Supreme Court of India
SUDHIR KUMAR ATREYversusUNION OF INDIA & ORS.
- Citation
- 2021 INSC 673
- Decided
- 26 October 2021
- Disposal
- Disposed off
- Bench
- AJAY RASTOGI
Holding
When selections are conducted separately by different recruiting authorities, seniority must be determined by the initial date of appointment/continuous officiation, and the Tribunal’s revised seniority list stands.
Summary
The case concerned candidates selected in the 1983 Western Command panel of the Military Engineering Service (Non‑Industrial Class III and IV) recruitment who were appointed only in 1987‑88. They claimed that their seniority should be fixed by the order of merit in the 1983 select panel, while the authorities had granted seniority based on the actual date of joining. The Supreme Court examined the 1971 Rules, which were silent on inter‑se seniority, and relied on the Department of Personnel Office Memorandum of 3 July 1986 and the principle that where separate commands conduct independent selections, seniority should be determined by the initial date of appointment/continuous officiation. The Court held that the later appointments were not countenanced but, in view of the Tribunal’s revised seniority list, the existing seniority should not be disturbed under Article 142. Consequently, the appeal challenging the revised seniority list was allowed, the impugned High Court judgment set aside, and the seniority as fixed by the Tribunal upheld.
Issues considered
- The appropriate basis for determining inter‑se seniority of candidates selected by separate commands under the Military Engineering Service Rules, 1971 – order of merit in the select panel versus date of actual appointment.
- Whether appointments made in 1987‑88 from a 1983 select panel are valid and can affect seniority.
- Whether the revised seniority list prepared by the Central Administrative Tribunal can be upheld despite the Court’s disagreement with its reasoning.
Legislation cited
Subjects
senioritymilitary engineering servicerecruitmentinter se seniorityorder of meritdate of appointmentDepartment of Personnel Office MemorandumArticle 142service law
Judgment
[2021] 8 S.C.R. 835 835
SUDHIR KUMAR ATREY A
v.
UNION OF INDIA & ORS.
(Civil Appeal No. 6460 of 2021)
OCTOBER 26, 2021 B
[AJAY RASTOGI AND ABHAY S. OKA, JJ.]
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
C
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 D
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
E
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 F
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
G
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 H
835
836 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 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
B
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]
C
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
D 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
E
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-in-
F
Chief, 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
G 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.
H
SUDHIR KUMAR ATREY v. UNION OF INDIA 837
1.4 The Division Bench of the High Court of Delhi in its A
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
B
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 C
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 D
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 E
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 F
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. G
[Paras 22, 23][847-D-H]
Case Law Reference
[1990] 2 SCR 900 followed para 19
H
838 SUPREME COURT REPORTS [2021] 8 S.C.R.
A CIVIL APPELLATE JURISDICTION: Civil Appeal No.6460 of
2021
From the Judgment and Order dated 27.08.2013 of the High Court
of Delhi at New Delhi in W.P. (Civil) No.4394 of 2008.
B With
Civil appeal no.6461 of 2021
N. Natraj, ASG, Devadatt Kamat, R. Balasubramanium, Vinay
Kumar Garg, Sr. Advs., Rohit Sharma, Rounak Nayak, Ms. Arju
Chaudhary, Kumar Dushyant Singh, Abhishek Kumar, Vatsal Joshi,
C Vinayak Sharma, Arvind Kumar Sharma, Ms. Mayuri Raghuvanshi,
Vyom Raghuvanshi, Ms. Purvat Wali, Parv Garg, Pawas Kulshreshtha,
Advs. for the Appellant.
Yadav Narender Singh, Mukesh Kumar Verma, Vijay Kumar
Sharma, Jagdish Parshad, Advs. for the Intervenor.
D
The Judgment of the Court was delivered by
RASTOGI, J.
1. Leave granted.
E 2. Both the above appeals, although have been decided by separate
judgment by the High Court of Delhi and the Punjab and Haryana High
Court, but since the self-same question is being raised in the instant
appeals, hence are being decided by the present judgment.
3. The undisputed facts in brief relevant for the purpose are that
F headed by the Engineer-in-Chief since its inception, the Military
Engineering Service for administrative purposes was bifurcated into five
Commands being the Eastern, Western, Northern, Southern and the
Central Command with an officer of the rank of Chief Engineer being
the administrative head and controller of each Command. There existed
G a separate cadre of Superintendents for buildings and roads and a separate
cadre for electrical and mechanical equipment having the posts of
Superintendent (B/R) Grade II and Grade I as also Superintendent (E/
M) Grade II and Grade I. The service conditions are governed by the
Military Engineering Service (Non-Industrial Class III and IV Posts)
Rules, 1971 (hereinafter being referred to as “1971 Rules”).
H
SUDHIR KUMAR ATREY v. UNION OF INDIA 839
[AJAY RASTOGI, J.]
4. On 9th December, 1982 a letter was sent from the office of the A
Engineer-in-Chief Branch, Army Headquarters to the Chief Engineers
of all the five Commands for initiating the recruitment of Group ‘C’
personnel in the Grade of Superintendent (B/R) Grade II and
Superintendent (E/M) Grade II, intimating as under :
“90027/A/E1C(I) 09 DEC 82 B
The Chief Engineer
HQ Southern Command, Pune
HQ Eastern Command, Calcutta
C
HQ Western Command, Simla
HQ Central Command, Lucknow
HQ Northern Command, C/o 56 APO
PLANNING OF RECRUITMENT OF PERSONAL IN THE D
GRADE OF SUPDT B/R AND SUPDT E/M GDE II
As a result of the recent promotions of Supdt B/R and Supdt E/M
Gde II to Supdt Dde and keeping in view the likely increase in the
establishment during the next year it is expected that nearly 700 to 1000
Supdt B/R and E/M Gde-II will have to be recruited to make good the E
deficiencies in these categories. Command wise break down of the
approximate requirement of personal is estimated as under:
Command Approximate requirement of Superintendent
B/R Gde II E/M Gde II F
Southern Command 250 60
HQ Eastern Command 50 25
HQ Western Command 280 20
HQ Central Command 160 50
G
HQ Northern Command 60 15
Total 800 170
H
840 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 2. In order to meet the requirement on the ground, it is essential to
plan the recruitment action well in advance. Please therefore, advised
the CE Zones to probe all State Govt/Central Govt. employment
exchanges and ascertain availability of suitable candidates (Diploma
Holders) for appointment to the above posts. Please also cause letters
to be issued by employment exchanges diploma courses institution on
B
opening available.
3. Board of officers with presiding officers not below the rank
of Lt Col/SE will be convened by CE Command to interview
and select suitable candidates to be sponsored by
employment exchanges.
C
4. In order to reduce the posting of personal from one State to
another to the barest minimum, it will be helpful if the
recruitment is made from the concerned region for filling
up the vacancies existing/likely to occur in that regions.
D 5. The result of the communication made to various
employment exchanges as per para 2 above may be
intimated to this HQ by 10 Mar 83.
6. Please acknowledge.”
E 5. Pursuant to the directives issued from the Headquarters, process
of selection at the same time 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 29th June, 1983. In sequel thereof, appointments were
F made as per the select list notified 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 29th June, 1983 of the
Western Command but curiously after 5 years down the line were
appointed from April 1987 to April 1988 in the Western Command and
G their names are indicated from S. Nos.258 to 277 as under. It may be
noticed that S. No.257 in Western Command was appointed on 2nd
November, 1983 from the same select panel of 29th June, 1983.
“REVISED ALL INDIA SENIORITY LIST OF JE (CIV) AS
ON 01.04.2004
H
SUDHIR KUMAR ATREY v. UNION OF INDIA 841
[AJAY RASTOGI, J.]
SER COMD MES NO. & NAME OF THE DATE OF YEAR OF A
No. OFFICER REGULAR PROMOTION/
AP PTT TO THE PANEL
GDE OF B/R 1
257. WC 313753 Ashok Kumar Garg 02.11.83 83/057
B/R-II 29.06.83
258. WC 344542 Sudhir Kumar Atrey 27.04.87 83/065
B/R-II 29.06.83
259. WC 314685 Bharat Bhushan 05.06.87 83/068 B
B/R-II 29.06.83
260. WC 314436 Kuldip Singh 20.04.87 83/116
B/R-II 29.06.83
261 WC 314503 Suresh Kumar Yadav 25.04.87 83/125
B/R-II 29.06.83
262 WC 314738 Anil Kumar 23.04.87 83/127
B/R-II 29.06.83
263 WC 314555 Om P rakash 24.04.87 83/188 C
B/R-II 29.06.83
264 WC 314894 Brij Prakash 25.04.88 83/150
B/R-II 29.06.83
265 WC 314814 Dharma Vir Singh 30.04.88 83/152
B/R-II 29.06.83
266 WC 314644 Ranbir Singh Verma 10.04.87 83/158
B/R-II 29.06.83
267 WC 314495 Parash Ram 22.04.87 83/159
D
B/R-II 29.06.83
268 WC 314811 Satish Kumar Sharma 07.05.88 83/164
B/R-II 29.06.83
269 WC 314506 Narender Singh 22.04.87 83/169
B/R-II 29.06.83
270 WC 314786 Subhash Chander Bajaj 12.04.88 83/183
B/R-II 29.06.83 E
271 WC 314972 Arun Kumar 18.04.88 83/184
B/R-II 29.06.83
272 WC 314978 Bharat Bhushan 08.04.88 83/188
B/R-II 29.06.83
273 WC 314875 Suresh Chander 22.04.88 83/199
B/R-II 29.06.83
274 WC 314836 Ved Singh 29.04.88 83/209
B/R-II 29.06.83 F
275 WC 314837 Bhagirath Swamy 29.04.88 83/214
B/R-II 29.06.83
276 WC 314876 Hardev Singh 21.04.88 83/221
B/R-II 29.06.83
277 WC 314840 Jati nder Pal 15.04.88 83/223
B/R-II 29.06.83
6. These candidates were appointed from the select list of June G
1983 in the Western Command from April 1987 to April 1988. Their
seniority was accordingly determined by the respondents on the basis of
their date of joining. Their grievance was that as they are the candidates
of the select panel of June 1983 and as per the consistent practice and
as per the OM issued by the Government of India dated 3rd July, 1986, H
842 SUPREME COURT REPORTS [2021] 8 S.C.R.
A seniority of the candidates who are selected by direct recruitment is to
be determined in the order of merit regardless to their date of joining are
entitled to claim seniority with their counterparts who were appointed
out of the select panel dated 29th June, 1983 of Western Command in
the year 1983 and after rounds of litigation before Central Administrative
Tribunal/High Court, the matter has travelled to this Court to determine
B
the inter se seniority of such persons who, although selected in June
1983 in Western Command, but whether their date of joining service at
a later stage will be a guiding factor when the combined All India seniority
of the five Commands is prepared or seniority will relate back to their
placement assigned in the select panel of June 1983 of Western Command
C regardless to the fact of their joining at a later stage, anterior to the
period one has taken birth in the Department.
7. 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
D 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
E respective Commands, how their inter se combined seniority of
Commands at All India level is to be published.
8. To shorten the litigation, Central Administrative Tribunal,
Principal Bench in OA No.164 of 2007, while examining the afore-stated
question took note of the Scheme of Rules and posed the question as to
F whether such applicants, who although were approved in the panel
prepared by the Western Command in 1983, but were appointed after a
gap of 5 years in 1987/1988, are they 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
G their appointment, and to be more specific, the incumbents who raised
their grievance in claiming seniority are Sudhir Kumar Atrey, appellant
in Civil Appeal @ SLP (C) No.6572 of 2014 and Satish Kumar Sharma
and Jatinder Pal, respondents in Civil Appeal @ SLP (C) No.5275 of
2021 and their names in the list of candidates have been referred to in
the seniority list, at serial nos.258, 268 and 277 respectively.
H
SUDHIR KUMAR ATREY v. UNION OF INDIA 843
[AJAY RASTOGI, J.]
9. Since 1971 Rules were silent in determining seniority inter se A
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,
B
seniority of special type of cases, as adverted to.
10. The Office Memorandum dated 3rd July, 1986 issued by the
DoPT laying down the principles for determination of seniority of persons
appointed to service on posts in Central Government, of direct recruits
and promotees of one and the same select panel, seniority of transferees
and those who are recruited in special type of cases and the extract of C
the OM with which we are concerned is referred to hereunder:
“OFFICE MEMORANDUM
Subject : SENIORITY – Consolidated orders on.
The undersigned is directed to say that instructions have D
been issued by this Department from time to time laying down the
principles for determining seniority of persons appointed to services
and posts under the Central Government. For facility of reference,
the important orders on the subject have been consolidated in this
Office Memorandum. The number and date of the original
communication has been quoted in the margin so that the users E
may refer to it to understand fully the context in which the order
in question was issued.
SENIORITY OF DIRECT RECRUITS AND PROMOTEES
(MHA O.M. No.9/11/55-RPS dated 22.12.59)
F
2.1 The relative seniority of all direct recruits is determined by the
order of merit in which they are selected for such appointment on
the recommendations of the U.P.S.C. or other selecting authority,
persons appointed as a result of an earlier selection being senior
to those appointed as a result of a subsequent selection.
G
2.2 Where promotions are made on the basis of selection by a
D.P.C., the seniority of such promotees shall be in the order in
which they are recommended for such promotion by the
Committee. Where promotions are made on the basis of seniority,
subject to the rejection of the unfit, the seniority of persons
considered fit for promotion at the same time shall be the same as H
844 SUPREME COURT REPORTS [2021] 8 S.C.R.
A the relative seniority in the lower grade from which they are
promoted. Where, however, a person is considered as unfit for
promotion and is superseded by a junior such persons shall not, if
he is subsequently found suitable and promoted, take seniority in
the higher grade over the junior persons who had superseded him.”
B 11. 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.
C 12. Admittedly, the different Commands carried out separate
selections and published its select panel in the year 1983, the normal
principle of adjudging seniority in their respective intra Command can be
on the basis of placement in the order of merit, but this principle may not
apply when the separate selections are held by the respective Command
and later a combined inter se seniority list at the headquarters is to be
D prepared at All India level is not meted out in OM dated 3rd July, 1986.
13. To sum up the situation, Central Administrative Tribunal,
Principal Bench, in dealing with the situation as emerged afore-stated, in
its order dated 26th May, 2008, observed in paras 23 and 24 as under:
E “23. From Annexure ‘O’, we can gather that the real issue required
to be examined with reference to this dispute, had not been
attempted. Office Memoranda referred to in the order could not
have had any application as far as the case at hand was concerned.
The applicants were entitled to get seniority from the date of their
initial appointment and so far as this has been overlooked in
F Annexure ‘O’, the same is required to be appropriately modified.
The general question, whether seniority from the date of
appointment, or the date of panel, cannot have application in these
circumstances since appointments had not been made by one and
the same Command. Even if it was applicable by stretching, the
G long delay in conferment of appointment could not have been gone
unnoticed.
24. However, we do not think it is necessary to unsettle the whole
list at this point of time. We direct that in the matter of adjudging
seniority, the principle of initial date of appointment/continuous
officiation should be borne in mind and the principle of panel
H
SUDHIR KUMAR ATREY v. UNION OF INDIA 845
[AJAY RASTOGI, J.]
seniority was inapplicable and not possible to be followed as far A
as claims of applicants and similarly situated are concerned vis-à-
vis respondents 4 to 9. Consequently, we direct that appropriate
modification to the seniority list appended to Annexure ‘O’ is to
be brought, and circulated. The applicants will be entitled to the
aforesaid benefits as declared by us and their seniority should be
B
with reference to their date of appointment. O.A. is disposed of.
No costs.”
14. The Tribunal finally observed that while adjudging seniority in
such a complex situation where scheme of Rules or guidelines are silent
in determining inter se seniority of the Commands at All India level, the
only possibility and the rationale rule would be to have their seniority C
reckoned from the date of entering into service when he is compared to
the person who belonged to yet another Command and it will be illogical
if the incumbent who was appointed earlier is pushed down below the
persons who were later appointed as in the instant case after almost 4 to
5 years of the select panel being published in June 1983 and has not D
even taken birth in the Department are allowed to claim seniority anterior
to the date of joining service.
15. The Tribunal and the High Court in the judgment impugned
has made strong observations and commented in regard to the manner
in which the appointments were made from the select panel of 1983 E
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 and we also
have our serious reservation in regard to the procedure/manner which
was adopted by the authority in making appointments in Western
Command from the select panel of 29th June, 1983 after a lapse of 4-5 F
years in the year 1987-1988, when the successive selections are held in
the interregnum, but it reveals from the record that no one has questioned
their appointments and by this time more than 34 years have rolled by
and much water has flown in the Ganges and persons have later promoted
to their promotional posts and few of them have retired and some of G
them are at the verge of retirement.
16. At the same time, two incumbents who approached the Central
Administrative Tribunal at Chandigarh and succeeded in claiming seniority
from the date of their placement in the select panel of 29th June, 1983
regardless of their appointment in the year 1987 or 1988 respectively H
846 SUPREME COURT REPORTS [2021] 8 S.C.R.
A and confirmed by the High Court on dismissal of the writ petition filed at
the instance of the Union of India by a judgment dated 17th September,
2018, the seniority list qua them was revised and they were further
promoted on the higher promotional posts and after full term of service
being rendered, Jatinder Pal respondent no.1 in Civil Appeal arising out
of SLP(C) No.5275 of 2021 is going to retire in March 2022 and Satish
B
Kumar Sharma, respondent no.2 in Civil Appeal arising out of SLP(C)
No.5275 of 2021 had retired from service in October, 2018.
17. It is not disputed that there is no rule or guidelines issued by
the respondents which may determine the inter se seniority when a
combined seniority list at the All India level is to be prepared under the
C Scheme of 1971 Rules and the respondents were taking assistance of
Office Memorandum of DoPT dated 3rd July, 1986 which deals with the
determination of seniority of direct recruits who were selected and placed
in one and the same select panel to be determined by the order of merit
in the select list and those who are selected in the earlier selection shall
D remain senior to such persons who were appointed in the later selection
and also with regard to relative seniority of direct recruits vis-a-vis the
promotees in the cadre.
18. We are also of the view that in the matter of adjudging seniority
of the candidates selected in one and the same selection, placement in
E 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.
F
19. Adverting to 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-in-Chief, Army
Headquarters dated 9th December, 1982 while adjudging their combined
inter se seniority list, the principle of initial date of appointment/continuous
G 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
keeping in view the principles laid down by the Constitution Bench of
this Court in Direct Recruit Class II Engineering Officers’ Association
Vs. State of Maharashtra & Ors.1.
1
H (1990) 2 SCC 715
SUDHIR KUMAR ATREY v. UNION OF INDIA 847
[AJAY RASTOGI, J.]
20. The Division Bench of the High Court of Delhi in its impugned A
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
B
the selection in the year 1987/1988.
21. The appointment of individual which was made at a later stage
after five years from the select panel notified on 29th June, 1983 in the
Western Command cannot be countenanced by this Court but in the
peculiar circumstances, we are not inclined to open the dead issue at
C
this stage, but as a matter of caution, we would like to observe that the
authorities must be held accountable for their arbitrary action and save
the institution from uncalled for litigation.
22. In compliance of the Tribunal’s order dated 26th May, 2008,
seniority list was to be drawn with reference to para 24 of the judgment
D
of which reference has been made and we are in agreement with what
has been expressed by the Tribunal while 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 E
placement in seniority in the independent proceedings in accordance
with law.
23. At the same time, we disapprove the view expressed by the
High Court of Punjab and Haryana in its judgment dated 17 th September,
2018. Since the seniority list of the respondents in Civil Appeal @ SLP F
(C) No.5275 of 2021 was revised pursuant to the judgment impugned,
although the principles laid down have not been 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
G
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.
H
848 SUPREME COURT REPORTS [2021] 8 S.C.R.
A 24. Consequently, Civil Appeal @ SLP(C) No.6572 of 2014 is
dismissed and Civil Appeal @ SLP (C) No.5275 of 2021 succeeds and
is allowed and the impugned judgment dated 17th September, 2018 is set
aside without disturbing the status of the respondents (Jatinder Pal and
Satish Kumar Sharma).
B 25. Pending applications, if any, stand disposed of.
Devika Gujral Appeals disposed of.
C
D
E
F
G
H
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