Date Of Joining Irrelevant In Fixing Seniority Of Direct Recruits
The fundamental principles of inter se seniority of direct recruits and promotees in Central Civil Services/posts were laid down in the Department of Personnel & Training (DOPT) O.M. No. 9/11/55-RPS dated 29.12.1959 which provided, Inter alia, that the relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees, which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively, in the Recruitment Rules.
B. The matter has been examined in pursuance of Hon’ble Supreme Court Judgment on 27.11.2012, in Civil Appeal No. 7514-7515/2005 in the case of N.R.Parmar vs. UOl & Ors in consultation with the Department of Legal Affairs and it has been decided, that the manner of determination of Inter-se-seniority of direct recruits and promotes would be as under:
a) DoPT OM No. 20011/1/2006Æstt.(D) dated 3.3.2008 is treated as non-existent / withdrawn ab initio;
b) The rotation of quota based on the available direct recruits and promotees appointed against the vacancies of a Recruitment Year, as provided In DOPT O.M. dated 7.2.1986/3.07.1986, would continue to operate for determination of inter se seniority between direct recruits and promotees;
c) The available direct recruits and promotees, for assignment of inter se seniority, would refer to the direct recruits and promotees who are appointed against the vacancies of a Recruitment Year;
d) Recruitment Year would be the year of initiating the recruitment process against a vacancy year;
e) Initiation of recruitment process against a vacancy year would be the date of sending of requisition for filling up of vacancies to the recruiting agency in the case of direct recruits; in the case of promotees the date on which a proposal, complete In all respects, is sent to UPSC/Chairmarn-DPC for convening of DPC to fill up the vacancies through promotion would be the relevant date.
f) The initiation of recruitment process for any of the modes viz, direct recruitment or promotion would be deemed to be the Initiation of recruitment process for the other mode as well;
g) Carry forward of vacancies against direct recruitment or promotion quota would be determined from the appointments made against the first attempt for filling up of the vacancies for a Recruitment Year;
h) The above principles for determination of inter se seniority of direct recruits and promotees would be effective from 27.11.2012, the date of Supreme Court Judgment in Civil Appeal No. 7514-7515/2005 In the case of N.R. Parmar Vs. UOl & Ors
i) The cases of seniority already settled with reference to the applicable interpretation of the term availability, as contained in DoPT O.M. dated 7.2.86/3.7.86 may not be reopened.
C. As the conferment of seniority would be against the Recruitment Year in which the recruitment process is initiated for filling up of the vacancies, It is incumbent upon all administrative authorities to ensure that the recruitment process is initiated during the vacancy year itself. While requisition for filling up the vacancies for direct recruitment should be sent to the recruiting agency, complete in all respects, during the vacancy year itself, the timelines specified in the Model Calendar for DPCs contained in DoPT O.M. No.22011/9/98-Estt(D)dated 8.9.98 and the Consolidated Instructions on DPCs contained In O.M.No.22011/S/86-Estt(D) dated April 10, 1989 should be scrupulously adhered to, for filling up the vacancies against promotion quota.
It was further held in the case of HON’BLE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH VERSUS STATE OF PUNJAB AND ORS. that the date of joining would not be a relevant factor for determining seniority of direct recruits. It would suffice if action has been initiated for direct recruit vacancies, within the recruitment year in which the vacancies had become available.
The Supreme Court has recast the seniority list of Punjab Superior Judicial Officers by acting on an appeal filed by the Punjab & Haryana High Court.
The appeal was filed against the decision of the Punjab & Haryana High Court which interfered with the seniority list drawn by the High Court on its administrative side.
The controversy pertained to fixation of inter-se seniority amongst three streams of recruits in Punjab Superior Judicial Service :- 1) 50% promotion quota on merit cum seniority basis 2) 25% direct recruits and 3) 25% ‘out of turn’ promotion quota on basis of clearing competitive examination.
The seniority list was prepared on the basis of officers absorbed in 2008, and the cadre strength on the relevant date was 107. The seniority list was challenged by direct recruits and out of turn promotees, contending, inter alia, that promotees were recruited over and above their 50% quota.
The High Court held that promotees were in excess, hence, promotions made shall be treated in excess of quota and they shall take seniority on the date post is available in their quota. The High Court further held that the date of recommendation of direct recruits cannot be treated the date for the purpose of seniority. Accordingly, the list was directed to be recast.
Challenging this the Punjab and Haryana High Court, through its administrative side, approached the SC, along with certain aggrieved officers who lost their seniority.
Quota is in relation to cadre and not vacancies.
The Supreme Court bench of Justice A K Sikri and Justice Ashok Bhushan applied the principle that quota should be worked out in relation to the cadre and not the vacancies. The High Court held that there were 58 promotees in the cadre of 107, which was 5 in excess of the 50% quota. Reference was placed on decisions in Srikant Roy and Others Vs. State of Jharkhand and Others, (2017) 1 SCC 45 and All India Judges Association and others versus Union of India and others.
The Supreme Court however noted that until 2004, the promotion quota was 75%, and it was only after the declaration of SC in All India Judges Case that the three stream recruitment system was introduced. As far as Punjab Superior Judicial Service is concerned, the three stream system was introduced only after 2004 amendment. The Supreme Court held that the High Court took into account the recruitments made prior to 2004 while arriving at its conclusion that there were promotees in excess of quota.
“A promotee before the amendment of Rules, 2004, who was well within their quota, suddenly cannot go out of their quota and become an excess merely on the strength of amendment of Rules, which are prospective in nature. For determining the quota, the cadre strength, which existed prior to amended rules and subsequent to the amended rules have to be treated differently”,
observed the SC.
The SC held that the vacancies existing for recruitment in particular year has not to be mechanically divided at the ratio of 50, 25 and 25 per cent.
Date of joining not relevant for determining seniority of direct recruits
The Court held that inter se seniority between the promotees and direct recruits was based on the “quota” and “rota” principle, also called the “rotation of quotas” principle.
It was held that the date of joining would not be a relevant factor for determining seniority of direct recruits. It would suffice if action has been initiated for direct recruit vacancies, within the recruitment year in which the vacancies had become available. This is so because delay in administrative action, could not deprive an individual of his due seniority. Initiation of action for recruitment within the recruitment year would be sufficient to assign seniority to the appointees concerned in terms of the “rotation of quotas” principle, so as to arrange them with other appointees from the alternative source for vacancies for the same recruitment year. Reference was placed on decision in Union of India and Others Vs. N.R.Parmar and Others, (2012) 13 SCC 340 in this regard.
The following dictum in N R Parmar case was referred to :
“If the process of recruitment has been initiated during the recruitment year (in which the vacancies have arisen) itself, even if the examination for the said recruitment is held in a subsequent year, and the result is declared in a year later (than the one in which the examination was held), and the selected candidates joined in a further later year (than the one in which the result was declared), the selected candidates will be entitled to be assigned seniority, with reference to the recruitment year (in which the requisition of vacancies was made). The logic and reasoning for the aforesaid conclusion is, if the process of direct recruitment is initiated in the recruitment year itself, the selected candidate(s) cannot be blamed for the administrative delay, in completing the process of selection”.
On that basis, the judgment authored by Justice Ashok Bhushan held as follows :
“Officers belonging to different streams have to be confidant that they shall be recruited under their quota and get seniority as per their quota and roster. In event, the seniority is to be fixed with date of joining of particular stream, it will lead to uncertainty and making seniority depending on administrative authorities, which is neither in the interest of service nor serve the cause of justice. We, thus, conclude that roster is fully applicable for determination of seniority. Officers of different streams selected in a particular year even though they were allowed to join the post on different dates shall not affect their inter se seniority, which is to be decided on the basis of roster”.