1

Item No.41 (C-5) O.A. No. 847/2023

CENTRAL ADMINISTRATIVE TRIBUNAL

PRINCIPAL BENCH, NEW DELHI

O.A. No. 847/2023

Hon’ble Mr. Manish Garg, Member (J)

Hon'ble Dr. Anand S. Khati, Member (A)

Reserved on : 08.08.2024
Pronounced on : 14.08.2024

1. S. Kanagavel Pandiyan, Group A

S/o Shanmugavel A.
Aged 49 years
R/o 7, Muthuswamy Nagar,
Maran Nagar Extension, Poonamallee,
Tiruvallur, Tamil Nadu- 600056.

2. Kanhu Charan Sahu, Group A

C/o Late Suputri Devi
Aged 33 years
R/o Suputri Nivas Arobinda Nagar,
Brahmapur Sadar, Ganjam, Orissa- 760001.

3. Susanta Kumar Nayak, Group A

C/o Birenra Kumar Nayak
Aged 41 years
R/o Qur No.- E-33-F, 2d Floor, Type- 4, Mayapuri-
110064, Delhi.

… Applicants

(By Advocate:- Mr. Ashim Shridhar)

Versus

Ministry of Labour & Employment

Union of India
Through Secretary
Shram Shakti Bhawan
Rafi Marg, New Delhi-110001.

… Respondent

(By Advocate:- Mr. Gyanendra Singh)

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Item No.41 (C-5) O.A. No. 847/2023

ORDER
By Hon’ble Mr. Manish Garg, Member (J)

In the instant O.A., the applicants seek the following

relief(s):-

"a. Quash the impugned Seniority List for STS officers dated 18.01.2022
prepared by the Respondent.

b. Issue Necessary Directions thereby directing the Respondent to

reevaluate and issue fresh Seniority List for STS officers in accordance
with OMs dated 06.06.1978 and 03.07.1986 thereby maintaining the
Seniority of the Applicants at par with their batchmates.

c. Pass any other order this Honorable Court may deem just and proper
in the facts and circumstances of the case."

2. Highlighting the facts of the case, learned counsel for

the applicants states as under :-

2.1 Learned counsel for the applicants submits that

unfortunately the applicant No. 1 has expired. Since the

present case pertains to the grant of seniority, therefore, he

does not press the relief qua the applicant No. 1. Now, only

issue remains qua the applicant Nos. 2 and 3 herein, vis a

vis their seniority.

2.2 The UPSC vide its advertisement No. 51/2013 invited

applications for the post of Junior Time Scale (JTS) Officers

in the Central Labour Service and the applicants being

successful in the said examination were appointed as

Assistant Labour Commissioner (ALC) in the year 2015.

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Item No.41 (C-5) O.A. No. 847/2023

2.3 The seniority of the applicants was fixed as per their

merit in the aforesaid examination. For the purpose of

determining the seniority for the year 2017, the cut-off date

was 01.04.2017.

2.4 The DPC was conducted belatedly and a common

promotion order was passed in the year 2019 vide order

dated 28.02.2019. After considering the objections raised by

the applicants herein, a draft seniority list dated 18.01.2022

was issued. The seniority of the applicant No. 1 was

downgraded by 15, the applicant No. 2 by 24 and the

applicant No. 3 by 22. Drawing the attention of this Bench to

a table at page 14 of the OA, learned counsel submits that

on the following dates, appointment letters were issued to 57

persons including the applicant Nos. 2 and 3, which is

reproduced as under:-

Date of issuance of
Batch No. of candidates
appointment order

1. 26.08.2014 5

2. 03.12.2014 18

3. 16.01.2015 14

4. 26.03.2015 8

5. 27.07.2015 3

Total 48
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Item No.41 (C-5) O.A. No. 847/2023

The applicant No. 2 was issued appointment letter on

26.03.2015 whereas the applicant No. 3 on 03.12.2014. The

revision in the seniority list has been made on the basis of

the date of joining.

2.5 Learned counsel for the applicants draws attention to

O.M. dated 03.07.1986. The relevant para of the said O.M.

reads as under:-

"2.1 The relative seniority of all direct recruits is determined by the

order of merit in which they are selected for such appointment on the
recommendations of the U.P.S.C. or other selecting authority, persons
appointed as a result of an earlier selection being senior to those
appointed as a result of a subsequent selection."

2.6 He further reiterates that the applicants herein sought

extension of time for joining which was acceded to by the

respondent. The applicants were allowed to join at a later

date. He places reliance on O.M. dated 06.06.1978, the

relevant portion of the O.M. reads as under:-

"(ii)If, however, within the period stipulated, a request is received from

the candidates for extension of time, if may be considered by the
Ministries/Departments and if they are satisfied, an extension for a
limited period may be granted but the total period granted including the
extension during which the offer of appointment will be kept open,
should not exceed a period of nine months. The candidates who join
within the above period of nine months will have their seniority fixed
under the seniority rules applicable to the service/post concerned to
which they are appointed, without any depression of seniority"

2.7 He places reliance on the decision rendered by the

Hon'ble Apex Court in the matter of Union of India vs.

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Item No.41 (C-5) O.A. No. 847/2023

Sadhana Khanna (2008) 1 SCC 720. The operative portion

of the said judgment reads as under:-

"11. It may be noted that the respondent was offered appointment vide
letter dated 5-7-1983 which is after 1-7-1983 from which the eligibility
was to be counted. Hence, it is the department which is to be blamed for
sending the letter offering appointment after 1-7-1983. In fact, some of
the candidates who were junior to the respondent were issued letters
offering appointment prior to 1-7-1983. Hence it was the department
which is to be blamed for this. Moreover, in view of the office
memorandums of the Department of Personnel and Training dated 18-3-
1988 and 19-7-1989 the respondent was also to be considered,
otherwise a very incongruous situation would arise, namely, that the
junior will be considered for promotion but the senior will not."

2.8 He further relies upon the decision rendered by the

Hon'ble High Court of Delhi in W.P.(C) 7423/2013 in the

matter of Govt. of NCT of Delhi & Ors. vs. Rakesh Beniwal

& Ors. The operative portion of the said judgment reads as

under:-

"26. The delay in appointment and the consequential denial of benefits

is the direct corollary of the inaction of the petitioners; consequently,
they cannot take advantage of their own delays in declaring results and
issuing appointment letters to deny promotion to the respondents. The
Supreme Court has observed in this regard in the matter of Baij Nath
Sharma v. Hon'ble Rajasthan High Court at Jodhpur,1988 SCC (L&S)
1754,

"But here the appellant has been deprived of his promotion

without any fault of his. High Court said that it might be sad
state of affairs that the name of the appellant was not considered
for promotion till he retired. High Court may feel anguish but it
gives no comfort to the appellant. At least for future such an
unfortunate thing should not happen to any other officer similarly
situated. This malaise which abysmally afflicts any service when
there is recruitment from different sources when there is
recruitment from different sources crops up in the one form or the
other with great disadvantage of one or the other. But then
service is not constituted merely for the benefit of the officers in
the service but with a certain purpose in view and in the present
case for dispensing justice to the public at large.""
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Item No.41 (C-5) O.A. No. 847/2023

2.9 He also relies upon the recent judgment delivered by

Jabalpur Bench of this Tribunal in O.A. No. 799/2022 in the

matter of Shoaib Ali Sayyed & Anr. vs. Union of India &

Ors.

3. Opposing the grant of relief, the learned counsel for the

respondent would rely upon the averments made in the

counter affidavit.

3.1 He would contend that the seniority is determined as

per the RR’s. He would rely upon paras 4.6-4.9 of the

counter affidavit , the same read as under:

“4.6-4.9. In reply to contents of paras 4.6 to 4.9 of the OA, it is

submitted that in June 2014, UPSC had forwarded dossiers of 57
candidates for induction into Junior Time Scale (JTS) grade of
Central Labour Service (CLS). The case for posting of selected
candidates were placed before the Transfer/ Posting Committee
as and when their requisite pre-appointment formalities i.e. Police
verification, Medical Examination, verification of their caste
certificates etc. could be completed and the offers of appointment
were issued after obtaining approval of the Competent Authority
on the recommendations of Transfer/ posting Committee. As the
pre-appointment formalities of different candidates could be
completed on different dates, the offers of appointment were
issued in five groups on 26.08.2014, 03.12.2014, 16.01.2015,
26.03.2015 and 27.07.2015. Further, some candidates (including
applicants No. 2 and 3) were already working with Central/ State
Govt./ PSUs and their joining were done only after their relieving/
receiving of pre-appointment formalities from the organizations
where they were posted. Moreover, some JTS (DR) candidates
including applicants No. 2 and 3) also sought extension of time for
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Item No.41 (C-5) O.A. No. 847/2023

joining. In respect of Applicant No. 1(Shri S. Kanagavel Pandiyan)

and Applicant No. 2(Shri Kanhu Charan Sahu), it is submitted that
after completion of the pre-appointment formalities, their case was
placed before the Transfer/ Posting Committee in its meeting held
on 10,03.2015 and after seeking approval of the Competent,
Authority i.e. the then Hon'ble MoS(I/C), L&E on the
recommendations of the Transfer/ Posting Committee, the offers of
appointment were issued to both the applicants vide Ministry's
letter No. A-22013/06/2014-CLS.I dated 26.03.2015. The
applicant No. I,Shri S. Kanagavel Pandiyan, vide Ministry's above-
mentioned letter dated 26.03.2015, was directed to report for duty
as Assistant Labour Welfare Commissioner (Central) at Naval
Armament Depot, Aluva, Kerelawithin 30 days from the date of
issue of appointment letter (Annexure-R/3). The applicant joined
NAD, Aluva, Kerela on 08.04.2015. The contentions made in these
paras in respect of applicant No. 2 are false and misleading. The
applicant No. 2, Shri Kanhu Charan Sahu, vide Ministry's above-
mentioned letter dated 26.03.2015, was directed to report for duty
as Assistant Labour Welfare Commissioner (Central) at Gun &
Shell Factory, Cossipore, West Bengal within 30 days from the
date of issue of appointment letter. However, the applicant vide
his representation dated Nil, received in the Ministry on
15.04.2015, requested for extension of joining time upto 1" week
of July, 2015 as he had to serve a three-month notice period to his
previous employer i.e. NHPC Ltd. Accordingly, vide Ministry's
letter No. A-31011/05/2014-CLS.(Pt.) dated 10.06.2015, the
applicant was granted extension of joining time up to 07.07.2015.
Eventually, the applicant reported for his duties at Gun & Shell
Factory, Cossipore on 02.07.2015. Ministry's letter dated
26.03.2015 & 10.06.2015 and Shri K.C. Sahu's representation
dated Nil are attached as Annexure-R/4.In respect of Applicant
No. 3. Shri Susanta Kumar Nayak it is subited that the ofter of
appointment was isued 10 him vide Ministry's letter No. A-
3101/05/2014-CLS. dated 03.12.2014 and he was directed to
report for duty as Assistant Labour Welfare Commissioner
(Central) at Heavy Vehicle Factory, Avadi, Chennai within 30
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Item No.41 (C-5) O.A. No. 847/2023

days from the date of issue of appointment letter. However, Shri

Susanta Kumar Nayak vide his representations dated 10.12.2014
requested for extension of joining time till 03.09.2015 as he had to
serve the notice period to his previous employer i.e. Nuclear Power
Corporation of India Ltd. Accordingly, vide Ministry's letter No. A-
31011/05/2014-CLS.I dated 19.02.2015, the applicant was
granted extension of only three months i.e. up to 02.03.2015. The
applicant vide his representation dated 23.02.2015 had once
again requested for extension of joining time for another three
months i.e. upto 02/06/2015 and the same was granted vide
Ministry's letter No. A- 31011/05/2014-CLS.IPt.) dated
20.04.2015. Eventually, the applicant reported for his duties at
Heavy Vehicle Factory, Avadi on 01.06.2015. The Ministry's letter
No. A-31011/05/2014-CLS.I dated 03.12.2014, 19.02.2015 &
20.04.2015 and Shri Susanta Kumar Nayak's representations
dated 10.12.2014 & 23.02.2015 are attached as Annexure-R/5. It
shows that the Ministry was kind enough towards the applicants
to extend the joining time not only on one occasion but on two
occasions.”

3.2 Learned counsel for the respondent further relies upon

the DoP&T's O.M. No.22011/6/2013-Estt(D) dated

28.05.2016. The relevant clause of the said O.M. reads as

under:-

"In case of financial year-based vacancy year, there is a clear gap of 3

months between the crucial date of eligibility and the date of
commencement of vacancy year i.e. between January 1 and April 1. Due
to this gap, for any such vacancy year, even if the Departmental
Promotion Committee (DPC) meeting is held in time as per the Model
Calendar, there is always a possibility of few officers not fulfilling the
eligibility criteria as on the crucial date of eligibility, though they are
fulfilling the same as on the date of commencement of the vacancy
year."
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Item No.41 (C-5) O.A. No. 847/2023

3.3 He further relies upon para 4.13-4.18 of the counter

affidavit at internal page 8 and the relevant paras are

reproduced under:-

"In reply to paras 4.13 to 4.18 of the OA, it is submitted that total 46
vacancies were available for promotion to STS Grade of CLS for the
vacancy year 2017-18. The zone of consideration for the 46 vacancies
would be 72 and as mentioned at Para 4.12 above, the crucial date for
determining eligibility was 01.04.2017.As per Central Labour Service
(Group 'A') Recruitment Rules, 2015 (Annexure-R/7), 04 years of regular
service in JTS grade is required for promotion to STS grade. Further,
Note I of Schedule-Ill of said Rules stipulates that

"Where juniors who have completed their qualifying or eligibility

service are being considered for promotion, their seniors would
also be considered provided they are not short of the requisite
qualifying or eligibility service by more than half of such
qualifving or eligibility service, or two vears. whichever is less,
and have successfully completed their probation period for
promotion to the next higher grade along with their juniors who
have already completed such qualifying or eligibility service."

The junior most eligible officer in the zone of consideration, Sh. Shammi
J. Tigga (mentioned at SI.No.156 of Final Seniority List dated
17.08.2017) had already completed 4 years of regular service in the JTS
grade as on 01.04.2017 and accordingly, all the senior officers who
were fulfilling the above mentioned condition became eligible for
promotion. Though 07 officers (including the applicants) were senior to
Sh. Shammi J. Tigga, they had neither completed their probation period
nor the minimum regular service of 02 years in JTS grade as on the
crucial date i.e. 01.04.2017, thus they were not eligible for promotion on
this date.Final Seniority list (dated 17.08.2017) of Junior Time Scale
(JTS) Officers of CLS up to inclusion of 2012-13 batch is attached as
Annexure-R/8. Further, while contemplating a proposal to fill up 46
vacancies in STS grade of CLS through promotion for the vacancy year
2017-18, representations were received from the JTS(DR) officers who
were senior to Shri. Shammi J. Tigga but were not eligible as per RRs as
they joined the service after 01.04.2015. The representations of the
Applicants were duly examined in the Ministry and the case was
referred to DoP&T for seeking relaxation/ approval to consider the
crucial date for vacancy year 2017-18 as 09.09.2017 instead of
01.04.2017 to enable the following 07 JTS (DR) officers to be treated at
par with their juniors as a special dispensation:

Relaxation sought
Sl. Date of Date of for the year 2017-
Name of the officer
No. appointment confirmation 18 (As on
1.4.2017) (approx.)
1. Manikandan 02.04.2015 02.04.2017 01 day
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Item No.41 (C-5) O.A. No. 847/2023

2. Nirmal Chandra Kar 06.04.2015 06.04.2017 05 days

3. Kanagavel Pandiyan 08.04.2015 08.04.2017 07 days
Shoaibali Hasanali
4. 23.04.2015 23.04.2017 22 days
Sayyed
Susanta Kumar
5. 01.06.2015 01.06.2017 02 months
Nayak
Kanhu Charan Sahu
6. 02.07.2015 02.07.2017 03 months 1 day
(OBC*)
05 months 08
7. Rajiv Ranjan (OBC) 09.09.2015 09.09.2017
days

......the Ministry had sought relaxation afier applying the junior-senior

clause and junior-senior clause in itself is a relaxation so as to obviate
the anomalous situation of a junior getting promoted before his senior.
Further, the junior-senior clause as prescribed in the relevant
Recruitment Rules is applicable onlv when the seniors falling short of
qualifving service have successfully completed their probation period
and as per rule 10(1) of the relevant RRs, the probation period is of two
years. However, the relaxation being sought was with reference to the
crucial date of eligibility for the vacancy year 2017-18 which is
01.04.2017. On this date, none of these seven officers could have
successfully completed their probation period of too vears as all of them
were appointed after 01.04.2015. Therefore, the Ministry has sought the
relaxation so as to make these seven officers eligible as on 01.04.2017
when they would not have been eligible for completion of the probation
period."

3.4 The substantial argument of the learned counsel for

the respondent is that since the applicant did not complete

the period of probation, they are not eligible to the relief

sought in the present matter.

3.5 He would contend that O.A. No. 799/2022 in the

matter of Shoaib Ali Sayyed & Anr. (Supra) is per incurium

and cannot be applied to facts of the present case.

4. We have heard the learned counsel for the respective

parties and given thoughtful consideration to the pleadings

on record.
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Item No.41 (C-5) O.A. No. 847/2023

5. In context of the relief(s) sought and submissions made

by the learned counsels for the parties thereto, the crux of

the case to be examined is what would be the crucial date to

determine inter-seniority amongst the direct recruits. Is it

the date of joining or the date of appointment and what

would be the impact on final seniority list dated 18.01.2022?

6. ANALYSIS

6.1 The impugned OM dated 18.01.2022 finalizing

seniority list of Senior Time Scale officers of Central labour

Service (as on 1.1.2021 ) is reproduced as under :-

“Subject:- Final Seniority List of Senior Time Scale Officers of Central

Labour Service (as on 01.01.2021) - reg.

The undersigned is directed to refer to this Ministry's O.M. of even

number dated 16.07.2021 on the above mentioned subject and to say
that representations/objections received from STS Officers have been
examined in light of DOP&T's instructions.

2. After consideration of all the facts, the seniority list of STS Officers (as
on 01.01.2021) of CLS is accordingly finalized as Annexure-1. The
details of STS officers, whose names had figured in the earlier seniority
list vide this Ministry's OM. No.A-24021/04/2018-CLS.I dated
12.12.2018 have since been deleted from the present Seniority List as
they are not in STS Grade as on date and accordingly their names are
separately given as Annexure-II.

3. The Final Seniority List of STS Officers would be subject to the

outcome of the following Court Cases pending before various Hon'ble
courts:

i. SLPC). No. 9345-9346/2020 filed by Shri Mukesh Kumar Suman

in Hon'ble Supreme Court of India.

ii. OA No. 1256/2017 filed by Shri OM Prakash & Others before Hon
bie CAT, PB, New Delhi.

iii. WCT No.15/2012 filed by Shri Ajay Kumar(since retired) before

Hon'ble High Court, Kolkata
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Item No.41 (C-5) O.A. No. 847/2023

iv. Any other court cases having impact on the issue.”

6.2 We find that above seniority list of Senior Time Scale

officers dated is subject to outcome of following cases:-

6.2.1 Petition(s) for Special Leave to Appeal (C)

No(s). 9345-9346/2020 titled as “MUKESH KUMAR
SUMAN VERSUS UNION PUBLIC SERVICE
COMMISSION & ORS. arising out of impugned final
judgment and order dated 21-01-2020in WPC No.
13150/2018 21-01-2020 in WPC No. 151/2019 passed
by the High Court Of Delhi At New Delhi. The
challenge is to following findings:-

“20. This Court is of the view that the CAT exceeded its
jurisdiction in setting aside the entire selection made pursuant
to the advertisement No. 51/2013 for the aforementioned
Labour officer posts and in holding that the UPSC had to redo
the entire exercise by restricting the marks to be allocatedfor the
interview to 15% “without insisting on minimum marks therein”.

21. The impugned order of the CAT is accordingly hereby set

aside. The petition is allowed but in the circumstances, no order
as to costs. The pending applications also stand disposed of. “

6.2.2 OM PRAKASH Vs M/O LABOUR - OA No.

1256/2017, which came be disposed of by this

Tribunal vide order dated 8th day of January, 2024:-

“The present OA has been filed challenging the Draft Seniority List
dated 17.02.2017 of the Junior Time Scale of the Central Labour
Service. Representations against the said Draft Seniority List were
filed by the applicant which have been annexed at page 91 of the
OA Annexure A8.

2. It seems that during the pendency of the OA the Final Seniority

List was issued on 17.08.2017. Counter affidavit filed by the
respondents states that after considering the representations of
the aggrieved individuals, the final seniority list was issued. The
said seniority list is not under challenge. Infact, the cause of
action, if any, to challenge the draft seniority list has already been
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Item No.41 (C-5) O.A. No. 847/2023

eclipsed by issuance of the final seniority list.

3. In view of the above, the OA is dismissed as infructuous. The

applicants would be at liberty to challenge the Final Seniority List,
as per law, if they so desire.

4. No costs. “

6.2.3 The WPCT No.15/2021 titled as Ajay Kumar

(retd) before the Hon’ble High Court of Kolkata.

6.3 The records of the case would reveal that vide Office

Order dated 28.2.2019, the applicant nos. 2 & 3 herein who

were working as Junior Time Scale (JTS) Officers of Central

Labour Service (CLS) were promoted to Senior Time Scale

Officer of CLS.

6.4 The name(s) of the applicant No. 2, Mr. Kanhu

Charan Sahu figured at Serial No. 50 and the name of

applicant No. 3, Mr. Susanta Kumar Nayak figured at Serial

No. 51.

However, the promotion of JTS Officers [mentioned in para 4]

to STS Grade of CLS is subject to further orders/outcome of

WP(C) No.13150/2018 in the matter of UPSC vs. Mukesh

Kumar Suman & Ors before Hon'ble High Court, Delhi.

6.5 The Ministry of Labour & Employment published

final seniority list of Junior Time Scale (JTS) officers of

Central Labour Service vide OM No. A-24021/03/2016-

CLS.I dt. 17.08.2017. The said seniority list was in

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Item No.41 (C-5) O.A. No. 847/2023

accordance with the relevant DOPT guidelines wherein

relative inter-se-seniority between promotes (DP) and Direct

Recruits (DR) were maintained.

6.6 The position post promotion order dated 28.2.2019,

qua seniority has been altered vide OM dated 16.7.2021.

6.7 The applicant no.2 Shri K C Sahu vide his

representation dated 11.08.2021 has submitted as under :-

“Besides the above, it is pertinent to mention that the DPC for

promotions from JTS to STS was actually held during August 2018 and
promotions were effected vide order dated 28.02.2019. Even though it is
assumed that the crucial date was reckoned as 01.04.2017, no DPC
was held during the whole year of 2017. Even the final seniority list of
JTS was published only on 17.08.2017 much after 01.04.2017. As on
the date of DPC, I had put in more than 3 years of service. Therefore, on
this ground also my seniority is unlikely to be affected. It is humbly
submitted that the appointment letters were issued in one batch with
advice to join before a particular date, all candidates would have been
on similar footing without any advantage or disadvantage. In the
instant case, the candidates who got appointment letter during August
2014 got much more time to join than those who got offer during July
2015 due to administrative reasons. It is also relevant to mention that
the undersigned as well as other candidates were not aware that they
will be considered for promotion after 2 years of service and crucial date
could be 01.04.2017. Had this known to the candidates, all candidates
would have tried their level best to join before 01.04.2015 at any cost.
On the contrary, all the candidates were aware that as per DOPT
guidelines, seniority will be reckoned as per merit list of UPSC on joining
within 6 months from the date of offer irrespective of actual date of
joining.

The incongruous scenario arising out of draft seniority list of STS can be
easily mitigated by adhering to the inter se seniority of JTS notified vide
OM dt. 17.08.2017 in respect of officers promoted to STS vide order dt.
28.02.2019 and none will be adversely affected by the same.”

6.8 On similar lines The applicant no.3 Shri Sushanta

Kumar Nayak vide his representation dated 13.8.2021 has

submitted as under :-
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Item No.41 (C-5) O.A. No. 847/2023

“4. Besides the above, it is pertinent to mention that the DPC for
promotions from JTS to STS was actually held during August 2018 and
promotions were effected vide order dated 28.02.2019. Even though it is
assumed that the crucial date was reckoned as 01.04.2017, no DPC
was held during the whole year of 2017. Even the final seniority list of
JTS was published only on 17.08.2017 much after 01.04.2017. As on
the date of DPC, I had put in more than 3 years of service.

Therefore, on this ground also my seniority is unlikely to be affected. It

is humbly submitted that had the appointment letters were issued in
one batch with advise to join before a particular date, all candidates
would have been on similar footing without any advantage or
disadvantage. In the instant case, the candidates who got appointment
letter during August 2014 got much more time to join than those who got
offer during July 2015 due to administrative reasons. It is also relevant
to mention that the undersigned as well as other candidates were not
aware that they will be considered for promotion after 2 years of service
and crucial date could be 01.04.2017. Had this known to the
candidates, all candidates would have tried their level best to join
before 01.04.2015 at any cost. On the contrary, all the candidates were
aware that as per DOPT guidelines, seniority will be reckoned as per
merit list of UPSC on joining within 6 months from the date of offer
irrespective of actual date of joining. The incongruous scenario arising
out of draft seniority list of STS can be easily mitigated by adhering to
the inter se seniority of JTS notified vide OM dt. 17.08.2017 in respect of
officers promoted to STS vide order dt. 28.02.2019 and none will be
adversely affected by the same.”

6.9 In above factual context, we would highlight that in CA

Nos. 8324-8327 OF 2022 [Arising out of Special Leave

Petition (Civil) Nos. 30734- 30737 of 2014] titled as AMIT

SINGH Vs RAVINDRA NATH PANDEY & ORS. Etc., the

Hon’ble Apex Court observed as under:-

“20. This Court in the case of Pawan Pratap Singh and others vs.
Reevan Singh and others(2011) 3 SCC 267 observed thus:

“44. The Constitution BenchCourt in Direct Recruit

ClassOfficers' Assn. v. State Maharashtra [(1990) 2 SCC
715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] stated the
legal position with regard to inter se seniority of direct
recruits and promotees and while doing so, inter alia, it was
stated that once an incumbent is appointed to a post
according to rules, his seniority has to be counted from the
date of his appointment and not according to the
date of his confirmation.
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Item No.41 (C-5) O.A. No. 847/2023

45. From the above, the legal position with regard to

determination of seniority in service can be summarised as
follows:

(i) The effective date of selection has to be understood

in the context of the service rules under which the
appointment is made. It may mean the date on which
the process of selection starts with the issuance of
advertisement or the factum of preparation of the
select list, as the case may be.

(ii) Inter se seniority in a particular service has to be

determined as per the service rules. The date of entry
in a particular service or the date of substantive
appointment is the safest criterion for fixing seniority
inter se between one officer or the other or between
one group of officers and the other recruited from
different sources. Any departure therefrom in the
statutory rules, executive instructions or otherwise
must be consistent with the requirements of Articles
14 and 16 of the Constitution.

(iii) Ordinarily, notional seniority may not be granted

from the backdate and if it is done, it must be based
on objective considerations and on a valid
classification and must be traceable to the statutory
rules.

(iv) The seniority cannot be reckoned from the date of

occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by
the relevant service rules. It is so because seniority
cannot be given on retrospective basis when an
employee has not even been borne in the cadre and
by doing so it may adversely affect the employees
who have been appointed validly in the meantime.”

21. This Court in the said case held that the effective date of
selection has to be understood in the context of the service rules
under which the appointment is made. It may mean the date on
which the process of selection starts with the issuance of
advertisement or the factum of preparation of the select list, as the
case may be. This Court further held that the inter se seniority in a
particular service has to be determined as per the service rules. It
held that the date of entry in a particular service or the date of
substantive appointment is the safest criterion for fixing seniority
inter se between one officer or the other or between one group of
officers and the other recruited from different sources. It further
held that any departure therefrom in the statutory rules, executive
instructions or otherwise must be consistent with the requirements
of Articles 14 and 16 of the Constitution of India. It further held
that the seniority cannot be reckoned from the date of occurrence
of the vacancy and cannot be given retrospectively unless it is so
expressly provided by the relevant service rules. It held that the
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Item No.41 (C-5) O.A. No. 847/2023

seniority cannot be given on retrospective basis when an

employee has not even been borne in the cadre and by doing so it
may adversely affect the employees who have been appointed
validly in the meantime.

22. A bench of three learned Judges of this Court in the case of P.

Sudhakar Rao and others vs. U. Govinda Rao and others(2013) 8
SCC 693 has approved the law as laid down by this Court in the
case of Pawan Pratap Singh and others (supra).
23. It is thus clear that the inter se seniority between the
promotees and the direct recruits will have to be determined in
accordance with the 1992 Rules. The 1992 Rules fix the quota of
67% for direct recruits and 33% for promotees. A “year of
recruitment” has been defined to be a period of twelve months,
commencing from the first day of July of the calendar year and as
such, in the present case, the year of recruitment would be from
1st of July of 1997 to 30th of June 1998.”

6.10 The relative seniority of all the direct recruits is

determined by the order of merit in which they are selected

for such appointment on the recommendations of the

U.P.S.C. or other selecting authority. Accordingly, the

persons appointed in pursuance of an earlier selection are

senior to those appointed in a subsequent selection. The

relative seniority that used to be determined earlier

according to the date of confirmation and not the original

order of merit, (in case where confirmation was in an order

different from the order of merit indicated at the time of their

appointment), in accordance with the general principles of

seniority, has been discontinued w.e.f. 4.11.1992 (O.M. No.

20011/5/90-Estt (D) Dated 4.11.1992). The general

principles of seniority therefore stands modified to that

extent. [Para 2.1 of O.M. No. 22011/7/86-Estt.(D) Dated

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Item No.41 (C-5) O.A. No. 847/2023

03.07.1986 and para 3 of O.M. No. 20011/5/90-Estt (D)

Dated 4.11.1992]

6.11 In the case of persons who are recruited through a

competitive examination, the inter-se seniority is determined

on the basis of the rank assigned by the Public Service

Commission conducting the examination and same cannot

be altered. (Union of India v. Mohan Lai Capoor, (1973) 2

SCC836 ), S. K. Ghosh v. Union of India, AIR 1968 SC

1385; Harikishan Singh v. State of Punjab, AIR 1971 SC

1602: M.Savithri v. State of Mysore, 1972(1) Mys LJ 45;

Syed Shamim Ahmed v. State, SLR 1981(l)Raj.

6.12 Seniority is not determined by mere fortuitous reporting

for duty earlier and the date of the joining report; seniority

would be determined on the basis of the ranking done by the

Selection Board and as arranged in the roster. (REF:

Chairman, Puri Grmaya Bank v. Ananda Chandra Das,

(1994) 6 SCC 301. Furthermore, where the selection process

has ranked the candidates, merely because a person ranked

higher had a later date of joining, within the stipulated

period or extended period of joining granted by the

authorities, cannot change the seniority based on

performance in the selection board. A mere delay in joining,

for reasons beyond the candidate's control cannot change

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his seniority. Ref P. Srnivas v. M. Radhakrishna Murthy,

(2004) 2 SCC 459.

6.13 We may also state that birth in the cadre first would

automatically accord the seniority over and above those who are

appointed at a later date. It has been held so in the case of State

of Uttar Pradesh vs. Ashok Kumar Srivastava & Anr. [(2014)

14 SCC 720].

6.14 Much emphasis has been laid to fact that the

applicants cannot be considered for promotion as they are

not eligible under Rules for not having completed their

probation. We may agree with the submissions made by the

learned Standing Counsel Shri Gyanender Singh in this

regard. We find that such plea could have been taken into

consideration only when in the relief(s) sought in the OA was

to determine the eligibility of the applicants for promotion

but for the fact that the relief(s) herein is the challenge of

final seniority list dated 18.1.2022 of STS.

7. There is yet another point to ponder that once

promotion order dated 28.2.2019 from JTS to STS was

issued and the same was acted by respondent themselves

which was based on seniority list of JTS, we can say that the

Ministry of Labour & Employment published the final

seniority list of Junior Time Scale (JTS) officers of Central

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Item No.41 (C-5) O.A. No. 847/2023

Labour Service vide OM No. A-24021/03/2016-CLS.I dt.

17.08.2017. The said seniority list was in accordance with

the relevant DOPT guidelines wherein relative inter-se-

seniority between promotes (DP) and Direct Recruits (DR)

were maintained. The seniority of all direct recruits were in

accordance with the merit list recommended by UPSC. Once

the applicants herein have been accorded the benefit of

promotion to STS in terms of seniority list of JTS at the

relevant point of time, we find no rationale and logic behind

revisiting the list of STS to the detriment of the applicants

herein. As per respondent’s own assertion, the impugned

final seniority list dated 18.1.2022 is also subject matter of

challenge to various litigations. The said list ought to have

been re-drawn at a later stage.

8. In light of well settled law and OM discussed herein

above, we arrive at conclusion that the crucial date to

determine inter-seniority amongst direct recruits is the date

of appointment and not the date of joining. Accordingly, in

peculiar facts and circumstances of the case of the applicant

nos. 2 and no.3 herein , seniority of the applicants have to

be revisited and their seniority has to be determined by

taking into consideration their entry into the cadre, i.e., the
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date of their appointment order and not from the date of

joining.

9. CONCLUSION

9.1. We, accordingly, hold and direct that the seniority of

the applicant Nos. 2 and 3 should be re-determined.

Accordingly, the seniority position should be re-casted/re-

fixed/restored on that basis only. The final seniority list

dated 18.1.2022 shall be re–casted/re-fixed/restored qua

the applicant Nos.2 and 3, preferably within 30 days from

date of receipt of the certified copy of this order.

9.2. The OA is disposed of in aforesaid terms. All pending

MAs, if any, shall also stand disposed of. No costs.

(Dr. Anand S. Khati) (Manish Garg)

Member (A) Member (J)

/dhruv/