1. The perpetual dispute of seniority between promotee and direct recruit has again found its echo in this litigation. The applicant is a promotee while respondent No. 7 is a direct recruit. The brief facts leading to this O.A. can be narrated as under: 2. The applicant was appointed as an Investigator in Doordarshan Srinagar on 19.11.77. He was promoted as Research Assistant on 31.12.1983 on ad hoc basis. It appears that he was reverted back to the post of Investigator on 19.3.1986 and thereafter again regularly promoted on 14.8.88 on the recommendation of the DPC and joined the post on 16.2.1989. The relevant recruitment rules known as All India Radio (Group B Post) Recruitment Rules, 1962 and amended vide notification dated 28.6.1985 prescribes the recruitment to the post of Research Assistant (now re-designated as Assistant Research Officer Grade-I) in the following manner: (2) 25% by transfer on deputation/transfer, failing which by direct recruitment, and 3. It appears that in the year 1986 there were in all 26 vacancies of Senior Investigators in All India Radio and Doordarshan. Out of these, 14 vacancies were under promotion quota, 6 under direct recruitment quota and 6 under deputation quota. These 14 vacancies of promotion quota were filled up by convening the DPC in the year 1987-88 and the last promotee appointed of this 14 promotee vacancies was on 12.12.1988. In the year 1987, 11 vacancies arose comprising of 5 under promotion quota and 3 under direct recruitment and 3 under deputation.
The DPC convened and recommended 5 persons for the five promotee posts and all the five promotees had joined the post on their appointment.
Thereafter in the year 1988, 2 vacancies arose under the promotion quota and the DPC recommended 2 persons including the applicant who joined the post on 16.2.1989. For the vacancies in direct recruitment quota for the years 1986 and 1987, no recruitment could be made as no requisition was sent to the UPSC. A consolidated requisition was sent to the UPSC in January, 1989 for filling up the 6 vacancies of 1986 and 5 vacancies of 1987. The UPSC recommended a panel of 11 candidates out of which only 7 joined. The respondent No. 7 Mr. A.H. Bangi was one of the 7 who joined the post on dated 24.12.1991. The respondents had then circulated a draft seniority list of Senior Investigator/Research Assistant as on 1.1.1992. The draft seniority list was corrected after receiving objections and Anr. seniority list was circulated on dated 22.2.1993. The applicant was shown at Sr. No. 27 in that seniority list and thereafter at Sr. No. 17 in the seniority list circulated on dated 26.9.95. The respondent No. 7 was shown at Sr. 29 and 19 in the above seniority lists i.e. below the applicant. The respondent No. 7 had thereafter filed Writ Petition No. 765/99 challenging his seniority and in view of the writ filed by the respondent No. 7, the seniority list was examined by the respondents and they circulated another seniority list on 29.2.2000 showing the applicant at Sr. No. 35 and the respondent No. 7 at Sr. No. 12. This revision of the seniority by the official respondents was challenged by the applicant by way of SWP No.2072/2000 before (he Hon'ble High Court of Jammu and Kashmir at Srinagar. Both these writs were taken up for hearing by the Hon'ble High Court and vide Order dated 22.11.2001 the Hon'ble High Court disposed of SWP 765/99 in view of the statement made by Mr. Anil Bhan, the learned Counsel for the official respondents and directed the SWP 2072/2000 to proceed further. Against the order of the learned single Judge LPA No. 254/01 was preferred by the present respondent No. 7 and the Division Bench of the Hon'ble High Court vide order dated 16.7.2002 passed the following order; Admit. The appeal is allowed by directing that the order passed in CMP No. 3285/ 2000 moved in SWP No. 2072/2000 on 22.11.2001 is hereby set aside with a direction to pass appropriate orders after hearing all the parties who are likely to get adversely affected. It will be for the official respondents to point out as to who are the parties likely to get adversely affected and the Counsel shall furnish seniority list before the learned single Judge so as to consider as to whether others are required to be joined as parties.
It would be open for the Union of India to submit the list of persons likely to get affected before the learned single Judge.
4. It appears that thereafter SWP 2072/2000 vide order dated 9.10.2000 was trans ("erred to this Tribunal by the Hon'ble High Court in view of the decision of the Supreme Court in KV Sand Anr. v. Subash Sharma, etc. JT 2000(2) SC 568 : 2002(2) SLJ 296 (SC). On the transfer of the SWP 2072/2000 the same is now numbered as TA/ 102/JK/03 in this Tribunal.
5. The applicant has assailed the impugned seniority list on the ground of the same being arbitrary and against the principles of natural justice. According to him, no notice has been given to him prior to circulating the revised seniority list and since the impugned revised seniority list affects his seniority, the same deserves to be quashed and set aside on the main ground of violative of the principles of natural justice. It is also alleged that the respondents had no jurisdiction to reopen the question of the seniority once the seniority list was finalised and acted upon. Promotions were issued from this seniority list and as such, the rights of the persons listed in the seniority list had crystallised the rights, could not have been snatched by unilaterally and arbitrarily revising the seniority list.
It is also contended that the earlier seniority list prepared in 1993 and 1995 were as per the rules and since the respondent No. 7 was not even borne in the cadre when the applicant was promoted in 1989 the respondent No. 7 cannot be given seniority above him on the premises that the direct recruits vacancies were not filled up in the year 1986 or 1987. The action of the respondents is clearly against all known canon of interpretation of the statutes arid since the same is dehors the rules and instructions, the same deserves to be quashed and set aside.
6. The respondents have resisted the TA by filing their respective written replies. The official respondents in their written reply have contended inter alia that the seniority list under challenge is only a draft in nature and no final Seniority list was issued on the basis of the said draft list. According to them, objections were invited from the aggrieved persons and after receiving the objection, ho final seniority list is published. Thus, this TA is premature. The draft seniority list had been prepared in pursuance to the pending writ petition before the Hon'ble High Court. They have further stated that no action is contemplated by the respondents to act upon the said draft seniority list of 29.2.2000 until a final decision is given by the Court. They have however, conceded the position that after the amendment of the recruitment rules in 1986 the recruitment to the post of Senior Investigator/Research Assistant or Assistant Research Officer as known now is to be made in the following manner: (5) 25% by transfer on deputation/transfer failing which by direct recruitment and 7. According to them, in 1996, 26 vacancies were available for filling up the post of Senior Investigator. Out of these 26 vacancies, 14 were under promotion quota, 6 under direct recruitment quota and 6 under deputation quota. All the vacancies of the promotees were filled up through DPC while the direct recruits vacancies could not be filled up as no requisition was sent to the UPSC. In 1987, 11 vacancies arose.
Out of which 5 were of promotion quota, 3 were of direct recruitment quota and 3 were of deputation quota. 5 vacancies of promotion quota were filled up through DPC but the direct recruit and deputation quota could not be filled up. Again in the year 1988, 2 vacancies arose under the promotion quota and both these vacancies were filled up through DPC. One of the vacancies filled up was that of the applicant who had joined on 16.2.1989. The direct recruit vacancies as well as deputation quota vacancies for the years 1986-87 were carried forward and in the year 1989 a requisition was sent to the UPSC for filling up 6 vacancies of direct recruit. The UPSC had recommended a panel of 9 candidates out of which 6 including the respondent No. 7 joined the post. The respondent No. 7 had joined on 24.12.91 but since he was appointed on the direct recruits quota of 1986 it was thought fit to give him seniority of 1986. They have admitted that earlier in the seniority lists of 1993 and 1995 the respondent No. 7 was shown junior to the applicant but according to them in view of the respondent No. 7 filing the writ petition No. 765/99 before the Hon'ble High Court challenging the seniority list circulated on 26.9.95, the matter was reconsidered and as it was found that the rules and instructions on the subject issued by the Ministry were not followed/adhered to and/or were misconstrued by the department while preparing the seniority list of 1995 and also in view of the clarification issued by the Govt. of India, Deptt. of Personnel, vide note dated 13.1.94 to give due representation to the direct recruits though joined later, the seniority list was revised. They have urged that on these grounds, the TA be dismissed.
8. The respondent No. 7 Mr. A.H. Bangi in his written counter has contended that in the light of the instructions contained in O.M. dated 7.2.1986 the direct recruit vacancy if not filled in the particular year should be kept reserved as and when it is actually filled up by direct recruitment, even if it would take few years. According to him he has been assigned correct seniority at Sr. No. 12 in the seniority list of 29.2.2000 and the petitioner is rightly shown at Sr: No. 35. He had filed the writ petition No. 765/99 challenging the seniority list of 1999 but in the year 2000 the seniority list dated 29.2.2000 was issued by the official respondents and when this fact was brought to the note of the Hon'ble High Court, it Was pleased to take notice of the post litigative developments and disposed of the writ with a direction to the respondents to consider his case for promotion on the basis of seniority assigned to him in terms of seniority list dated 29.2.2000. He has also contended that the previous seniority lists were not prepared as per the law and as such, the seniority was required to be revised. He has also prayed for dismissal of the TA.9. We have herd the learned Counsel of both the parties. Both the learned Counsel have also filed their written arguments. We have carefully gone through the same.
10. Before we advert to the main rival contentions, we would like to deal with the preliminary objection raised by the official respondents pertaining to the maintainability of this TA as the impugned seniority list dated 29.2.2000 not being a final seniority list but a draft seniority list. The official respondents in their reply have categorically stated that the seniority list under challenge is only a draft in nature and as such this litigation is premature. It is also stated in no uncertain terms that pursuant to this draft seniority list no final seniority list has been issued by the department. Obviously, if this contention is to be upheld and in ordinary circumstances the same would have been upheld, then the present TA cannot survive. It, would imply that the challenge is made only to a draft seniority list and not to a final seniority list and since the final seniority list is still not prepared and circulated, no challenge to the draft seniority list can be entertained. Though in this TA it is represented that this is a draft seniority list we note that in SWP No. 765/99, it was represented before the Hon'ble High Court that the seniority list was issued and consequential benefits accruing on such placement in the seniority list of the petitioner therein would be extended to the petitioner. We may reproduce the relevant observations of the Hon'ble High Court as follows: Mr. Din submits that his case for placement in seniority list of Senior Investigator/ Research Assistant and consequential benefits accruing on such placement is addressed by respondents in Para 14 of the reply on record. Para 14 reads as under: In reply to Para 14 of the writ petition, it is submitted that the seniority list of Research Assistants/Senior Investigators has been revised and is being circulated. The petitioner's case for promotion the higher grade in view of the revised seniority will be considered in the next meeting of Departmental Promotion Committee.
Mr. Din further submits that as point litigative development respondents have issued a seniority list giving petitioner his due placement in seniority list at Sr. No. 12. He has produced the seniority list which is taken on record. Mr. Bhan, concedes the above pleaded position with regard to the relief consequent on. the above placement.
Mr. Bhan submits that the petitioner's case for promotion consequent on revised seniority list shall be considered in due course and the stance of the respondents thereto is already incorporated in Para 14 of the reply.
11. The above observations of the Hon'ble High Court clearly indicates that the Hon'ble High Court was made to believe that the seniority list of Senior Investigator/ Research Assistant revised on 29.2.2000, wherein the present respondent No. 7 i.e. A.H. Bangi was placed at Sr.
No. 12 was a final seniority list and was to be acted upon. The reply filed therein not only states about the revised seniority list being circulated but also further states that the petitioner i.e. respondent No. 7's case for promotion to the higher grade in view of the revised seniority will be considered in the next meeting of the DPC. This clearly demonstrates that the official respondents for all purposes had taken it for granted that the seniority list circulated was a final seniority list and that they were going to act upon this seniority list. This inference is strengthened by the Memorandum dated 31.1.2002 issued by Mr. P.S. Murthy, Director Audience Research for Director General rejecting the representation of the present petitioner and holding that the placement of Mr. A.H. Bangi i.e. respondent No. 7 at Sr. No. 12 in the seniority list is in order. We will deal with this memorandum later on as it clearly depicts the biased mind of the Director Audience, Research but at present we may only observe that this memorandum rejecting the representation of the present petitioner not only gives rise to a cause of action for moving this TA but also suggests that the seniority of the parties was treated as finalised by the official respondents and applicant's seniority at Sr. No. 35 and that of respondent No. 7 at Sr. No. 12 shown in this so called draft seniority list was held to be in order. Having already taken a decision to act upon the seniority list of 29.2:2000 and even apprised the Hon'ble High Court about the same, the official respondents can not resile from the same. Under the circumstances, this TA cannot be rejected merely on the ground of the same being premature as the same challenges the draft seniority list; It is rather surprising that the official respondents have taken different stands in two different litigations arising out of the same cause of action, Obviously, they cannot be permitted to do so. We therefore, reject the contention of the TA being premature.
12. Now so far the factual matrix of the case is concerned, it is an undisputed position that pursuant to the amendment of the All India Radio (Group B Post) Recruitment Rules, 1985, 26 vacancies arising in 1986 were required to be filled up. Out of these 26 vacancies, 14 were by promotees quota, 6 were direct recruits quota and 6 were under deputation quota. Prior to the amendment of the Recruitment Rules, the post of Senior investigator in All India Radio and Doordarshan was 100% promotees post and was to be filled up by promotion alone. After the amendment of the rules, these posts were made selection post and the quota for direct recruit at promotee was provided. Accordingly, the same is now to be filled up in the following manner: (2) 25% by transfer on deputation/transfer failing which by direct recruitment.
13. The recruitment rules only provide for the quota and do not provide how these are to be rotated. The rules nowhere provide that in any year if the direct recruitment is not possible or the direct recruitees are not available then the slots are to be kept vacant for the vacancy of that year. The Department of Personnel and Training has issued an O.M.dated 7.2.1986 providing infer alia that the inter se seniority of direct recruits and promotee will have to be fixed by following the principle of rotation of quota prescribed by them in the recruitment rules subject to the condition that the rotation quota as per the quota will be made only upto the actual number of direct recruits/promotees available and to the extent of direct recruits/promotees do not become available in any recruitment year the promotees or the direct recruits as the case may be, will be bunched together at the bottom of the seniority list. In view of the recruitment rules being silent about the rotation as per quotas this O.M. of the Department of Personnel and Training was required to be followed by the official respondents.
14. The facts are also undisputed that out of the 14 vacancies of promotion quota in 1986 all 14 were filled up in that year but no direct recruitment could be made as UPSC was not asked to hold the selection. Thereafter, again in 1987 when 5 vacancies arose for promotion quota, all of them were filled up but 3 vacancies of direct recruits and 3 of deputation quota could not be filled up. Thereafter, again in the year 1988, 2 vacancies from promotees quota arose. Both were filled up through DPC, one of which was occupied by the petitioner i.e. Mukhtar Ahmad. He joined the post on 16.2.1989. The requisition for filling up direct recruitment quota to UPSC was made only in the year 1989 and the UPSC recommended 6 candidates one of whom was respondent No. 7 Mr. A.H. Bangi who had joined the post of Sr.
Investigator on 24.12.1991. It is therefore, quite evident that on the date on which the petitioner Mr. Mukhtar Ahmad had joined the post of Senior Investigator, the respondent No. 7 Mr. A.H. Bangi was not even borne in the cadre. He had joined the cadre only on 24.12.1991 i.e.
more than two years after the petitioner had joined the same. There are series of decisions of Supreme Court, High Courts and the Tribunals clearly laying down that in the case of direct recruitment, one cannot be antedated from a date when he was not in service. In the case of N.K. Chauhan v. State of Gujarat and Ors. 1977(1) SLR 205=1977 SLJ 110 (SO, the Supreme Court has observed as under: The quota rule does not, inevitably, invoke the application Of the rota rule. The impact of this position is that if sufficient number of direct recruits have not been forthcoming in the years since 1960 to fill in the ratio due to them and those deficient vacancies have been filled up by promotees, later direct recruits cannot claim deemed dates of appointment for seniority in service with effect from the time, according to the rota or turn, the direct recruits, vacancy arose seniority will depend on the length of continuous officiating service and cannot be upset by later arrivals from the open market save to the extent to which any excess promotees may have to be pushed down as indicated earlier.O.P. Singla and Anr. v. Union of India and Ors. 1984(3) SLR 34, the Supreme Court held that the seniority of direct recruits and promotees should be determined according to the dates of their appointments either in temporary posts created in the service or in substantive vacancies to which appointment made in a temporary capacity.G.S. Lamba and Ors. v. Union of India and Ors.
terms laid down that direct recruits cannot be given seniority over the promotees when they arc recruited many years after the promotees were already holding the substantive posts. The Supreme Court further held that the seniority list prepared giving seniority of such direct recruits over the promotees was violati ve of Articles 14 and 16 and liable to be quashed. The same principle has been reiterated by the Allahabad High Court in the case of K.N. Singh v. State of U.P. 1999(4) SLR 409 and again by the Supreme Court in the case of State of Haryana and Ors. v. Balwant Singh and Ors. 1996(4) Supreme 696. Again thereafter in the case of Suraj Prakash Gupta and Ors. etc. v. State of Jammu and Kashmir and Ors. , wherein a similar case of delay in appointment though vacancies in direct recruitment quota was available and the direct recruits were claiming to be appointed from the date the vacancies in direct recruitment quota arose, it is held that in direct recruitment one cannot be ante-dated from the date when he was not in service. Referring to the contention that the direct recruitment appointment can be antedated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not directly recruited and if the promotees occupied the quota belonging to the direct recruits they had to be pushed down, whenever direct recruitment was made, the Supreme Court in Para 79 of the judgment has laid down as under: This contention, in our view, cannot be accepted. The reason as to why this argument is wrong is that in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not born in the service. This principle is well settled.A. Janardhana v. Union of India recruit cannot claim seniority from a date before his birth in the service or when he was in school or college and slots cannot be kept reserved for the direct recruits for retrospective appointment.
18. This decision covers practically all the contentions of the respondents in the instant case. It appears that the official respondents had earlier rightly assigned correct seniority to the applicant as well as respondent No. 7. Admittedly the applicant was shown at Sr. No. 27 in the seniority list of 1993 while respondent No.7 was shown at Sr. No. 29 in that list. Again thereafter in the seniority list of 1995 the applicant was shown at Sr. No. 17 while respondent No. 7 was given the seniority at Sr. No. 19. There is no dispute that both these seniority lists of 1993 and 1995 were acted upon by the respondents and promotions were also given from these seniority lists. It is therefore, quite obvious that inter se seniority of the Senior Investigators or ARO had come to be crystallised and there was absolutely no necessity for the revision of the seniority list. Merely because the respondent No. 7 moved the Hon'ble High Court by way of writ petition was clearly no ground for revising the seniority list which had become final and was also acted upon by the department. In the case of Dr. Sunil Kumar and Ors. v. Oil and Natural Gas, Commission and Ors. 1996(2) GLR 781 the Division Bench of Gujarat High Court in a similar case of revision of the seniority list after the same had been acted upon has laid down that giving notional seniority from a retrospective date when it affects seniority of others who joined the service earlier would also not be permissible. The Supreme Court in the case of B.S. Bajwa and Anr. v. State of Punjab and Ors. 1998(1) SLJ 168 while deprecating the practice of revising the seniority list once the same has become final and the interse rights had been crystallised has observed as under; The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance made by B.S. Bajwa and B.D. Kapoor only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all alone treated as junior to the other aforesaid persons and the rights inter se had crystallised which ought not to have been re-opcned after the lapse of such a long period. At every stage the others were promoted before B.S. Bajwa and B.D. Kapoor and this position was known to B.S. Bajwa and B.D. Kapoor right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable.
19. In the instant case also raising of the grievance of seniority after a period of more than six years of his recruitment clearly disentitles the respondent No. 7 from getting the seniority revised.
Unfortunately the department had not applied its mind to this aspect of the matter and unilaterally as well as arbitrarily attempted to create confusion by circulating a draft seniority list and then rejecting the representation of the applicant against the draft seniority list. The memorandum dated 31.1.2002 which rejected the representation of the petitioner Mr. Mukhtar Ahmad against his seniority shown in the draft seniority list quotes the clarification of the Department of Personnel and Training and in spite of quoting that clarification without assigning any reason as to how the seniority assigned to A.H. Bangi was justifiable, has concluded that Bangi's placement at Sr. No. 12 was in order. It is pertinent to note that a plain reading of the clarification given by the Department of Personnel and Training and quoted by P.S. Murty, Director Audience Research for Director General in his memorandum clearly indicates that once the quota of direct recruits and promotees are filled up in the ratio of 1:1 the resultant vacancies in direct recruits quota can be filled up by promotees because of the non-availability of the DR. It is also clarified that this vacancy in the direct recruits quota is not likely to be kept vacant but is assigned to the promotee who is available. It is made clear that it is not necessary that the DR for 1987 vacancy should join in 1987 itself. It appears that the Director Audience Research for Director General either had not applied mind to the O.M. dated 7.2.1986 or had deliberately ignoring the clarification given subsequent to that O.M., twisting the clarification without assigning any reason rejected the representation holding that Mr. Bangi was rightly placed at Sr. No.12 in the seniority list. The memorandum in our opinion is nothing but illogical and arbitrary and deserves to be quashed. The representation of the applicant in our opinion is not decided properly and correctly by Mr. P.S. Murty, Director Audience Research.
20. For the aforesaid reasons, we are of the considered opinion that there was absolutely no need for the respondents to revise the seniority list of Senior Investigator/ARO and the exercise undertaken by them in the year 2000 was clearly arbitrary, illegal and against the instructions issued by the Department of Personnel and Training vide their O.M. dated 7.2.1986. The said exercise was also in clear violation of principles of natural justice and violating Articles 14 and 16 of the Constitution. We find that the applicant was assigned correct seniority does not require to be altered or revised. The respondents are therefore, directed not to revise the seniority and not to act upon the seniority list dated 29.2.2000. The petitioner will be entitled to derive the benefit of the seniority in the seniority list of 8.9.95. With this direction, the O.A. is disposed of with no order as to costs.