TMI Blog1996 (2) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... irector of Industries were to be filed by direct recruitment and balance 50 per cent by promotion. The aforesaid Rule was replaced by a new set of Rules called Madhya Pradesh State Industries (gazetted) Service Recruitment Rules, 1985 (hereinafter referred to as 'the recruitment Rules of 1985'). Both these Rules though provide for the mode of recruitment to the post of Assistant Director of Industries as well as the procedure therefore, but do not contain any provision for determination of inter se seniority between a direct recruit and a promotee. Therefore the said seniority had to be determined in accordance with the general principle. Though the principle has been authoritatively laid down by Constitution Bench of this Court in the case of Direct Recruit Class II Engineering Officers Association and On. v. Stale of Maharashtra and Ors. reported in [1990] 2 SCR 900, commonly called the Direct Recruits Case, but yet very often the High Courts and the Administrative Tribunals have been committing the mistake in applying ratio of this case. In the case in hand the Administrative Tribunal has failed to apply the ratio laid down in Direct Recruits Case and as such has comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the State Government wherein ad hoc promotees were shown senior to the regularly appointees like the appellants. The appellants filed objections to the said provisional list. Without taking any decision on the same the State Government issued another provisional selection list in the year 1986 but continued the mistake which was there in the 1983 list. The appellants put forward their grievances again on 18.9.1987. The seniority list prepared in 1983 and 1986 were withdrawn. Then on 19.9.1988 another provisional list was brought out wherein the appellants were against shown junior to the ad-hoc promotees some of whom are the private respondents. The appellants against filed the representation and finally on 23.12.1988 the State Government brought out the final selection list wherein the appellants were again shown junior to the said ad-hoc promotees. The appellants therefore approached the Slate Administrative Tribunal. The Tribunal by the impugned order dismissed the application essentially on two grounds namely, in an earlier case while deciding the inter se seniority of 1974 recruits the Tribunal has decided to take ad-hoc appointment of the promotees into consideration and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples of determination of inter se seniority by the Tribunal, but merely contended that the respondents have served this length of time and many of them have been retired in the meantime, and therefore, alternation of the seniority need not be made by this Court. We are unable to accept the request made by the learned counsel appearing for the respondents and in our considered opinion all the contentions raised by Mr. Rao, learned counsel appearing for the appellants must succeed. In the Direct Recruits case the Constitution Bench of this Court summarised the legal position in paragraph 44 as follows : (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The Corollary of the above rule is that were the initial appointment is only ad-hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents over the appellants in the seniority list. In other words the very principle of 'determination of seniority' made by the State Government is under challenge and for such a case State is the necessary party who has been impleaded. It has been held by this Court in the case of General Manger, South Central Railway Secundrabad and Anr. Etc. v. A.V.R. Siddhanti and Ors. Etc., [1974] 3 S.C.R. 207 : As regards the second objection, it is to be noted that the decision of the Railway Board impugned in the writ petition contain administrative rules of general application, regulating absorption in permanent departments, fixation of seniority, pay etc. of the employees of the erstwhile Grain Shop departments. The Respondents-petitioners are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of government servants is assailed. In such proceedings the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recruits has not gone unrepresented and therefore the non-inclusion of all the 400 and odd direct recruits is not fatal to the proceedings. In the aforesaid circumstances we have no hesitation to come to the conclusion that the Tribunal was wholly in error in coming to the conclusion that the appellants application becomes unsustainable in the absence of all the promotees being impleaded as party. So far as question of delay and laches is concerned, as we have noticed earlier the final gradation list was prepared only on 23.12.1988 and the appellants had approached the Tribunal in 1989 and therefore, the question of delay does not arise. In the aforesaid premises the impugned order of the Tribunal is set aside and this appeal is allowed. The appellants are entitled to get their seniority over the ad-hoc promotees who were appointed as Assistant Director on 27.9.1980. The respondent-State is directed to re-draw the seniority. The appellants' application before the Tribunal stand allowed. There will be no order as to costs. The seniority list may be re-drawn up within 4 months from the date of the receipt of this order and consequential benefits may be given. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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