Sudhir Kumar Atrey vs Union Of India on 26 October, 2021


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Supreme Court of India

Sudhir Kumar Atrey vs Union Of India on 26 October, 2021

Author: Ajay Rastogi

Bench: Ajay Rastogi, Abhay S. Oka

                                                                      REPORTABLE


                                   IN THE SUPREME COURT OF INDIA
                                   CIVIL APPELLATE JURISDICTION
                              CIVIL APPEAL NO(S).                  OF 2021
                             (Arising out of SLP(Civil) No(s).6572 OF 2014)


         SUDHIR KUMAR ATREY                                …..APPELLANT(S)


                                   VERSUS


         UNION OF INDIA & ORS.                             …..RESPONDENT(S)


                                                 WITH

                                    CIVIL APPEAL NO(S).           OF 2021
                              (Arising out of SLP(Civil) No(s).5275 OF 2021)



                                            JUDGMENT

Rastogi, J.

1. Leave granted.

2. Both the above appeals, although have been decided by
Signature Not Verified

separate judgment by the High Court of Delhi and the Punjab and
Digitally signed by
NEETU KHAJURIA
Date: 2021.10.26
15:53:38 IST
Reason:

Haryana High Court, but since the self-same question is being raised

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in the instant appeals, hence are being decided by the present

judgment.

3. The undisputed facts in brief relevant for the purpose are that

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 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”).

4. On 9th December, 1982 a letter was sent from the office of the

Engineer-in-Chief Branch, Army Headquarters to the Chief

Engineers of all the five Commands for initiating the recruitment of

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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

The Chief Engineer
HQ Southern Command, Pune
HQ Eastern Command, Calcutta
HQ Western Command, Simla
HQ Central Command, Lucknow
HQ Northern Command, C/o 56 APO
PLANNING OF RECRUITMENT OF PERSONAL IN THE
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 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
    Southern Command                       250               60
    HQ Eastern Command                     50                25
    HQ Western Command                     280               20
    HQ Central Command                     160               50
    HQ Northern Command                    60                15

                             Total         800                170

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.

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Please also cause letters to be issued by employment exchanges
diploma courses institution on 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.

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.

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.”

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 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 their names are

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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

SER COMD MES NO. & NAME OF THE DATE OF YEAR OF
NO. OFFICER REGULAR PROMOTION/
APPTT TO PANEL
THE 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/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 Prakash 24.04.87 83/188
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
B/R-II 29.06.83
268 WC 314811 Satish Kumar 07.05.88 83/164
Sharma 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 12.04.88 83/183
Bajaj B/R-II 29.06.83
271 WC 314972 Arun Kumar 18.04.88 83/184
B/R-II 29.06.83

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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
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 Jatinder Pal 15.04.88 83/223
B/R-II 29.06.83

6. These candidates were appointed from the select list of June

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, 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 the inter se seniority of such persons who, although

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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 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 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.

7

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 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 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.

9. 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

8
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, 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 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
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 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)

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

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selection being senior to those appointed as a result of a
subsequent selection.

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 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.”

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.

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

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at the headquarters is to be 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:

“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 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 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 seniority
was inapplicable and not possible to be followed as far 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 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

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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 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 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

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

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29th June, 1983 after a lapse of 4-5 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 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 29 th

June, 1983 regardless of their appointment in the year 1987 or 1988

respectively 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 Kumar Sharma, respondent no.2 in Civil

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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 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 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 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

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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.

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 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.

20. 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

1 (1990) 2 SCC 715
15
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.

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 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 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

16
be at liberty to assail his 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 17th September,

2018. Since the seniority list of the respondents in Civil Appeal @

SLP (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 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.

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

17
is set aside without disturbing the status of the respondents

(Jatinder Pal and Satish Kumar Sharma).

25. Pending applications, if any, stand disposed of.

………………………..J.

(AJAY RASTOGI)

..………………………J.

(ABHAY S. OKA)
NEW DELHI
OCTOBER 26, 2021

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