K. Kulasekaran vs Union Of India & Ors.

This OA has been filed by the applicant seeking the following relief:

Brief facts of the case as submitted by the applicant are as follows:

The applicant states that he initially joined the Police Department, Government of Puducherry, as a Police Constable on 26.11.1990 and served until 29.03.2001 (AN). Thereafter, he joined the Department of Information and Publicity as a Public Relations Assistant on 30.03.2001. He further states that he, along with Shri S. Gunasekaran, Sub-Editor (3rd respondent), joined duty in the Publication Section on 30.03.2001 at 09.00 a.m. and 12.30 p.m., respectively, while Shri R. Balaji, Public Relations Assistant, joined the Publicity Section at 09.30 a.m. on the same day. The applicant, who was transferred from the Police Department, and Shri R. Balaji, who was transferred from the Health Department, joined without producing medical fitness certificates, as they were already regular Government servants. In contrast, Shri S. Gunasekaran joined only after producing a medical fitness certificate. The applicant contends that, in the case of fresh recruitment, no person can be permitted to join duty without undergoing medical examination and being declared fit. He further submits that where the dates of appointment are the same, seniority is to be determined with reference to age. The impugned order records the dates of birth of the applicant and the 3rd and 4th respondents as 30.09.1968, 15.05.1971 and 24.07.1970, respectively. Thus, the applicant is the senior-most by age. However, the impugned order has placed him below the 3rd and 4th respondents. Aggrieved thereby, the applicant has filed the present Original Application.

The learned counsel for the applicant primarily contended that the impugned order is contrary to the decision of the Confirmation Cell, DP&AR, wherein it was specifically directed that the only course available to the Department was to recover one day’s salary paid to the incumbent and correct his date of joining as 30.03.2001 instead of 29.03.2001, with the consequential effect that the date of completion of probation would be 29.03.2003. Despite the said specific direction, the seniority of the 3rd respondent has been determined on the basis of his initial appointment being treated as 29.03.2001, instead of 30.03.2001. It was therefore contended that the impugned order is arbitrary, contrary to the departmental decision, and violative of Article 14 of the Constitution of India.

It was further contended that the impugned order is contrary to Fundamental Rule 10, which mandates that no person shall be permitted to join Government service in a pensionable establishment unless he has been medically examined and declared fit for such service. The 3rd respondent produced his medical fitness certificate only on 30.03.2001. Therefore, according to the learned counsel, his date of joining could not legally be treated as 29.03.2001. The action of the 2nd respondent in treating 29.03.2001 as the date of joining, despite the medical fitness certificate having been produced only on 30.03.2001, reflects non-application of mind and renders the impugned order illegal and unsustainable in law.

The learned counsel also drew attention to Memorandum No. 3079/DIP/E.1/2005/25, dated 09.01.2006, issued by the 2nd respondent to the 3rd respondent and two others, namely, Shri A. Robert Roach and Shri I. Ganapathy. In the said memorandum, the 2nd respondent had specifically stated that the Confirmation Cell, DP&AR, had confirmed, in terms of the Government of India orders under F.R. 10, that no person could be permitted to join Government service in a pensionable establishment without first being medically examined and found fit. Having accepted the said position, the Department ought to have treated the date of initial appointment of the 3rd respondent as 30.03.2001 and not 29.03.2001. The failure to do so, according to the learned counsel, renders the impugned order untenable.

Finally, the learned counsel submitted that where the dates of appointment are the same, seniority is required to be determined with reference to age. The impugned order records the dates of birth of the applicant, the 3rd respondent and the 4th respondent as 30.09.1968, 15.05.1971 and 24.07.1970, respectively. The applicant is, therefore, admittedly the senior-most by age. Nevertheless, he has been placed below the 3rd and 4th respondents in the impugned order. It was accordingly submitted that the impugned order is unsustainable and that the applicant is entitled to the reliefs sought in the present Original Application.

Per contra, the learned counsel appearing for the official respondents submitted that the seniority assigned to the 3rd respondent, Thiru S. Gunasekaran, Sub-Editor, and the 4th respondent, Thiru R. Balaji, Public Relations Assistant, above the applicant, Thiru K. Kulasekaran, Public Relations Assistant, in the inter-se seniority list of Public Relations Assistants and Sub-Editors is legally sustainable. He submitted that, pursuant to Memorandum No. S-821/2000-01/GA(IP), dated 27.02.2001, relating to the selection of candidates for the post of Public Relations Assistant, Thiru R. Balaji was selected under the General Category and secured the second position on merit, whereas the applicant, Thiru K. Kulasekaran, was selected under the OBC Category and secured the third position on merit. Likewise, in the selection for the post of Sub-Editor under the same Memorandum, Thiru S. Gunasekaran was selected and placed first on merit. Thus, the seniority assigned to the 3rd and 4th respondents over the applicant is justified on the basis of their respective merit positions in the selection process.

He further submitted that, pursuant to Memorandum No. 1-4/E.2/DIP/2000-01, dated 09.02.2001, the 3rd respondent, Thiru S. Gunasekaran, appeared for the written competitive examination for the post of Sub-Editor in the forenoon session on 24.02.2001. Similarly, pursuant to Memorandum No. 1-3/E.2/DIP/2000-01, dated 09.02.2001, the 4th respondent, Thiru R. Balaji, and the applicant, Thiru K. Kulasekaran, appeared for the written competitive examination for the post of Public Relations Assistant in the afternoon session on 24.02.2001. It was further submitted that, as per Memorandum No. S.1011/2000-01/GA(IP), dated 27.03.2001, the interviews were conducted in the following order: first, for the post of Sub-Editor; second, for the post of Reporter; and third, for the post of Public Relations Assistant. Therefore, according to the learned counsel, the selection and consequent fixation of seniority of the 3rd and 4th respondents above the applicant were made in accordance with the applicable selection process and the respective merit positions. Hence, the applicant has no valid ground to challenge the seniority assigned to the respondents.

In view of the above, the learned counsel for the official respondents submitted that the relief sought by the applicant in the Original Application is devoid of merit and not sustainable in law. He therefore prayed for dismissal of the Original Application.

The learned counsel for the Private respondents submitted that he adopted the contentions made by the learned counsel for the official respondents and prayed for the dismissal of the OA.

The applicant has filed a rejoinder reiterating the contentions made in the OA.

We have considered the submissions made by the learned counsel on all sides at length, perused the pleadings and the materials available on record.

The question that arises for our consideration in the present Original Application is whether the date of appointment/joining of the 3rd respondent is liable to be reckoned as 30.03.2001, as contended by the applicant, having regard to the requirement of medical fitness under F.R. 10, or whether the respondents were justified in reckoning his date of appointment as 29.03.2001 and consequently placing him above the applicant in the inter-se seniority list.

It is seen that the the applicant earlier had filed similar OA before this Tribunal in OA No.430/2011 and this Tribunal by order dated 13.02.2015, passed the following order and the relevant portion is extracted below:

Pursuant to the above said order of this Tribunal, the Inter-Se-Seniority list of officials of Public Relations Assistants and Sub-Editor has been drawn as on 05.06.2015 as follows:

As per FR- 10, No person should be allowed to join Government service in a pensionable establishment without having been medically examined and found fit. An entry in Service Book of production of medical certificate of fitness furnished by a person on first appointment to be made under the signature of Head of Office. The said certificate is an important document along with the other documents connected with his service career.

The Hon’ble Supreme Court has consistently held that where statutory rules prescribe conditions for entry into service, those conditions are mandatory and cannot be waived or bypassed by administrative convenience. In the case of Direct Recruit Class II Engineering Officers' Association Vs State of Maharashtra & Others (1990 (2) SCC 715), the Apex Court vide it judgment dated 02.05.1990,has observed as follows:

In the case of D.P. Das Vs. Union of India & Ors, the issue raised was 'How should inter se seniority be determined for direct recruits recommended on the same date by the recruitment agency when no combined merit list exists and service rules have gaps?. The Hon’ble Supreme Court vide its judgment dated 09.08.2011, reported in (2011) 8 MAD LJ 1074, has held as follows:

The issue regarding determination of seniority has been settled by the Hon’ble High Court of Delhi in Naveen Kumar Jha v. Union of India & Others, W.P. (C) No. 3827/2012, order dated 02.11.2012. While dealing with the question of seniority, the Hon’ble Court referred to and relied upon the principles laid down by a Division Bench of this Court in Avinash Singh v. Union of India & Others, W.P. (C) No. 5400/2010, decided on 26.05.2011. In the said judgment, the Division Bench, in paragraphs 17 to 20, observed as follows:

The aforesaid judgment lays down the principle that, in the case of direct recruitment through a selection process, the inter-se seniority of candidates belonging to the same batch is to be determined on the basis of their relative position in the merit/select list, and not on the basis of the individual or fortuitous dates on which they actually joined service. The formal date of appointment or joining may arise only after the selected candidate has completed the requisite pre-appointment formalities, such as medical examination/medical certification and oath-taking. However, where the delay in completion of such formalities or in permitting a selected candidate to join is attributable to the administrative authorities and is not occasioned by any fault of the candidate, such delay cannot operate to the candidate’s disadvantage for the purpose of determining inter-se seniority. Accordingly, where candidates are selected as part of the same recruitment batch, their inter-se seniority is required to be determined in accordance with the order of merit reflected in the select panel, rather than by the respective dates on which they were permitted to join. A subsequent or delayed date of joining, particularly where it results from circumstances beyond the candidate’s control, cannot displace the seniority position flowing from the selection process.

In view of the above judgments and the undisputed facts available on record, the seniority position in the present case requires reconsideration and appropriate recasting. The Hon’ble Supreme Court in Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra & Others, (1990) 2 SCC 715, has categorically held that seniority is to be reckoned from the date of appointment when the appointment is made in accordance with the applicable rules. At the same time, the judgment in Naveen Kumar Jha v. Union of India & Others, following the principle enunciated in Avinash Singh v. Union of India & Others, makes it clear that, in a selection-based recruitment, inter-se seniority cannot be altered merely on account of a fortuitous difference in the dates on which candidates are permitted to join, particularly when such difference is not attributable to the candidates.

In the present case, the records disclose the following position

The material fact which requires consideration is that the 3rd Respondent, although shown in the records as having been appointed on 29.03.2001, could not have effectively entered upon the first appointment on that date without production of the requisite medical fitness certificate, which was produced only on 30.03.2001. The Applicant, on the other hand, produced the requisite medical certificate on 30.03.2001 and his date of appointment/joining is also recorded as 30.03.2001. Thus, for the purpose of determining the effective date of entry into service, both the Applicant and the 3rd Respondent stood on the same footing as on 30.03.2001. The date of 29.03.2001 appearing against the name of the 3rd Respondent, without corresponding completion of the mandatory medical requirement, cannot by itself confer an anterior seniority advantage if the statutory/service requirement for actual entry into service had not been fulfilled on that date.

It is significant that the delay or difference in the date does not arise from any independent act of the Applicant or from any deliberate delay on his part. Rather, the record demonstrates that the relevant pre-condition for entering service, namely medical fitness/certification, was completed on 30.03.2001. Therefore, the date of 29.03.2001, merely because it has been entered as the date of appointment in respect of the 3rd Respondent, cannot be treated as creating an artificial seniority advantage over an employee who entered service on 30.03.2001 after fulfilling the same mandatory requirement.

The principle laid down in Naveen Kumar Jha and Avinash Singh is particularly relevant in this context. The courts have cautioned against determining seniority on the basis of a fortuitous circumstance relating to the date on which an employee was permitted to join, where the employee's position flows from the same selection/recruitment process. The governing consideration is the actual legal commencement of service and the applicable recruitment/seniority rules, and not an artificial advantage arising from an isolated date in the records.

Accordingly, the date of 30.03.2001 ought to be taken as the effective date of entry into service for both the Applicant and the 3rd Respondent, since the mandatory medical requirement necessary for joining the first appointment stood fulfilled only on 30.03.2001. Consequently, the 3rd Respondent ought not to be assigned seniority over the Applicant merely on the basis of the nominal date of 29.03.2001.

In view of the facts and the principles laid down in the above judgments, we are of the view that the respondents are required to recast the seniority list by treating 30.03.2001 as the effective date of entry into service of both the Applicant, K. Kulasekaran, and the 3rd Respondent, S. Gunasekaran. The 4th Respondent, R. Balaji, shall also be considered from 30.03.2001, as the said date is already recorded in his case. The Applicant and the 3rd Respondent should therefore be treated equally from the date on which the requisite condition for joining the service was fulfilled. Accordingly, the respondents are directed to reconsider and recast the inter-se seniority of the Applicant and the 3^rd respondent by taking 30.03.2001 as the effective date of entry into service, and thereafter determine their seniority in accordance with the applicable service rules and in accordance with law. The said exercise shall be complied with as expeditiously as possible and in any case not later than 3 months from the date of receipt of a copy of this order.

In the result, the OA is allowed in the above terms. There shall be no order as to costs.