* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on ; May 1, 2006 % Date of Decision : November 14, 2006 + WRIT PETITION (Civil) No. 4058/2002 # AFHQ CIVIL SERVICE (DIRECT RECRUIT GAZETTED) OFFICERS' ASSOCIATION .... Petitioner ! Through Mr. S.R.Singh, Sr. Advocate with Mr. M.M.Singh, Advocate V' .ar versus $ UNION OF INDIA & ORS. .... Respondents Through Ms. Jyoti Singh, Advocate for UOI WRIT PETITION(Civil) No. 4458/2002 K.S.DHINGRA ...Petitioner In person Versus UNION OF INDIA & ORS. ...Respondents Through Ms. Jyoti Singh, Advocate for UOI Mr. S.R.Singh, Sr. Advocate with Mr. M.M.Singh, Advocate WPC 4058/2002 page 1 of 57 Digitally Signed By:AMULYA Signing Date:18.10.2023 10:43 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified 'V V- WRIT PETITION(Civil) No. 5396/2002 UNION OF INDIA . ..Petitioner Through Ms. Jyoti Singh, Advocate Versus AMMINIRAJAN & ORS. ...Respondents Through Mr. Jitender Chaudhary, Advocate With Ms. Amita Kalkal, Advocate for Respondent Nos. 1,3,4 & 7 WRIT PETITION(Civil) No. 62/2003 AIMMINI RAJAN & ORS. ...Petitioners Versus UNION OF INDIA & ORS. ...Respondents Through Ms. Jyoti Singh, Advocate for UOI CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL HON'BLE MR. JUSTICE P. K. BHASIN 1. Whether Reporters of local papers may be allov^ed to see the judgment? YES WPC 4058/2002 page 2 of 57 2. To be referred to the reporter or not? YES 3. Whether the judgment should be reported in the Digest? YES ; MUKUL MUDGAL. T 1. These writ petitions concerning the perennial problem of seniority between the Departmental Promotees (hereinafter referred as the DPs) and Direct Recruits (hereinafter referred to as the DRs) in Government service challenge the final Order dated 1^^ April 2002 in O.A. 1356/1997 of the Central Administrative Tribunal (CAT), Principal Bench, New Delhi whereby the DPs have been given the benefit of length of continuous officiation while the DRs, who are being represented by the petitioner Association, have been held to be eligible for seniority from the date of their joining the service. This part of the order of the CAT has been assailed by the DR's Association in writ petition No. 4058/2002 and also by the official respondents i.e. the Union of India by way of a separate writ petition(being CWP No. 5396/2002). DPs who had filed the petition before the CAT are WPC 4058/2002 page 3 of 57 Ub also aggrieved because some of the reliefs claimed by them in their petition have been denied to them and therefore they have also filed two writ petitions(being CWP No. 4458/2002 and CWP No. 62/2003). Since common questions are involved in all these writ petitions we propose to dispose them of by a common judgment. 2. The principal question which arises in these writ petitions is the fixation of relative seniority between the DRs & DPs who are the private respondents Nos.4,5,6,7,8, 9 & 10 working as Assistant Civilian Staff Officers (ACSOs)(now re-designated as Section Officers) in the Armed Forces Headquarters Civil Services (hereinafter referred to as the "AFHQ Civil Services") as per Rule 16 (7) read with Schedule Third of the "Armed Forces Headquarters Civil Services Rules, 1968" (hereinafter referred to as the "Rules"). 3. The brief facts of this case are as follows: WPC 4058/2002 page 4 of 57 >1 (a) Prior to 1968, the AFHQ Civil was established and was governed by executive instructions. There were no statutory rules governing the service. There was no direct recruitment to the post of Superintendent. Since then, the post of Superintendent was re-designated as Assistant Civilian Staff Officer by virtue of promulgation of the AFHQ Civil Service (^, Rules, 1968. This service had the following grades during the relevant period: (i) Senior Administrative Grade Level II(presently the Principal Director), (ii) Director, (iii) Senior Civilian Staff Officer(presently the Jt. Director), (iv) Civilian Staff Officer (CSO)(presently the Deputy Director), (v) Assistant Civilian Staff Officer(ACSO)(presently the Section Officer) and (vi) Assistant. (b) On l'' March 1968, the AFHQ Civil Services Rules framed under the proviso to Article 309 of the Constitution came into force. WPC 4058/2002 page 5 of 57 \ Rule 10 (1) (Future Maintenance) and Rule 16 (Seniority) read with Schedule Third provided that 25% of the substantive vacancies in the grade of ASCO shall be filled by direct recruitment on the basis of combined competitive examination held by the UPSC. Rule 10 (1) and Rule 16 read as follows: "Rule 10 (1) The service shall be maintained in future as indicated in the Third Schedule. Rule 16 - Seniority (1) All permanent officers included in the initial constitution of a grade under rule 9 shall rank senior to all persons substantively appointed to that grade with effect from any date after the appointed day and all temporary officers included in the initial constitution of a Grade under that rule shall rank senior to all temporary officers appointed to that Grade with effect from any date after the appointed day. (2) The seniority inter-se of permanent officers included in the initial constitution of a Grade shall be regulated in the order in which they are so appointed. (3) The seniority inter-se of temporary officers included in the initial constitution of Grade shall be regulated in the order in which they are so appointed. WPC 4058/2002 page 6 of 57 (4) The Seniority inter-se of officers regularly appointed to the Grade of Joint Director and Senior Civilian Staff Officer before the coming into force of the Armed Forces HQ Civil Service (Second Amendment) Rules, 1975, shall be regulated in the Selection Grade of the Service in the following order:- (a) Officers holding the posts of Joint Directors in an officiating capacity arranged in the order of their seniority in that grade; (b) Officers holding the posts of Senior Civilian Staff Officers in a substantive capacity, arranged in the order of their seniority in that Grade; (c) Officers holding the posts of senior ^ Civilian Staff Officers in an officiating capacitv. arranged in the order of their senioritv in that Grade: (5) Except as provided, in sub-rule (7), the seniority of persons appointed to any Grade after the appointed day shall be determined in the following manner, namely:- (i) Permanent officers: - The seniority inter-se of officers substantively appointed to the Grade after the appointed day shall be regulated in the order in which they are so appointed; WPC 4058/2002 page 7 of 57 >• / V y I (ii) Temporary officers;- The seniority inter-se of temporary officers appointed to the Grade after the appointed day shall be regulated in the order of their selection for such promotion. (6) Direct Recruits shall be ranked inter-se in the order of merit in which thev are placed at a competitive examination on the results of which thev are recruited, the recruits of an earlier examination. On confimnation, thp.ir inter-se seniority shall be regulated in the order in which thev are so confirmed. (emphasis supplied) * Provided that the seniority of persons recruited through the competitive examinations held by commission- (i) in whose case officers of appointment are revived after being cancelled, or (ii) who are not initially appointed for valid reasons but are appointed after the appointment of candidates recruited on the basis of the results of the subsequent examination or examinations. Shall be such as may be determined by the Government in consultation with the Commission. (7) The relative senioritv of direct recruits to a Grade and persons appointed to the Grade bv departmental promotion shall be regulated in accordance with the provisions made in this behalf in the Third Schedule, (underline WPC 4058/2002 page 8 of 57 % w supplied) (8) All officers substantively appointed to any Grade shall rank senior to those holding temporary of officiating appointments in that Grade." The relevant portion of the Third Schedule reads as follows: "The relative seniority of the above categories of officers shall be determined according to the rotation of vacanices between departmental promotees and Direct Recruits which shall be based on the quotas of vacancies reserved for promotion and direct recruitment." (c) The officers recruited were to be confirmed in the manner indicated by Rule 14. Rule 14 reads as follows:- "14 - Confirmation of probation:- When a probationer appointed to any Grade has passed the prescribed tests and has completed his probation to the satisfaction of the appointing authority, he shall be eligible for confirmation in that Grade. Until a probationer is confirmed under this rule or is discharged or reverted under rule 15, he shall continue to have the status of a probationer." WPC 4058/2002 page 9 of 57 7^ (d) Rule 16 (7) read with Third Schedule provided that their relative inter se seniority shall be determined according to the rotation of vacancies between DPs and DRs which shall be based on the quota of vacancies reserved for promotion and direct recruitment. Note 2 at the foot of the relevant entry aforesaid in the 3"^ Schedule provided that the substantive vacancies in the 25% quota of direct recruitment may be filled temporarily by promotion from amongst Assistants on the basis of selection. Such promotions shall be terminated when the nominations of the Commission become available to fill the substantive vacancies. The said note 2 reads as follows: "Note (1) (2) Substantive vacancies at (b) may be filled temporarily by promotion from amongst Assistants on the basis of selection. Such promotions shall be terminated when the nominees of the Commission become available to fill the substantive vacancies." WPG 4058/2002 page 10 of 57 (e) On 2"'' January 1978, some DP ACSOs filed a writ petition in this Court(being W.P(C) 3/1978) challenging the seniority hst of ACSOs published in 1977 as also the vires of the Rule 16(7) read with the Schedule Third of Rules 1968 on the ground that the DRs were given the date of seniority from the date of occurrence of their vacancies irrespective of their date of joining and thereby they became senior to those DPs who had already been working much prior to the joining of DRs. In the year 1985, the said writ petition was transferred to the CAT, Principal Bench, New Delhi under Section 29 of the Central Administrative Tribunals Act, 1985 & numbered as TA 356/85 titled as M. G. Bansal & others v. UOI & Others. Some DP Assistants had also filed a writ petition(being CWP No. 2/78) challenging the validity of the seniority list of Assistants published in October, 1977 on similar grounds as taken by DP WPC 4058/2002 page 11 of 57 /w ACSOs in their writ petition, namely, misapplication of Rule 16(7) read with Third Schedule. That writ petition was allowed on 24* September, 1985. During the pendency of these writ petitions the applicants before the CAT in OA No. 1356/1997 were promoted ACSOs from the post of Assistants in 1980. Some of them were promoted further as Civilian Staff Officers (CSOs) after relaxing the 8 years' approved service in the Grade of ACSO criteria to 5 years, as provided under Rule 22 of the Rules of 1968, for DPC years 1979-80 to 1983-84. All these years there have been many rounds of litigation before DPs and DRs conceming the seniority lists of the Grade of Assistant. As a result of preparation of final seniority list of Assistants in 1988, fresh seniority lists for the Grade of ACSO from 1977-78 onwards were also re-drawn. f) The M G Bansal Case(supra) was decided by the CAT by its WPC 4058/2002 page 12 of 57 order dated if June, 1989, where it was held that the quota prescribed in the Rules had broken down and the CAT thus directed the Union of India to follow the principle of continuous officiation to determine the seniority between the DRs & DPs. g) On 8^ November 1989, the Union of India & the DR officers filed two Special Leave petitions (hereinafter referred to as the "SLP") before the Hon'ble Supreme Court against the order of the CAT dated 2""^ June 1989. The Hon'ble Supreme Court by its order dated July 1991 held that the CAT had decided the controversy without adverting to the Rules applicable to the service, particularly Note 2 in the Third Schedule & the matter must therefore be decided afresh. The order of the CAT dated if June 1989 was thus set aside and the matter was remitted back to the CAT to rehear the issue in light of the relevant Rules. WPC 4058/2002 page 13 of 57 so h) Pursuant to order of the Hon'ble Supreme Court, the CAT again decided the M G Bansal's Case (supra) by an order dated 20^'' November 1992 and held that Rule 16 (7) read with the Third Schedule so far as they related to the appointment of DPs & DRs in their quota and determination of seniority on the basis of quota/rota were valid & not ultra vires Articles 14 and 16 of the Constitution and while holding that quota mle had not broken down, quashed the seniority list of ACSOs published in the year 1977 and directed the Government to determine the seniority as prescribed in the Rules. The directions given in the order of the CAT dated 20^^ November 1992 read as follows: "(a) It is held that Rule 16 (7) and Schedule Third so far as it relates to appointment of the promotees and Direct Recruits in their respective quota and determination of seniority on the basis of quota and rota is held vahd and these are not ultra vires of WPC 4058/2002 page 14 of 57 5/ Articles 14 & 16 of the Constitution of India. (b) Seniority between direct recruits and promotees regularly appointed/promoted within their respective quota should be determined by the length of the continuous officiation in the grade of ACSO from their respective appointment to the substantive vacancies under Schedule III within their quota, i.e., in the case of promotee ACSOs, the length of continuous officiation in the grade will be reckoned from the date when they are promoted in substantive vacancies in their lawful quota. (c) To elucidate further, in the case of temporarily appointed promotee ACSOs under Note 2 of Schedule in of the mles in the direct recruit quota w.e.f. 1969 onwards till 1977 and also thereafter their seniority will be reckoned from the date when they get a berth in the substantive vacancies of their 75% quota as envisaged under Schedule HI of the Rules. (d) The incumbents belonging to one source in excess of their own quota and utilizing the quota of the incumbents belonging to another source will only officiate in the promoted post. It is made clear that the direct recruits when inducted as nominees of the UPSC, the promotees officiating in the quota of the direct recruits on the basis of Note 2 of the Rules of Schedule HI will either be reverted or wiU be absorbed in the vacancies within their quota of subsequent year. The period of officiation outside their quota of either of the incumbents from other source will not count for their seniority. If an officer has been promoted within his quota, then it -would be date of his promotion within his quota, then it would WPC 4058/2002 page 15 of 57 be date of his promotion and not the date of confirmation which would be relevant for the officer's seniority. (e) When the promotions are made from either of the sources, by direct recruitment or by departmental promotion there shall be due compliance of the various instructions and Office Memorandum issued by the Department of Personnel and Training on the reservation of vacancies for SC/ST and categories in the proportion directed in the said instructions. The reservation, however, shall remain onlv at the time of appointment and not in the seniority inter-se of the Direct Recruits and promotees which shall be fixed as laid down in Rule 16 ("7') read with Schedule in and as directed in the preceding sub-paras above to be worked out independentlv on its own force. Direct recruit quota of ACSO which is confined to substantive vacancies in the grade can be filled by temporarily appointed Assistants by promotion in the grade of ACSO, but without giving them any right of seniority on the basis of continuous officiation on the vacancies earmarked for Direct Recruits and indent for which has been sent to the UPSC for nomination from the civil services examination of a particular year. The hopes and aspirations of the promotees aforesaid cannot be related to availabilitv or non- availabilitv of Direct Recruits filling their quota in that particular vear and onlv it can be when there is total collapse and break down of the quota for a number of vears. " (emphasis supplied) WPC 4058/2002 page 16 of 57 {' \ i) On 9 February 1994, the official respondents, in compliance of the cat's order dated 20'^ November 1992 issued a revised Draft Seniority list of Permanent ACSOs as on 1 October 1977. On June 1994, the Department issued the final seniority list of Permanent ACSOs as on 1^' October 1977. j) The DPs who had been impleaded in TA No. 356 because of retirement of all the original applicants filed an SLP against the cat's order dated 20'^ November 1992, which was dismissed th by the Hon'ble Supreme Court by an order dated 20 January 1995 and thus the judgment of the CAT dated 20^^ November 2002 became final. k) According to the DP ACSOs it came to the knowledge of the DPs Association that the Department had illegally started splitting up vacancies in a year and preparing two separate seniority lists for each year retrospectively for the Grade of WPC 4058/2002 page 17 of 57 ACSO in the garb of implementation of CAT's order dated 20''' November, 1992 in TA 356/85, one of which was of the DP ACSOs appointed against the substantive vacancies meant for them and the other in respect of those DP ACSOs who had been temporarily appointed against the unfilled vacancies meant for DRs as per Note 2 in the Third Schedule to the Rules and that too on the basis of calendar year as against originally drawn from October to September every year. Thereby DPC year was also changed illegally. That, according to the DPs who are respondents 4-10 herein, was contrary to the earlier practice of drawing up of only one seniority list for both these categories and they also claim that it was not even directed by the CAT in its order dated 20-12-92 in TA 356/85 that two lists should be prepared. Splitting up of the lists adversely affected the SCs/STs also. The principle of continuous officiation was also WPC 4058/2002 page 18 of 57 { ) not being followed. Therefore, the seven DP ACSOs challenged by way of OA No. 1356/97 in the CAT the legality of the select lists for the years 1977-82 of Assistants for promotion to the grade of ACSO & consequential seniority list of ACSOs of AFHQ Civil Services for the years 1988-89 andl 989-90 redrawn in compliance with the directions given in MG Bansal's Case (supra) by the CAT claiming that the quota mle had broken down and, therefore, prayed that seniority lists for the years 1978 onwards should be re-drawn by applying the mle of continuous officiation. (1) The DPs claimed that the CAT had not passed any direction for changing the DPC year while quashing the seniority list published during 1977 but even then the department changed the DPC year and published fresh select lists for the years 1977 onwards on calendar year basis. It was claimed that DPs WPC 4058/2002 page 19 of 57 % w promoted as ACSOs much prior to DR ACSOs had been shown as juniors to the DRs appointed later on. The DPs, who were the petitioners in the O.A. No. 1356/97, claimed that in the process their seniority as ACSOs had been affected to their prejudice since the period of their continuous officiation as ACSOs as per Note 2 in the Third Schedule to the Rules, which according to the DPs were long-term vacancies, had not been taken into consideration for their promotion to the next Grade of CSOs. Consequently reversions of those DPs who had in the meantime been promoted further(including applicants no. 1 to 5) took place. (m) It was also the grievance of the DPs before the CAT that even in accordance with the revised lists of ACSOs the promotee officers were entitled to be appointed as Civilian Staff Officers on completion of four years' continuous approved service in the WPC 4058/2002 page 20 of 57 c grade of ACSO, although eight years' service as ACSO was required, since officers with more than four years approved service were not available during the years 1984-85 to 1986-87 and that could be done after relaxing the qualifying approved service period as had been done earlier to the decision in Bansal's case in the case of some of the promotee ACSOs (including applicants no. 1 to 5 before the CAT) in the earlier years from 1978-79 to 1983-84 but that benefit of relaxation was not extended to them(the petitioners before the CAT) when lists were re-drawn after M.G.Bansal's judgment. (n) Another grievance of the DPs was that unfilled vacancies of DRs could not be in any case carried forward beyond two years and thereafter unfilled vacancies would lapse. (o) Yet another plea taken by the DPs was that some of the DR WPC 4058/2002 page 21 of 57 C; ACSOs had been shown in the seniority lists for promotion to the Grade of CSO for the years 1988-89 and 1989-90 even though they had not completed the approved service period because they had joined the service due to their own fault more than three months after the declaration of the results of examination. According to the DPs dl this was done by the department to favour the Direct Recruit ACSOs and they had been put even in the worst position than they were having originally before they took the matter to the High Court in 1978. (p) The prayers made in OA No. 1356/97, inter-alia, were to direct the department to re-draw the seniority list in the grade of ACSO from 1978 onwards by applying the rule of continuous officiation after declaring that the quota rule had broken down and that too on the basis of original DPC year of October to WPC 4058/2002 page 22 of 57 September; to direct the Department to prepare a single seniority list of ACSOs in respect of temporary, substantive vacancies of promotion quota as well as the vacancies temporarily filled under Note 2 of the Third Schedule to the Rules of 1968 and also to count the service rendered by the DPs as ACSOs under the afore-said Note 2; to direct the Department to grant relaxation to DPs in approved service for promotion to the grade of CSO till the time the officers with eight years approved service become available and also to quash the reversion of the applicants no. 1 to 5 from the post of Senior Civilian Staff Officer as a result of preparation of revised seniority list of ACSOs. (q) The official respondents in the OA as also the Association of DPs resisted the petition of the DPs, inter-alia, on the grounds that the question whether benefit of continuous officiation of WPC 4058/2002 page 23 of 57 'D A DPs in the grade of ACSOs against the unfilled vacancies meant for DRs was available to them or not had already been decided by the CAT in M.G.Bansal's case and therefore, the present OA was barred by the principle of res judicata as well as under Order II Rule 2 CPC. The official respondents claimed that it was in accordance with the decision in M.G.Bansal's case rendered by the CAT that two select lists for promotion to