Their lord ships of Apex court of India in the following case discussed the methods of preparing of seniority list.
Case facts in Brief :-
in the year 1983, the first batch of the Specialist Medical Officer (SMO) in the Ordnance Factories Organization was recruited in the category of Obstetrics, Gynecology, Medicine and Surgery. The appellant was one of the five recruited persons and he belonged to the category of Surgery. In the year 1991, on the recommendation of the Fourth Pay Commission, one post in the Indian Ordnance Factories Health Services (Group A, grade of Rs.5900-6700) was sanctioned for filling up amongst the SMOs cadre. The specialists cadre was in different disciplines and hence, there was necessity of preparing a combined gradation list in the SMOs cadre. The respondent No.1 referred the matter to the UPSC for preparation of the common seniority list. Further, the SMOs were recommended by the UPSC by three different lists, two of which were made on the same date and therefore the UPSC was requested to furnish the relative order of seniority of those SMOs who are recommended on the same date. Dispute arose the appellant who has accepted this seniority list fight justice and finally came to apex court. Findings of Apex court:- The Supreme Court in M.B. Joshi & others. V. Satish Kumar Pandey & Ors., AIR 1993 SC 267 has laid down that it is the well settled principle of service jurisprudence then in the absence of any specific rule the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of the service and not on any other fortuitous circumstances. .Determination of seniority is a vital aspect in the service career of an employee. His future promotion is dependent on this. Therefore, the determination of seniority must be based on some principles, which are just and fair. This is the mandate of Articles 14 and 16. In The Manager, Government, Branch Press and another v. D.B. Belliappa reported AIR 1979 SC 429, a three-Judge Bench of this Court construing Articles 14 and 16 interpreted the equality clause of the Constitution as follows:- "...The executive, no less than the judiciary, is under a general duty to act fairly. Indeed, fairness founded on reason is the essence of the guarantee epitomized in Articles 14 & 16(1)." (see para 24 at page 434) Another three-Judge Bench of this Court in Bimlesh Tanwar v. State of Haryana & other, (2003) 5 SCC 604, while dealing with the question of absence of a rule governing seniority held that an executive order may be issued to fill up the gap. Only in the absence of a rule or executive instructions, the court may have to evolve a fair and just principle of seniority, which could be applied in the facts and circumstances of the case. (see para 47 at page 619) In the instant case, no record has been brought before the Court to ascertain merit wise position of the persons who were directly recruited. Except the office memorandum of 1946, which is still in force, no other rule or executive instruction has been shown to apply to the facts of the case. From the analysis of the executive instructions referred to hereinabove, it is clear that the 1946 instruction has not been superseded and the same refers to the acceptance of the age of the candidate as the determining factor for seniority. Such a basis is not fortuitous and is otherwise just and reasonable. The contrary view taken by the High Court of fixing seniority on the basis of date of interview, being wholly fortuitous, cannot be accepted. The reliance by the respondent(s) on judgment of this Court in B. Premanand and others v. Mohan Koikal and others, (2011) 4 SCC 266, is misconceived in the facts of the case. In that case this Court was dealing with Rule 27(c) of the Kerala State and Subordinate Services Rules, 1958. In the instant case there is no rule. Therefore in this case, this Court has to evolve a fair and just basis of seniority on the basis of the office memorandum discussed herein above. Result :- For the reasons aforesaid this Court holds that for determination of seniority of the officers who were recommended on the same date, age is the only valid and fair basis as such their seniority should be decided on the basis of age of the candidates who have been recommended. The apex court allowed the case. for full details see APEX COURT CASE LAW MY WEB SITE