Legal Advice

Department prepared a faulty seniority list which is against the promotees officers

Query

My department has prepared a faulty seniority list for the year 2017. It is against the officers who have been promoted to the post. The officers of direct recruitment have gotten an edge over the promotees. We have been suffering huge losses on account of such a faulty seniority list. 

Advice

There is a fixed quota of vacancies reserved for the direct recruitment and promotion respectively. Therefore, if any vacancy remains unfilled in the respective quota it shall carry forward for the next year. In the next vacancy year the rule of quota shall apply thereto in the same manner.

Principle for preparing inter se seniority list

If the department is going to filling the unfilled quota of promotees from the officer of direct recruitment or the vice versa, that promotion is illegal and against the office memorandum 4-03-2014. When the department commits mistake or deliberately ignores the principle of inter-se seniority consequently officers of direct recruitment have been placed above the promotees such a seniority list is illegal and liable to be quashed.

This is against the dictum laid down by the Supreme Court in N.R. Parmar Vs. Union of India and Ors., (2012) 13 SCC 340. The Supreme Court thus held that the basic principle for determining the seniority shall be the rotation of vacancies between direct recruits and promotees.

The Supreme Court in K. Meghachandra Singh & Ors. Vs. Ningam Siro & Ors. (2020)5 SCC 689 has categorically held that a person cannot be entitled to claim seniority from the date he was not in government service.

Therefore, if the officer of direct recruitment has been placed in the seniority list in promotee quota for the year to which he was not in service, his seniority is illegal. 

In this situation you should file an original application before the Central Administrative Tribunal. You should demand for quashing or set aside of impugned final or draft seniority list as the case may be. 

Question: Based on Meghachandra decision on inter-se seniority between Direct Recruits and Promotees, DoPT has issued an OM dated 13.08.2021. and said those who joined between Parmer’s judgement and Meghachandra judgement, seniority list will be prepared based on Parmer judgement.  But Meghachandra judgement said the order is prospective. So is DoPT OM contradictory to Meghachandra judgement?

Asked from: New Delhi

The decision of the department is erroneous because the judgment of Parmar has been overruled by the judgment in Meghachandra. That employees are not entitled to claim seniority from the date of advertisement. There seniority shall be considered only from the date of appointment.

This is explicitly held by the Supreme Court in Meghachandra’s case. The office memorandum dated 13-08-2021 is illegal and violative of dictum of Meghachandra. In this situtation, you should file a OA before the Central Administrative Tribunal for staying the preparation of seniority list.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Service & Labour

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