2015 (9) TMI 1567 - Tri - Companies Law

Power to make appointments - seniority - Held that - In the present case it is not in dispute that the applicant in OA 3672/2011 was appointed as direct recruit ahead of respondent Nos. 3 to 6. Merely because her appointment was made in relaxation of the rules the candidates appointed subsequent before her appointment cannot question her right to fixation of seniority in accordance with the existent instructions. As far as the claim of the applicants in OA 4299/2012 and 2064/2012 for fixation of their seniority with reference to their position in the select list is concerned the position is regulated by the provisions contained in para 2.1 of DOP&T OM dated 3.7.1986 (ibid). Once there was no delay on part of the applicants in the said OAs in joining the service they cannot be denied the benefit of seniority with reference to their position in the select panel. In the light of the above discussion we direct that the Applicants would be eligible for appointment to the post of Medical Officer (Ayurvedic) from the date three other persons selected alongwith the Applicants were appointed. They will not be entitled for back wages but the period will not counted for increments and their pay will be fixed at the time of joining by adding the increment they would have earned had they joined their service from the retrospective date. It would also count towards seniority of the Applicants. The Applicants would be entitled to be placed in the pension scheme which was applicable in 2003 i.e. the pension scheme of 1972. The aforesaid directions would be complied with within four months from the date of receipt of a certified copy of this order. The applicant in OA 3672/2011 (Ms. Sunita Rao) would be entitled to seniority above all those who were directly recruited/promoted as School Inspector (General) (F) after her joining/ appointment.

Summary

Issues Involved:
1. Validity of compassionate appointment of Ms. Sunita Rao to a Group B post.
2. Fixation of seniority of Ms. Sunita Rao vis-`a-vis other candidates.
3. Claims of seniority by other candidates appointed through regular selection processes.

Detailed Analysis:

1. Validity of Compassionate Appointment:
The applicant, Ms. Sunita Rao, was appointed as School Inspector (General) on compassionate grounds in 2000 after her husband's demise. The plea raised against her appointment was that compassionate appointments should be limited to Group C and D posts, not Group B. However, the MCD exercised its powers under Section 92 of the Delhi Municipal Corporation Act to appoint her, considering her distress and the need to maintain government accommodation. The Tribunal noted that compassionate appointments are exempted from standard recruitment procedures and can include relaxation of upper age limits, thus justifying her appointment despite being to a Group B post.

2. Fixation of Seniority of Ms. Sunita Rao:
Ms. Sunita Rao sought seniority from her joining date (14.7.2000). The Tribunal in OA 2464/2009 had left the issue of seniority for MCD to decide, without setting a precedent. The Tribunal emphasized that judgments are not statutes and should not be interpreted as such. The Tribunal referred to the Supreme Court ruling in Union of India v. N.R. Parmar, which clarified that seniority should be determined from the date of first substantive appointment against a clear vacancy. Since Ms. Rao was appointed ahead of the other respondents, her seniority should be recognized accordingly.

3. Claims of Seniority by Other Candidates:
Other candidates, including those in OA 4299/2012 and OA 2064/2012, argued they should be senior to Ms. Rao as their appointments were through regular selection processes by UPSC and DSSSB. They contended that Ms. Rao's appointment was illegal and should not confer seniority over them. The Tribunal noted that the seniority of direct recruits is determined by the order of merit in the selection process, and those appointed as a result of an earlier selection are senior to those appointed later. The Tribunal directed that the applicants in these OAs should be assigned seniority based on their positions in the select list, as per the DOP&T OM dated 3.7.1986.

Conclusion:
The Tribunal concluded that Ms. Sunita Rao is entitled to seniority above all those directly recruited or promoted after her joining. The seniority list should place her above Rita Sharma. The applicants in OA 4299/2012 and OA 2064/2012 are entitled to seniority based on their select panel positions, with all consequential benefits.

Final Directions:
1. Ms. Sunita Rao to be placed above all those appointed after her.
2. Seniority list to be revised placing Ms. Rao above Rita Sharma.
3. Applicants in OA 4299/2012 and OA 2064/2012 to have seniority fixed as per their select panel positions.

No costs were awarded.