Paragraph numbers below are the court’s original numbering, recovered from the source text.
14. The Tribunal finally observed that while adjudging seniority in such a complex situation where scheme of Rules or guidelines are silent in determining inter se seniority of the Commands at All India level, the only possibility and the rationale rule would be to have their seniority reckoned from the date of entering into service when he is compared to the person who belonged to yet another Command and it will be illogical if the incumbent who was appointed earlier is pushed down below the persons who were later appointed as in the instant case after almost 4 to 5 years of the select panel being published in June 1983 and has not even taken birth in the Department are allowed to claim seniority anterior to the date of joining service.
15. The Tribunal and the High Court in the judgment impugned has made strong observations and commented in regard to the manner in which the appointments were made from the select panel of 1983 after it has outlived its life in the year 1987-1988 and ordinarily it was not open to be operated upon and such appointments are nothing but a clear abuse of the discretion vested with the competent authority and we also have our serious reservation in regard to the procedure/manner which was adopted by the authority in making appointments in Western Command from the select panel of 29th June, 1983 after a lapse of 4-5 years in the year 1987-1988, when the successive selections are held in the interregnum, but it reveals from the record that no one has questioned their appointments and by this time more than 34 years have rolled by and much water has flown in the Ganges and persons have later promoted to their promotional posts and few of them have retired and some of them are at the verge of retirement.
16. At the same time, two incumbents who approached the Central Administrative Tribunal at Chandigarh and succeeded in claiming seniority from the date of their placement in the select panel of 29th June, 1983 regardless of their appointment in the year 1987 or 1988 respectively SUDHIR KUMAR ATREY v. UNION OF INDIA [AJAY RASTOGI, J.] and confirmed by the High Court on dismissal of the writ petition filed at the instance of the Union of India by a judgment dated 17th September, 2018, the seniority list qua them was revised and they were further promoted on the higher promotional posts and after full term of service being rendered, Jatinder Pal respondent no.1 in Civil Appeal arising out of SLP(C) No.5275 of 2021 is going to retire in March 2022 and Satish Kumar Sharma, respondent no.2 in Civil Appeal arising out of SLP(C) No.5275 of 2021 had retired from service in October, 2018.
17. It is not disputed that there is no rule or guidelines issued by the respondents which may determine the inter se seniority when a combined seniority list at the All India level is to be prepared under the Scheme of 1971 Rules and the respondents were taking assistance of Office Memorandum of DoPT dated 3rd July, 1986 which deals with the determination of seniority of direct recruits who were selected and placed in one and the same select panel to be determined by the order of merit in the select list and those who are selected in the earlier selection shall remain senior to such persons who were appointed in the later selection and also with regard to relative seniority of direct recruits vis-a-vis the promotees in the cadre.
18. We are also of the view that in the matter of adjudging seniority of the candidates selected in one and the same selection, placement in the order of merit can be adopted as a principle for determination of seniority but where the selections are held separately by different recruiting authorities, the principle of initial date of appointment/continuous officiation may be the valid principle to be considered for adjudging inter se seniority of the officers in the absence of any rule or guidelines in determining seniority to the contrary.
19. Adverting to the facts of the instant case when all the five Commands have initiated the process of selection independently at the same time pursuant to the directives of the Engineer-in-Chief, Army Headquarters dated 9th December, 1982 while adjudging their combined inter se seniority list, the principle of initial date of appointment/continuous officiation may be the valid principle to be considered for determination of inter se seniority in the absence of any rule or guidelines to the contrary keeping in view the principles laid down by the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers’ Association Vs. State of Maharashtra & Ors.1. 1 (1990) 2 SCC 715
20. The Division Bench of the High Court of Delhi in its impugned judgment has expressed its conformity with the view expressed by the Tribunal so far as the determination of combined inter se seniority at the All India level is concerned, but at the same time has made strong observations regarding the procedure being followed by the authority in making appointments from the select panel of June 1983 after 5 years of the selection in the year 1987/1988.
21. The appointment of individual which was made at a later stage after five years from the select panel notified on 29th June, 1983 in the Western Command cannot be countenanced by this Court but in the peculiar circumstances, we are not inclined to open the dead issue at this stage, but as a matter of caution, we would like to observe that the authorities must be held accountable for their arbitrary action and save the institution from uncalled for litigation.
22. In compliance of the Tribunal’s order dated 26th May, 2008, seniority list was to be drawn with reference to para 24 of the judgment of which reference has been made and we are in agreement with what has been expressed by the Tribunal while recasting the inter se consolidated seniority list of five Commands based on their initial date of appointment/from the date of entry into service. If any person is aggrieved with his placement in the re-casted seniority list prepared in compliance with the order of the Tribunal, he will always be at liberty to assail his placement in seniority in the independent proceedings in accordance with law.
23. At the same time, we disapprove the view expressed by the High Court of Punjab and Haryana in its judgment dated 17th September, 2018. Since the seniority list of the respondents in Civil Appeal @ SLP (C) No.5275 of 2021 was revised pursuant to the judgment impugned, although the principles laid down have not been approved by this Court, but the fact remains that both the incumbents were promoted in terms of their revised seniority to the higher promotional post and one of them had retired from service in October 2018 and the other incumbent is at the verge of retirement in March 2022, in these peculiar circumstances, this Court in exercise of its power under Article 142 of the Constitution to do complete justice is not inclined to disturb the seniority which has been assigned to them in compliance with the order of the Tribunal although on principle has not been accepted/approved by this Court. SUDHIR KUMAR ATREY v. UNION OF INDIA [AJAY RASTOGI, J.]
24. Consequently, Civil Appeal @ SLP(C) No.6572 of 2014 is dismissed and Civil Appeal @ SLP (C) No.5275 of 2021 succeeds and is allowed and the impugned judgment dated 17th September, 2018 is set aside without disturbing the status of the respondents (Jatinder Pal and Satish Kumar Sharma).
25. Pending applications, if any, stand disposed of. Devika Gujral Appeals disposed of.