Supreme Court of India
A.N. PATHAK AND 5 OTHERSversusSECRETARY TO THE GOVERNMENT, MINISTRY OF DEFENCE AND ANOTHER
- Citation
- 1987 INSC 44
- Decided
- 12 February 1987
- Disposal
- Appeal(s) allowed
- Bench
- O CHINNAPPA REDDY
Holding
The Court held that the operation of clauses 10 and 11 of the recruitment rules and the seniority lists prepared thereby violate Articles 14 and 16, and the petitioners are entitled to have the lists redrawn giving them the positions they would have occupied but for the offending provisions.
Summary
Six defence production employees (promotees) challenged the Defence Production (Directorate of Production and Inspection, Naval) Group A and Group B Technical Post Recruitment Rules, 1976, specifically clauses 10 and 11, which allowed direct recruitment to fill vacancies and gave direct recruits seniority over existing promotees regardless of length of service. They argued that the seniority lists dated 25‑July‑1977, 3‑Sept‑1977 and 7‑Sept‑1977, prepared under these rules, were arbitrary and violated Articles 14 and 16 of the Constitution. The respondents contended that seniority based on length of service is not inflexible and that a later direct recruit may lawfully be senior under the quota rule. The Supreme Court held that the grievance was justified, the clauses and the resulting seniority lists were discriminatory and violative of Articles 14 and 16, and directed the authorities to redraw the seniority lists giving the petitioners the positions they would have been entitled to but for the offending provisions. The petition was allowed and the respondents were ordered to prepare fresh seniority lists.
Issues considered
- The validity of clauses 10 and 11 of the 1976 recruitment rules which give preference to direct recruits over promotees.
- Whether the operation of those clauses violates the equality principle under Article 14 of the Constitution.
- Whether the clauses infringe the right to equality of opportunity in public employment under Article 16.
- Whether the seniority lists prepared under the rules are arbitrary and violative of Articles 14 and 16.
- Whether the authorities must redraw the seniority lists to reflect the promotees' length of service.
Legislation cited
- Constitution of Indias. 14, s. 16
Subjects
promotionsenioritydiscriminationArticle 14Article 16defence servicerecruitment rulesdirect recruitmentpromoteeseniority listconstitutional law
Judgment
A.N. PATHAK AND 5 OTHERS
A
v.
SECRETARY TO THE GOVERNMENT, MINISTRY OF
DEFENCE AND ANOTHER
FEBRUARY 12, 1987
B
[O. CHINNAPPA REDDY AND V. KHALID, JJ.]
-i Civil Services-Defence Production (Directorate of Production
and Inspection, Naval) Group A and Group B Technical Post Recruit-
--- '( ment Rules, 1976, clauses JO and 11-Delay in filling direct recruit-
ment posts causes hardship to promotees-Seniority List quashed.
c
Promotees-Come into service because they form part of a regular
cadre-Entitled to benefit of length of service-Authorities to be prompt
i in making direct recruitment-Any delay should not visit promotees
with adverse consequences.
D
The petitioners who are working in the Minist:y of Defence,
Department of Pro<lnction, challenged the validity of The Defence l'Fo-
duction (Directorate of Production and Inspection, Naval) Group A and
Group B Technical Post Recruitment Rules, 1976, on the grounds: (i)
that the Rules discriminate between promotees and direct recruits; (ii)
that their seniority is not taken into consideration while the seniority list E
is prepared and that the direct recruits are given seniority over them
- undeservedly by virtue of the operation of the method of recruitment
contained in the rules; (iii) that the seniority lists dated 25.7.77, 3.9.77
and 7.9.77 prepared according to rules are purely arbitrary and ignore
~- their length of service. On the other hand, counsel for the respondents
contended that the principle of fixing seniority on the basis of length of F
~ service and dates of confirmation is not an infle:ol>le rule and it is JIOS"'Dle
in law that a direct recruit who is appointed later in point of time is
senior to a promotee because of the working out of the quota rule and
that in certain given cases, seniority based on length of service can be
ignored.
G
Allowing the writ petition, this Court,
-I
HELD: 1. 1 The grievance of the petitioners is justified in law.
The rules enabling the authorities to fill in vacancies for direct recruits as
and when recruitment is made and thereby destroying the chance of
promotion to those who are already in service cannot but be viewed with H
281
282 SUPREME COURT REPORTS (1987] 2. S.C.R.
disfavour. H the authorities want to adhere to the rules strictly all that is
A necessary is to be prompt in making the direct recruitment. !287D·El
1.2 The respondents are directed to redraw the senority lists
dated 25. 7.77, 3.9.77 and 7.9.77 appended as Annexures C, D and E to
the writ petition and prepare the list afresh giving the petitioners the
B positions they would have been entitled to, but for the offending por· 'L
lions of clauses 10 and 11 in the Schedule to the Rules. l287H; 288A-B] r
2. The manner in which the provision contaiued in columns 10
and 11 of the Schedule to the Rules works to the detriment of the
promotees is as follows. The ~1erson who is working as a Senior Tecbni·
cal Officer must have a minimum service of five years in that grade for
c promotion to the higher post. A direct recruit who joins service much
later and who does not have the requisite five years service wUI be
placed above him for promotion. The posts to be filled in by direct
recruitment are kept vacant and as when recruitment is made, the
names of direct recruits are inserted at the places reserved for them
D regardless of the fact that there are many others who had put in more
years of service than they. This method works an additional hardship to
the promotees in that they wiill not be confirmed though the required
probation period has been completed by them, only to allow the direct
recruits to complete their period of probation. The combined operation
of clause 10 and 11 of the Schedule to the Rules causes a douLle damage
E to the petitioners the promotees and the direct recruits consequently
have double advantage. 1286C-F]
3. Delay in making appointments by direct recruitment should
not visit the promotees with adverse consequences, denying them the
benefit of their service. [287El t
F
A. Janardhana v. Union of India & Ors., AIR 1983 SC 769; O.P.
Sing/a and Anr. v. Union of India and others, (1985] 1 SCR 351; G.S.
Lamba & Ors. v. Union of India & Ors., AIR 1985 SC 1019; Narender
Chadha v. Union of India, AIR 1986 SC 638 and G.K. Dudani and
Ors. v. S.D. Sharma and Ors., AIR 1986 SC 1455, relied upon.
G
ORIGINAL JURISDICTION: Writ Petition No. 1889 Of 1978.
(Under Article 32 of the Constitution of India)
A. Sobba Rao for the Petitioners.
H
A.N. PATHAK v. MINISTRY OF DEFENCE [KHALID, J.] 283
'I Govind Das, C. V. Subba Rao G.D. Gupta and J.P. Sharma-in- A
person for the Respondents.
The Judgment of the Court was delivered by,
KHALID, J. The petitioners, six in number, are working in the
Ministry of Defence, Department of Production. They joined their B
service on different dates ranging from 1963 to 1969. The 1st, 2nd, 3rd
and 5th petitioners joined service as Senior Technical Assistant while
-'( 4th and 6th petitioners joined as Technical Assistant. The !st and 2nd
petitioners are now working as Senior Technical Officer (officiating),
3rd and 4th petitioners are working as Technical Officer (officiating)
and 5th & 6th are working as Junior Technical Officer. None of the C
petitioner have been confirmed in their respective posts to which they
have been promoted.
The first respondent is the Secretary to the Government,
Ministry of Defence and the second respondent, Director, Directorate
of Production and Inspection, Naval. D
The appointment and promotion of persons like the petitioners
were governed by the department of Defence Production (Directorate
of Production and Inspection, Naval) Group A and Group B Technical
Post Recruitment Rules, 1976, for short 'the Rules'. Prior to these
- rules, they were governed by the Rules framed in 1965 and revised in
1972.
E
The grievance of the petitioner is that the Rules discriminate
between them and the direct recruits, that their seniority is not taken
into consideration while the seniority list is prepared and that the
direct recruits are given seniority over them undeservedly by virtue of F
the operation of the method of recruitment contained in the rules. The
petitioners complain that the list so prepared is purely arbitrary and
ignores their length of service. They made representations to the first
respondent complaining against the injustice done to them and for
redressal of their grievances. There were no favourable orders. Hence
~~~~. G
The prayer in the petition is for a mandamus declaring the rules
and the seniority list dated 25.7.1977, 3.9.1977 and 7.9.1977, prepared
according to rules, as bad as violative of Articles 14 & 16.
In the counter affidavit filed by the respondents two preliminary H
284 SUPREME COURT REPORTS [1987] 2 S.C.R.
A objections were taken-(1) that the joint petition filed by the petition- y
ers.is not maintainable inasmuch as it involves determination of diffe- '
rent questions of facts based on separate caused of action and (2) that
the petitioners have not arrayed as respondents all the officers who
would be adversely affected by any order to be passed by this Court.
The rules in question are justified on the ground that they were validly
B passed. It is stated that the offending· clause cannot be faulted as
violative of Article 14 and Article 16 of the Constitution. The rules
were framed in consultation with the Department of Personnel and
Administrative Reforms, Cabinet Secretariat, in the light of the past
experience. It is stated that the rules, far from causing any discrimina-
tion, seek to fix rationally (:i) inter-seniority, (ii) quotas for recruit-
C ment and (iii) norms whereby the cases of all senior persons are to be
considered. The preparation of the offending lists is justified on the
plea that the principle of fixing seniority on the basis of length of
service and dates of confirmation is not an inflexible rule and that it is
possible in law that a direct recruit who is appointed later in point of
time is senior to a promotee because of the working out of the quota
D rule. The Counter Affidavit continues with the usual plea that in cer-
tain given cases seniority based on length of service can be ignored. •
Before dealing with the merits of this case we will dispose of the
preliminary objections. We are not impressed with the preliminary
E objections. The petitioners have clearly given the details about the
dates of appointment, promotion etc. The dates do differ. But nothing
prevents this court from modulating the relief and giving directions to
the respondents to Fe-consider the offending lists with reference to
each of the petitioners in the light of what follows.
F
The second objection has been met by the pelllloners by
impleading those who will be affected as respondent Nos. 3 to 8, as per
orders of this Court dated 11.8.1983.
G The method of recruitment under challenge is contained in eel- ~
umns 10 and 11 of the schedule to the rules which is given below:
Method of recruitment In case of recruitment
whether by direct by promotion/deputation
recruitment or by transfer grades from
H promotion or by which promotion/deputation
A.N. PATHAK v. MINISTRY OF DEFENCE [KHALID, J.] 285
transfer to be made. A
deputation/transfer
and percentage of the
vacancies to be filled
by various methods.
-- B
10 11
--i
-Y Senior Technical Officer
(i) 50% by promotion
Promotion:
Technical Officer with
failing which by 5 years service in the
direct recruitment grade rendered after
c
appointment thereto on
'i (ii) 50% by direct recruitment a regular basis:
(iii) Failing (i) and (ii) provided that if an officer
above, by Fe-employ- is considered for promotion
ment. in accordance with the D
provisions of these Rules/
all persons senior to him
(iv) Failing (iii) above in that grade shall also be
~ by promotion. considered notwithstanding
that they may not have
E
- rendered the prescribed
number of years of regular
service in that grade.
·- - ...
t Technical Officers:
(i) 50% by promotion
Promotion:
Junior Technical Officer with
F
failing which by 3 years service in the grade
direct recruitment. rendered after appointment
thereto on a regular basis:
(ii) 50% by direct recruit- Provided that if an Officer
ment is con.sidered for promotion G
in accordance with the
(iii) Failing (i) and provisions of these rules,
(ii) above, by all persons senior to him
Fe-employment in that grade shall also
be considered notwithstanding
H
286 SUPREME COURT REPORTS [1987] 2 S.C.R.
A (iv) Failing (iii) by that they may not have ren-
promotion dered the prescribed number
of years of regular service
in that grade.
Note: All eligible candidates
B have to qualify in a
written departmental
examination of a degree
standard.
Re-employment: ...... .
c
The manner in which !he above provision works to the detriment
of the promotees is as follows. A person who is working as a Senior
Technical Officer must have a minimum service of five years in that
grade for promotion to the higher post. A direct recruit who joins
D service much later and who does not have the requisite five years
service will be placed above him for promotion.
The posts to be filled in by direct recruitment are kept vacant and
as and when recruitment is made, the names ·of direct recruits are
inserted at the places reserved for them regardless of the fact that
E there are many others who had put in more years of service than they.
·This method works an additional hardship to the promotees in that
-
they will not be confirmed though the required probation period has
been completed by them, only to allow the direct recruits to complete
their period of probation. 1be combined operation of clause 10 and 11,
according to the petitioner causes a double damage to them and the
F direct recruits consequently have double advantage.
Annexure 'C' to the writ petition is the seniority list relating to
the Senior Technical Officers. In this list, places 4, 6, 8, 10, 12 and 14
are kept vacant. These places will be filled in when direct recruits
come. They will steal a march over those who have entered service
G earlier. The latter will be pushed down in the list.
We do not think it necessary to refer to the various decisions
rendered by this Court on this question. In the case of A. Janardhana
v. Union of India and others, AIR 1983 SC 769; O.P. Sing/a and Anr.
v. Union of India and others, [1985] 1 SCR 351 and in G.S. Lamba &
H Ors. v. Union of India & Ors., AIR 1985 SC 1019, length of service
A.N. PATIJAK v. MINISTRY OF DEFENCE [KHALID, J.] 287
was given due importance in dealing with promotions and seniority. In
A
the case of Narender Chadha v. Union of India, AIR 1986 SC 638 to
"I which one of us was a party, it was held that to treat continuous
officiation of one officer as temporary would be arbitrary and violative
of Articles 14 and 16, In G.K. Dudani and Ors. v. S.D. Sharma and
Ors., AIR 1986 SC 1455 a three Judge Bench of this Court, Madon J,
speaking for the Bench,, approved the settled principle noted above. B
The promotees come into service, not by any fortuitous circumstances
-1 but they form an integral part of the regular cadre entitled to all
benefits by the length of their service.
- (
'· The learned counsel for the respondent found it difficult to
justify the validity of the rules and the lists in the light of the various c
decisions of this Court which have consistently leaned in favour of the
promotees based on their length of service and ·seniority, in cases
1 where there was inordinate delay in making direct recruitment. He
tried to justify the inequity saying that the new rules have tried to
rectify it. We are not satisfied with this explanation since that is little
D
consolation to the petitioners. We are of the view that the grievance of
the petitioners is justified in law. The rules enabling the authorities to
fill in vacancies for direct recruits as and when recruitment is made and
thereby destroying the chances of promotion to those who are already
in service cannot but be viewed with disfavour. If the authorities want
to adhere to the rules strictly all that is necessary is to be prompt in
E
making the direct recruitment. Delay in making appointments by
- direct recruitment should not visit the promotees with adverse conse-
quences, denying them the benefit of their service.
. ..__ The learned counsel for the respondent Nos. l and 2 made a
fervent plea that, being a sensitive department, relief may be granted
F
i to the petitioners by way of monetary compensation and requested us
to desist from upsetting the list. We cannot accede to this request.
The petitioners had sought stay of operation of the list. This
Court by its order dated 4.9.1978 declined to grant stay, but ordered:
"any action taken in the matter in regard to the grievances of the
G
petitioners in this case will be subject to the fmal result of this writ
petition."
In our Judgment, the petitioners are entitled to succeed. We
allow this writ petition and direct the authorities to Fe-draw the seno-
rity list dated 25.7.1977, 3.9.1977 and 7.9.1977, appended as Anne- H
288 SUPREME COURT REPORTS [1987) 2 S.C.R.
xures 'C', 'D' and 'E' the writ petition and prepare the list afresh
A
giving the petitioners the positions they would have been entitled to, V
but for the offending portions of clauses 10 and 11 in the schedule to
the rules.
There will be no order as to costs.
B
M.L.A. Petition allowed.
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