Sunday, 7 April 2019

Whether employer should advise employees about service rules?

The learned Tribunal as well as the High Court granted the relief
to respondent No. 4 on the ground that the department ought to
have informed and/or advised the employee with respect to the
seniority to be fixed on the basis of rotaquota
rule and as the

department failed to do so, respondent No. 4 cannot be denied
his legitimate right to be placed at an appropriate place in the
seniority list, as otherwise also he was selected for a promotion in
the LDCE quota also. On the aforesaid terms, the learned
Tribunal as well as the High Court are not justified in directing to
put respondent No. 4 in the seniority list above the appellant
who, in fact, was appointed in the LDCE quota and the
respondent No. 4 never accepted his promotion in the LDCE
quota. It was for the employee to know the rule. The department
was not expected to advise and/or tell the employee about how
the seniority will be fixed and/or about the rotaquota
rule.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7779 OF 2012

P. Subramaniyam Vs Union of India


M. R. Shah, J.
Dated:March 15, 2019.

1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 11.10.2007 passed by the High Court
of Judicature at Madras in W.P. No. 18958 of 2007 by which the
High Court has dismissed the said writ petition and upheld the
order dated 31.10.2006 passed by the Central Administrative
Tribunal at Madras, the original writ petitioner has preferred the
present appeal.

2. The facts leading to the present appeal in nutshell are as
under:
That the appellant herein was appointed as Semiskilled
worker
on 25.05.1991 in the respondent no. 2 office, namely, Heavy
Alloy Penetrator Project, Trichy. That thereafter he was promoted
as Skilled worker on 21.10.1993. That thereafter, the appellant
was further promoted and designated as Highly Skilled worker on
31.03.2000. That the next promotional post was the Chargeman
GradeII
(Electrical). That the post of Chargeman GradeII
was
governed by the statutory Rule as notified in SRO No. 191 dated
28.11.1984 by the Government of India and the post was
required to be filled in as per the quota prescribed for that post,
namely, 50% by way of promotion; 25% by way of LDCE (Limited
Departmental Competitive Examination) and 25% by way of
Direct Recruitment. That the appellant herein was promoted to
the post of Chargeman GradeII
(Electrical) vide order dated
08.08.2000 in the quota of 25% LDCE. It appears that
respondent No. 4 herein applied for the post of Chargeman
GradeII
(Electrical) in 25% Direct Recruitment quota as well as
in 25% LDCE quota. He was selected in both the quotas – Direct
Recruitment and LDCE. However, he was appointed in the Direct

Recruitment quota in the month of April 2000 and he resumed
his duty on the post of Chargeman GradeII
in the month of April
2000 itself. It so happened that he was also promoted and
selected in the quota of 25% LDCE also along with the appellant.
However, at the relevant time, he did not accept his promotion to
the post of Chargeman GradeII
(Electrical) in the 25% LDCE
quota. It appears that, thereafter, the seniority list in the cadre
of Chargeman GradeII
was published considering the relevant
Rule and, as per the rule position in that year, the direct
recruitee was to be placed below the LDCE, as the LDCE
selection process is stated as Fasttrack promotion. Respondent
No. 4 was placed in the seniority list below the appellant, as
respondent No. 4 was appointed in the 25% Direct Recruitment
quota. Therefore, respondent No. 4 made a representation dated
12.12.2005 to respondent No. 2 stating, inter alia, that as he was
appointed to the post of Chargeman GradeII
in the month of
April 2000, much prior to the appellant was promoted and,
therefore, there is a mistake in the selection list and he ought to
have been placed in the seniority list above the appellant. That
vide communication dated 20.12.2005, the representation of
respondent No. 4 was rejected on the ground that he has been
4
placed at an appropriate place in the respective seniority list as
per the rotaquota
rule.
2.1 That thereafter respondent No. 4 approached the Central
Administrative Tribunal, Madras by way of O.A. No. 161 of 2006.
It was the case on behalf of respondent No. 4 before the learned
Tribunal that as he was selected for the appointment on the post
of Chargeman GradeII
against the LDCE quota also and as he
being more meritorious than the appellant, and that if he would
have been told with respect to the rotaquota
rule and would
have been told that a direct recruitee shall be placed below the
LDCE promotee and below the promotee who has been promoted
in LDCE quota, in that case, he would have opted for the
appointment against LDCE quota. It was the case on behalf of
respondent No. 4 that he made a representation which ought to
have been considered favourably. The O.A. was opposed by the
department by submitting that the seniority list has been fixed as
per the rotaquota
rule. It was also the case on behalf of the
department that as respondent No. 4 was appointed in the Direct
Recruitment quota, at the relevant time, he did not accept the
promotion in the LDCE quota. Therefore, it was prayed to
dismiss the O.A.
5
2.2 However, by the judgment and order dated 31.10.2006, the
learned Tribunal allowed the said O.A. by observing that as an
employee respondent No. 4 was not aware of the quotarota
rule
maintained by the department and also how the seniority list will
be fixed between the LDCE appointee and direct recruitee and if
he had been told that as per the quotarota
rule, the LDCE
candidate would rank senior even though he was appointed as
direct recruitee four months earlier, he would have definitely
accepted the promotion through LDCE quota. The learned
Tribunal observed that the department has failed to give proper
guidance and advice to one of its employees and therefore he
could not be denied of his legitimate right which will have a
bearing on his seniority. Consequently, the learned Tribunal
directed the department to place the original applicant in the
seniority list above the appellant herein and one another.
2.3 Feeling aggrieved and dissatisfied with the order of the
learned Tribunal, the appellant preferred a writ petition before
the High Court and, by the impugned judgment and order, the
High Court has dismissed the said writ petition and confirmed
the order passed by the learned Tribunal. Hence the original writ
petitioner has preferred the present appeal.
6
3. Having heard the learned counsel appearing on behalf of the
respective parties and considering the reasons given by the
learned Tribunal and confirmed by the High Court, we are of the
opinion that both, the High Court as well as the learned Tribunal,
have committed a grave error in directing to place the original
applicantrespondent
No. 4 herein in the seniority list above the
appellant herein. It is an admitted position that the appellant
herein was promoted to the post of the Chargeman GradeII
in
the LDCE quota. It is an admitted position that, as per the
rules, the seniority was required to be fixed as per the quotarota
rule and as per the rule position in that year the direct recruitee
was to be placed below the LDCE quota, since the LDCE selection
process was treated as the Fast Track promotion. It is an
admitted position that respondent No. 4 did not accept his
appointment/promotion in LDCE quota though selected and
offered and he continued his appointment as a direct recruitee.
The learned Tribunal as well as the High Court granted the relief
to respondent No. 4 on the ground that the department ought to
have informed and/or advised the employee with respect to the
seniority to be fixed on the basis of rotaquota
rule and as the

department failed to do so, respondent No. 4 cannot be denied
his legitimate right to be placed at an appropriate place in the
seniority list, as otherwise also he was selected for a promotion in
the LDCE quota also. On the aforesaid terms, the learned
Tribunal as well as the High Court are not justified in directing to
put respondent No. 4 in the seniority list above the appellant
who, in fact, was appointed in the LDCE quota and the
respondent No. 4 never accepted his promotion in the LDCE
quota. It was for the employee to know the rule. The department
was not expected to advise and/or tell the employee about how
the seniority will be fixed and/or about the rotaquota
rule. As
observed above, the fact remains that the appellant was
appointed in the LDCE quota and in the very year, respondent
No. 4 was appointed as a direct recruitee. As observed
hereinabove, as per the rule position in that year, the direct
recruitee was to be placed before the LDCE, therefore, respondent
No. 4 was rightly placed below the appellant in the seniority list
being a direct recruitee. Under the circumstances, both, the
High Court as well as the learned Tribunal committed an error in
directing to place respondent No. 4 in the seniority list above the
appellant.

4. In view of the above and for the reasons stated above, the
present appeal succeeds. The appeal is allowed accordingly and
the impugned judgment and order dated 11.10.2007 passed by
the High Court in W.P. No. 18958 of 2007, upholding the order
passed by the learned Tribunal, as also the order dated
31.10.2006 passed by the learned Tribunal in O.A. No. 161 of
2006, are hereby quashed and set aside. Consequently, the
original application No. 161 of 2006 preferred by respondent No.
4 herein stands dismissed. No costs.
........................................J.
[L. NAGESWARA RAO]
........................................J.
[M. R. SHAH]
New Delhi,
March 15, 2019.
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