D.P. Das vs Union Of India & Ors

2. The facts and circumstances giving rise to this appeal are that in the year 1983, the first batch of the Specialist Medical Officer (SMO) in the Ordnance Factories Organization was recruited in the category of Obstetrics, Gynecology, Medicine and Surgery. The appellant was one of the five recruited persons and he belonged to the category of Surgery.

3. In the year 1991, on the recommendation of the Fourth Pay Commission, one post in the Indian Ordnance Factories Health Services (Group A, grade of Rs.5900-6700) was sanctioned for filling up amongst the SMOs cadre. The specialists cadre was in different disciplines and hence, there was necessity of preparing a combined gradation list in the SMOs cadre. The respondent No.1 referred the matter to the UPSC for preparation of the common seniority list. Further, the SMOs were recommended by the UPSC by three different lists, two of which were made on the same date and 2 therefore the UPSC was requested to furnish the relative order of seniority of those SMOs who are recommended on the same date.

4. Accordingly, the seniority list of SMOs in the grade of Rs.4500-5700/- was prepared on 1.7.1992 and published vide order dated 21.8.1992. In the seniority list respondent Nos. 4, 5 and 6 were placed above the appellant.

5. As the appellant felt aggrieved by the publication of the said seniority list, he made representations in the year 1992, 1993 and 1995 before the respondent No.1. However, no reply was received by the appellant from the respondent No.1.

the relative seniority of all direct recruits shall be determined by the order of merit in which they are selected for such appointment on the recommendations of the UPSC or other selecting authority, persons appointed as a result of subsequent selection."

18.But this circular fails to address the situation, where no combined merit list is 11 prepared in the order of merit in which the candidates are appointed and their date of recommendation being the same, as in the present case.

21.However as noted above, office memorandum of 1959 does not answer the problems arising in this case.

24.Determination of seniority is a vital aspect in the service career of an employee. His future promotion is dependent on this. Therefore, the determination of seniority must be based on some principles, which are just and fair. This is the mandate of Articles 14 and 16.

28.The appellant argued that the date of interview would have to be considered as a guide for determination of seniority. This cannot be 15 accepted as such a date is wholly fortuitous.

Accepting as guideline, something which is absolutely fortuitous and based on chance, is inherently unfair and unjust.

29.As in this case there is no rule prescribed for the determination of seniority, this Court is left with only the guideline flowing from the executive instruction of 1946, in order to evolve a just policy, for determination of seniority.

32.The contrary view taken by the High Court of fixing seniority on the basis of date of interview, being wholly fortuitous, cannot be accepted.

35.The appeal is, thus, allowed. The judgment of the High Court which has taken a contrary view is set aside. In the facts of the case, there will be no orders as to costs.