Supreme Court of India

V.P. Shrivastava And Ors vs State Of M.P. And Ors on 2 February, 1996

Author:
K. Ramaswamy

Bench:
K. Ramaswamy

CASE NO.:
Appeal (civil) 2769 of 1996

PETITIONER:
V.P. SHRIVASTAVA AND ORS.

RESPONDENT:
STATE OF M.P. AND ORS.

DATE OF JUDGMENT: 02/02/1996

BENCH:
K. RAMASWAMY & G.B. PATTANAIK

JUDGMENT:

JUDGMENT

1996 (2) SCR 59

The Judgment of the Court was delivered by PATTANAIK, J.

Leave granted.

This appeal is directed against the Judgment of the Madhya Pradesh
Administrative Tribunal dated 24th July, 1992 in Original Application No.
894 of 1988. The appellants are the direct recruits as Assistant Director
of Industries, they having been appointed on 29.09.1980 through the process
of selection conducted by the Public Service Commission. The respondents
are the ad hoc promotees to the post of Assistant Director, they having
been promoted on 27.09.1980. The inter se seniority between these two
groups of appointees is the subject matter of controversy in this appeal.

The State of Madhya Pradesh had framed a set of Rules called Madhya Pradesh
State Industries (gazetted) Service Recruitment Rules, 1965 (hereinafter
referred to as 'the recruitment Rules of 1965'). Under the said rules, 50
per cent posts of Assistant Director of Industries were to be filed by
direct recruitment and balance 50 per cent by promotion. The aforesaid Rule
was replaced by a new set of Rules called Madhya Pradesh State Industries
(gazetted) Service Recruitment Rules, 1985 (hereinafter referred to as 'the
recruitment Rules of 1985'). Both these Rules though provide for the mode
of recruitment to the post of Assistant Director of Industries as well as
the procedure therefore, but do not contain any provision for determination
of inter se seniority between a direct recruit and a promotee. Therefore
the said seniority had to be determined in accordance with the general
principle.

Though the principle has been authoritatively laid down by Constitution
Bench of this Court in the case of Direct Recruit Class II Engineering
Officers Association and On. v. Stale of Maharashtra and Ors. reported in
[1990] 2 SCR 900, commonly called the Direct Recruits Case, but yet very
often the High Courts and the Administrative Tribunals have been committing
the mistake in applying ratio of this case. In the case in hand the
Administrative Tribunal has failed to apply the ratio laid down in Direct
Recruits Case and as such has committed an error.

Under the Recruitment Rules, 1965 no appointment to the service could be
made except after selection by one of the methods of recruitment specified
in Rule 6. So far as the direct recruitment is concerned the selection has
to be made by the Public Service Commission after interviewing the
candidates as provided under Rule 11 and then Commission forwards a list to
the Government arranging the persons in order of merit as provided in Rule
12 and finally the Government makes the appointments from the said list. So
far as the appointment to the service by promotion is concerned, under Rule
13 a preliminary selection committee is constituted which committee
considers the cases of all eligible persons as provided under Rule 14 and
finally a list of suitable persons is prepared by the said committee under
Rule 15, The selection is made on the basis of merit and suitability in all
respects with due regard to seniority and thereafter the names of the
officers included in the list are arranged in order of seniority. The list
thus prepared is forwarded to the Public Service Commission as provided
under Rule 16 and only after approval of the Commission under Rule 17, it
forms the selection list for promotion. The State Government then makes
appointments from the select list as provided in Rule 18. Admittedly the
appellants who are direct recruits had been appointed in accordance with
the prescribed procedure under the Recruitment Rules. whereas the promotee
respondents had not been ap-pointed in accordance with the procedure
prescribed for promotion under the Recruitment Rules. A bare look at the
letter of appointments of the respondents dated 27.9.1980 clearly indicate
that the appointments had been made in anticipation of the approval of the
Public Service Commission and the appointments were until further orders.
Thus the appointment of the respondents on 27.9.1980 was de-hors the rules
and though the said respondents being continued since September 1980, Mr.
Rao, learned senior counsel appearing for the appellants submitted that the
Public Service Commission has not yet granted approval to the appointments
of the respondents which fact is not disputed by the learned counsel
appearing for the private respondents as well as by the counsel appearing
for the State. In the year 1983 a provisional seniority list of the
Additional Directors was drawn up by the State Government wherein ad hoc
promotees were shown senior to the regularly appointees like the
appellants. The appellants filed objections to the said provisional list.
Without taking any decision on the same the State Government issued another
provisional selection list in the year 1986 but continued the mistake which
was there in the 1983 list. The appellants put forward their grievances
again on 18.9.1987. The seniority list prepared in 1983 and 1986 were
withdrawn. Then on 19.9.1988 another provisional list was brought out
wherein the appellants were against shown junior to the ad-hoc promotees
some of whom are the private respondents. The appellants against filed the
representation and finally on 23.12.1988 the State Government brought out
the final selection list wherein the appellants were again shown junior to
the said ad-hoc promotees. The appellants therefore approached the Slate
Administrative Tribunal. The Tribunal by the impugned order dismissed the
application essentially on two grounds namely, in an earlier case while
deciding the inter se seniority of 1974 recruits the Tribunal has decided
to take ad-hoc appointment of the promotees into consideration and
therefore that decision should govern the present case. The Tribunal also
came to the conclusion that since the promotion in favour of the
respondents in the year 1980 cannot be challenged at this length of time,
the said promotees would be entitled to count their entire service for the
purpose of determining of seniority. The Tribunal also is of the view that
even though respondents 3 and 4 who are promotees successfully safeguarded
the interest of all promotees yet since all the promotees have not been
arrayed as party respondents no relief can be granted to the appellants.

Mr. P.P. Rao, the learned senior counsel appearing for the appellants
raises two contentions in assailing the legality of the order of the
Tribunal:

(1) In view of the admitted position that the appellants - direct recruits
were appointed in accordance with the Recruitment Rules, 1965 I and the
respondents promotees were appointed on promotion on ad hoc basis not in
accordance with the procedure prescribed for promotion under 1965
Recruitment Rules, the Tribunal erred in law in declaring the promotees to
be senior to the direct recruits solely on the ground that the promotees
were appointed on 27.9.1980 whereas the direct recruits were appointed on
29.9.1980.

(2) Since the very principle of determination of inter se seniority adopted
by the State Government was challenged, the only necessary party is the
State itself and not the affected party and therefore non inclusion of
affected party will not be fatal to the case. At any rate when some of the
promotee appointees have been impleaded as parties and the Tribunal itself
came to the conclusion that they successfully safeguarded the interest of
the promotees the appellants could not have been refused relief on that
score. On the question of delay and laches, Mr. Rao contends that the
appellants do not challenged the so called ad-hoc appointments of
respondents by way of promotion but they merely challenge the position
assigned to them in the selection list and the selection list having been
finalised only in the year 1988, on 23.12.1988, the appellants' application
before the Tribunal in 1989 by no stretch of imagination can be held to be
barred on the principle of delay and laches.

Learned counsel appearing for the respondents while could not refute the
contention of Mr. Rao with regard to erroneous application of the
principles of determination of inter se seniority by the Tribunal, but
merely contended that the respondents have served this length of time and
many of them have been retired in the meantime, and therefore, alternation
of the seniority need not be made by this Court.

We are unable to accept the request made by the learned counsel appearing
for the respondents and in our considered opinion all the contentions
raised by Mr. Rao, learned counsel appearing for the appellants must
succeed.

In the Direct Recruits case the Constitution Bench of this Court summarised
the legal position in paragraph 44 as follows :

"(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 were 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 accordance with the rules, the
period of officiating service will be counted."

We are not concerned with the other propositions laid down by this Court in
the present case. In the case in hand the initial appointment of the
respondents on promotion not having been made following the procedure laid
down by the Recruitment rules of 1965 and even though they are continuing
in the post uninterruptedly but the Public Service Commission having not
approved their appointments as yet, proposition B above will have no
application. Consequently applying proposition A above, the appellants
direct recruits must be held senior to the respondents - private
respondents - ad-hoc promotees. The Tribunal obviously erred in law in not
following the aforesaid authoritative pronouncement of this Court for
determination of the inter se seniority between direct recruits and the
promotees.

In the three Judge Bench decision this Court in the case of
State of W.B.
and Others v. Aghore Nath Day and others
, [1993] 3 S.C.C. 371, this Court
held :

that to enable his seniority to be counted from the date of initial
appointment the incumbent of the post has to be initially appointed
'according to rules'. Thus 'where initial appointment is only ad-hoc and
not according to rules and made as a stop gap arrangement, the officiation
in such posts cannot be taken into account for considering the seniority'.

It was thus held that conclusions A and B of the Constitution Bench in
Direct Recruits case have to be read harmoneously and conclusion B cannot
cover cases which are expressly excluded by conclusion A.

In a more recent case of
V, Sreenivasa Reddy and Others v. Govt. of A.P,
and others
, [1995] Suppl. (1) S.C.C. P. 572, where one of us (brother
Ramaswamy, J.) was a member, all the decisions of this Court on the point
have been considered and it has been laid down the temporary or ad-hoc
appointments are not appointments in accordance with the rules and the
temporary service cannot be counted towards the seniority.

The conclusion of the Tribunal that non inclusion of the affected parties
is fatal to the appellants case is also unsustainable in law. It is to be
stated that the appellants do not challenge the so called ad-hoc
appointments of the promotee respondents but they do challenge the position
of the said ad-hoc promotee respondents over the appellants in the
seniority list. In other words the very principle of 'determination of
seniority' made by the State Government is under challenge and for such a
case State is the necessary party who has been impleaded. It has been held
by this Court in the case of General Manger, South Central Railway
Secundrabad and Anr. Etc. v. A.V.R. Siddhanti and Ors. Etc., [1974] 3
S.C.R. 207 :

"As regards the second objection, it is to be noted that the decision of
the Railway Board impugned in the writ petition contain administrative
rules of general application, regulating absorption in permanent
departments, fixation of seniority, pay etc. of the employees of the
erstwhile Grain Shop departments. The Respondents-petitioners are
impeaching the validity of those policy decisions on the ground of their
being violative of
Articles 14
and
of the Constitution. The proceedings
are analogous to those in which the constitutionality of a statutory rule
regulating seniority of government servants is assailed. In such
proceedings the necessary parties to be impleaded are those against whom
the relief is sought, and in whose absence no effective decision can be
rendered by the Court. In the present case, the relief is claimed only
against the Railway which has been impleaded through its representative. No
list or order fixing seniority of the petitioners vis-a-vis particular
individuals pursuant to the impugned decisions, is being challenged. The
employees who were likely to be affected as a result of the re-adjustment
of the petitioner's seniority in accordance with the principles
laid down
in
the Board's decision of October 16, 1952 were, at the most, proper
parties and not necessary parties, and their non-joinder could not be fatal
to the writ petition."

In the case of
A. Janardhana v. Union of India and others
, [1983] 2 S.C.R.
936, a similar contention was also repelled by this Court in the following
words :

"In this case, appellant does not claim seniority over particular
individual in the background of any particular fact controverted by that
person against whom the claim is made. The contention is that criteria
adopted by the Union Government in drawing-up the impugned seniority list
are invalid and illegal and the relief is claimed against the Union
Government restraining it from upset-ting or quashing the already drawn up
valid list and for quashing the impugned seniority list. Thus the relief is
claimed against the Union Government and not against any particular
individual. In this background, we consider it unnecessary to have all
direct recruits to be impleaded as respondents."

Further in view of finding of the Tribunal that respondents 3 and 4
successfully safeguarded the interest of the promotees. The Tribunal erred
in law in holding that non-inclusion of the affected parties is fatal to
the proceeding. It has been held by this Court in the case of Prabodh Verma
and Others, Etc. v. State of Uttar Pradesh and others, Etc., [1985] 1 SCR
216, that:

"A High Court ought not to hear and dispose of a writ petition under

Article 226
of the Constitution without the persons who would be vitally
affected by its judgment being before it as respondents or at least some of
them being before it as respondents in a representative capacity if their
number is too large to join them as respondents individually."

Even in
Janardhana
case referred to supra this Court also rejected a
similar objection on the ground that 9 of the direct recruits having been
impleaded as party, therefore the case of direct recruits has not gone
unrepresented and therefore the non-inclusion of all the 400 and odd direct
recruits is not fatal to the proceedings.

In the aforesaid circumstances we have no hesitation to come to the
conclusion that the Tribunal was wholly in error in coming to the
conclusion that the appellants application becomes unsustainable in the
absence of all the promotees being impleaded as party.

So far as question of delay and laches is concerned, as we have noticed
earlier the final gradation list was prepared only on 23.12.1988 and the
appellants had approached the Tribunal in 1989 and therefore, the question
of delay does not arise. In the aforesaid premises the impugned order of
the Tribunal is set aside and this appeal is allowed. The appellants are
entitled to get their seniority over the ad-hoc promotees who were
appointed as Assistant Director on 27.9.1980. The respondent-State is
directed to re-draw the seniority. The appellants' application before the
Tribunal stand allowed. There will be no order as to costs. The seniority
list may be re-drawn up within 4 months from the date of the receipt of
this order and consequential benefits may be given.