IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 11613-CAT of 2006 (O&M) Date of Decision: April 26, 2011 Union of India and another .....Petitioners Versus Hari Singh Kaushal and another ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MS. JUSTICE RITU BAHRI Present: Mr. Sanjay Joshi, Senior Panel Counsel, for the petitioners. Mr. V.K. Sharma, Advocate, for respondent No. 1. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. This petition filed under Article 226 of the Constitution challenges order dated 23.11.2005 (P-4) passed by the Chandigarh Bench of the Central Administrative Tribunal (for brevity, 'the Tribunal') partly allowing the Original Application filed by the applicant-respondent No. 1. 2. Brief facts of the case are that the applicant-respondent No. 1 was working as a Lower Division Clerk (for brevity, ‘LDC’) in the office of the District and Sessions Judge, Tis Hazari, New Delhi, since 25.2.1975. On 21.5.1987, he joined the Principal Bench of the Tribunal as Upper Division Clerk (for brevity, ‘UDC’) on deputation C.W.P. No. 11613-CAT of 2006 (O&M) basis. On 20.9.1989, the Central Government formulated the Rules known as ‘the Central Administrative Tribunal (Group ‘B’ & ‘C’ Miscellaneous Posts) Recruitment Rules, 1989 (for brevity, ‘the Rules’), for regulating the method of recruitment to Group ‘B’ and ‘C’ posts in the Central Administrative Tribunal. ‘The Rules’ were applicable to the posts mentioned in Column 1 of the Schedule annexed to these rules. Rule 4 of the Rules prescribes the method of recruitment, age limit, qualifications etc. and stipulates that the same would be as specified in columns 5 to 14 of the aforesaid Schedule. A perusal of the Schedule shows that the post of Upper Division Clerk has been mentioned at Sr. No. 6 and appointment on deputation basis is one of the methods provided for filling up the post by persons, who were already working as UDCs and were graduates from the recognized Universities. Rule 5 of the Rules deals with the absorption/regularisation of the existing employees, who have joined the Tribunal on deputation before the promulgation of ‘the Rules’. Rule 7 of the Rules provides for relaxation of any of the provisions of ‘the Rules’ by the Chairman of the Tribunal. 3. On 12.1.1990, in exercise of the power under Rule 7 of the 'Rules', the Chairman of the Tribunal granted relaxation in respect of educational qualifications and further ordered for absorption of the applicant-respondent No. 1 and two others as UDC in the Tribunal with effect from 1.11.1989 (A-3). 4. On 8.10.1992, a seniority list of UDCs working in the Principal Bench of the Tribunal was issued. It was, however, stated that the said seniority was liable to be recast on All India basis while merging the decentralised seniority drawn by different Benches (A- 2 C.W.P. No. 11613-CAT of 2006 (O&M) 4). It has been claimed by the applicant-respondent No. 1 that on the basis of his seniority he was promoted as an Assistant on ad hoc basis with effect from 30.11.1992 and subsequently on regular basis with effect from 6.9.1995. But his promotion either on ad hoc basis or on regular basis as an Assistant was never challenged by anyone. 5. It is pertinent to mention here that the dispute about the fixation of inter se seniority on the basis of service rendered by the employees in the parent department became subject matter of a number of applications before the Tribunal. The matter eventually went up to Hon’ble the Supreme Court in the case of M. Ramachandran v. Govind Ballabh, 1999 (5) SLR 318 (A-7). In fact, there were two sets of employees. First one were claiming seniority from the date of deputation and others were claiming for counting of service to equivalent post held by them in parent department. The question that arose before Hon’ble the Supreme Court was whether the length of service is relevant. It has been held by Hon’ble the Supreme Court in M. Ramachandran’s case (supra) that the total length of service is not relevant but length of service to a particular class, category or grade is relevant consideration for the purpose of counting the period with respect to the length of service for determining the seniority. It has, thus, been held that the period of holding of the equivalent post in the parent department would be the relevant period for determining seniority under Rule 5(2) and its proviso and all the employees recruited in the service under rule 5 (1) would be entitled to the benefit of service on equivalent post in their parent department. 3 C.W.P. No. 11613-CAT of 2006 (O&M) 6. On 16.2.2000, the Registrar, Principal Bench of the Tribunal issued an order to all the Benches that promotion/recruitment in any Group 'C' post would be made by the orders of the Chairman and the seniority would also be maintained on centralised basis in Group 'C' cadre w.e.f. 8.2.2000. It was further requested to furnish the Bench-wise existing seniority of Group 'C' cadre so that the Principal Bench could merge all the officials and bring out one combined consolidated seniority list in Group 'C' cadre (A-8). Thereafter, on 31.12.2002, a revised draft seniority list of UDCs on centralised basis as on 1.11.1989 was circulated and objections were invited (A-9). In the draft seniority the name of the applicant-respondent No. 1 appeared at Sr. No. 46. On 10.2.2003, the applicant-respondent No. 1 submitted his objections disputing his inter se seniority vis-a-vis persons mentioned at Sr. Nos. 27 to 33 in the draft seniority list. It was pointed out by the applicant-respondent No. 1 that the persons mentioned at Sr. Nos. 27 to 33 joined the Government service initially between the years 1980 to 1982 as LDCs. They joined the Tribunal as LDCs on deputation basis in the year 1985-86 and subsequently granted promotion as UDC w.e.f. 30.12.1986 in their parent department under 'next below rule'. The applicant- respondent No. 1, thus, claimed that those persons ought to have been absorbed as LDCs in the Tribunal. It was further pointed out that those persons also did not fulfill the requisite 8 years regular service as required for promotion to the next higher post of UDC. Accordingly, the applicant-respondent No. 1 claimed that he should be placed at Sr. No. 27 in the seniority list (A-10). 4 C.W.P. No. 11613-CAT of 2006 (O&M) 7. On 5.11.2003, a final seniority list of UDCs as on 1.11.1989 was issued wherein the name of the applicant- respondent No. 1 was reflected at serial No. 56. A note was also appended at the end of the list which is to the effect that the persons at serial Nos. 33 to 40 and 55 to 58 were appointed/absorbed in relaxation of the educational qualifications (A-1). It was also stated in para 2 of the communication dated 5.11.2003 that the said seniority list was issued for implementation of Court orders dated 18.4.2001 and 2.9.2002 passed by the Ernakulam Bench of the Tribunal in OA No. 160/2000 and MA No. 632/2002 respectively in the matter of M.K. Balachandran Pillai v. CAT, Pb. and others read with decision of Hon'ble the Supreme Court in the case of M. Ramachandran (supra). However, the said seniority list was subject to the outcome of the decision of Andhra Pradesh High Court in W.P. No. 25280/2002 and any other pending Court case. On 2.1.2004, the applicant-respondent No. 1 again submitted a representation for correction in the said final seniority list (A-11). 8. In the meantime, another seniority list of Assistants, who were absorbed/regularised/promoted/appointed in the Tribunal as on 31.1.1999, was circulated on 17.4.2000 wherein the name of the applicant-respondent No. 1 appeared at Sr. No. 29 (A-12). The grievance of the applicant-respondent No. 1 is that if the seniority list of UDCs is allowed to sustain then not only his seniority in the cadre of Assistant would be adversely affected but his chances of promotion to further higher posts of Section/Court Officer would also be hampered. It is claimed that he has been performing the duties 5 C.W.P. No. 11613-CAT of 2006 (O&M) of Court Officer since 1.7.2003. In these circumstances, the applicant-respondent No. 1 approached the Tribunal by filing OA No. 319-CH-2004 9. In the written statement filed before the Tribunal, reference was made to the earlier orders passed by the Tribunal as well as by Hon'ble the Supreme Court in the case of M. Ramchandran (supra). It was averred that regular service of the applicant-respondent No. 1 commenced from his absorption in the Tribunal as UDC. The persons, who were absorbed on analogous posts were assigned seniority from the date they were regularly appointed as UDCs in their respective parent departments and the persons, who came from the lower posts were placed below them. The inter se seniority of the persons, who were absorbed on higher posts of UDC, has been fixed keeping in view their length of service as LDCs in their respective parent departments. In other words their inter se seniority has not been changed and, thus, the seniority list has been rightly prepared. 10. The Tribunal, vide order dated 23.11.2005, partly allowed the original application filed by the applicant-respondent No. 1. After noticing the factual position; observations made by Hon'ble the Supreme Court in the case of M. Ramchandran (supra) as well as other judgments of Hon'ble the Supreme Court rendered in the cases of G.C. Gupta v. N.K. Pandev, (1988) 1 SCC 316 and B.S. Bajwa v. State of Punjab, (1998) SCC L&S 611 the Tribunal accepted that 1.11.1989 is the date of absorption of employees in Group 'C' instead of 8.2.2000. The Tribunal further found that the applicant-respondent No. 1 was absorbed as UDC in the Tribunal 6 C.W.P. No. 11613-CAT of 2006 (O&M) w.e.f. 1.11.1989 by grant of relaxation under Rule 7 of the Rules. He also earned promotion to the post of Assistant on 30.11.1992 on ad hoc basis and on regular basis w.e.f. 6.9.1995. The Tribunal has opined that through the fresh seniority his accrued and vested right have been taken away, which could not have been done after almost 14 years. It has been observed by the Tribunal that cases of such UDCs who were holding such posts in their parent department but were not possessing graduation degree, could not have been compared with the applicant-respondent No. 1 and his category, who had been working with the Tribunal as UDCs and were absorbed. The Tribunal set aside the action of the petitioners in enblock placing below those who were absorbed/regularised in accordance with rules. In that regard reliance has been placed on the judgment of Hon'ble the Supreme Court rendered in the case of Chairman, Railway Board v. C.R. Rangadhamaiah, 1997 (4) SLR 759. In the concluding para the Tribunal has issued following directions: "21. This O.A. is thus, partly allowed by quashing the decision to place the applicant and similarly placed persons who had been absorbed in relaxation of the rules enblock below the persons who had otherwise been appointed/absorbed w.e.f. 1.11.1989. They shall be treated at par with U.D.Cs, as per letter dated 23.10.2003 of the Registrar mentioned at '(a)' subject to other conditions/criteria of fixation of seniority as per rules and norms. Respondents shall prepare the seniority list impugned in this case again keeping in mind the above findings and the discussion by maintaining the 7 C.W.P. No. 11613-CAT of 2006 (O&M) position of the applicant as absorbed w.e.f. 1.11.1989 as U.D.C. We are not declaring item at "(a)" as illegal which relates to absorption of persons as UDC who were holding such posts or analogous posts in their parent department as we are concerned with the rights of the applicant and his category. Needless to mention that after re-assessment of correct seniority on the basis of the above findings and observations, the applicant will be entitled to the consequential benefits which would include retaining of promotion already given to him on the post of Assistant and consideration of his case as Section Officer as per his turn and in accordance with rules. The seniority list prepared after the approval of the Hon'ble Chairman of the proposals as per the opinion of Shri Upadhaya would stand quashed to the extent mentioned above." 11. It is further relevant to mention here that on the basis of the order dated 18.10.2001 passed by the Hyderabad Bench of the Tribunal in O.A. No. 01/2001 (T.N. Rao v. Union of India and others); order dated 20.11.2003 passed by the Andhra Pradesh High Court in W.P. No. 25280/2002 (Union of India and others v. T.N. Rao); order dated 11.8.2004 passed by the Principal Bench of the Tribunal in O.A. No. 1935/2003 (M.K. Goyal v. Principal Registrar CAT and others); and order dated 28.2.2005 passed by the Ahmedabad Bench of the Tribunal in O.A. No. 122/2001 with M.A. No. 113/2003 (D.J. Panchal v. Union of India and others), the revised final seniority list in the grade of UDC absorbed as on 1.11.1989 on centralised 8 C.W.P. No. 11613-CAT of 2006 (O&M) basis was prepared under Rule 5 of the Rules and the same was circulated vide order dated 31.8.2005/ 2.9.2005. In the said revised seniority list the name of the applicant-respondent No. 1 has been further brought down at Serial No. 67. The petitioners filed C.M. No. 23440 of 2008 and placed on record the said order dated 31.8.2005/2.9.2005 and the revised seniority list as annexure 'A-1'. In para 8 of the application it has been stated that in the said revised seniority list the name of all the officials who have been absorbed in relaxation of recruitment rules, whether working on analogous posts or on higher post, have been placed at the bottom in the seniority list in terms of the directions passed by the Ahmedabad Bench of the Tribunal in D.J. Panchal's case (supra). It has further been submitted that the seniority list dated 5.11.2003 is now non-existent and rendered infructuous. The revised seniority list dated 2.9.2005 has not been challenged by any official including the applicant-respondent No. 1 and, therefore, promotions in the grade of Assistant and Section Officer were being reviewed. 12. Learned counsel for the petitioners relying upon the judgment in M. Ramchandran's case (supra), has vehemently argued that Rule 5(2) of the Recruitment Rules contemplates grant of benefit of service rendered in the parent department on an equivalent post and, thus, the seniority list has been prepared keeping in view the length of service of the applicant-respondent No. 1 and other candidates by taking into consideration their seniority in the cadre of UDC. He has emphasised that relaxation of educational qualifications has nothing to do with fixation of seniority as UDC, which has been fixed keeping in view firstly the date of 9 C.W.P. No. 11613-CAT of 2006 (O&M) appointment as UDC, if they have come on deputation as such. In case of such persons, who were on a lower cadre in the parent department but absorbed as UDC in the Tribunal, they were granted seniority keeping in view their length of service as UDC only. To buttress his submission, learned counsel has placed reliance on the following observations made by Hon'ble the Supreme Court in the case of M. Ramchandran (supra):- “In other words the period of holding of the equivalent post in the parent department would be the relevant period to be taken note of for the purposes of determining the seniority under Rule 5(2) and its proviso. Any other interpretation would be against the settled rules of service jurisprudence and is likely to create many anomalies resulting in failure of justice and defeating the acquired rights of the civil servants based upon their length of service. A perusal of the Rules does not in any way, show and rightly so that the rule making authority had ever intended to take away the benefit of the length of service of a person in his parent department before his deputation and absorption in the service.” Thus, it was argued that the order passed by the Tribunal is not justified in law. 13. Learned counsel for the applicant-respondent No. 1 has vehemently argued that he has been placed at the bottom of the seniority of the UDCs on account of relaxation in educational qualifications and such process is wholly illegal and arbitrary. It is 10 C.W.P. No. 11613-CAT of 2006 (O&M) also pointed out that the applicant-respondent No. 1 has since been promoted as Assistant in the year 1995, therefore, his seniority in the cadre UDCs cannot be tinkered with. In that regard reliance has been placed on the judgment of Hon'ble the Supreme Court rendered in the case of P. Mohan Reddy v. E.A.A. Charles, JT 2001 (3) SC 1. 14. We have heard learned counsel for the parties at length and perused the paper book with their able assistance. It has come on record that the original applicant-respondent No.1 has come on deputation to the Tribunal on 21.05.1987 as UDC and he was not a graduate. He was absorbed as such under Rule 5(1) of the Rules in the Tribunal w.e.f. 01.11.1989 by extending him the benefit of relaxing the educational qualification as contemplated by Rule 7. According to the Rules, he was required to be a graduate and apparently, he did not fulfill the qualification. He was given seniority from the date of his regular appointment as UDC w.e.f. 01.11.1989. The grant of seniority from the aforesaid date did not suffer from any legal infirmity and appears to be consistent with the provision of Rule 5(2) of the Rules. It would be profitable to first read Rule 5 of 'the Rules' dealing with the right of absorption of the employees taken on deputation, which reads thus: “5. Absorption/regularisation of existing employees. (1) Notwithstanding anything contained in the provisions of these rules, the persons holding the posts of Court Officers/Section Officers, Hindi Translator, Assistant, Junior Librarian, Caretaker Upper Division/Receptionist/Store-Keeper and Lower Division 11 C.W.P. No. 11613-CAT of 2006 (O&M) Clerk on the date of commencement of the rules either on transfer or on deputation basis or, as the case may be, on direct recruitment basis and who fulfil the qualifications and experience laid down in these rules and who are considered suitable by Departmental Promotion Committee shall be eligible for absorption/regularisation in the respective grade subject to condition that such persons exercise their option for the absorption and that their parent Departments do not have any objection to their being absorbed in the Tribunal. 15. A perusal of the aforesaid Rule would show that all those persons who were holding the posts of Court Officers/Section Officers, Hindi Translator, Assistant, Junior Librarian, Caretaker Upper Division/Receptionist/Store-Keeper and Lower Division Clerk on 20.09.1989, (when the statutory Rules were in force), either on transfer or on deputation basis were held eligible for absorption and regularization in the respective grade, if they exercise their option for absorption and no objection is raised by their parent departments. In other words, all employees who were working on equivalent posts in their parent departments were entitled to absorption and regularization provided they fulfill the educational qualification and experience laid down in the Rules. 16. Sub rule (2) of Rule 5 lays down the principle of determining seniority, which is discernible from its bare perusal and the same reads as under: 12 C.W.P. No. 11613-CAT of 2006 (O&M) (2) The seniority of officers mentioned in sub-rule (1) shall be determined with reference to the dates of their regular appointment to the posts concerned. Provided that the seniority of officers recruited from the same source and in the posts held by him in the parent Department shall not be disturbed. (3) The suitability of persons for absorption may be considered by a Departmental Promotion Committee." 17. A perusal of sub rule (2) would show that seniority of officers mentioned in sub rule (1) has to be determined with reference to the date of their regular appointments to the post concerned subject to one condition that inter se seniority of officers recruited from the same source and in the posts held by them in their parent Departments was not to be disturbed. 18. The Rules when applied to the case of the original applicant-respondent No.1, it becomes apparent that he was working merely as a Clerk in the office of the District and Sessions Judge, Tis Hazari, New Delhi on 25.02.1975 and was a non-graduate. On the establishment of the various Benches of the Tribunal, he came on deputation as UDC on 21.05.1987 and he has been absorbed w.e.f. 01.11.1989 under Rule 5(1) as UDC. Even his educational qualifications stand relaxed. Therefore, he cannot claim any benefit of service rendered by him in his parent department because he was not working on an equivalent post, which is the condition precedent. He was working on the post of Clerk when he came on deputation. Hon’ble the Supreme Court in M. Ramachandran’s case (supra), interpreting the same rule has 13 C.W.P. No. 11613-CAT of 2006 (O&M) held that a person who has been absorbed in the cadre of the Central Administrative Tribunal would be entitled to count his past service rendered by him in his parent department on an equivalent post. Para 10 of the judgment, which is relevant to the controversy raised in the instant petition, is set out below: “10. We are of the considered opinion that Sub-rule (2) of Rule 5 is the relevant rule relating to the determination of the seniority of the officers recruited to the service under Sub-rule (1) of Rule 5. The seniority of such recruited officers is required to be determined with reference to the dates of their regular appointment to the posts. The proviso to Sub-rule (2) shall cover the case of such officers whose seniority cannot be determined under Sub-rule (2) as is the present case of the persons appointed/ recruited on the same date. In such a case the seniority of the officers recruited from the same source has to be determined by giving them the benefit of the equivalent post held by them in their parent departments. Sub-rule (2) and its proviso is based upon the general principle of service jurisprudence. It is not correct to say that the rules do not provide any method of determining the seniority of the persons recruited to the service and that in the absence of there being specific rule, resort be had to the Official Memorandum relied upon by the respondents. Seniority is the relevant term having reference to the 14 C.W.P. No. 11613-CAT of 2006 (O&M) class, category and the grade to which the reference is made. Length of service is a recognized method of determining the seniority. Such length of service shall have reference to the class, category or grade which the parties were holding at the relevant time. It, therefore, follows that total length of service is not relevant for determining the seniority but length of service to a particular class, category or grade is relevant consideration for the purpose of counting the period with respect to length of service for the purpose of determining the seniority. In other words, the period of holding of the equivalent post in the parent department would be the relevant period to be taken note of for the purposes of determining the seniority under Rule 5(2) and its proviso. Any other interpretation would be against the settled rules of service jurisprudence and is likely to create many anomalies resulting in failure of justice and defeating the acquired rights of the civil servants based upon their length of service. A perusal of the Rules does not, in any way, show and rightly so that the rule making authority had ever intended to take away the benefit of the length of service of a person in his parent department before his deputation and absorption in the service.” 19. A perusal of the aforesaid para would