D.P. DAS versus UNION OF INDIA AND ORS.

Citation: [2011] 13 S.C.R. 739 · Decided: 09-08-2011 · Supreme Court of India · Bench: G.S. SINGHVI · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2011] 13 (ADDL.) S.C.R. 739 
D.P. DAS 
v. 
UNION OF INDIA AND ORS. 
(Civil Appeal Nos.7002 of 2004) 
AUGUST 9, 2011 
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.] 
Service Law - Seniority - lnter-se seniority of direct 
recruits - Determination of - Held: Seniority is an incidence 
A 
B 
of service and where the service rules prescribe the method c 
of its computation, it is squarely governed by such rules - In 
absence of a rule governing seniority, 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 
D 
the facts and circumstances of the case - 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 
E 
to the facts of the case - The argument that the date of 
interview would have to be considered as a guide for 
determination of seniority cannot be accepted as such a date 
is wholly fortuitous - Accepting as guideline, something which 
is absolutely fortuitous and based on chance, is inherently 
unfair and unjust - As in this case there is no rule prescribed 
F 
for the determination of seniority, this Court is left with only 
the guideline flowing from the executive instruction of 1946, 
in order to evolve a just policy, for determination of seniority 
- From the analysis of the executive instructions, it is clear 
that the 1946 instruction has not been superseded and the 
G 
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.- In the 
premises aforesaid the seniority of the officers who were 
739 
H 
740 
SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R. 
A recommended on the same date must be decided by their 
respective age - 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 
8 recommended. 
Service Law - Seniority - Determination of - Held: 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, 
C which are just and fair - This is the mandate of Articles 14 
and 16 - Constitution of India, 1950 - Articles 14 and 16. 
In the year 1983, Specialist Medical Officers (SMOs) 
were recruited in the Ordnance Factories Organization in 
0 the category of Obstetrics, Gynaecology, 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) was sanctioned for filling up 
E 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. 
Respondent No.1 referred the matter to the UPSC for 
preparation of the common seniority list. The SMOs were 
F 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. The UPSC decided to fix the seniority, based 
G on the date of interview i.e. candidates interviewed on an 
early date to be senior to those interviewed on a later 
date. In the seniority list, respondent Nos. 4, 5 and 6 were 
placed above the appellant. As appellant felt aggrieved 
by the publication of the said seniority list, he made 
H representations before respondent No.1. However, no 
D.P. DAS v. UNION OF INDIA AND ORS. 
741 
reply was received by the appellant from respondent A 
No.1. Being aggrieved, the appellant preferr.ed an original 
application before the Administrative Tribunal and prayed 
to quash the said seniority list and also for maintenance 
of discipline wise seniority list initially prepared by the 
· ·UPSC and for kee,pil)g Confidential Reports as criteria for B 
selection to the next higher grade and also to rearrange 
the seniority of the candidates on the basis of age

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