D.P. DASversusUNION OF INDIA AND ORS.

               [2011] 13 (ADDL.) S.C.R. 739

                         D.P. DAS                              A
                             v.
                UNION OF INDIA AND ORS.
              (Civil Appeal Nos.7002 of 2004)
                     AUGUST 9, 2011
                                                               B
   [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

      Service Law - Seniority - lnter-se seniority of direct
recruits - Determination of - Held: Seniority is an incidence
of service and where the service rules prescribe the method    c
of its computation, it is squarely governed by such rules - In
absence of a rule governing seniority, 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 D
the facts and circumstances of the case - 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 E
to the facts of the case - The argument that the date of
interview would have to be considered as a guide for
determination of seniority cannot be 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 - As in this case there is no rule prescribed F
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
- From the analysis of the executive instructions, it is clear
that the 1946 instruction has not been superseded and the G
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.- In the
premises aforesaid the seniority of the officers who were
                            739                                H
   740    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A recommended on the same date must be decided by their
  respective age - 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
8 recommended.
        Service Law - Seniority - Determination of - Held: 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,
C which are just and fair - This is the mandate of Articles 14
  and 16 - Constitution of India, 1950 - Articles 14 and 16.
       In the year 1983, Specialist Medical Officers (SMOs)
  were recruited in the Ordnance Factories Organization in
  the category of Obstetrics, Gynaecology, Medicine and
0
  Surgery. The appellant was one of the five recruited
  persons and he belonged to the category of Surgery. In
  the year 1991, on the recommendation of the Fourth Pay
  Commission, one post in the Indian Ordnance Factories
  Health Services (Group A) was sanctioned for filling up
E 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.
  Respondent No.1 referred the matter to the UPSC for
  preparation of the common seniority list. The SMOs were
F recommended by the UPSC by three different lists, two
  of which were made on the same date and therefore the
  UPSC was requested to furnish the relative order of
  seniority of those SMOs who are recommended on the
  same date. The UPSC decided to fix the seniority, based
G on the date of interview i.e. candidates interviewed on an
  early date to be senior to those interviewed on a later
  date. In the seniority list, respondent Nos. 4, 5 and 6 were
  placed above the appellant. As appellant felt aggrieved
  by the publication of the said seniority list, he made
H representations before respondent No.1. However, no
        D.P. DAS v. UNION OF INDIA AND ORS.              741


   reply was received by the appellant from respondent A
   No.1. Being aggrieved, the appellant preferr.ed an original
   application before the Administrative Tribunal and prayed
   to quash the said seniority list and also for maintenance
   of discipline wise seniority list initially prepared by the
· ·UPSC and for kee,pil)g Confidential Reports as criteria for B
   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 application
   was dismissed by the Tribunal. Aggrieved, the appellant c
   filed writ petition before the High Court. 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. Hence the present appeal.
                                                                D
     Allowing the appeal, the Court
     HELD: 1. 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     E
 absence of a provision ordinarily the length of service is
 taken into account. [Para 22] [750-H; 751-A]
     2. It is 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        F
 has to be determined on the basis of the length of the
 service and not on any other fortuitous circumstances.
 [Para 23] [751-B]
     M.B. Joshi & others. v. Salish Kumar Pandey & Ors. AIR     G
 1993 SC 267: 1992 (2) Suppl. SCR 1 - relied on.
     3. 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          H
    742     SUPREME COURT REPORTS (2011] 13 (ADDL) S.C.R.

A just and fair. This is the mandate of Articles 14 and 16.
  [Para 24) [751-C)

         The Manager, Government, Branch Press and another
    v. D.B. Bel/iappa AIR 1979 SC 429: 1979 (2) SCR 458 -
    relied on.
8
       4. In absence of a rule governing seniority, 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,
C which could be applied in the facts and circumstances
  of the case. In the instant case, no record has been
  brought before the Court to ascertain merit wise position
  of the persons who were directly recruited. On 28.8.1946,
  the Government of India, Department of Home had issued
D an Office Memorandum (O.M.) for determination of
  seniority of direct recruits. 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. [Paras 13, 26, 27) [748-G; 751-F-H; 752-
E A]'
          Bim/esh Tanwar v. State of Haryana & other (2003) 5
    SCC 604: 2003 (2) SCR 757 - relied on.

       5. The argument that the date of interview would
F have to be considered as a guide for determination of
  seniority cannot be 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. As in this case there is no rule
G 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. [Paras 28, 29] [752-B-C]

          6. From the analysis of the executive instructions, it
H
     D.P. DAS v. UNION OF INDIA AND ORS.            743

is clear that the 1946 instruction has not been A
superseded and the same refers to the acceptance of the
<lge of the candidate as the determining factor for
seniority. Such a basis is not fortuitous and is otherwise
just and reasonable. In the premises aforesaid the
seniority of the officers who were recommended on the 8
same date must be decided by their respective age. The
 contrary view taken by the High Court of fixing seniority
 on the basis of date of interview, being wholly fortuitous,
 cannot be accepted. [Paras 30, 31, 32] [752-D-F]

     7. In the instant case, there is no rule and thus this C
Court has to evolve a fair and just basis of seniority on
the basis of the office memorandum of 1946. 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 D
the basis of age of the candidates who have been
recommended. [Para 27 & 34] [751-H; 752-H; 753-A]

     B. Premanand and others v. Mohan Koikal and others
 (2011) 4 SCC 266 - distinguished.                           E
                    Case Law Reference:
     1992 (2) Suppl. SCR 1 relied on            Para 23
     1979 (2) SCR 458       relied on           Para 25
                                                               F
     2003 (2) SCR 757       relied on           Para 26

     (2011) 4 sec 266       distinguished       Para 33

     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
 7002 of 2004.                                                 G

     From the Judgment and Order dated 30.06.2003 of the
 High Court of Madhya Pradesh at Jabalpur in W.P. No. 5238
 of 2000.
                                                               H
          744     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


    A         Shashi B. Upadhyay, Y.K.S. Chauhan and Kumud Lara
          Das for the Appellant.

              T.S. Doabia, Sunita Sharma and K.K. Sharma for the
          Respondents.

    B           The Judgment of the Court was delivered by

               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
 c       30th June, 2003.

       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,
D 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
E 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
F 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 therefore the
  UPSC was requested to furnish the relative order of seniority
  of those SMOs who are recommended on the same date.
G           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.

H
       D.P. DAS v. UNION OF INDIA AND ORS.                     745
             [ASOK KUMAR GANG ULY, J.]
     5. As the appellant felt aggrieved by the publication of the     A
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 B
application (O.A.No.457 of 1995) before the Central
Administrative Tribunal, Jabalpur Bench ('the Tribunal') and
prayed to quash the 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 C
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:
                                                                 D
      (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               E
            on the basis of aconsolidatedorder of merit and
            not subject wise

      (c)   The Department never requested the UPSC to
            prepare a combinedseniority list as per merit on
            the basis of performance in the interview. It was         F
            therefore notpossible forthe UPSC to prepare a
            combinedseniority list in the year 1992.

     7. The UPSC before the Tribunal contended, inter alia, that
the interview for different disciplines viz specialists I medicine,   G
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                    H
    746     SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.


A                  advertisement was 13.11.1982, date of interview
                   was 28.2.1983 and date of UPSC recommendation
                   letter was16.3.1983.

           (ii)    Insofar as the Specialist (Medicine) is concerned
                   the date of advertisement was6.11.1983, date of
B
                   interview was15/16.03.1983 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
c                  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
0 the basis of arriving at the methodology adopted for fixing the
  seniority of two different disciplines, whose recommendations
  were made on the same date w..re 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
E 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
F         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
G         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
H
      D.P. DAS v. UNION OF INDIA AND ORS.                     747
            [ASOK KUMAR GANGULY, J.]
    is seen that the Commission, based on detailed A
    examination decided to fix the seniority in such case,
    based on date of interview i.e. candidates interviewed on
    an early 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 B
    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 c
    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.
                                                                      D
     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.                                                                 E
    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 se merit list was not available as        F
    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             G
    circumstances are solved by taking recourse to innovative
    methods. The tribunal in paragra?ti 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 S~ecialist              H
    748     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A         (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
B         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
c         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
D
          appear on a first blush to be quite attractive but on a closer
          scrutiny of the same it t:Js to be repelled ............. The
          UPSC has determined the seniority on the basis of the date.
          of interview and the date when selection had taken place.
          In the absence of any document on record, in the absence
E         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
F         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
G 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
H         order of merit or preference, seniority should be
       D.P. DAS v. UNION OF INDIA AND ORS.                   749
             [ASOK KUMAR GANGULY, J.]
    determined by age provided a candidate joins within such        A
    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 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.    B

    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      C
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    D
Memorandum cited below:

           Office Memorandum No. 30/44/48- Apptts, dated
           the 22nd June, 1949.
                                                                    E
           Office Memorandum No. 65/28/49 - DGS.(Appts.)
           dated the 3rd Feburary, 1950 and other subsequent
           Office Memorandum regarding fixation of seniority
           of ex-employees of the Government of Burma

           Office Memorandum No. 31/223/50 - DGS, dated             F
           the 27th April, 1951 and other subsequent Office
           Memorandum regarding fixation of seniority of
           displace Government Servants.

           Office Memorandum No. 9/59/56 - RPS dated the            G
           4th August, 1956.

            Office Memorandum No. 32/10/49 - CS dated the
            31st March, 1950
                                                                    H
    750     SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A                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
B 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
C no combined merit list is 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
D 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
E 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
F         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."

G       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
H
         D.P. DAS v. UNION OF !NOIA AND ORS.                    751
               [ASOK KUMAR GANGULY, J.)
 absence of a provision ordinarily the length of service is taken       A
 into account.

      23. The ·supreme Court in MB. 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     B
 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.

      24. Determination of seniority is a vital aspect in the           C
 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.
                                                                        D
      25. In The Manager, Government, Branch Press and
 another v. D.B. Belliappa reported AIK 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       E
      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            F
 Tanwar v. State of Haryana & other, (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,   G
 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,        H
    752    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.CR.


A 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.
B This cannot be 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
C 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
0 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.

       31. In the premises aforesaid the seniority of the officers
  who were recommended on the same date must be decided
E 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.
F
       33. The reliance by the respondent(s) on judgment of this
  Court in 8. Premanand and others v. Mohan Koika/ and
  others, (2011) 4 sec 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
G 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.

      34. For the reasons aforesaid this Court holds that for
H determination of seniority of the officers who were
         D.P. DAS v. UNION OF INDIA AND ORS.                753
               [ASOK KUMAR GANGULY, J.]
recommended on the same date, age is the only valid and fair       A
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   8
of the case, there will be no orders as to costs.

B.B.B.                                        Appeal allowed.