K.M. Sebastian And Ors. vs Union Of India And Ors.
1986 Latest Caselaw 287 Del

JUDGMENT

D.K. Kapur, C.J

(1) There are two appeals before the Court, both directed against the judgment of Wad J., in Civil Writ No. 268/81 delivered on 17th April, 1984. One appeal is on behalf of Shri K.M. Sebastian Shri A.Mitra, Shri D.R. Julka and Shri Y.P.Kapoor, and the other appeal is by the Union of India. The concerned respondent in each case is Shri R. Srinivasan, who was the petitioner in the aforementioned Writ Petition. The grievance of the petitioner in the said Writ Petition can be shortly stated. He was a member of the Military Lands and Cantonments Service Class-I, later converted into the defense Land and Cantonments Service The promotion form this post was to the post of Deputy Director/Assistant Director in the Service. Formerly, this post was known as Assistant Director. In 1971, there were two vacancies to which Shri D.C. Choudhari and Shri Harpal Singh, were promoted. It appears that then there were three more vacancies, which resulted in the promotion of Shri Gamkhar, Shri Anantharaman and Shri Krishnaswamy. In 1972, there were five vacancies. The persons promoted were Shri Sethi, Shri Oberoi, Shri Bedi, Shri Kumaran, and Srinivasan. Shri Srinivasan, who was the petitioner in the Writ Petition, joined the post on 22nd August, 1973. In 1974, there were five vacancies ; the promotees were Shri K.M. Sebastian, A Mitra, Shri J.D. Julka, Shri Y.P. Kapoor, and Shri S.R.Lakshmanan. Of these, Shri K.M. Sebastian, Shri A. Mitra and Shri D.R. Julka were respondents 4 to 7 in the Writ Petition.

(2) It appears that Shri K.K. Gupta had filed a Writ Petition being C.W. No. 102/69 relating to the promotions made in 1968. This was a case relating to the seniority of Shri K.K. Gupta in the Military Lands, and Cantonments Service. The dispute was regarding the seniority of direct recruits and promotess. This High Court allowed that petition and directed the re-fixation of Shri K.K. Gupta's seniority. A new seniority list was accordingly prepared.

(3) In accordance with the new seniority list, the Department held a review D.P.C. for several years. As a result of the review D.P.C., Shri Srinivasan was selected in 1974, instead of in 1972. In the original D.P.C. of 1971, Shri Sebastian was not selected, but in the review D.P.C., Shri Sebastian was selected. In 1974, Shri Srinivasan. who had previously been selected in 1972 was selected Along with respondents 5,6 and 7, i.e., Shri Mitra, Shri Julka and Shri Kapoor. As a result, Shri Srinivasan who was previously senior to Shri Sebastian, Shri Gupta, Shri Julka and Shri Kapoor, was placed below them.

(4) The Writ Petition filed by the petitioner, now respondent Shri Srinivasan was to the effect that the review D.P.C., was Held without legal authority because Shri K.K. Gupta had not prayed for any review D.P.C., and furthermore, the orders were Malafide to favor Shri Sebastian. It was also claimed that the decision of the review D.P.C., was arbitrary. It was also claimed that where as Shri Sebastian was actually promoted on 1st January, 1975, he was given the benefit of national seniority from 22nd July, 1971, which was without the authority of D.P.C.

(5) There was yet another review D.P.C., for correcting the seniority list. In the revised seniority list, the seniority was shown amongst the Assistant Directors as follows : Shri Sebastian 16 Shri Mitra 23 Shri Gupta 24 Shri Julka 25 Shri Kapoor 26 Shri Srinivasan 27

(6) It may be mentioned that this 1983 re-fixation took place even while the petition of Shri Srinivasan was pending in the High Court. That petition had been filed in 1981.

(7) The learned single Judge considered the review D.P.Cs., in great detail and came to the conclusion that the evaluation of Shri Sebastian as very good and his consequential selection in 1971 was an arbitrary act.

(8) As it happens, Shri Srinivasan was selected by the original D.P.C. in 1972, and his seniority was not at all affected by Shri K.K. Gupta's decision. He remained exactly in the same position. He was also selected and posted in 1972, because he joined the post after selection and also served from 22nd August, 1973. The Learned Single Judge came to the conclusion that there was no reason for holding that Shri Srinivasan's selection in 1973 was bad and the review D.P.C., acted without authority in coming to the conclusion that Shri Srinivasan was not as validly promoted on 23rd August, 1973. Furthermore, he served in the post after due selection.

(9) The learned Single Judge also came to the conclusion that the judgment in Sbri K.K. Gupta's case had not set aside any promotion made earlier on the basis of the original seniority list. Nor was mere any claim in Shri Gupta's case about Shri Srinivasan's selection. This is also obvious from the fact that Shri Gupta files his petition in 1969, whereas Shri Srinivasan was selected in 1973 long after that Writ Petition was filed.

(10) The counsel for the respondent filed a chart to show how Shri Srinivasan was selected in 1974, by the review D.P.C. instead of 1972. It was also contended that whenever a seniority list is revised, there has to be a review D.P.C. We have not been able to see either the wisdom or the cause or its necessity. The judgment in Sbri Gupta's case is simple one. The relevant portion has been quoted as annexure 'C'. It reads as follows : "WE,therefore, quash the order dated January 20, 68 conveyed by the Government to the petitioner. We also consider it appropriate to grant the suitable relief of quashing the seniority list corrected up to 31st October, 1966, in as much as the order dated January 30, 1968 is based on the view that the said seniority list was correctly drawn up. We direct the Government to reconsider the seniority of the promotee respondents as on October 31, 1966 in the light of the observations made above. If the Government finds it necessary to take subsequent events into account it shall hear the parties." We fail to understand how this is connected with the selections made in 1971, 1972 1973 and 1974. It gives no authority at all to the Government to hold a review D.P.C. for 1972 so as to affect Shri Srinivasan who was not party to that Writ Petition. It may be mentioned that there were as many as 27 parties involved in that petition and none of the persons now involved was a party to Writ Petition No. 102/69 decided on 26-9-1975,

(11) It was contended before us on behalf of and respondents that whenever a situation like the one visualised in the decision of the Writ Petition occurs, then all the promotions for years on end are to be reviewed. We see no substance in this contention. The promotions already made before the judgment, were not at all directed to be disturbed and nor could they be disturbed.

(12) In fact, even if some disturbance could have occurred as a result of the judgment delivered in 1975, it had to be restricted to the persons who were involved in that case and not to others who came much later into the service. There was no Justification at all to review the promotions made on a comparison of the the merits of other persons in the service for other years. It was contended on behalf of the respondents that the relevant rules were such that review D.P.Cs., had to be held for all the years. Naturally, if the Court had directed, then this would have to be done. But, there was no such direction in the judgment we have reproduced above. Furthermore, it is perfectly clear that Shri Srinivasan was appointed and was already serving from the date of his selection by the D.P.C., and even the other persons who have now been placed before him never joined in the higher rank before him. They were selected in 1974, whereas Shri Srinivasan was selected in 1972. The manner in which the rules have been applied is an act of mesmerism to change the inter-se seniority of previously selected condidates. It may also be observed that the change occurred years after the actual selection, thus leading to chaotic results.

(13) The central core of the whole case and in fact the foundation of all reasoning in relation to the facts of the case is the selection of 1972. In that selection by the D.P.C., Shri Srinivasan was No. 15, i.e. at the bottom of the candidates considered by the DP.C. All the other respondents involved in this case, namely, Shri Sebastian, Shri, Mitra, Sbri Gupta and Shri Kapoor were seniority-wise higher than Shri Srinivasan at the time of consideration. The D.P.C. selected Shri Srinivasan on account of his outstanding record. He was selected Along with Shri Sethi, Shri Oberoi, Shri Bedi and Shri Kumaran, who had an equally good record. Shri Sebastian, Shri Mitra, Shri Gupta and Shri Julka were not selected. This means that the D.P.C., of 1972 as originally constituted had the opportunity to review the comparative merits of all the persons who are petitioner and respondents in this Writ at one and the same time. It preferred Shri Srinivasan to others. This fact remains unanswered. It cannot be that when Shri Srinivasan was better than the other four candidates who are now respondents in the Writ in 1972, that he could be eliminated in the review D.P.C., and relegated to 1974. This manner of applying the judgment of the High Court relating to quite a different set of persons, seems to be totally unjustified and against the rule of law.

(14) We may observe here that even if some injustice had resulted to any of the persons involved in previous selections because of the re-fixing of seniority as visualised in Shri K..K.. Guptas case, the propel way to rectify the error was to create supernumerary posts in which these persons could be adjusted. It was not proper to up-set the perfectly normal and valid selection made in respect of persons not involved in that case.

(15) We may also observed that one of the golden rules concerning Seniority is length of service'. Shri Srinivasan was already serving from 1972. None of the others joined service before him. He had necessarily to be senior to the others. Ws cannot see how his period of service prior to the promotion of others can be undone by administrative action particularly in view of Rule Ii of the Service Rules. We think it is absolutely necessary to get a direction from the Court before any such action can be taken. The application of the judgment in Gupta's case in this manner was unjustified. We, therefore, agree with the learned Single Judge that the proper order was to allow the Writ Petition. We would accordingly reject these two appeals.

(16) At the hearing we may state that learned counsel for Shri Srinivasan stated that he was not much interested in disputing the position of Shri Sebastian and if he was considered to be there in 1971 before Shri Srinivasan, it did not much affect the petitioner. We would, therefore, upheld the Judgment of the learned Single Judge with this slight modification that the position of Shri Sebastian would not be affected by that judgment, but otherwise as far as the other persons were concerned, Shri Srinivasan would continue to rank in seniority as held earlier by him on his actual promotion resulting from the original D.P.C. Both the appeals are otherwise dismissed. Shri Srinivasan will get his costs from the Union of India. Counsel's fee Rs. 750.00 .