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Judgment
M.H.S. Ansari, J.—The controversy in the instant case is with regard to the seniority list of Senior Assistants prepared by the 1st Respondent Institute. The petitioner had filed objections to the said list and by impugned Memo dated 23-8-1994, the objections of the petitioner were rejected and the provisional list was confirmed without any change. In the said provisional list dated 1-6-1994, the petitioner was shown at Sl. No. 12 and Respondent No. 3 herein who is from the same cadre (Personal Secretaries - for short "PS'') as the petitioner was shown at Sl. No. 6. Respondent No. 6 from the same cadre of Personal Secretaries was shown at Sl. No. 9. The other respondents 4, 5, 7 and 8 are from the cadre of Secretarial Assistants and have been shown respectively at Sl.Nos. 7, 8,10 and 11 i.e., above the petitioner who is at Sl.No. 12. The main controversy, however, with regard to inter se seniority in the same cadre that is of Personal Secretaries, between the petitioner and Respondent No. 3. Resolving the said controversy alone is necessary in this writ petition inasmuch as the respondents 4, 5, 7 and 8 are from a different cadre and have been made a party to the above writ petition as they are persons likely to be affected by any decision in these proceedings as they are placed above the petitioner in the impugned Seniority List.
Brief particulars of the dates of joining, declaration of probation etc., of the petitioner and respondent No, 3 are as under:
Petitioner Respondent No. 3 Date of joining : 6-11-1986 10-11-1986 Declaration of Probation : 12-11-1988 09-01-1989 Promotion to the post of Senior Assistant : 01-07-1991 16-02-1990 Promotion to the post of Superintendent : 15-05-1997 25-08-1994
Respondents 4,5,7 and 8 were interviewed and appointed by a common order as Secretarial Assistants. Their date of joining is 8-4-1987, promoted as Senior Assistants on 1-7-1991, promoted to the post of Superintendent on 25-8-1994.
The petitioner has raised manifold contentions. Briefly they are,
That the petitioner is senior to the respondents including the third respondent and that the petitioner''s probation was declared before the 3rd respondent and that the petitioner was denied the promotion to the post of Senior Assistant and Respondent No. 3 and others were promoted ahead of the petitioner ignoring the petitioner''s seniority. That when the tentative list of Senior Assistants was prepared on 11-7-1992, petitioner''s name was at Sl.No. 7, above respondents 4, 5, 7 and 8 who were at Sl.Nos. 8, 9, 10 and 11. The 3rd respondent was at Sl.No. 4. However, by provisional list dated 1-6-1994., the petitioner was placed at Sl.No. 12 below the respondents. Objections were accordingly filed by the petitioner and the same were rejected by the impugned order dated 23-8-1994 and on 25-8-1994, Respondent No. 3 along with respondents 4, 5, 7 and 8 were promoted to the post of Superintendents.
It is not in dispute that a seniority list was not prepared of Personal Secretaries nor communicated. Also there was no common list of Personal Secretaries and Secretarial Assistants prepared at any time. A tentative list of seniority of Senior Assistants dated 11-7-1992 was prepared. Thereafter the provisional list dated 1-6-1994 was prepared based on which the final list impugned herein was made.
Counter affidavit has been filed on behalf of respondents 1 and 2 by the Executive Registrar of the Respondent Institute. Above facts are not disputed therein. It is, however, stated that the Selection Committee constituted for the purpose of selecting the candidates and the ranking maintained by them show the petitioner at Sl.No. 6 and the Respondent No. 3 was shown at Sl.No. 4. At that relevant time, the ratio for promotion to the post of Senior Assistants was 1:1 as between Personal Secretaries and Secretarial Assistants. Respondent No. 3 being senior was promoted to the post of Senior Assistant on 16-2-1990 as per the said ratio from the cadre of Personal Secretaries. On representations made by the Employees Association, the Director of Nizam''s Institute of Medical Sciences (for short "NIMS") has taken a decision in a Joint Meeting held on 8-5-1991 changing the ratio to 2:1 between Secretarial Assistants and Personal Secretaries. By this process, the petitioner was promoted to the post of Senior Assistant w.e.f., 1-7-1991. The Management has taken the seniority of the petitioner in the category of Personal Secretaries and following the same, respondent No. 3 was promoted much earlier to the petitioner. It is admitted that in the provisional seniority list, the dates showing the date of regularisation as the criteria for fixation of the seniority list was changed to the date of appointment to the post of Senior Assistants. Insofar as the contention of the petitioner with regard to Respondent No. 3 is concerned, it is categorically stated that Respondent No. 3 was given higher ranking than the petitioner by the Selection Committee in their initial appointment and therefore the contention of the petitioner that Respondent No. 3 is junior to the petitioner is not correct, it is stated in the Counter.
No counter affidavit has been filed on behalf of Respondent No. 3.
In the counter affidavits filed on behalf of Respondents 4, 5, 7 and 8, reference has been made to the change of the ratio from 1:1 to 2:1 w.e.f., 1-7-1991 on account of inadequate representation from the side of Secretarial Assistants and the representation in that behalf made by the Employees Association as a result of which at the Joint Meeting held on 8-5-1991 with the Director, decision was taken to change the ratio and the same was implemented w.e.f., 1-7-1991. The respondents are from the category of Secretarial Assistants and it is therefore stated that the petitioner can have no grievance against these respondents'' promotion to the post of Senior Assistant which was from a different category.
Before considering the submissions advanced before Court, it may be useful to look at the rule position obtaining in the Respondent Institute.
Respondent No. 1 Institute was established under Act 13 of 1989 and was conferred a status of Deemed University. Prior to that, it was known as the NIMS and the rules obtaining therein were called the "Nizam''s Institute of Medical Sciences Service Rules" which came into force on 28-6-1986. It is not in dispute that the same rules continue to govern the service conditions of the employees although the First Regularisations u/s 40 of the said Act were published in G.O.Ms.No. 403, dated 24-6-1989 and vide G.O.Ms.No. 402, dated 24-6-1989 certain rules have been made u/s 39 r/w Section 19(1) and 29 of the Act. Standing Order 5, dated 21-11-1994 and Standing Order 6 dated 21-11-1994 are also in force.
The 1986 rules which came into force on 28-6-1986 are hereinafter referred to as the rules which govern the Service Conditions of the employees. Under Rule 5 thereof, Grades and categories have been prescribed. However, except specifying the grades, no particulars are furnished therein. Under Item 5, however, there is a category referred to as other categories which is below Junior Management Officers and Technical Staff. The contesting parties to this petition, can perhaps fall in the said other categories. Rule 10 deals with commencement of service and it is stated therein that an employee shall be deemed to commence from the working day on which the employee reported for duty. Rule 16 deals with probation. Sub-rule 4 confers powers on the appointing authority to record an order either declaring the probation of employee w.e.f., the date of satisfactory completion of the prescribed period of probation or extending the period of probation or discharging him. Under Rule 17.1, it is stated that a probation may not be declared until he has served on probation for the period prescribed in the rules, passed any test or examination, the passing of which may by rule or order may be prescribed as a condition of service. For the cadre of employees with which we are concerned in the instant case, no exams or tests are required to be passed nor prescribed as a condition for declaring the probation. Rule 21 deals with seniority and it is stated therein that each year, the Institute shall prepare a list of employees in its service and such list shall be circulated among all the employees of the Institute. Sub-clauses (ii), (iii) (iv) and (vi) are relevant and are therefore extracted hereunder:
"(ii) Seniority of an officer in a grade or scale shall be reckoned with reference to the date of his appointment in that grade or scale. Where there are two or more officers of the same length of service in the grade or scale, their inter se seniority shall be reckoned with reference to their seniority in the immediately preceding grade or scale to which they belong in the Institute''s service. Where two or more officers have the same length of service in much preceding grade or scale, or such previous cadre, their seniority shall be determined with reference to their seniority in the immediately preceding grade or scale or cadre as the case may be.
(iii) The inter se seniority of officers directly recruited in a batch to any grade or scales shall be reckoned with reference to the rank allowed to them at the time of such recruitment. 30
(iv) In the case of an officer whose probation has been extended, his seniority shall be reckoned just below all the officers if any recruited or promoted in the same batch along with him
(vi) Any case not falling in the rule mentioned above shall be decided by the Director at his discretion".
Rule 22 deals with promotions and it is stated that promotions to all grades of officers in the Institute shall be made in accordance with the policy laid down by the Board from time to time having regard to the guidelines of the Governing Council, if any. In the Standing Order No. 6 dated 21-11-1994, the post of Secretarial Assistants are in Category III of Class A and Personal Secretaries are shown in Category 2 of Class B.
After having heard learned Counsel for the parties, the controversy in the instant case can be narrowed down to resolving the dispute of inter se seniority between the petitioner herein and the respondent Nos. 3 and 6 who are from one cadre called "Personal Secretaries" (P.S.). Respondents 4, 5,7 and 8 though appointed later are from the cadre of "Secretarial Assistants" (S.A.). Though it was seriously contended that there is no separate cadre, I am not inclined to go into that question inasmuch as by conduct, the respondent Institute has been inviting applications for the post of Personal Secretaries and Secretarial Assistants, separate Selection Committees were constituted for the purpose which selected personnel in the respective category and the promotions were also being effected to the next post-in the Senior Assistants - in the proportion of 1:1 until 1-7-1991 and thereafter in the proportion 2:1. This Court is, therefore, of the view that if the inter se seniority between the petitioner, Respondent Nos. 3 and 6 who all come from the same cadre of Personal Secretaries is resolved, the whole controversy can resolve itself.
From the proceedings dated 29-10-1986 of the Selection Committee which has been placed before Court by the learned Counsel Sri M.R.K. Chowdhary, representing respondent No. 1 Institute, it is seen that following marks were assigned to the respective parties for the post of Personal Secretaries.
Respondent No. 6 .. 204 Marks 2. Petitioner ... 198 Marks 3. Respondent No. 3 ... 195.5 Marks
Sub-rule (iii) of Rule 21 prescribes that the inter se seniority of the employees directly recruited in a batch to any grade or scale shall be reckoned with reference to the rank allowed to them at the time of such recruitment.
The petitioner, Respondent Nos. 3 and 6 were selected by direct recruitment as Personal Secretaries (P.S.). The question in the instant case therefore is what shall be the ranking among such direct recruits. Is it the date on which they joined duty or according to the ranking given by the Selection Committee. The Rule 21 (iii) referred supra prescribes that in such matters, inter se seniority shall be reckoned with reference to the rank allowed to them at the time of such recruitment.
The Supreme Court in Chairman, Puri Gramya Bank and Another Vs. Ananda Chandra Das and Others, considered a similar contention and held as under:
"It is settled law that if more than one are selected, the seniority is as per ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis".
In the light of the above settled position, the controversy can conveniently be resolved. Even according to Respondent No. 1, seniority has been assigned on the basis of the rank given by the Selection Committee. In so far as the petitioner''s contention that she is senior to Respondent No. 3, it is categorically stated in paragraphs 14 and 17 of the Counter affidavit filed on behalf of Respondent No. l, that "respondent No. 3 is very much senior to the petitioner as per the ranking given by the Selection Committee at the time of their initial appointment to the post of Personal Secretaries". The claim of Respondent No. 3 to higher ranking is thus sought to be sustained on the sole ground of higher ranking obtained by Respondent No. 3 at the time of initial appointment by the ranking assigned by the Selection Committee. A perusal of the record produced by Respondent No. 1 - Institute, however, shows that they are not able to sustain the said contention. As noticed above, the petitioner obtained 198 marks whereas Respondent No. 3 obtained 195.5 marks. Respondent No. 6, however, obtained higher than both the said candidates viz., 204 marks. The inter se seniority is accordingly to be determined of the said three candidates in the order of the ranking as per the marks obtained.
Learned Counsel for Respondent No. 3, however, sought to raise a dispute that the marks stated therein only disclose the marks obtained in the written examination and not at the time of interview. The proceedings of the Selection Committee show that out of 22 only 12 candidates sponsored by the Employment Exchange and one candidate from the open market have attended the interview. A Written Test in English, Maths and Speed Test in Typewriting and Dictation in Shorthand have been conducted. A statement showing the performance of the candidates in the examination held is annexed to the said proceedings. It is further stated therein as under:
"a formal interview was held on the same day, in which Section Officer, Accounts Officer and Administrative Officer were present. Selection of the following candidates has been made based on the marks obtained in the Written Test and also their performance in the interview. All the candidates were told the change of timings of the Institute and also the multifarious duties to be performed by them to which, all the successful candidates have agreed."
In the statement showing the performance, the total marks shown against Respondent No. 3 Sri A. Ramchander Rao are 195.5 and the comment "fair" is found opposite his name. The respondent No. 3 is shown at Sl.No. 6 of the list. Respondent No. 6 Sri K. Satyanarayana is at Sl.No. 9 and the total marks obtained by him are shown as 204. The comment "Good" is to be found opposite his name. At Sl.No. 11 is the name of the petitioner Kum. P. Srilakshmi and the total marks obtained by her are 198. The comment found opposite her name is "V. Good". The comments referred to above perhaps relate to the performance of the said candidates at the interview.
The contention that the interview marks have not been taken into account and total marks obtained are the total of the test conducted and not of the marks at the interview. It seems a fair comment. However, the Selection Committee has not also assigned any marks at the interview. Nor has any separate proceeding been issued by the Selection Committee denoting the rank. The draft of the letter of appointment to be issued to the selected candidates shows six names and that list is prepared not on the basis of ranking but in the order in which the names of selected candidates appear in the annexure to the proceedings of the Selection Committee. But the comments noted opposite the names of the respective candidates, reference to which has been made above viz., Good, Fair, V. Good, give an indication when read with the total marks obtained in the written test. What the ranking should have been. The Respondent No. 1 in the circumstances, cannot be said to have established the fact that the petitioner although having obtained higher marks than Respondent No. 3, has obtained lesser rank than Respondent No. 3. The whole basis for the respondents to sustain the inter se seniority between the petitioner and the Respondent No. 3 was the basis of the ranking assigned by the Selection Committee at the time of initial recruitment. The record produced, however, shows a different story altogether. It has therefore to be held that the petitioner having obtained more marks than respondent No. 3 has to be placed in the seniority list at the rank higher than the respondent No. 3 but below Sri K. Satyanarayana - Respondent No. 6 who obtained 204 marks.
In the light of the above, the only basis on which Respondent No. 3 was placed higher than petitioner is found to be untenable and does not stand established by the record. The inter se seniority as per the rules and in the light of the judgment in Puri Cramya Bank (supra 1 cited) shall be determined on the basis of the ranking and accordingly the petitioner having a higher rank than respondent No. 3 is entitled to be placed higher than Respondent No. 3 but below Respondent No. 6. Irrespective of the dates on which they may have joined the service as the three of them had all joined in a batch at one time though on different dates, but within the time allowed for joining time.
Respondents 4,5,7 and 8, as already noticed above, are from a different category. Their seniority need not be disturbed on account of fixation of the seniority of petitioner, respondent Nos. 3 and 6 by interchanging the same, as directed above.
Sri P.V. Ramana, learned Counsel for respondents 4, 5, 7 and 8 had also contended that the petitioner not having questioned the initial promotion of Respondent No. 3, should not be allowed to question the same at a belated stage and upset the settled seniority list. The contention though plausible, is not tenable on the facts of the instant case inasmuch as no seniority list in the category of Personal Secretaries was maintained. The provisional list prepared in the post of Senior Assistants was objected to by the petitioner and as soon as the petitioner''s objection was rejected, the petitioner filed the above writ petition questioning the said seniority list. Further more, none of the candidates in the post of Personal Secretaries were ever informed of the manner or the basis on which the seniority list was prepared. None of the candidates in P.S. Category were even informed of their ranks by the Selection Committee. The said stand came to the fore only by the impugned letter of rejection. For the first time, when the provisional seniority list was prepared, petitioner immediately objected to the same. There was no way in which the petitioner could have known the basis for the promotion of Respondent No. 3 to the post of Senior Assistant. In any case, the respondents 4, 5, 7 and 8 being from another category and promoted to the post of Senior Assistant pursuant to the ratio fixed for that cadre, their seniority is not liable to be either disturbed or re-fixed on account of the inter se dispute in the cadre of Personal Secretaries to which cadre, the petitioner, respondent No. 3 and Respondent No. 6 belong.
In the light of the above, there is also no necessity to consider various other contentions advanced before Court by respective learned Counsel for either parties.
In the circumstances, the impugned proceedings dated 23-8-1994 is liable to be quashed and is accordingly so quashed.
A direction shall issue to the respondent No. 1 to fix the inter se seniority of the petitioner, respondent No. 3 and Respondent No. 6 by inter-changing the names at appropriate places in the order of ranks assigned by the'' Selection Committee to Respondent No. 6 Sri K. Satyanarayana, petitioner Smt. P. Lakshmi and Respondent No. 3 Sri A. Ramchander Rao, in that order of ranking effective from the date of the final seniority list i.e., 23-8-1994 (being the date the provisional seniority list of Senior Assistants was confirmed) in the cadre of Senior Assistants.
In the result, the Writ Petition is accordingly allowed in terms, as above. But in the circumstances without costs.