IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10 - 8 - 2011 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR. JUSTICE M. VENUGOPAL Writ Petition Nos. 2699, 10417, 11672, 12195 and 12217 of 2011 M.V. Aneesh .. Petitioner in WP.2699/2011/ Applicant K.N. Godavarman .. Petitioner in WP.10417/2011/Applicant R. Richard Jobas .. Petitioner in WP.11672/2011/Applicant K. Jeganathan .. Petitioner in WP.12195/2011/Applicant P. Brijesh .. Petitioner in WP.12217/2011/Applicant Vs. 1. Union of India, Rep. by the Secretary, Ministry of Defence Production & Supply, DHQ (PO), New Delhi 110 011. 2. The Chairman, Ordnance Factory Board, 10A, S K Bose Road, Kolkata 700 001. 3. The General Manager, Cordite Factory, Aravankadu 643 202 The Nilgiris. 4. The Registrar, Central Administrative Tribunal, City Civil Court Campus, High Court Buildings, Chennai 600 104. .. Respondents/ Respondents in all Wps Petitions filed under Article 226 of the Constitution of India for the issuance of Writ of certiorarified mandamus Calling for the records relating to the order dated 21.09.2010 in O.A.Nos.220, 222, 22, 218 and 223 of 2009 respectively on the file https://hcservices.ecourts.gov.in/hcservices/ of the 4th Respondent viz. Central Administrative Tribunal Madras Bench Chennai and quash the same as contrary to law and consequently direct the Respondents accordingly grant seniority drawn as per merit list at the time of selection. For Petitioner : Mr. R.B.K. Venkataraman for M/s. Ayyar and Iyer For Respondents 1to3 : Mr. M. Ravindran (W.P.Nos.2699, 12195 Addl. Solicitor General of India and 12217/2011) Assisted by Mr. R. Sureshkumar, SCGSC RR1 to 3 in W.P.No.10417/2011 : Mr.M. Ravindran, Additional Solictor General of India Assisted by Mr.R.Acthuthan CGSC RR1 to 3 in W.P.No.11672/2011 :Mr.M. Ravindran Additional Solictor General of India Assisted by Mr.S.R. Sundaram R4 : Tribunal COMMON ORDER (made by ELIPE DHARMA RAO, J.) These writ petitions are directed against the common order dated 21.9.2010 passed by the Central Administrative Tribunal in O.A. Nos. 218 to 223 of 2009 wherein the Original Applications filed by the present petitioners challenging the fixation of seniority were dismissed. 2. The brief facts leading to filing of these writ petitions are as follows :- The petitioners, by virtue of their apprenticeship and interview, were appointed in the semi-skilled posts such as Fitter, Millwright, etc., in the third respondent factory in the year 1998 and subsequently, got promoted in the Skilled and High Skilled grade as Fitter, Millright, etc., in 2000 and 2003 respectively. It is the grievance of the petitioners that though they are in the top of the seniority list, as some of the persons below them could join earlier due to receipt of Police Verification Report immediately, they are overlooked. Pointing out this aspect, they had made representations, however, they were rejected. Subsequently, the third respondent published the seniority list on the basis of the date of entry into service, https://hcservices.ecourts.gov.in/hcservices/ thus by violating the instructions issued under Office Memorandum No.2001/3/90-Est.(D), dated 04.11.1992 and depriving the meritorious employees of their status at due place. Thereafter, the petitioners made several representations and against the order of rejection of those representations, they had filed Original Applications before the Tribunal for fixation of seniority. 3. The Tribunal, on consideration of the contentions raised, by relying on the decision of the Central Administrative Tribunal, Hyderabad Bench, in O.A. No. 763 of 1993, which was confirmed by the Division Bench of the Andhra Pradesh High Court in W.P. No. 14929 of 1997 dated 08.8.2001 and the decision of the Central Administrative Tribunal, Madras Bench, in O.A. No. 703 of 2008, dated 28.10.2009, dismissed the Original Applications. Aggrieved by the said order, the present writ petitions have been preferred. 4. The only contention raised by the learned counsel for the petitioners is that while notifying the seniority list in the skilled grade, the seniority assigned in the lower grade, namely, the semi-skilled grade, with reference to their position based on the merit/select list should be taken into consideration. In other words, the seniority should not be counted from the date of promotion to the skilled grade. 5. Learned Addl. Solicitor General appearing for the Respondents has supported the order passed by the Tribunal, which is based on the earlier decisions of the Tribunal and the Andhra Pradesh High Court. Learned Addl. Solicitor General by relying on the O.F. Board Letter dated 24.12.2002 contended that the petitioners are not entitled for the relief sought for. 6. The petitioners were appointed in the year 1998 in a semi-skilled post like Millwright, fitter, etc. after undergoing apprenticeship in their respective trade. On completion of two years of training period in the aforesaid grade, they were appointed in the Skilled grade in 2000. The claim of the petitioners is that seniority of a person regularly appointed to a post should be determined by the order of merit indicated at the time of initial appointment and not as per the date of confirmation in the subsequent post, namely, the skilled post. The stand of the Department is that seniority will be counted from the date of promotion to the skilled grade. On the aforesaid scenario, the question to be decided is whether the seniority would be counted from the date of promotion in the skilled grade or from the date of initial appointment as semi-skilled worker. 7. The question remains no res integra. The issue has been substantially decided by the Central Administrative Tribunal of https://hcservices.ecourts.gov.in/hcservices/ Hyderabad Bench in O.A. No. 763 of 1993, dated 18.3.1997, wherein the Tribunal by observing that there was no statutory rule governing fixation of seniority of the employees who are to be promoted to the skilled grade from the semi-skilled grade, allowed the Original Application. The said decision of the Tribunal was also confirmed by a Division Bench of the Andhra Pradesh High Court in the appeal preferred by the Department in W.P. No. 14929 of 1997. It is not in dispute that the aforesaid decision has become final and the Department has implemented the decision of the Division Bench by issuing Office Memorandum dated 24.12.2002 to the effect that seniority would be counted from the date of promotion to skilled grade and not from the date of induction / entry / promotion in Semi-Skilled grade. 8. At this stage, the learned counsel for the petitioners by relying upon a decision of the Supreme Court in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra (1990) 2 SCC 715, contended that when the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for the purpose of seniority. In the aforesaid decision of the Supreme Court, after considering the inter se dispute between the promotees and the direct recruits, the Supreme Court ultimately observed as follows:- "47. To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in https://hcservices.ecourts.gov.in/hcservices/ accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. . . ." 9. We have no quarrel over the proposition that once a person is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The facts in the present are entirely different to the relied on case. In the present case, the petitioners got appointed as apprentice in a specific trade and after undergoing training as semi-skilled, they had got promoted to the post of skilled grade. The Andhra Pradesh High Court in a similar circumstances pointed that there was no statutory rule governing fixation of seniority of the employees who are to be promoted to the skilled grade from the semi-skilled grade, where a senior could not report to the promoted post for some or the other reason before his junior reported for duty in the promotion grade. The Proceedings dated 24.12.2002 issued following the aforesaid decision, has specifically made it clear that "Semi-skilled posts are training posts for Skilled posts" and "Seniority will be counted from the date of promotion to Skilled grade and not from the date of induction/entry/promotion in Semi- skilled grade". 10. To strengthen our aforesaid conclusion, the Department of Personnel and Training, Government of India, had issued Official Memorandum No. 35034/1/2000-Estt.(D), dated 11/14th September,2001, which reads as follows :- "2. Department of Per. & Trg. have offered their comments as under:- "If in respect of skilled trade, recruitment is made against posts sanctioned in the skilled grade (Rs.3,050-4,590) but the incumbents are allowed semi-skilled grade for first two years for direct recruit with III of NCUT Certificate or for 3 years for persons who are promoted from a lower grade after passing the prescribed trade test before they are placed in the skilled grade, then the semi-skilled grade in such cases may need to be viewed only as a trainee scale and such placement in the skilled grade after putting in the specific https://hcservices.ecourts.gov.in/hcservices/ length of service in the semi-skilled grades may not be treated as promotion / upgradation and may not be offset against entitlements under ACP Scheme. However, in respect of trade where posts may be sanctioned only in semi-skilled grades, if any, then regular incumbents of such posts in semi- skilled grade on promotion to skilled grade, where such avenues exist will be treated as being appointed on promotion and will not be covered by the above clarification." 11. A reading of the aforesaid Official Memorandum issued with the concurrence of the Defence (Finance/AG) Department, makes it abundantly clear that the persons promoted from a lower grade after passing the prescribed trade test before they are placed in the skilled grade, then the period undergone by them in the semi- skilled grade, should be viewed only as a trainee scale and the length of service put in the semi-skilled grades may not be treated as promotion / upgradation. When there is a specific Official Memorandum issued in concurrence with the Defence Department and it was made clear in the earlier Proceedings dated 24.12.2002, the petitioners cannot contend that the decision of the Supreme Court in (1990) 2 SCC 715 (cited supra) will be applicable to the facts of the present case. For the reasons stated above, the relied on decision will not be applicable to the present case. For the aforesaid reasons, we do not find any illegality or infirmity in the order passed by the Tribunal and it is accordingly, confirmed. Consequently, the present Writ Petitions are dismissed. There will be no order as to costs. Sd/- Deputy Registrar. /true copy/ Sub Asst.Registrar. gri To 1. The Secretary, Ministry of Defence Production & Supply, DHQ (PO), New Delhi 110 011. https://hcservices.ecourts.gov.in/hcservices/ 2. The Chairman, Ordnance Factory Board, 10A, S K Bose Road, Kolkiata 700 001. 3. The General Manager, Cordite Factory, Aravankadu 643 202 The Nilgiris. 4. The Registrar, Central Administrative Tribunal, City Civil Court Campus, High Court Buildings, Chennai 600 104. 5 ccs to M/s. Ayyar and Iyer, Advocate, Sr. 49559 to 49563 3 ccs to Mr.R. Suresh kumar, SPC for CG Advocate, Sr. 49458 to 49460 1 cc to Mr.R. Achuthan, CGSC, Sr. 49305 W.P. Nos. 2699 of 2011, etc. batch KSK (CO) kk 14/9 https://hcservices.ecourts.gov.in/hcservices/