IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13-11-2008 CORAM : THE HONOURABLE MR. JUSTICE P.K. MISRA and THE HONOURABLE MR. JUSTICE A. KULASEKARAN W.P. No. 17222 of 2008 and M.P. No. 1 of 2008 -o- A.M. Basheer Ahmed .. Petitioner Versus 1. Indian Council of Medical Research rep. By its Director General Ansari Nagar Post Box NO.4911 New Delhi – 110 029 2. Vector Control Research Centre rep. By its Director Indira Nagar Pondicherry – 605 006 3. N. Pachaiappan Laboratory Assistant Vector Control Research Centre Indira Nagar, Gorimedu Pondicherry 4. V. Padmanabhan Laboratory Assistant Vector Control Research Centre Indira Nagar, Gorimedu Pondicherry 3. S. Rajendran Laboratory Assistant Vector Control Research Centre Indira Nagar, Gorimedu Pondicherry 6. The Registrar Central Administrative Tribunal Madras Bench Chennai – 600 104 .. Respondents https://hcservices.ecourts.gov.in/hcservices/ Prayer : Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records on the file of the sixth respondent tribunal relating to the impugned order dated 12.06.2008 in O.A. No. 454 of 2007 and quash the same and consequently allow the O.A. No. 454 of 2007, on the file of the sixth respondent. For Petitioners : Mr. Bharath Chakravarthy for M/s. Sai, Bharath & Ilan For Respondents : Mr. M.T. Arunan, ACGSC for RR1 & 2 Mr. G.R. Swaminathan for RR3 to 5 ORDER (Order of the Court was made by P.K. MISRA, J) Heard the counsel for the parties. 2. The petitioner as well as private respondents 3 to 5 are all employees under the first respondent/ICMR. The question raised in this writ petition relates to their seniority in the post of Laboratory Assistant. 3. Originally, the present petitioner as well as the respondents 3 to 5 were employed in different projects, of course, on temporary basis. Thereafter Vector Control Research Centre was constituted in which the present petitioner and the respondents 3 to 5 along with various other similarly situated persons were regularly absorbed with effect from 01.01.1985 on the basis of the recommendations made by the Departmental Promotional Committee as per its various proceedings. 4. The present petitioner initially entered service in the project on 19.03.1981 and had continued as such, till he was regularly absorbed. Similarly, the respondents 3 to 5 were engaged in different projects on temporary basis with effect from 22.09.1983, 23.09.1983 and 26.09.1983 respectively. 5. It is not in dispute that no seniority list was being maintained earlier under the ICMR. While matter stood thus, by proceedings dated 18.04.1994, the services of ten employees were confirmed retrospectively. So far as the present petitioner and the respondents 3 to 5 are concerned, their services were confirmed with effect from 01.11.1987, whereas, two other persons were confirmed with effect from 01.11.1988 and 01.12.1990 respectively. Subsequently, by another proceedings dated 07.03.2000, fixation of pay by implementation of ACP scheme was issued in which the names of the petitioner and the respondents 3 to 5 were found mentioned at serial Nos. 1, 3, 4 and 2 respectively. https://hcservices.ecourts.gov.in/hcservices/ 6. In the meantime, the present respondent No.3 had also made representations dated 01.05.1997 and 28.05.1997 claiming that he should be treated as senior to the present respondents 4 and 5, in which he had indicated that he had joined ICMR project on the forenoon of 22.09.1983, which was earlier than the date of joining of the respondents 4 and 5 and therefore, it was requested that he should be treated as senior in the cadre of Laboratory Assistant. At that stage, a reply dated 30.05.1997 was sent by the first respondent wherein it was indicated as follows:- “Reference his representation dated 01.05.1997 & 28.05.1997. Shri. N. Pachaiappan is hereby informed that as per the 7 year assessment scheme which the Council implemented during 1990 and 1991 there is no concept of seniority in a cadre. All those technical staff who have completed 7 years of service upto 1991 got upgraded and they are all in the same grade. Those who had not completed 7 years of service on 31.07.1991 could not be assessed. The ICMR has now informed that they are under the process of finalising a new assessment scheme which they will implement as soon as the scheme is finalised. It is therefore regretted that a seniority list do not exist and therefore can not be provided.” 7. The present respondents 3 and 4 along with one Bhopal Chakravarthy had filed W.P. No. 5945 of 1988 before this Court challenging the said order dated 30.05.1997 of the first respondent and for a direction to the respondents 1 and 2 to draw seniority list accordingly. The said writ petition was transferred to the Central Administrative Tribunal, Madras and re-numbered as T.A. No. 1 of 2006. The Tribunal disposed of the said application on 24.09.2007 by observing as follows:- “3. Having perused the application and also the reply, it is noticed that the grounds on which the petitioners are seeking the relief have considerably changed because the WP was filed in the year 1998 and subsequently a lot of developments have taken place in the respondent department. Further, we notice that the 1st petitioner's one of the reliefs, to maintain the seniority list, has already been granted and based on the same, the 1st applicant has been given promotion which is also accepted by him. Under the circumstances, the application is dismissed with liberty to the https://hcservices.ecourts.gov.in/hcservices/ petitioners to file a fresh OA if they have got any grievance still left unaddressed. No costs.” 8. In the meantime, the department drew a tentative seniority list wherein the present respondents 3 to 5 were shown shown at Serial Nos. 1 to 3 whereas the present petitioner was shown at serial No.4, by indicating that the date of entry into service was 01.11.1985 and all the persons were called upon to file their objection, if any, relating to such tentative inter se seniority list. Pursuant to the tentative seniority list, the present petitioner submitted a representation dated 22.12.2006 wherein it was indicated that he had joined in the project on 19.03.1981 and subsequently regularised as Laboratory Assistant with effect from 01.11.1985 and the seniority list should be re-fixed on the basis of the date of initial joining. Such representation was rejected by the first respondent by communication dated 18.01.2007 by indicating as follows:- Shri. A.M. Bazeer Ahamed, Laboratory Assistant is hereby informed that, at the time of absorption of scheme employees, the selection committee held on 01.11.1985 had drawn a merit list. Accordingly the present seniority list has been drawn and his name is placed under sl.No.4. Further he is informed that mentioning his name under Sl.No.1, in the confirmation list, ACP pay fixation and revision of ACP orders etc has no impact on his seniority. Hence, his request for review of the seniority based on the date of his joining in the scheme service can not be acceded to.” 9. Thereafter, the present petitioner filed O.A. No. 454 of 2007 before the Central Administrative Tribunal, Madras Bench, challenging the tentative seniority list drawn on 11.12.2006 as well as the communication of the first respondent dated 18.01.2007. In the said proceedings, the present respondent No.1 took a stand that the seniority list was drawn on the basis of the recommendations made by the Departmental Promotional Committee on 19.06.1985 as per the relative merit and therefore the claim of the present petitioner regarding seniority is not acceptable. The Tribunal, dismissed the Original Application by observing that the selection had been made in the year 1985 and such selection, having not been challenged by the present petitioner, such seniority list cannot be re-opened after long lapse of time. Such decision of the Tribunal is challenged in the present writ petition. https://hcservices.ecourts.gov.in/hcservices/ 10. In the present writ petition, counter affidavit has been filed by the respondents 1 and 2, wherein, they have reiterated the stand that the recruitment had been made on the basis of recommendations made by the Departmental Promotion Committee wherein, the committee, after considering the relative merit, had drawn up a panel and therefore, the seniority has been fixed on the basis of such panel drawn by the Committee on 19.06.1985, which came into force from 01.11.1985. 11. In course of hearing, we had called upon the respondents 1 and 2 to produce the original file, particularly to ascertain whether at the time of absorption with effect from 01.11.1985, the list had been prepared on the basis of relative merit of the candidates. This aspect is very crucial because if the submission of the respondents 1 and 2 that the seniority list has been fixed on the basis of relative merit as per the recommendations made by the Departmental Promotion Committee is accepted, obviously, the contention of the petitioner has to be rejected. On the other hand, if it is not found that the list had been drawn on the basis of relative merit, the question of seniority has to be re-fixed on the basis of any other reasonable method. 12. In this connection, we have perused the file, which was produced by the respondents 1 and 2, which indicates that the report on individual basis was made by the Departmental Promotion Committee which met on 19.06.1985. In respect of each of the person, who were engaged in the project, the comment of the committee was made in separate sheets of paper. We find that in individual sheets, a report was made regarding each of the persons, including the present petitioner and the respondents 3 to 5, recommending for their absorption, which was signed by the Chairman and other members. Similarly, in the file, there are some continuing sheets available containing the names of persons who have been recommended to be absorbed, whereunder the following recommendation had been made "We have scrutinised individual cases with their C.R. Personal files and recommend that the above scheme employees, who have a clean record of service may be absorbed in the VCRC.” 13. This sort of recommendation has been made in 4 to 5 consolidated lists as apparent from the original record. One such list contain the names of 11 persons including the petitioner and the respondents 3 to 5. Similarly, several other lists containing the names of other persons were also enclosed. The fact remains that all the list are signed by the Departmental Promotion Committee on 19.06.1985. https://hcservices.ecourts.gov.in/hcservices/ 14. We have already extracted the relevant portion of the recommendations. The recommendation no where indicates that all those recommendations had been made on the basis of their relative merit. In such case, instead of 4 separate list, one consolidated list could have been prepared, but it was admittedly not done. 15. Moreover, in the reply to the representation made by the third respondent, it had been indicated that there was no seniority being maintained before 1991, as apparent from the communication dated 30.05.1997 of the first respondent. In such background, the present stand of the department that the seniority is fixed on the basis of relative merit, as found by the departmental promotion committee, is not acceptable as it is not supported by any contemporaneous or intrinsic material. On the other hand, the confirmation list, which was prepared in the year 1994, prima facie indicates that atleast serial Nos. have been indicated by taking into account the initial date of joining in a particular project. However, there was only one such exception, both in respect of the present third respondent, who had joined on 22.09.1983 and shown as Serial No.3 and one Meganathan and Padmanabhan, who have joined on 23.09.1983, shown at Serial Nos. 4 and 5. Therefore, it is not possible on our part to definitely conclude that the confirmation of staff, as per the proceedings dated 18.11.1994, was on the basis of relative merit or not. Moreover, as explained by the department in the reply to the representation made by the third respondent, possibly, there was no seniority list being maintained. In Page No.10 of the typed set of papers, the petitioner was shown as Serial No.1 while fixing the pay to the staff on implementation of ACP scheme, whereas, the respondents 3, 4 and 5 have been respectively shown at serial Nos. 3, 4 and 2. In the absence of any particular Rule relating to seniority, such seniority list has to be drawn by adopting to any other reasonable mode. As a matter of fact, the third respondent had earlier claimed that since he had joined the project on earlier date, he should be treated as senior, which implies that such was the understanding of all concerned. 16. There are several instances where a person, who is continuing on ad hoc post, on his confirmation of regular post, carries his seniority on the basis of such ad hoc promotion. According to us, such principle, in the absence of any other particular instruction, Rule or Circular, shall be a reasonable method for drawing the seniority list. Accordingly, we feel that the order passed by the Tribunal cannot be sustained and the matter is required to be re-examined by the respondents 1 and 2. 17. In the result, the order passed by the Tribunal is set aside. However, it is made clear that if any person is promoted, not on the basis of seniority list but otherwise, such https://hcservices.ecourts.gov.in/hcservices/ promotion need not be disturbed. However, if any other person has been promoted after the seniority list was circulated and after disposal of Original Application No. 454 of 2007 by the Tribunal on 12.06.2008, the question of such promotion would obviously depend upon the seniority list, which is to be re- fixed, according to our direction. 18. Subject to the above observation, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed. Rsh Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Director General Indian Council of Medical Research Ansari Nagar Post Box NO.4911 New Delhi – 110 029 2. The Director Vector Control Research Centre Indira Nagar Pondicherry – 605 006 3. The Registrar Central Administrative Tribunal Madras Bench Chennai – 600 104 + 1 cc to Mr. G. R. Swaminathan, Advocate, SR No.63487 + 1 cc to M/s. Sai, Bharath & Ilan, Advocate, SR No.63352 + 1 cc to M/s. M. T. Arunan, Advocate, SR No.63384 SSK(CO) SR/22.12.2008 WP No. 17222 of 2008 https://hcservices.ecourts.gov.in/hcservices/