P.Subramaniyan vs Union Of India

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7779 OF 2012

P. Subramaniyam .. Appellant

Versus

Union of India & Ors. .. Respondents

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 11.10.2007 passed by the High Court

of Judicature at Madras in W.P. No. 18958 of 2007 by which the

High Court has dismissed the said writ petition and upheld the

order dated 31.10.2006 passed by the Central Administrative

Tribunal at Madras, the original writ petitioner has preferred the

present appeal.

Signature Not Verified Digitally signed by VISHAL ANAND Date: 2019.03.15 16:26:30 IST Reason: 2

2. The facts leading to the present appeal in nutshell are as

under:

That the appellant herein was appointed as Semi­skilled worker

on 25.05.1991 in the respondent no. 2 office, namely, Heavy

Alloy Penetrator Project, Trichy. That thereafter he was promoted

as Skilled worker on 21.10.1993. That thereafter, the appellant

was further promoted and designated as Highly Skilled worker on

31.03.2000. That the next promotional post was the Chargeman

Grade­II (Electrical). That the post of Chargeman Grade­II was

governed by the statutory Rule as notified in SRO No. 191 dated

28.11.1984 by the Government of India and the post was

required to be filled in as per the quota prescribed for that post,

namely, 50% by way of promotion; 25% by way of LDCE (Limited

Departmental Competitive Examination) and 25% by way of

Direct Recruitment. That the appellant herein was promoted to

the post of Chargeman Grade­II (Electrical) vide order dated

08.08.2000 in the quota of 25% LDCE. It appears that

respondent No. 4 herein applied for the post of Chargeman

Grade­II (Electrical) in 25% Direct Recruitment quota as well as

in 25% LDCE quota. He was selected in both the quotas – Direct

Recruitment and LDCE. However, he was appointed in the Direct 3

Recruitment quota in the month of April 2000 and he resumed

his duty on the post of Chargeman Grade­II in the month of April

2000 itself. It so happened that he was also promoted and

selected in the quota of 25% LDCE also along with the appellant.

However, at the relevant time, he did not accept his promotion to

the post of Chargeman Grade­II (Electrical) in the 25% LDCE

quota. It appears that, thereafter, the seniority list in the cadre

of Chargeman Grade­II was published considering the relevant

Rule and, as per the rule position in that year, the direct

recruitee was to be placed below the LDCE, as the LDCE

selection process is stated as Fasttrack promotion. Respondent

No. 4 was placed in the seniority list below the appellant, as

respondent No. 4 was appointed in the 25% Direct Recruitment

quota. Therefore, respondent No. 4 made a representation dated

12.12.2005 to respondent No. 2 stating, inter alia, that as he was

appointed to the post of Chargeman Grade­II in the month of

April 2000, much prior to the appellant was promoted and,

therefore, there is a mistake in the selection list and he ought to

have been placed in the seniority list above the appellant. That

vide communication dated 20.12.2005, the representation of

respondent No. 4 was rejected on the ground that he has been 4

placed at an appropriate place in the respective seniority list as

per the rota­quota rule.

2.1 That thereafter respondent No. 4 approached the Central

Administrative Tribunal, Madras by way of O.A. No. 161 of 2006.

It was the case on behalf of respondent No. 4 before the learned

Tribunal that as he was selected for the appointment on the post

of Chargeman Grade­II against the LDCE quota also and as he

being more meritorious than the appellant, and that if he would

have been told with respect to the rota­quota rule and would

have been told that a direct recruitee shall be placed below the

LDCE promotee and below the promotee who has been promoted

in LDCE quota, in that case, he would have opted for the

appointment against LDCE quota. It was the case on behalf of

respondent No. 4 that he made a representation which ought to

have been considered favourably. The O.A. was opposed by the

department by submitting that the seniority list has been fixed as

per the rota­quota rule. It was also the case on behalf of the

department that as respondent No. 4 was appointed in the Direct

Recruitment quota, at the relevant time, he did not accept the

promotion in the LDCE quota. Therefore, it was prayed to

dismiss the O.A. 5

2.2 However, by the judgment and order dated 31.10.2006, the

learned Tribunal allowed the said O.A. by observing that as an

employee respondent No. 4 was not aware of the quota­rota rule

maintained by the department and also how the seniority list will

be fixed between the LDCE appointee and direct recruitee and if

he had been told that as per the quota­rota rule, the LDCE

candidate would rank senior even though he was appointed as

direct recruitee four months earlier, he would have definitely

accepted the promotion through LDCE quota. The learned

Tribunal observed that the department has failed to give proper

guidance and advice to one of its employees and therefore he

could not be denied of his legitimate right which will have a

bearing on his seniority. Consequently, the learned Tribunal

directed the department to place the original applicant in the

seniority list above the appellant herein and one another.

2.3 Feeling aggrieved and dissatisfied with the order of the

learned Tribunal, the appellant preferred a writ petition before

the High Court and, by the impugned judgment and order, the

High Court has dismissed the said writ petition and confirmed

the order passed by the learned Tribunal. Hence the original writ

petitioner has preferred the present appeal. 6

3. Having heard the learned counsel appearing on behalf of the

respective parties and considering the reasons given by the

learned Tribunal and confirmed by the High Court, we are of the

opinion that both, the High Court as well as the learned Tribunal,

have committed a grave error in directing to place the original

applicant­respondent No. 4 herein in the seniority list above the

appellant herein. It is an admitted position that the appellant

herein was promoted to the post of the Chargeman Grade­II in

the LDCE quota. It is an admitted position that, as per the

rules, the seniority was required to be fixed as per the quota­rota

rule and as per the rule position in that year the direct recruitee

was to be placed below the LDCE quota, since the LDCE selection

process was treated as the Fast Track promotion. It is an

admitted position that respondent No. 4 did not accept his

appointment/promotion in LDCE quota though selected and

offered and he continued his appointment as a direct recruitee.

The learned Tribunal as well as the High Court granted the relief

to respondent No. 4 on the ground that the department ought to

have informed and/or advised the employee with respect to the

seniority to be fixed on the basis of rota­quota rule and as the 7

department failed to do so, respondent No. 4 cannot be denied

his legitimate right to be placed at an appropriate place in the

seniority list, as otherwise also he was selected for a promotion in

the LDCE quota also. On the aforesaid terms, the learned

Tribunal as well as the High Court are not justified in directing to

put respondent No. 4 in the seniority list above the appellant

who, in fact, was appointed in the LDCE quota and the

respondent No. 4 never accepted his promotion in the LDCE

quota. It was for the employee to know the rule. The department

was not expected to advise and/or tell the employee about how

the seniority will be fixed and/or about the rota­quota rule. As

observed above, the fact remains that the appellant was

appointed in the LDCE quota and in the very year, respondent

No. 4 was appointed as a direct recruitee. As observed

hereinabove, as per the rule position in that year, the direct

recruitee was to be placed before the LDCE, therefore, respondent

No. 4 was rightly placed below the appellant in the seniority list

being a direct recruitee. Under the circumstances, both, the

High Court as well as the learned Tribunal committed an error in

directing to place respondent No. 4 in the seniority list above the

appellant.

8

4. In view of the above and for the reasons stated above, the

present appeal succeeds. The appeal is allowed accordingly and

the impugned judgment and order dated 11.10.2007 passed by

the High Court in W.P. No. 18958 of 2007, upholding the order

passed by the learned Tribunal, as also the order dated

31.10.2006 passed by the learned Tribunal in O.A. No. 161 of

2006, are hereby quashed and set aside. Consequently, the

original application No. 161 of 2006 preferred by respondent No.

4 herein stands dismissed. No costs.

........................................J. [L. NAGESWARA RAO]

........................................J. [M. R. SHAH] New Delhi, March 15, 2019.