Supreme Court: The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., expressed dismay over the manner adopted by the Western Command, Military Engineering Service in making appointments from the select panel of 29-06-1983 after a lapse of 4-5 years in the year 1987-1988.
Facts of the Case
The undisputed facts of the case were that a letter was sent from the office of the Engineer-in-Chief of the Engineer-in-Chief of the Military Engineering Service to the Chief Engineers of all the five Commands (Eastern, Western, Northern, Southern and the Central Command) for initiating the recruitment of Group ‘C’ personnel in the Grade of Superintendent (B/R) Grade II and Superintendent (E/M) Grade II. Pursuant to which process of selection was initiated by the office of Chief Engineer in all the five Commands followed with the separate select list in the order of merit in each of the respective Commands came to be published in the year 1983.
In Western Command, a select panel of 261 candidates was published on 29-06-1983 and appointments were made as per the select list based on the order of merit in their respective Commands. The trouble arose when candidates who were selected and placed in the select panel dated 29-06-1983 of the Western Command were curiously appointed from April 1987 to April 1988, i.e. after 5 years down the line in the Western Command.
The grievance of the candidates was that as they were the candidates of the select panel of June 1983, and seniority of the candidates selected by direct recruitment was to be determined in the order of merit regardless to their date of joining, they were entitled to claim seniority with their counterparts who were appointed out of the select panel dated 29-06-1983 of Western Command in the year 1983.
Hence, the issue before the Bench was to determine whether such applicants, who although were approved in the panel prepared by the Western Command in 1983, but appointed after a gap of 5 years in 1987/1988, were entitled for determination of their seniority as per their placement in the order of merit in the select panel of the year 1983 or will be entitled to claim seniority from the date of their appointment?
Findings of the Court
“…the manner in which the appointments were made from the select panel of 1983 after it has outlived its life in the year 1987-1988 and ordinarily it was not open to be operated upon and such appointments are nothing but a clear abuse of the discretion vested with the competent authority.”
Noticing that the different Commands carried out separate selections and published its select panel in the year 1983, and the normal principle of adjudging seniority in their respective intra Command on the basis of placement in the order of merit could not apply as the separate selections were held by the respective Command, the Bench stated that the principle of initial date of appointment/continuous officiation might be the valid principle to be considered for adjudging inter se seniority of the officers in the absence of any rule or guidelines in determining seniority to the contrary.
Keeping in view the principles laid down by the Constitutional Bench in Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra, (1990) 2 SCC 715, the Bench stated,
“…when all the five Commands have initiated the process of selection independently at the same time pursuant to the directives of the Engineer-in-Chief, Army Headquarters dated 9th December, 1982 while adjudging their combined inter se seniority list, the principle of initial date of appointment/continuous officiation may be the valid principle to be considered for determination of inter se seniority in the absence of any rule or guidelines to the contrary.”
Holding that, though the appointment of individual made at a later stage after five years from the select panel notified on 29-06-1983 could not be countenanced by the Court, but considering the peculiar circumstances, the Bench stated, “we are not inclined to open the dead issue at this stage”, but as a matter of caution, the Bench opined that the authorities must be held accountable for their arbitrary action and save the institution from uncalled for litigation.
Accordingly, while upholding the judgment of the Tribunal, i.e. recasting the inter se consolidated seniority list of five Commands based on their initial date of appointment/from the date of entry into service, which was affirmed by the Delhi High Court, the Bench ordered if any person is aggrieved with his placement in the re-casted seniority list prepared in compliance with the order of the Tribunal, he will always be at liberty to assail his placement in seniority in the independent proceedings in accordance with law.
However, the judgment of the Punjab and Haryana High Court wherein it had permitted the seniority of two candidates to be counted from the year 1983 was set aside without disturbing the status of the respondents as both the incumbents were promoted in terms of their revised seniority to the higher promotional post and one of them had retired and another was at the verge of retirement in March 2022.
[Sudhir Kumar Atrey v. Union of India, 2021 SCC OnLine SC 971, decided on 26-10-2021]
Kamini Sharma, Editorial Assistant has put this report together
*Judgment by: Justice Ajay Rastogi