Military Engineering Service (Non Industrial class III and IV Posts) Rules, 1971: The Army Headquarter directed on 09.12.1982 the Chief Engineers of all the five commands to initiate recruitment of Group ‘C” personnel – Process of selection was initiated in all the five commands and separate select list in the order of merit in each of the respective commands was published in the year 1983 – Dispute arose in respect of seniority of candidates who were selected and placed in the select panel dated 29.06.1983 of the Western Command but were appointed from April 1987 to April 1988 in the Western Command – Their seniority was determined by the authorities on the basis of their date of joining – Their grievance was that they were the candidates of the select panel of June 1983, their seniority is to be determined in the order of merit regardless to their date of joining – Held: In the matter of adjudging seniority of the candidates selected in one and the same selection, placement in the order of merit can be adopted as a principle for determination of seniority but where the selections are held separately by different recruiting authorities, the principle of initial date of appointment/continuous officiation may 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 – The appointment of individual which was made at a later stage after five years from the select panel notified on 29.06.1983 in the Western Command is not countenanced but in the peculiar circumstances, the dead issue is not opened at this stage – The authorities must be held accountable for their arbitrary action and save the institution from uncalled for litigation – Service law – Seniority.
Disposing of the appeals, the Court
Held: 1.1 It is an admitted position that at the given point of time, selections were held independently by the respective Chief Engineer to whom powers have been delegated to hold recruitment in their respective Commands, but after the appointments are made, a consolidated inter se seniority list of the Commands at All India level was to be notified and since officers are holding transferable posts could be transferred from one Command to the other in exigency of service and indisputedly there is no provision under the Scheme of 1971 Rules or guidelines which would govern the seniority of persons who are appointed in their respective Commands, how their inter se combined seniority of Commands at All India level is to be published. [Para 7][842-C-E]
1.2. Since 1971 Rules were silent in determining seniority inter se of the candidates selected in their respective Command at the stage when a combined All India seniority list is to be prepared and for determination of seniority, reliance was placed on the DoPT OM dated 3rd July, 1986 which broadly examined the determination of seniority between the direct recruits and promotees, seniority of transferees, seniority of special type of cases. The OM dated 3rd July, 1986 deals with determination of seniority of direct recruits who are selected and placed in one and the same select panel by the order of merit in the select list and those who are selected in the earlier selection shall remain senior to such persons who are appointed in the later selection. [Paras 9, 11][843-A-B; 844-B-C]
1.3 In the facts of the instant case when all the five Commands have initiated the process of selection independently at the same time pursuant to the directives of the Engineer-inChief, Army Headquarters dated 9 th 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. [Para 19][846-F-H]
Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra & Ors. (1990) 2 SCC 715 : [1990] 2 SCR 900 – followed.
1.4 The Division Bench of the High Court of Delhi in its impugned judgment has expressed its conformity with the view expressed by the Tribunal so far as the determination of combined inter se seniority at the All India level is concerned, but at the same time has made strong observations regarding the procedure being followed by the authority in making appointments from the select panel of June 1983 after 5 years of the selection in the year 1987/1988. The appointment of individual which was made at a later stage after five years from the select panel notified on
29 th June, 1983 in the Western Command is not countenanced by this Court but in the peculiar circumstances, the dead issue is not opened at this stage. The authorities must be held accountable for their arbitrary action and save the institution from uncalled for litigation. [Paras 20, 21][847-A-C]
1.5 The Tribunal was right in recasting the inter se consolidated seniority list of five Commands based on their initial date of appointment/from the date of entry into service. 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. At the same time, the view expressed by the High Court in its judgment is disapproved. Since the seniority list of the respondents was revised pursuant to the judgment impugned, although the principles laid down are not approved by this Court, but the fact remains that both the incumbents were promoted in terms of their revised seniority to the higher promotional post and one of them had retired from service in October 2018 and the other incumbent is at the verge of retirement in March 2022, in these peculiar circumstances, this Court in exercise of its power under Article 142 of the Constitution to do complete justice is not inclined to disturb the seniority which has been assigned to them in compliance with the order of the Tribunal although on principle has not been accepted/approved by this Court. [Paras 22, 23][847-D-H]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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