Fixation Of Seniority Between Direct Recruitment Employees And Promoted Employees

The Supreme Court in N R Parmar(supra) had held that the date to be reckoned for placing a direct recruitment employee in the seniority list would be the date on which vacancies arose and not on the date of the actual appointment to the post. This led to a situation where despite being promoted prior to actual appointment of direct recruitment employee, the promotee would be placed below the direct recruitment employee in certain cases.

The law regarding inter se seniority between promotees and direct recruits has seen a sea change not once but twice. Firstly, with the Judgment of the Supreme Court in N.R. Parmar (supra), wherein the Supreme Court distinguished Jagdish Ch. Patnaik & Ors. v. State of Orissa & Ors.; Suraj Prakash Gupta and Ors. v. State of J&K and Ors. (2000) 7 SCC 561 & Pawan Pratap Singh and Ors. v. Reevan Singh and Ors.

Thereafter, the Supreme Court in K. Meghachandra Singh (supra) categorically overruled the decision in N.R. Parmar (supra).

In N.R. Parmar (supra) the Supreme Court interpreted two Office Memorandum dated 7/2/1986 and 3/7/1986.

The Office Memorandum of 07/02/1986 clarified certain anomaly which had resulted because of the Office Memorandum of 22/12/1959 and was also taken up for consideration in various cases before the High Court and the Supreme Court. The matter was thereafter discussed in the National Council and it was ultimately decided that the principle of rotation of quotas will still be followed for determining the inter-se seniority of direct recruits and promotees, however, the ongoing practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unitended seniority over promotees who are already in position, would be dispensed with. Thus, as per the Office Memorandum in case sufficient number of direct recruits do not become available in any particular year, rotation of quotas for purpose of determining seniority would take place only to the extent of the available direct recruits and the promotees. The unfilled direct recruitment quota vacancies would be carried forward and added to the corresponding direct recruitment vacancies of the next year (and to subsequent years where necessary) for taking action for direct recruitment for the total number according to the usual practice. Thereafter, in that year while seniority will be determined between direct recruits and promotees, to the extent of the number of vacancies for direct recruits and promotees as determined according to the quota for that year, the additional direct recruits selected against the carried forward vacancies of the previous year would be placed en-bloc below the last promotee (or direct recruit as the case may be) in the seniority list based on the rotation of vacancies for that year. The same would also be the case with respect to carried forward vacancies.

The Court further noted that the position expressed in both the Office Memorandum was absolutely identical.

The Supreme Court ultimately concluded that since none of the Direct Recruits in that case occupied "carried forward" vacancies or vacancies of any "later" examination or selection process and that their appointments were delayed due to the selection process not being completed within the recruitment year in which vacancies were advertised, hence the direct recruits were directed to be interspaced with the promotees of the recruitment year.

The Review Petition filed against the Judgment in N.R. Parmar (supra) was also dismissed.

The intent of the Office Memorandum, was explicit and categorical to the effect that the ongoing practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position, would be dispensed with, meaning thereby that the direct recruits appointed later in time, could not be given seniority over promotees already in place.

Whatever may be the reason for the delay, but giving the appointee seniority even before being appointed definitely could not have been the intent of the Office Memorandum.

Further, the Supreme Court in N.R. Parmar (supra) though referred to Jagdish Ch. Patnaik vs. State of Orissa & Ors., (1998) 4 SCC 456 however, the exact reasoning on the issue regarding when a person is actually "recruited" was not discussed in the said Judgment. The Supreme Court in Jagdish Ch. Patnaik (supra) had categorically concluded on the identical issue, the relevant extract is being reproduced below:

"…Then again in case of direct recruits though the process of recruitment starts when the Public Service Commission invites applications under Rule 10 but until and unless the Government makes the final selection under rule 15 and issues appropriate orders after the selected candidates are examined by the Medical Board, it cannot be said that a person has been recruited to the service. That being the position it is difficult for us to hold that in the Seniority rule the expression `recruited' should be interpreted to mean when the selection process really started. That apart the said expression `recruited' applies not only to the direct recruits but also to the promotees. In case of direct recruits the process of recruitment starts with the invitation of application by the Commission and in case of promotees it starts with the nomination made by the Chief Engineer under rule 16. But both in the case of direct recruits as well as in the case of promotees the final selection vests with the State Government under rules 15 and 18 respectively and until such final selection is made and appropriate orders passed thereon no person can be said to have been recruited to the service. In this view of the matter the only appropriate and logical construction that can be made of Rule 26 is the date of the order under which the persons are appointed to the post of Assistant Engineer…"

The law was finally settled by the Full Bench of the Supreme Court in the case of K. Meghachandra Singh (supra), wherein the Supreme Court overruled the decision in N.R. Parmar (supra), reiterating the principle that in service jurisprudence, no one can claim seniority from a date prior to being borne in the cadre. The Supreme Court further clarified that the term "Recruitment year" does not and cannot mean the year, in which the recruitment process is initiated or the year in which the vacancy arises.

The Supreme Court though observing that N.R. Parmar (supra) which was mainly with regard to Central Govt. employees, would not be applicable on the Manipur State Police Officers, governed by MPS Rules, 1965, went ahead in holding that N.R. Parmar (supra) wrongly distinguished the settled principles governing seniority. The Supreme Court categorically upheld the law in Jagdish Ch. Patnaik (supra) and held, "…In our considered opinion, the law on the issue is correctly declared in J.C. Patnaik (Supra) and consequently we disapprove the norms on assessment of inter-se seniority, suggested in N. R. Parmar (Supra). Accordingly, the decision in N.R. Parmar is overruled…"

The issue that has been settled by K. Meghachandra Singh (supra) is regarding the year from which seniority would be given to direct recruits. K. Meghachandra Singh (supra) in unambiguous terms lays down that seniority will be as per the date of appointment in service and not the date of advertisement or the year when the vacancy arises.

The Supreme Court further clarified that the decision in K. Meghachandra Singh (supra) will apply prospectively except in cases where the Rules itself provide that the seniority is to be fixed from the date of the vacancy or date of the advertisement.

While the Supreme Court has protected the inter se seniority in view of the Judgment of N.R. Parmar (supra) and clarified that the decision in K. Meghachandra (supra) will apply prospectively, the fate of the cases where promotions and direct recruitment took place in years between both the Judgments, however seniority list is being prepared subsequently, would have to be examined.

Views are personal.

The Author is an Advocate practising in New Delhi.