.P. Ram and Sri B. Purakait appeared against Serial Nos. 24 and 28 respectively and the name of the petitioner appeared against Serial No. 46. 7. Taking into consideration the submissions made on behalf of the respondents, the learned Tribunal arrived at a conclusion that the above rectification in the gradation list was done by an order dated April 2, 1993, for correction of an error in preparing the gradation list dated June 23, 1990. The basis of the submission of the respondents before the learned Tribunal was that the earlier gradation list dated June 23, 1990 was prepared taking into consideration the date of joining of different incumbents in the post of Labour (USK). But according to the policy of the respondent authority, the merit should be the criteria for fixing the seniority in the merit list. As a consequence, the order of rectification dated April 22, 1993 was passed by the respondent authority for re-fixation of the seniority in the gradation list of Labour (USK) with effect from April 1, 1988 in cancellation of the earlier order. 8. On the basis of the above finding, the learned Tribunal was also of the opinion that the petitioner did not fulfill the criteria of rendering the service for three years to participate in the trade test held in the year 1989 and on the basis of the corrected gradation list published on April 22, 1993, the aforesaid Sri K.P. Ram and Sri B. Purakait were senior to the petitioner. As a consequence the original application of the petitioner was dismissed. 9. In course of hearing, we find that by virtue of the order being O.M. No. 20011/5-90-Estt(D) dated November 4, 1992 of the Government of India, Ministry of Personnel, P.G. & Pensions, (Department of Personnel and Training), New Delhi, the decision was taken into consideration to determine the seniority of incumbents in order of merit indicated at the time of initial appointment and not according to the date of his confirmation. 10. The above order is quoted below: "OFFICE MEMORANDUM Subject: Delinking seniority from confirmation. 10. The above order is quoted below: "OFFICE MEMORANDUM Subject: Delinking seniority from confirmation. "The seniority of Government servants is determined in accordance with the general principles of seniority Contained in MHA OM No. 9/11/55-RFS dated 22.12.59 (copy enclosed) one of the basic principles enunciated in the said OM is that seniority follows confirmation and consequently permanent officers in each grade shall rank senior to those who are officiating in that grade. 2. This principle has been coming under judicial scrutiny in a number of cases in the past; the last important judgment being the one delivered by the Supreme Court on 2.5.90 (JT-1990(2) SC-264) in the case of Class II Direct Recruits Engineering Officers Association vs. State of Maharashtra. In para 47(A) of the said judgment the Supreme Court has held that once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. 3. The General principle of seniority mentioned above has been examined in the light of the judicial pronouncement referred to above and it has been decided that seniority may be de-linked from confirmation as per the directive of the Supreme Court in para 47(A) of its judgment dated 2.5.90. Accordingly, in modification of the general principle 3, proviso to general principle 4 and proviso to general principle 5(i) contained in MHA (now DOPT) O.M. No. 9/11/55-RPS dated 22-12-59 and para 2.3. of this Department O.M. dt. 3.7.86 (copy enclosed) it has been decided that seniority of a person regularly appointed to a post according to rule would be determined by the order of merit indicated at the time of initial appointment and not according to the date of his confirmation. 4. These orders shall take effect from the date of issue of this Office Memorandum. Seniority already determined according to the existing principles on the date of issue of these orders will not be reopened even if in some cases seniority has already been challenged or is in dispute and it will continue to be determined on the basis of the principles already existing prior to the date of issue of these orders. 5. All Ministries/Departments are requested to bring these instructions to the notice of all concerned for guidance and compliance. Sd/- (Y.G. PARANDE) Director" 11. 5. All Ministries/Departments are requested to bring these instructions to the notice of all concerned for guidance and compliance. Sd/- (Y.G. PARANDE) Director" 11. It was stated categorically in the above order that the above policy should take effect from the date of issue of the above memorandum. Seniority which had already determined according to the existing principles on the date of issue of the above order, would not be reopened even if in some cases seniority had already been challenged or was in dispute and it would continue to be determined on the basis of the principles already existing prior to the date of issue of the above order. 12. Therefore, we have no hesitation to arrive at a conclusion that the above policy for fixing the seniority while preparing the gradation list for the incumbents took effect from November 4, 1992. There was no scope to rectify the gradation list prepared by the order dated June 23, 1990 relating to the post of Labour (USK) with effect from April 1, 1988 in terms of the above memorandum dated November 4, 1992 having no retrospective effect of the above memorandum. Therefore, the finding of the learned Tribunal in this regard cannot be sustained in law. 13. As a result, we find that on the date of recommending the names for participating in the trade test, the petitioner had fulfilled the eligibility criteria of serving three years under the respondent authority and his position in the gradation list was 17, i.e., which was above the position of the aforesaid Sri K.P. Ram and Sri B. Purakait appearing against Serial Nos. 40 and 42 respectively in the above gradation list dated April 1, 1988. Therefore, the above decision of the respondent authority in recommending the names of the aforesaid two incumbents for participating in the trade test in the year 1989 superseding the petitioner was also bad in law. 14. It will not be out of place to record here that no material is produced before us by the respondents to show that there was existence of any decision of the competent respondent authority to maintain the seniority of the incumbents on the basis of their merits ignoring the date of joining in the said post. 15. 14. It will not be out of place to record here that no material is produced before us by the respondents to show that there was existence of any decision of the competent respondent authority to maintain the seniority of the incumbents on the basis of their merits ignoring the date of joining in the said post. 15. With the discussions and observations made hereinabove, the impugned judgment passed by the Central Administrative Tribunal, Kolkata Bench in Original Application No. 886 of 1993 is quashed and set aside. Taking into consideration the fact that the petitioner was promoted to the post of Tradesman (SSK) subsequently after passing the trade test, we direct the respondent authority to re-fix his seniority in the gradation list above, the aforesaid Sri K.P. Ram and Sri B. Purakait with retrospective effect from the date of awarding promotions to Sri K.P. Ram and Sri B. Purakait. 16. Needless to point out that consequential financial and other benefit shall be extended to the petitioner within three months from the date of communication of this order to the respondent authority. 17. Accordingly, the writ petition stands disposed of. 18. There will be, however, no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary formalities.