REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.7002 OF 2004

D.P. Das ..Appellant(s)

- Versus -

Union of India and Ors.    ..Respondent(s)

J U D G M E N T

GANGULY, J.

1. This  appeal has  been preferred  from the  final  

judgment and order passed by the High Court of  

Madhya  Pradesh  at  Jabalpur  in  Writ  Petition  

No.5238 of 2000 dated 30th June, 2003.

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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  

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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.

6.Being  aggrieved,  the  appellant  preferred  an  

original application (O.A.No.457 of 1995) before  

the  Central  Administrative  Tribunal,  Jabalpur  

Bench (‘the Tribunal’) and prayed to quash the  

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said seniority list and also for maintenance of  

discipline wise seniority list initially prepared  

by the UPSC and for keeping Confidential Reports  

as  criteria  for  selection  to  the  next  higher  

grade and also to rearrange the seniority of the  

candidates on the basis of age of candidates by  

placing  the  oldest  candidate  on  top  of  the  

seniority list followed by juniors in age. The  

appellant  contended,  inter  alia,  before  the  

Tribunal that the:

a) The relative seniority of SMOs was   not determined by UPSC, at the time of  selection

b) The Department should have requested   the UPSC to recommend candidates for  such posts  on  the  basis  of  a   consolidated order of merit and  not subject wise

c) The  Department  never  requested  the   UPSC to  prepare  a  combined   seniority list as per merit on the  basis of performance in the interview.  It was therefore not possible  for  the UPSC to prepare  a  combined   seniority list in the year 1992.

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7.The  UPSC  before  the  Tribunal  contended,  inter  

alia,  that  the  interview  for  different  

disciplines viz specialists I medicine, surgery  

and gynecology in Ordnance Factories Organization  

were  conducted  on  different  dates.  Before  the  

Tribunal UPSC further contended that:

(i) As far as the Specialist (Obstetrics  and Gynecologist)  is  concerned  the   date of advertisement was 13.11.1982,  date of interview was 28.2.1983 and   date of UPSC recommendation letter was  16.3.1983.

(ii) Insofar as the Specialist (Medicine)  is concerned the date of advertisement  was 6.11.1983, date of interview was  15/16.03.1983  and  date  of  UPSC   recommendation letter was 14.4.1983.

(iii) And so far as the Specialist (Surgery)  is concerned,  the  date  of   advertisement was 13.11.1982,  date  of interview was 22/24.03.1983 and   date  of  UPSC  recommendation  letter   was 14.4.1983.

8.The  UPSC  also  filed  the  extracts  of  its  file  

which contain the note sheets from Page 2 to Page  

13. From those extracts the basis of arriving at  

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the methodology adopted for fixing the seniority  

of  two  different  disciplines,  whose  

recommendations were made on the same date were  

available.

9.By  a  judgment  and  order  dated  26.7.2000,  the  

Tribunal  dismissed the  O.A.457 of  1995 and  in  

paragraph 8.4 held as under:

“8.4  It  is  fact  that  date  of  recommendation  of  the  applicant  who  belongs  to  surgery  discipline  and  the  private respondents belonging to medicine  discipline was same i.e.14.4.1983.  Also  that  the  rules  provide  for  fixing  the  seniority  based  on  the  date  of  recommendations  of  the  UPSC  maintaining  inter se merit as per the recommendation.  It is also fact that respondent did not  approach the UPSC for preparing a combined  merit list of such specialist which they  should have done as per DOPTs instructions  for seeing future promotion prospects for  these specialists and also the fact that  separate  seniority  list  for  number  of  specialist  disciplines  and  separate  promotion  prospects  thereof  were  not  feasible. From the extract of note sheet  filed by the respondent, it is seen that  the  Commission,  based  on  detailed  examination decided to fix the seniority  in such case, based on date of interview  i.e.  candidates  interviewed  on  an  early  

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date to be senior to those interviewed on  a later date. The contention of learned  counsel for applicant that their seniority  should have been fixed based on the date  of  birth  cannot  be  accepted  since  presuming this criteria was to be adopted  then very purpose of preparation of merit  list of the candidates, will get defeated.  The reckoning of seniority based on age  may be relevant in cases of recruitment  where  no  merit  list  is  made  and  the  selection criteria is for qualifying the  test  along  or  where  the  recommendations  are only as ‘fit’ of ‘unfit’.”

10.Being  aggrieved,  the  appellant  filed  a  writ  

petition before the High Court of Madhya Pradesh.

11.By the impugned judgment dated 30.6.2003, the  

High Court dismissed the writ petition, affirming  

the methodology adopted by the UPSC for fixing  

the seniority of two different disciplines whose  

recommendations were made on the same date.

12.The High Court in para 15 held that:

“15. ………………… What is reasonable to be seen  in the obtaining factual matrix is that  under regrettable circumstances the inter  

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se merit list was not available as there  was  no  requisition  for  fixing  such  seniority. However, the UPSC had evolved a  base  which  indicates  that  the  date  of  interview would be the criteria for fixing  the seniority, in such a case. Ordinarily  this may look quite peculiar but it has to  be  borne  in  mind  that  peculiar  circumstances  are  solved  by  taking  recourse  to  innovative  methods.  The  tribunal in paragraph 6.1 has reproduced  the date of advertisement and the date of  recommendation  letter  of  UPSC.  We  have  also reproduced the same above. The date  of  advertisement  for  the  post  of  Specialist (Surgery) was 13.11.1982. The  date  of  advertisement  for  post  of  Specialist  (Medicine)  was  6.11.1983.  Definitely there was advertisement for the  post of Specialist (Surgery) earlier than  Specialist (Medicine) but the interview of  Specialist  (Medicine)  was  on  15/16.3.83  whereas  the  date  of  interview  of  Specialist  (Surgery)  was  on  22/24.3.93.  The Tribunal has taken note of the fact  that from the note sheets, which has been  produced by the UPSC, it was perceivable  that recommendations were made on the date  of interview. Thus, selection was made on  that  date.  It  is  noticeable  that  recommendations were sent on the same date  i.e.  14.4.1983.  Thus,  the  date  of  interview has earned the status of date of  selection. Submission of Mr. Gupta is that  it can be fortuitous circumstances as the  interview in one subject may take place  earlier  than  the  other.  The  aforesaid  submission may appear on a first blush to  be  quite  attractive  but  on  a  closer  scrutiny  of  the  same  it  has  to  be  repelled…………. The UPSC has determined the  seniority  on  the  basis  of  the  date  of  

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interview and the date when selection had  taken  place.  In  the  absence  of  any  document  on  record,  in  the  absence  any  preparation of merit list, in the absence  of drawing of the seniority list at the  initial  stage  and  taking  note  of  the  peculiar  facts  and  circumstances  of  the  case, we are of the considered view that  the UPSC has adopted a rational approach  and  the  Tribunal  has  not  flawed  in  accepting the same…….”

13.It is pertinent to note here that on 28.8.1946,  

the  Government  of  India,  Department  of  Home  

issued  an  Office  Memorandum  (O.M.)  for  

determination of seniority of direct recruits

14.Clause 2(iv) thereof provides as under:

“When  a  number  of  vacancies  for  direct  recruits are filled simultaneously without  candidates first being placed in order of  merit or preference, seniority should be  determined  by  age  provided  a  candidate  joins within such period not exceeding one  month from the date of appointment as may  be  fixed  by  the  appointing  authority.  A  candidate  who  does  not  join  within  the  

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time  so  specified  will  rank  below  those  who did so join, and seniority among the  later  arrivals  will  be  according  to  the  date of joining.  

The orders in this paragraph will be  of general application. ”

15.Vide an Office Memorandum dated 22.12.1959, the  

Government  of  India,  Ministry  of  Home  Affairs  

issued general principles for the determination  

of seniority in Central Civil Services  

16.It  is  pertinent  to  note  that  the  O.M.  dated  

22.12.1959 does not supersedes Office Memorandum  

of  1946  but  expressly  discontinues  the  

application of  some previous Office Memorandum  

cited below:

• Office Memorandum No. 30/44/48- Apptts, dated  the 22nd June, 1949.

• Office Memorandum No. 65/28/49 – DGS.(Appts.)  dated  the  3rd Feburary,  1950  and  other  subsequent Office Memorandum regarding fixation  

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of seniority of ex-employees of the Government  of Burma

• Office Memorandum No. 31/223/50 – DGS, dated  the 27th April, 1951 and other subsequent Office  Memorandum regarding fixation of seniority of  displace Government Servants.

• Office Memorandum No. 9/59/56 – RPS dated the  4th August, 1956.

• Office Memorandum No. 32/10/49 – CS dated the  31st March, 1950

• Office Memorandum No. 32/49/CS(C) dated the 20th  September, 1952.

17.Para 4 of the Annexure attached to the said O.M.  

dated 22.12.1959 specifically provides that “…..

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  

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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.

19.The learned counsel for the appellant contended  

that the O.M. dated 22.12.1959 has not repealed  

O.M. dated 28.8.1946 and therefore the O.M. of  

1946 shall be applicable in this situation.

20.The  learned  counsel  for  the  respondents  

contended that the intention of the authorities  

was clear in O.M. of 1959, so as to repeal all  

the prior O.Ms. in relation to the determination  

of seniority, which is expressed in para 2 of the  

O.M. which reads as under:

“…..It  has  therefore,  been  decided  in  consultation with the UPSC, that hereafter  the seniority of all persons appointed to  the  various  Central  Services  after  the  date  of  these  instructions  should  be  determined in accordance with the General  Principles annexed here to.”

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21.However  as  noted  above,  office  memorandum  of  

1959 does not answer the problems arising in this  

case.

22.The law is clear that seniority is an incidence  

of service and where the service rules prescribe  

the  method of  its computation,  it is  squarely  

governed  by  such  rules.  In  the  absence  of  a  

provision  ordinarily  the  length  of  service  is  

taken into account

23. The  Supreme  Court  in  M.B.  Joshi  &  others. V.  Satish Kumar Pandey & Ors., AIR 1993 SC 267 has  laid down that it is the well settled principle  

of service jurisprudence then in the absence of  

any specific rule the seniority amongst persons  

holding similar posts in the same cadre has to be  

determined  on  the  basis  of  the  length  of  the  

service  and  not  on  any  other  fortuitous  

circumstances.

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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.

25. In  The  Manager,  Government,  Branch  Press  and  another v. D.B. Belliappa reported AIR 1979 SC  429, a three-Judge Bench of this Court construing  

Articles  14  and  16  interpreted  the  equality  

clause of the Constitution as follows:-  

“…The  executive,  no  less  than  the  judiciary, is under a general duty to act  fairly. Indeed, fairness founded on reason  is the essence of the guarantee epitomized  in Articles 14 & 16(1).” (see para 24 at  page 434)

26. Another  three-Judge  Bench  of  this  Court  in  

Bimlesh  Tanwar v. State  of  Haryana  &  other,  14

(2003) 5 SCC 604, while dealing with the question  

of  absence of  a rule  governing seniority  held  

that an executive order may be issued to fill up  

the  gap.  Only  in  the  absence  of  a  rule  or  

executive  instructions,  the  court  may  have  to  

evolve a fair and just principle of seniority,  

which  could  be  applied  in  the  facts  and  

circumstances of the case. (see para 47 at page  

619)

27.In the instant case, no record has been brought  

before the Court to ascertain merit wise position  

of  the  persons  who  were  directly  recruited.  

Except the office memorandum of 1946, which is  

still  in  force,  no  other  rule  or  executive  

instruction has been shown to apply to the facts  

of the case.

28.The appellant argued that the date of interview  

would  have  to  be  considered  as  a  guide  for  

determination  of  seniority.  This  cannot  be  

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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.

30.From the analysis of the executive instructions  

referred  to hereinabove,  it is  clear that  the  

1946 instruction has not been superseded and the  

same refers to the acceptance of the age of the  

candidate  as  the  determining  factor  for  

seniority. Such a basis is not fortuitous and is  

otherwise just and reasonable.

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31.In the premises aforesaid the seniority of the  

officers who were recommended on the same date  

must be decided by their respective age.  

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.

33. The reliance by the respondent(s) on judgment of  

this Court in  B. Premanand and others v. Mohan  Koikal  and  others, (2011)  4  SCC  266,  is  misconceived in the facts of the case. In that  

case this Court was dealing with Rule 27(c) of  

the Kerala State and Subordinate Services Rules,  

1958.  In  the  instant  case  there  is  no  rule.  

Therefore in this case, this Court has to evolve  

a fair and just basis of seniority on the basis  

of the office memorandum discussed herein above.  

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34.For the reasons aforesaid this Court holds that  

for determination of seniority of the officers  

who were recommended on the same date, age is the  

only valid and fair basis as such their seniority  

should be decided on the basis of age of the  

candidates who have been recommended.   

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.   

.......................J. (G.S. SINGHVI)

.......................J. (ASOK KUMAR GANGULY)

New Delhi August 09, 2011

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