Sunil Verma v. Union Of India Through Secretary, Department Of Revenue, Secretariat, New Delhi

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Civil Writ Petition No. 15446 / 2010 Sunil Verma S/o Shri Dula Ram Kumawat, Aged About 50 Years, Quarter No.42, Income-tax Colony, Jyoti Nagar,jaipur ----Petitioner Versus 1. Union of India Through Secretary, Department of Revenue, Secretariat, New Delhi 2. Chief Commissioner of Income-tax(C.C.A.), Jaipur,central Revenue Building,bhagwan Das Road, Jaipur 3. Pradeep Sharma S/o Shri Gopal Ram Sharma, Aged About 50 Years, IV/22, Income-tax Colony, Jyoti Nagar,jaipur 4. Jagdish Prasad Saini S/o Shri Gangal Ram Saini, Aged About 50Years, 100-B,panchawati Scheme No. 1,alwar 5. Yogesh Sharma S/o Late Shri Brij Lal Sharma, Aged About 54 Years, Brivilla,raghu Marg,bhagat Singh Circle,alwar 6. Pramod Goyal S/o Srichand Goyal, Aged About 50 Years, 434,adarsh Block,mahaveer Nagar, Tonk Road,jaipur 7. Bhagirath Lal Gupta,,inspector Income-tax,income-tax Office, Jhalawar,rajasthan 8. Central Administrative Tribunal,jaipur Bench,jaipur Through Its Chairman ----Respondents _____________________________________________________For Petitioner(s) : Mr. Chiranji Lal Saini For Respondent(s) : Mr. Amit MathurMr. Gaurav Jain Mr. Himanshu Jain _____________________________________________________ HON'BLE MR. JUSTICE K.S.JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 03/10/2017 1.By way of this petition, the petitioner has challenged the judgment and order of the Tribunal whereby the Tribunal hasallowed the OA filed by the applicants/respondents herein. 2. Briefly stated, facts of the case are that the applicantsbefore the Tribunal were initially appointed as UDCs against Sportsquota in 1983. It may be stated that during the pendency of thisOA, the respondents had conducted a review DPC therebypromoting certain candidates on the post of Income Tax Inspectorbased on the revised seniority. The said action of the respondentswas challenged by respondent No.5 by filing MA NO. 112/2002and the Tribunal vide order dated 28.03.2002 directed therespondents not to give effect to their order dated 20.03.2002(Annexure A/13). Accordingly, all the applicants were working asInspector. Now few facts may be noticed. As already stated above,that the applicants were recruited as UDC against the Sportsquota in 1983. They were appointed in response to theadvertisement published at National Level, for recruitment ofUDCs who have brilliant/meritorious sports record against thesubstantive permanent vacant posts. Consequently they joined thepost of UDC on 18.05.1983 so far as respondent No. 3 isconcerned, on 20.05.1983 so far respondent No. 4 is concernedand on 02.09.1983 so far as respondent No.5 is concerned. Thepetitioner and private respondent No. 7 and petitioner joined thepost of UDC in the year 1986 and respondent No. 6 in the year1988 respectively as per details given in Para No. 4.1 of the OA.Their names were sponsored by the Service Selection Committeevide letter dated 26.09.1984 in response to requisition sent by therespondents to the SSC vide letter dated 18.04.1984. This fact is borne out from the letter dated 26.09.1984 which is placed onrecord as Annexure A/10 It is further stated that the privaterespondents have not born in service when the applicants hadalready joined the service. In service when the applicants hadalready joined the service. The private respondent No. 7 andpetitioner had joined the department almost three and a halfyears later to the applicants and respondent No.6 had joined fiveyears after the applicants joined the department. The seniority listwas published in the year 1986 wherein the names of the privaterespondents No.3, 4 and 5 were shown at Sl. Nos. 196, 198 and207 respectively. The names of the private respondents do notfind mention in the said seniority list. Thereafter another senioritylist was published in the year 1989 vide order dated 27.03.1989wherein the names of the respondent Nos. 3 4 and 5 were shownat sl. No. 156, 158 and 164 respectively while the name of theprivate respondents and petitioner were shown at sl. NO. 222,246,and 218. The respondents published another seniority list in theyear 1991 vide order dated 26.09.1991. In the said seniority list,the private respondents were shown junior to the applicants. Yetanother seniority list was published in the year 1993 vide orderdated 16.04.1993 followed by another seniority list issued in theyear 1994 vide letter dated 01.09.1994 and the seniority listissued in the year 1999 vide letter dated 14.03.1999 wherebyprivate respondents No. 3, 4 and 5 were shown senior to theprivate respondent and petitioner. 3. Challenging the order of the department whereby thedepartment opened up the issue of seniority after more than 16 years by order dated 22.01.2002, counsel for the appellant hastaken us to order dated 22.01.2002 and contended that Tribunalhas committed serious error in overlooking the judgment in thecase of Union of India (UOI) and Ors. etc. etc. vs. N.R.Parmar and Ors. etc. etc. (2012)13SCC340 wherein it hasbeen observed as under:- 20. Since it is the case of the rival parties before us, that the OMdated 7.2.1986 is the principal instruction, on the basis whereofthe present controversy is to be settled, the same is beingextracted hereunder in its entirety. The 7 February, 1986. Office Memorandum Subject: General Principles for determining the seniority ofvarious categories of persons employed in Central Services. As the Ministry of Finance etc. are aware, the General Principlesfor determination of seniority in the Central Services arecontained in the Annexure to Ministry of Home Affairs O.M. No.9/11/55-RPS dated 22nd December 1959. According toParagraph-6 of the said Annexure, the relative seniority of directrecruits and promotees shall be determined according to rotationof vacancies between the direct recruits and the promotees,which will be based on the quota of vacancies reserved for directrecruitment and promotion respectively in the RecruitmentRules. In the Explanatory Memorandum to these Principles, ithas been stated that a roster is required to be maintained basedon the reservation of vacancies for direct recruitment andpromotion in the Recruitment Rules. Thus where appointment toa grade is to be made 50% by direct recruitment and 50% bypromotion from a lower grade, the inter-se seniority of directrecruits and promotees is determined on 1:1 basis. 2. While the above mentioned principle was workingsatisfactorily in cases where direct recruitment and promotionkept pace with each other and recruitment could also be madeto the full extent of the quotas as prescribed, in cases wherethere was delay in direct recruitment or promotion, or whereenough number of direct recruits or promotees did not becomeavailable, there was difficulty in determining seniority. In suchcases, the practice followed at present is that the slots meant fordirect recruits or promotees, which could not be filled up, wereleft vacant, and when direct recruits or promotees becameavailable through later examinations or selections, such personsoccupied the vacant slots, thereby became senior to persons who were already working in the grade on regular basis. Insome cases, where there was short-fall in direct recruitment intwo or more consecutive years, this resulted in direct recruits oflater years taking seniority over some of the promotees withfairly long years of regular service already to their credit. Thismatter had also come up for consideration in various CourtCases both before the High Courts and the Supreme Court andin several cases the relevant judgment had brought out theinappropriateness of direct recruits of later years becomingsenior to promotees with long years of service. 3. This matter, which was also discussed in the National Councilhas been engaging the attention of the Government for quitesome time and it has been decided that in future, while theprinciple of rotation of quotas will still be followed fordetermining the inter-se seniority of direct recruits andpromotees, the present practice of keeping vacant slots for beingfilled up by direct recruits of later years, thereby giving themunitended seniority over promotees who are already in position,would be dispensed with. Thus, if adequate number of directrecruits do not become available in any particular year, rotationof quotas for purpose of determining seniority would take placeonly to the extent of the available direct recruits and thepromotees. In other words, to the extent direct recruits are notavailable, the promotees will be bunched together at the bottomof the seniority list, below the last position upto which it ispossible to determine seniority on the basis of rotation of quotaswith reference to the actual number of direct recruits whobecome available. The unfilled direct recruitment quotavacancies would, however, be carried forward and added to thecorresponding direct recruitment vacancies of the next year (andto subsequent years where necessary) for taking action fordirect recruitment for the total number according to the usualpractice. Thereafter, in that year while seniority will bedetermined between direct recruits and promotees, to the extentof the number of vacancies for direct recruits and promotees asdetermined according to the quota for that year, the additionaldirect recruits selected against the carried forward vacancies ofthe previous year would be placed en-bloc below the lastpromotee (or direct recruit as the case may be) in the senioritylist based on the rotation of vacancies for that year. The sameprinciple holds good in determining seniority in the event ofcarry forward, if any, of direct recruitment or promotion quotavacancies (as the case may be) in the subsequent years. Illustration: Where the Recruitment Rules provide 50% of the vacancies in agrade to be filled by promotion and the remaining 50% by directrecruitment, and assuming there are 10 vacancies in the gradearising in each of the years 1986 and 1987 and that 2 vacanciesintended for direct recruitment remained unfilled during 1986and they could be filled during 1987, the seniority position of the promotees and direct recruits of these two years will be asunder: Illustration: Where the Recruitment Rules provide 50% of the vacancies in agrade to be filled by promotion and the remaining 50% by directrecruitment, and assuming there are 10 vacancies in the gradearising in each of the years 1986 and 1987 and that 2 vacanciesintended for direct recruitment remained unfilled during 1986and they could be filled during 1987, the seniority position of the promotees and direct recruits of these two years will be asunder: 198619871.P19.P12.D1 10.D13.P2 11.P2 4.D2 12.D2 5.P3 13.P36.D3 14.D37.P4 15.P4 8.P5 16.D4 17.P5 18.D5 19.D6 20.D7 4. In order to help the appointing authorities in determining thenumber of vacancies to be filled during a year under each of themethods of recruitment prescribed, a Vacancy Register giving arunning account of the vacancies arising and being filled fromyear to year may be maintained in the proforma enclosed. 5. With a view to curbing any tendency ofunderreporting/suppressing the vacancies to be notified to theconcerned authorities for direct recruitment, it is clarified thatpromotees will be treated as regular only to the extent to whichdirect recruitment vacancies are reported to the recruitingauthorities on the basis of the quotas prescribed in the relevantrecruitment rules. Excess promotees, if any, exceeding the sharefalling to the promotion quota based on the correspondingfigure, notified for direct recruitment would be treated only asad-hocpromotees. 6. The General Principles of seniority issued on 22nd December,1959 referred to above, may be deemed to have been modifiedtothatextent. 7. These orders shall take effect from 1st March 1986. Seniorityalready determined in accordance with the existing principles onthe date of issue of these orders will not be reopened. In respectof vacancies for which recruitment action has already beentaken, on the date of issue of these orders either by way ofdirect recruitment or promotion, seniority will continue to bedetermined in accordance with the principle in force prior to theissueofthisO.M. 8. Ministry of Finance etc. are requested to bring theseinstructions to the notice of all the Attached/Subordinate Offices under them to whom the General Principles of Senioritycontained in O.M. dated 22.12.1959 are applicable within 2 weekas these orders will be effective from the next month. Sd/-JointSecretarytotheGovt.ofIndia(Emphasisisours)Since the OM dated 7.2.1986 would primarily constitute thedetermination of the present controversy, it is considered justand appropriate to render an analysis thereof. The followingconclusions are apparent to us, from a close examination of theOMdated7.2.1986: 8. Ministry of Finance etc. are requested to bring theseinstructions to the notice of all the Attached/Subordinate Offices under them to whom the General Principles of Senioritycontained in O.M. dated 22.12.1959 are applicable within 2 weekas these orders will be effective from the next month. Sd/-JointSecretarytotheGovt.ofIndia(Emphasisisours)Since the OM dated 7.2.1986 would primarily constitute thedetermination of the present controversy, it is considered justand appropriate to render an analysis thereof. The followingconclusions are apparent to us, from a close examination of theOMdated7.2.1986: (a) Paragraph 2 of the OM dated 7.2.1986 first records theexisting manner of determining inter se seniority between directrecruits and promotees (i.e., as contemplated by the OM dated22.11.1959), namely, "...the slots meant for direct recruits orpromotees, which could not be filled up, were left vacant, andwhen direct recruits or promotees become available throughlater examinations or selections, such persons occupied thevacant slots, (and) thereby became senior to persons who werealready working in the grade on regular basis. In some cases,where there was shortfall in direct recruitment in two or moreconsecutive years, this resulted in direct recruits of later yearstaking seniority over some of the promotees with fairly longyears of regular service to their credit....". The words, "whendirect recruits or promotees become available through laterexamination or selections", clearly connotes, that the situationcontemplated is one where, there has been an earlierexamination or selection, and is then followed by a "later"examination or selection. It is implicit, that in the earlierexamination or selection there was a shortfall, in as much as,the available vacancies for the concerned recruitment year couldnot all be filled up, whereupon, further examination(s) orselection(s) had to be conducted to make up for the shortfall. Inthe instant situation, the earlier OM dated 22.11.1959contemplated/provided, that slots allotted to a prescribed sourceof recruitment which remained vacant, would be filled up onlyfrom the source for which the vacancy was reserved, irrespectiveof the fact that a candidate from the source in question becameavailable in the next process of examination or selection, or eventhereafter. In other words the "rotation of quotas" principle wasgiven effect to in letter and spirit under the OM dated22.11.1959,withoutanyscopeofrelaxation. (b) The position expressed in the sub-paragraph (a) above, wassought to be modified by the OM dated 7.2.1986, by providing inparagraph 3 thereof, that the earlier "...principle of rotation ofquotas would still be followed for determining the inter seseniority of direct recruits and promotees...." except when thedirect recruit vacancies were being "... filled up by direct recruitsof later years....". Read in conjunction with paragraph 2 of theOM dated 7.2.1986, the words "...direct recruits of later years...." must be understood to mean, direct recruits whobecame available through "later" examination(s) or selection(s).Essentially the "later" examination(s) or selection(s) should beperceived as those conducted to fill up the carried forwardvacancies, i.e., vacancies which could not be filled up, when theexamination or selection for years...." must be understood to mean, direct recruits whobecame available through "later" examination(s) or selection(s).Essentially the "later" examination(s) or selection(s) should beperceived as those conducted to fill up the carried forwardvacancies, i.e., vacancies which could not be filled up, when theexamination or selection for the concerned recruitment year was originally/firstconducted. This change it was clarified, was made tostop direct recruits of "later" years, from gaining "...unintended seniority over promotees who are already inposition....", as High Courts and the Supreme Court had"...brought out the inappropriateness...." thereof. It istherefore apparent, that the OM dated 7.2.1986partially modified the "rotation of quotas" principle inthe determination of inter se seniority originallyexpressed in the OM dated 22.11.1959. The OM dated7.2.1986, provided that the "rota" (rotation of quotas)would be adhered to "...only to the extent of availabledirect recruits and promotees....", i.e., for promotee anddirect recruit vacancies which could be filled up throughthe original/first process of examination or selectionconducted for the recruitment year in which thevacancieshadarisen. (c) For the vacancies remaining unfilled when the samewere originally/first sought to be filled up, the slotsavailable under the "rota" principle under the OM dated22.11.1959, would be lost to the extent of the shortfall.In other words, the "rotation of quotas" principle wouldstop operating after, "...the last position upto which it is(was) possible to determine seniority on the basis ofrotation of quotas....", for the concerned recruitmentyear. (d) Paragraph 3 of the OM dated 7.2.1986 provided, themanner of assigning seniority to vacancies carriedforward on account of their having remained unfilled inthe original/first examination or selection process. Thechange contemplated in the OM dated 7.2.1986,referred to hereinabove, was made absolutelyunambiguous by expressing that, "The unfilled directquota vacancies would...be carried forwarded and addedto the corresponding direct recruitment vacancies of thenext year....". It is therefore apparent, that seniority ofcarried forward vacancies would be determined withreference to vacancies of the recruitment year whereintheir selection was made, i.e., for which the "later"examinationorselectionwasconducted. (e) The OM dated 7.2.1986 formulated the stratagem tobe followed, where adequate number of vacancies in arecruitment year could not be filled up, through theexamination or selection conducted therefor. The OMprovided, "...to the extent direct recruits are not available, the promotees will be bunched together at thebottom of the seniority list, below the last position uptowhich it is (was) possible to determine the seniority onthe basis of rotation of quotas with reference to theactual number of direct recruits who becomeavailable....". (f) Paragraph 3 of the OM dated 7.2.1986 furtherpostulated, that the modification contemplated thereinwould be applied prospectively, and that, "...the presentpractice of keeping vacant slots for being filled up bydirect recruits of later years,...over promotees who are(were) already in position, would be dispensed with....".It is therefore apparent, that the slots assigned to aparticular source of recruitment, would be relevant fordetermining inter se seniority between promotees anddirect recruits, to the extent the vacancies couldsuccessfully be filled up (and the unfilled slots would belost) only for vacancies which arose after the OM dated7.2.1986,cametobeissued.(g) The illustration provided in paragraph 3 of the OMdated 7.2.1986 fully substantiates the analysis of theOM dated 7.2.1986 recorded in the foregoing sub-paragraphs. In fact, the conclusions drawn in theforegoing sub-paragraphs have been drawn, keeping inmind the explanatory illustration narrated in paragraph3oftheOMdated7.2.1986. (h) In paragraph 6 of the OM dated 7.2.1986 it wasasserted, that the general principles for determiningseniority in the OM dated 22.11.1959 were being"modified" to the extent expressed (in the OM dated7.2.1986). The extent of modification contemplated bythe OM dated 7.2.1986 has already been delineated inthe foregoing sub-paragraphs. Para 6 therefore leavesno room for any doubt, that the OM dated 22.11.1959stood "amended" by the OM dated 7.2.1986 on theissue of determination of inter se seniority betweendirect recruits and promotees, to the extent mentionedin the preceding sub-paragraphs. The said amendmentwas consciously carried out by the Department ofPersonnel and Training, with the object of remedyingthe inappropriateness of direct recruits of "later"examination(s) or selection(s) becoming senior topromotees with long years of service, in terms of theOMdated22.11.1959. 21. The O.M. dated 7.2.1986, was followed by anotherOffice Memorandum issued by the Government of India,Department of Personnel and Training, dated 3.7.1986(hereinafter referred to as, "the O.M. dated 3.7.1986").The purpose of the instant O.M., as the subject thereofsuggests, was to "consolidate" existing governmental orders on the subject of seniority. Paragraphs 2.4.1 to2.4.4 of the O.M. dated 3.7.1986 dealt with the issue ofinter se seniority between the direct recruits andpromotees. The same are accordingly being reproducedhereunder: 2.4.1 The relative seniority of direct recruits and ofpromotees shall be determined according to the rotationof vacancies between direct recruits and promoteeswhich shall be based on the quota of vacancies reservedfor direct recruitment and promotion respectively in theRecruitmentRules. 2.4.2 If adequate number of direct recruits do notbecome available in any particular year, rotation ofquotas for the purpose of determining seniority wouldtake place only to the extent of the available directrecruitsandthepromotees. In other words, to the extent direct recruits are notavailable the promotees will be bunched together at thebottom of the seniority list below the last position uptowhich it is possible to determine seniority, on the basisof rotation of quotas with reference to the actualnumber of direct recruits who become available. Theunfilled direct recruitment quota vacancies would,however, be carried forward and added to thecorresponding direct recruitment vacancies of the nextyear (and to subsequent years where necessary) fortaking action for direct recruitment for the total numberaccording to the usual practice. Thereafter in that yearwhile seniority will be determined between directrecruits and promotees, to the extent of the number ofvacancies for direct recruits and promotees asdetermined according to the quota for that year, theadditional, direct recruits selected against the carriedforward vacancies of the previous year would be placeden-bloc below the last promotee (or direct recruit as thecase may be), in the seniority list based on the rotationof vacancies for that year. The same principle holdsgood for determining seniority in the event of carryforward, if any, of direct recruitment or promotion quotavacancies (as the case may be) in the subsequent year. ILLUSTRATION: Where the Recruitment Rules provide50% of the vacancies of a grade to be filled bypromotion and the remaining 50% by directrecruitment, and a assuming there are ten vacancies inthe grade arising in each of the year 1986 and 1987 andthat two vacancies intended for direct recruitmentremain unfilled during 1986 and they could be filledduring 1987, the seniority position of the promotees anddirect recruits of these two years will be as under: ILLUSTRATION: Where the Recruitment Rules provide50% of the vacancies of a grade to be filled bypromotion and the remaining 50% by directrecruitment, and a assuming there are ten vacancies inthe grade arising in each of the year 1986 and 1987 andthat two vacancies intended for direct recruitmentremain unfilled during 1986 and they could be filledduring 1987, the seniority position of the promotees anddirect recruits of these two years will be as under: 2.4.3 In order to help the appointing authorities indetermining the number of vacancies to be filled duringa year under each of the methods of recruitmentprescribed, a Vacancy Register giving a running accountof the vacancies arising and being filled from year toyear may be maintained in the proforma enclosed. 2.4.4 With a view to curbing any tendency ofunderreporting/suppressing the vacancies to be notifiedto the concerned authorities for direct recruitment, it isclarified that promotees will be treated as regular onlyto the extent to which direct recruitment vacancies arereported to the recruiting authorities on the basis of thequotas prescribed in the relevant recruitment rules.Excess promotees, if any, exceeding the share failing tothe promotion quota based on the corresponding figure,notified for direct recruitment would be treated only asad-hocpromotees. (Emphasis isours) The following conclusions have been drawn by us fromtheO.M.dated3.7.1986: (a) If adequate number of direct recruits (or promotees)do not become available in any particular year, "rotationof quotas" for the purpose of determining seniority,would stop after the available direct recruits andpromotees are assigned their slots for the concernedrecruitmentyear. (b) To the extent direct recruits were not available forthe concerned recruitment year, the promotees wouldbe bunched together at the bottom of the seniority list,below the last position upto which it was possible todetermine seniority, on the basis of rotation of quotas.andviceversa. (c) The unfilled direct recruitment quota vacancies for arecruitment year, would be carried forward to thecorresponding direct recruitment vacancies of the nextyear (and to subsequent years, where necessary). andvice versa. In this behalf, it is necessary to understandtwo distinct phrases used in the OM dated 3.7.1986.Firstly, the phrase "in that year" which connotes therecruitment year for which specific vacancies areearmarked. and secondly, the phrase "in the subsequentyear", which connotes carried forward vacancies, filledin addition to, vacancies earmarked for a subsequentrecruitmentyear. (d) The additional direct recruits selected, against thecarried forward vacancies of the previous year, would be placed en-bloc below the last promotee. and vice versa. It is, therefore, apparent, that the position expressed inthe O. Ms. dated 7.2.1986 and 3.7.1986, on the subject of inter se seniority between direct recruitsand promotees, was absolutely identical. This is indeedhow it was intended, because the OM dated 3.7.1986was only meant to "consolidate" existing governmentalinstructions, on the subject of seniority. 4. He contended that the order of the Tribunal is required to be quashed and set aside. He has also taken us to Rule 11 which isreproduced as under:- “11.Seniority of meritorious sportsmen appointed inrelaxation of Recruitment Rules.- where sportsmen arerecruited through the Employment Exchange of by directadvertisement and are considered along with other generalcategory candidates, they may be assigned seniority in theorder in which they are placed in the panel for selection. the subject of inter se seniority between direct recruitsand promotees, was absolutely identical. This is indeedhow it was intended, because the OM dated 3.7.1986was only meant to "consolidate" existing governmentalinstructions, on the subject of seniority. 4. He contended that the order of the Tribunal is required to be quashed and set aside. He has also taken us to Rule 11 which isreproduced as under:- “11.Seniority of meritorious sportsmen appointed inrelaxation of Recruitment Rules.- where sportsmen arerecruited through the Employment Exchange of by directadvertisement and are considered along with other generalcategory candidates, they may be assigned seniority in theorder in which they are placed in the panel for selection. Where recruitment to a post is through a selection madeby the Staff Selection Commission, whether by acompetitive examination or otherwise, the sportsmenrecruited in the departments themselves should be placeen bloc Junior to those who have already beenrecommended by the Service Selection Commission. Theinter se seniority of sportsmen will be if the order ofselection.” 5. He contended that the respondents are wrongly granted thebenefit and the petitioner is entitled to seniority from the date onwhich the cadre or post was vacant in the original department.The order of 02.01.2002 was justified and they ought to havebeen given seniority. 6. Counsel for the respondent Mr.Jain has relied upon thedecision in Regional Manager, A. P. SRTC V/s N. SatyanarayanaAnd Others (2008) 1 SCC 210, wherein it has been held asunder:- “9. It is to be noted that the ratio of the decision in the saidcase was to the following effect: It is difficult to comprehend the ratio of the above decision.While purporting to clarify the order passed in the writpetition by the learned Single Judge, the Division Benchimported a totally alien concept of continuous service withinthe meaning of Section 25B of the I.D. Act which was forthe special purpose of applying the provisions as to lay offand retrenchment contained in Chapter V-A of the Act.Moreover, the order in the writ appeal is as vague as it couldbe. The expression 'date of continuous appointment' makesno sense. Even if it is taken that the said wording has beeninaccurately used for the words 'continuous service', still,the direction is unintelligible. Continuous service within themeaning of Section 25B for how long? Nothing has beenspecified. In this state of things, in W.P. No. 24263 of 1998,a learned Single Judge proceeded on the basis that as perthe decision in W.A. No. 705/1995, the employees wereentitled to seek regularization with effect from the date ofinitial appointment, thus, making the clarification given bytheDivisionBenchvirtuallyotiose. In the light of the above discussion, we are of the view thatthe law laid down or the directions given in various writpetitions/writ appeals are not legally sustainable for morethan one reason. Firstly, wrong criterion based on Section25B of I.D. Act was applied in case after case. Secondly, therespondents and other similarly situated employeesapproached the Court under Article 226 long after theirregularization, thereby unsettling the settled position.Thirdly, on the facts of these cases, it is evident that theservices of the employees who were recruited as Conductorswere regularized within a reasonable time. The respondent-employees were, therefore, treated fairly. No service rule orregularization or any other principle of law has been pressedinto service by the respondents to claim regularization froman anterior date i.e. right from the date of their initialappointmentasdailywageemployees. 10. Even a bare reading of paragraph-18 of the judgment onwhich reliance has been placed by the learned Single Judgeand the Division Bench, it is clear that the relief wasmoulded to avoid anomalies and in view of the peculiarsituation involved. This Court categorically held that theorders impugned in the appeals were not sustainablebecause the writ petitions were filed after a long lapse oftime. Similar is the position here. The regularization wasdone w.e.f. 1.8.1987 and the writ petitions were filed in theyear 1999. That being so and since in the writ petitionwithout any explanation has been offered for the delayedapproach, writ petition should have been dismissed on theground of delay and laches.” 7.He contended that the order dated 11.11.2007 waschallenged almost after 3 years on 09.11.2010 and officeobjection and everything was removed only on 22.11.2010 whichwas hopelessly time barred. In view of the decision of SupremeCourt, the petition deserves to be dismissed. 8.Counsel for the performa respondent Mr. Mathur contendedthat in view of Para 20 and 21 of the Supreme Court judgmentreferred above, the issue no longer survives and seniority will becounted from the date of requisition and the same will govern thecase. 9.Mr. Jain has relied upon the order of the Tribunal wherein ithas been observed as under:- 7. We have given due consideration to the submissionmade by the learned counsel for the applicant. Weentirely agree with the contention so raised by thelearned counsel for the applicant. From the materialplaced on record and even from the impugned order(Annexure A/1), it is clear that applicants have neverobjected to their seniority list. Even respondent No. 1 inPara No. 6 of the impugned order has specifically statedthat objections regarding seniority list were invited fromthe affected persons and one Shri Sunil Verma hasobjected to the seniority list vide his representation dated22.12.1989 and no action has been taken on the saidrepresentation. No representation whatsoever was filedby the respondents against the seniority lists in the year1991, 1993, 1994 and 1999. It is further clear from thisPara that one Shri Sunil Verma (Respondent No. 2) andPramod Goyal (Respondent No. 3) had filed OA beforethis Tribunal, which was disposed of vide order dated30.07.2001 thereby directing the respondents to decidethe representation of the applicants. According to us, itwas not permissible for the respondents to entertain sucha belated claim of the private respondents in view of thelaw laid down by the Apex Court whereby it has beenheld that seniority dispute raised after more than adecade after joining the service should not be re-openedand the matter has to be dismissed on that ground alonewithout going into the merit of the case. This is what the Apex Court has held in the case of B.s. Bajwa & Anothervs. State of Punjab & Others 1998 SCC (L&S) 611. At thisstage it will be useful to quote Para No. 7 of thejudgment, which thus reads as under:- Apex Court has held in the case of B.s. Bajwa & Anothervs. State of Punjab & Others 1998 SCC (L&S) 611. At thisstage it will be useful to quote Para No. 7 of thejudgment, which thus reads as under:- "7. Having heard both sides we are satisfied that the writpetition was wrongly entertained and allowed by the SingleJudge and, therefore the judgements of the Single Judge andthe Division Bench have both to be set aside. The undisputedfacts appearing from the record are alone sufficient to dismissthe writ petition on the ground of laches because thegrievance was made by B.S. Bajwa and B.D. Gupta only in1984 which was long after they had entered the department in1971-72. During this period of more than a decade they wereall along treated as junior to the aforesaid persons and theright inter se had crystallized which ought not to have beenreopened after the lapse of such a long period. At every stageothers were promoted before B.S. Bajwa and B.D. Gupta andthis position was known to B.S. Bajwa and B.D. Gupta rightfrom the beginning as found by the Division Bench itself. It iswell settled that in service matters the question of seniorityshould not be reopened in such situations after the lapse of areasonable period because that results in disturbing thesettled position which is not justifiable. There was inordinatedelay in the present case for making such a grievance. Thisalone was sufficient to decline interference under Article 226and to reject the writ petition." The law laid down by the Apex Court is squarely applicable tothe facts of this case. In this case, private respondentsentered the Department in the year 1986-1988. Therespondents have issued as many as six seniority lists from1986 onwards and objections were also invited. The privaterespondents were shown junior to the applicants in all theseniority lists, which was circulated in the years 1989, 1991,1993, 1994 and 1999. Even for argument sake, it is to beadmitted that one shri sunil Verma had objected to theseniority list as early as on 22.12.1989, it was not open forhim to file OA in this Tribunal after a lapse of more than 11years in 2001. In fact, this Tribunal should not haveentertained that OA in view of the law laid down by the ApexCourt in the case of State of orissa vs. Chandra ShekharMishra, 2003 SCC (L&s) 878 whereby it has been stated thateven direction to decide the representation where the case ishopelessly time barred should not have been given by theTribunal. Be that as may be, since the Tribunal had givendirection to decide the representation in accordance with lawand the private respondents has not racked up the issue of thesubsequent seniority lists issued from time to time, we are ofthe view that the action of the respondents to re-open theentire issue at this belated stage is against the law laid downby the Apex Court in the case of B.S. Bajwa (supra). Furtherthe Apex Court in the case Bimlesh Tanwar vs. State ofHaryana & Others SLJ 2003 (2) 220 in para No. 46 has held asunder:- "46. Furthermore, it is now well settled that a settled positionshould not be unsettled. The respondents had already beenposted to the post of Additional District Judge. As wouldappear from the report of the Sub- Committee that the seniority list was published in the year 1992. Representationswere, however, made only in the year 1997 which wasrejected by the High Court on 22 August, 1997. The Writpetition was filed in March 1998 which was dismissed byreason of the impugned judgment dated 18.08.1999. "46. Furthermore, it is now well settled that a settled positionshould not be unsettled. The respondents had already beenposted to the post of Additional District Judge. As wouldappear from the report of the Sub- Committee that the seniority list was published in the year 1992. Representationswere, however, made only in the year 1997 which wasrejected by the High Court on 22 August, 1997. The Writpetition was filed in March 1998 which was dismissed byreason of the impugned judgment dated 18.08.1999. 8. Thus in view of the law laid down by the Apex Court, we areof the view that the applicants are entitled to the relief on thisscore alone namely that it was not proper for respondent No.1 to reopen the matter again after a lapse of 16 years, whichwill amount to unsettled the settled position and also that asmany as 5 to 6 seniority lists were circulated and objectionswere invited against these seniority lists but privaterespondents choose not to object the matter and simply filingof the OA at belated stage after a lapse of 11 years will notentitled the private respondents to reopen the entire issueagain, more particularly in view of the law laid down by theApex Court in the case of State of orissa vs. Chandra ShekharMishra, 2003 SCC (L&S) 878, where the Apex Court hasdeprecated the action of the Tribunal to entertain the belatedOA thereby giving direction to decide representation of theapplicant, once the representation was rejected by thedepartment thereafter entertaining another OA and grantingrelief to the applicant, by holding that such course was notpermissible and state claim ought not to have beenentertained. 9. Even on merit, the applicant has made out a case for ourinterference. In order to give relief to the private respondents,respondent No. 1 has relied upon the instructions, issued bythe Ministry of Home Affairs dated 22.12.1959, and has alsorelied upon certain judgements of the Apex Court, which havebeen referred to in the earlier part of the judgement. We areof the firm view that respondent No. 1 has not consider the matter in the right perspective and has misread the circularissued by the Government of India, Ministry of Home Affairsas well as judgements rendered by the Apex Court, which wasin different context. As already stated above, the judgementof the Apex Court was rendered in the context where thedispute of relative seniority between direct recruits andpromotees was involved. The seniority has to be determinedbetween direct recruits and promotees based on the quota ofvacancies reserved for direct recruitment and promotionrespectively. The issue involved in this case relates to thedirect recruits as the applicant as well as the respondentswere recruited to the post through a selection made by SSC orotherwise. Thus the stand taken by the respondents that thequestion of length of service is irrelevant where quota isinvolved is wholly without any basis. At this stage, it will beuseful to quote Para No. 4 of the instructions of OM dated22.12.1959, which thus reads as follows "4. Direct Recruits. Notwithstanding the provisions of para 3above, the relative seniority of all recruits shall be determinedby the order of merit in which they are selected for suchappointment on the recommendations of the UPSC or otherselecting authority, persons appointed as a result of an earlierselection being senior to those appointed as a result ofsubsequentaction. action. Provided that where persons recruited initially on a temporary basis are confirmed subsequently in an order different fromthe order of merit indicated at the time of their appointment,seniority shall follow the order of confirmation and not theoriginal order of merit." "4. Direct Recruits. Notwithstanding the provisions of para 3above, the relative seniority of all recruits shall be determinedby the order of merit in which they are selected for suchappointment on the recommendations of the UPSC or otherselecting authority, persons appointed as a result of an earlierselection being senior to those appointed as a result ofsubsequentaction. action. Provided that where persons recruited initially on a temporary basis are confirmed subsequently in an order different fromthe order of merit indicated at the time of their appointment,seniority shall follow the order of confirmation and not theoriginal order of merit." 10. From bare perusal of the aforesaid provisions, it is clearthat the relevant seniority of direct recruits shall bedetermlned by the order of merit in which they are selectedfor such appointment on the recommendation of the UPsc orother selecting authority. Admittedly, the applicants wereselected in the year 1983 as direct recruits and they joinedthe department in 1983 Further, it is also clear that requisitionwas sent to the ssc by the Department in the year 1982 forthe 33 vacancies and the SSC sponsored the names of 32candidates on the basis of the result of the competitiveexamination held in 1982. Against the 32 candidatessponsored by the ssc, only 17 candidates joined thedepartment. Further the stand taken in the reply by therespondents, lt is evident that subsequently anotherrequisition was sent in the year 1984 and the remaining 15candldates Including the private respondents were sponsoredby the ssc on 26.09.1984 Annexure A/10). Thus in view of thestand taken by the respondents in their reply, it is notunderstood how the private respondents can be treated asappointee of the year 1982? when they have not joined thedepartment: despite the recommendation made by theselection committee, only 17 persons joined the departmentpursuant to such recommendation. The fact remains thatanother requlsition was sent in the year 1984 and lt ispursuant to such requlsition, name of the 15 candidates wererecommended by the ssc and subsequently the privaterespondents were appointed and joined the department in theyear 1986 and 1988. Thus in view of the provisions containedin Para No. 4 of the instructions dated 22.12.1959, therespondents could not have allotted the seniority from theretrospective date when they were not born in the cadre atthe relevant time. As already stated above, it appears thatrespondent No. 1 has relied on Para 6 of the aforesaid memo,which was not applicable in the instant case, v which relate tothe seniority of direct recruits and the promotees, which thusreads as under:- "6. Relative seniority of Direct Recruits and of Prom