REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.7002 OF 2004
D.P. Das ..Appellant(s)
- Versus -
Union of India and Ors. ..Respondent(s)
J U D G M E N T
GANGULY, J.
1. This appeal has been preferred from the final
judgment and order passed by the High Court of
Madhya Pradesh at Jabalpur in Writ Petition
No.5238 of 2000 dated 30th June, 2003.
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2. The facts and circumstances giving rise to this
appeal are that in the year 1983, the first batch
of the Specialist Medical Officer (SMO) in the
Ordnance Factories Organization was recruited in
the category of Obstetrics, Gynecology, Medicine
and Surgery. The appellant was one of the five
recruited persons and he belonged to the category
of Surgery.
3. In the year 1991, on the recommendation of the
Fourth Pay Commission, one post in the Indian
Ordnance Factories Health Services (Group A,
grade of Rs.5900-6700) was sanctioned for filling
up amongst the SMOs cadre. The specialists cadre
was in different disciplines and hence, there was
necessity of preparing a combined gradation list
in the SMOs cadre. The respondent No.1 referred
the matter to the UPSC for preparation of the
common seniority list. Further, the SMOs were
recommended by the UPSC by three different lists,
two of which were made on the same date and
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therefore the UPSC was requested to furnish the
relative order of seniority of those SMOs who are
recommended on the same date.
4. Accordingly, the seniority list of SMOs in the
grade of Rs.4500-5700/- was prepared on 1.7.1992
and published vide order dated 21.8.1992. In the
seniority list respondent Nos. 4, 5 and 6 were
placed above the appellant.
5. As the appellant felt aggrieved by the
publication of the said seniority list, he made
representations in the year 1992, 1993 and 1995
before the respondent No.1. However, no reply was
received by the appellant from the respondent
No.1.
6. Being aggrieved, the appellant preferred an
original application (O.A.No.457 of 1995) before
the Central Administrative Tribunal, Jabalpur
Bench (`the Tribunal') and prayed to quash the
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said seniority list and also for maintenance of
discipline wise seniority list initially prepared
by the UPSC and for keeping Confidential Reports
as criteria for selection to the next higher
grade and also to rearrange the seniority of the
candidates on the basis of age of candidates by
placing the oldest candidate on top of the
seniority list followed by juniors in age. The
appellant contended, inter alia, before the
Tribunal that the:
a) The relative seniority of SMOs was
not determined by UPSC, at the time of
selection
b) The Department should have requested
the UPSC to recommend candidates for
such posts on the basis of a
consolidated order of merit and
not subject wise
c) The Department never requested the
UPSC to prepare a combined
seniority list as per merit on the
basis of performance in the interview.
It was therefore not possible for
the UPSC to prepare a combined
seniority list in the year 1992.
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7. The UPSC before the Tribunal contended, inter
alia, that the interview for different
disciplines viz specialists I medicine, surgery
and gynecology in Ordnance Factories Organization
were conducted on different dates. Before the
Tribunal UPSC further contended that:
(i) As far as the Specialist (Obstetrics
and Gynecologist) is concerned the
date of advertisement was 13.11.1982,
date of interview was 28.2.1983 and
date of UPSC recommendation letter was
16.3.1983.
(ii) Insofar as the Specialist (Medicine)
is concerned the date of advertisement
was 6.11.1983, date of interview was
15/16.03.1983 and date of UPSC
recommendation letter was 14.4.1983.
(iii) And so far as the Specialist (Surgery)
is concerned, the date of
advertisement was 13.11.1982, date
of interview was 22/24.03.1983 and
date of UPSC recommendation letter
was 14.4.1983.
8. The UPSC also filed the extracts of its file
which contain the note sheets from Page 2 to Page
13. From those extracts the basis of arriving at
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the methodology adopted for fixing the seniority
of two different disciplines, whose
recommendations were made on the same date were
available.
9. By a judgment and order dated 26.7.2000, the
Tribunal dismissed the O.A.457 of 1995 and in
paragraph 8.4 held as under:
"8.4 It is fact that date of
recommendation of the applicant who
belongs to surgery discipline and the
private respondents belonging to medicine
discipline was same i.e.14.4.1983. Also
that the rules provide for fixing the
seniority based on the date of
recommendations of the UPSC maintaining
inter se merit as per the recommendation.
It is also fact that respondent did not
approach the UPSC for preparing a combined
merit list of such specialist which they
should have done as per DOPTs instructions
for seeing future promotion prospects for
these specialists and also the fact that
separate seniority list for number of
specialist disciplines and separate
promotion prospects thereof were not
feasible. From the extract of note sheet
filed by the respondent, it is seen that
the Commission, based on detailed
examination decided to fix the seniority
in such case, based on date of interview
i.e. candidates interviewed on an early
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date to be senior to those interviewed on
a later date. The contention of learned
counsel for applicant that their seniority
should have been fixed based on the date
of birth cannot be accepted since
presuming this criteria was to be adopted
then very purpose of preparation of merit
list of the candidates, will get defeated.
The reckoning of seniority based on age
may be relevant in cases of recruitment
where no merit list is made and the
selection criteria is for qualifying the
test along or where the recommendations
are only as `fit' of `unfit'."
10.Being aggrieved, the appellant filed a writ
petition before the High Court of Madhya Pradesh.
11.By the impugned judgment dated 30.6.2003, the
High Court dismissed the writ petition, affirming
the methodology adopted by the UPSC for fixing
the seniority of two different disciplines whose
recommendations were made on the same date.
12.The High Court in para 15 held that:
"15. ..................... What is reasonable to be seen
in the obtaining factual matrix is that
under regrettable circumstances the inter
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se merit list was not available as there
was no requisition for fixing such
seniority. However, the UPSC had evolved a
base which indicates that the date of
interview would be the criteria for fixing
the seniority, in such a case. Ordinarily
this may look quite peculiar but it has to
be borne in mind that peculiar
circumstances are solved by taking
recourse to innovative methods. The
tribunal in paragraph 6.1 has reproduced
the date of advertisement and the date of
recommendation letter of UPSC. We have
also reproduced the same above. The date
of advertisement for the post of
Specialist (Surgery) was 13.11.1982. The
date of advertisement for post of
Specialist (Medicine) was 6.11.1983.
Definitely there was advertisement for the
post of Specialist (Surgery) earlier than
Specialist (Medicine) but the interview of
Specialist (Medicine) was on 15/16.3.83
whereas the date of interview of
Specialist (Surgery) was on 22/24.3.93.
The Tribunal has taken note of the fact
that from the note sheets, which has been
produced by the UPSC, it was perceivable
that recommendations were made on the date
of interview. Thus, selection was made on
that date. It is noticeable that
recommendations were sent on the same date
i.e. 14.4.1983. Thus, the date of
interview has earned the status of date of
selection. Submission of Mr. Gupta is that
it can be fortuitous circumstances as the
interview in one subject may take place
earlier than the other. The aforesaid
submission may appear on a first blush to
be quite attractive but on a closer
scrutiny of the same it has to be
repelled............. The UPSC has determined the
seniority on the basis of the date of
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interview and the date when selection had
taken place. In the absence of any
document on record, in the absence any
preparation of merit list, in the absence
of drawing of the seniority list at the
initial stage and taking note of the
peculiar facts and circumstances of the
case, we are of the considered view that
the UPSC has adopted a rational approach
and the Tribunal has not flawed in
accepting the same......."
13.It is pertinent to note here that on 28.8.1946,
the Government of India, Department of Home
issued an Office Memorandum (O.M.) for
determination of seniority of direct recruits
14.Clause 2(iv) thereof provides as under:
"When a number of vacancies for direct
recruits are filled simultaneously without
candidates first being placed in order of
merit or preference, seniority should be
determined by age provided a candidate
joins within such period not exceeding one
month from the date of appointment as may
be fixed by the appointing authority. A
candidate who does not join within the
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time so specified will rank below those
who did so join, and seniority among the
later arrivals will be according to the
date of joining.
The orders in this paragraph will be
of general application. "
15.Vide an Office Memorandum dated 22.12.1959, the
Government of India, Ministry of Home Affairs
issued general principles for the determination
of seniority in Central Civil Services
16.It is pertinent to note that the O.M. dated
22.12.1959 does not supersedes Office Memorandum
of 1946 but expressly discontinues the
application of some previous Office Memorandum
cited below:
7 Office Memorandum No. 30/44/48- Apptts, dated
the 22nd June, 1949.
7 Office Memorandum No. 65/28/49 - DGS.(Appts.)
dated the 3rd Feburary, 1950 and other
subsequent Office Memorandum regarding fixation
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of seniority of ex-employees of the Government
of Burma
7 Office Memorandum No. 31/223/50 - DGS, dated
the 27th April, 1951 and other subsequent Office
Memorandum regarding fixation of seniority of
displace Government Servants.
7 Office Memorandum No. 9/59/56 - RPS dated the
4th August, 1956.
7 Office Memorandum No. 32/10/49 - CS dated the
31st March, 1950
7 Office Memorandum No. 32/49/CS(C) dated the 20th
September, 1952.
17.Para 4 of the Annexure attached to the said O.M.
dated 22.12.1959 specifically provides that ".....
the relative seniority of all direct recruits
shall be determined by the order of merit in
which they are selected for such appointment on
the recommendations of the UPSC or other
selecting authority, persons appointed as a
result of subsequent selection."
18.But this circular fails to address the
situation, where no combined merit list is
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prepared in the order of merit in which the
candidates are appointed and their date of
recommendation being the same, as in the present
case.
19.The learned counsel for the appellant contended
that the O.M. dated 22.12.1959 has not repealed
O.M. dated 28.8.1946 and therefore the O.M. of
1946 shall be applicable in this situation.
20.The learned counsel for the respondents
contended that the intention of the authorities
was clear in O.M. of 1959, so as to repeal all
the prior O.Ms. in relation to the determination
of seniority, which is expressed in para 2 of the
O.M. which reads as under:
".....It has therefore, been decided in
consultation with the UPSC, that hereafter
the seniority of all persons appointed to
the various Central Services after the
date of these instructions should be
determined in accordance with the General
Principles annexed here to."
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21.However as noted above, office memorandum of
1959 does not answer the problems arising in this
case.
22.The law is clear that seniority is an incidence
of service and where the service rules prescribe
the method of its computation, it is squarely
governed by such rules. In the absence of a
provision ordinarily the length of service is
taken into account
23. The Supreme Court in M.B. Joshi & others. V.
Satish Kumar Pandey & Ors., AIR 1993 SC 267 has
laid down that it is the well settled principle
of service jurisprudence then in the absence of
any specific rule the seniority amongst persons
holding similar posts in the same cadre has to be
determined on the basis of the length of the
service and not on any other fortuitous
circumstances.
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24.Determination of seniority is a vital aspect in
the service career of an employee. His future
promotion is dependent on this. Therefore, the
determination of seniority must be based on some
principles, which are just and fair. This is the
mandate of Articles 14 and 16.
25. In The Manager, Government, Branch Press and
another v. D.B. Belliappa reported AIR 1979 SC
429, a three-Judge Bench of this Court construing
Articles 14 and 16 interpreted the equality
clause of the Constitution as follows:-
"...The executive, no less than the
judiciary, is under a general duty to act
fairly. Indeed, fairness founded on reason
is the essence of the guarantee epitomized
in Articles 14 & 16(1)." (see para 24 at
page 434)
26. Another three-Judge Bench of this Court in
Bimlesh Tanwar v. State of Haryana & other,
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(2003) 5 SCC 604, while dealing with the question
of absence of a rule governing seniority held
that an executive order may be issued to fill up
the gap. Only in the absence of a rule or
executive instructions, the court may have to
evolve a fair and just principle of seniority,
which could be applied in the facts and
circumstances of the case. (see para 47 at page
619)
27.In the instant case, no record has been brought
before the Court to ascertain merit wise position
of the persons who were directly recruited.
Except the office memorandum of 1946, which is
still in force, no other rule or executive
instruction has been shown to apply to the facts
of the case.
28.The appellant argued that the date of interview
would have to be considered as a guide for
determination of seniority. This cannot be
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accepted as such a date is wholly fortuitous.
Accepting as guideline, something which is
absolutely fortuitous and based on chance, is
inherently unfair and unjust.
29.As in this case there is no rule prescribed for
the determination of seniority, this Court is
left with only the guideline flowing from the
executive instruction of 1946, in order to evolve
a just policy, for determination of seniority.
30.From the analysis of the executive instructions
referred to hereinabove, it is clear that the
1946 instruction has not been superseded and the
same refers to the acceptance of the age of the
candidate as the determining factor for
seniority. Such a basis is not fortuitous and is
otherwise just and reasonable.
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31.In the premises aforesaid the seniority of the
officers who were recommended on the same date
must be decided by their respective age.
32.The contrary view taken by the High Court of
fixing seniority on the basis of date of
interview, being wholly fortuitous, cannot be
accepted.
33. The reliance by the respondent(s) on judgment of
this Court in B. Premanand and others v. Mohan
Koikal and others, (2011) 4 SCC 266, is
misconceived in the facts of the case. In that
case this Court was dealing with Rule 27(c) of
the Kerala State and Subordinate Services Rules,
1958. In the instant case there is no rule.
Therefore in this case, this Court has to evolve
a fair and just basis of seniority on the basis
of the office memorandum discussed herein above.
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34.For the reasons aforesaid this Court holds that
for determination of seniority of the officers
who were recommended on the same date, age is the
only valid and fair basis as such their seniority
should be decided on the basis of age of the
candidates who have been recommended.
35.The appeal is, thus, allowed. The judgment of
the High Court which has taken a contrary view is
set aside. In the facts of the case, there will
be no orders as to costs.
.......................J.
(G.S. SINGHVI)
.......................J.
(ASOK KUMAR GANGULY)
New Delhi
August 09, 2011
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