Union Of India vs Santosh Jain & Ors.
1999 Latest Caselaw 117 Del

ORDER

Arun Kumar, J.

1. By this application under Order 47, Rule 1 Code of Civil Procedure the applicants have sought review of this court's order dated 24th August, 1998. In order to dispose of this application, it is necessary to give briefly the background of the controversy.

2. The Railways employed certain typists on ad hoc basis in the years 197980 from the open market on ad hoc basis by way of stopgap arrangement till regularly selected hands could be available from the Railway Service Commission, Allahabad. The recruitment of typists is regulated by para 75 of the Indian Railways Establishment Manual VolumeI. The said provision does not envisage typists being employed from the open market. The administration had to resort to open market employment because of the nonavailability of typists of the Railways Service Commission. The petitioners in the review application are typists who were regularly appointed by way of selection through the Railway Service Commission and were employed subsequent to the typists employed from the open market. The controversy is regarding the seniority of the two sets of typists. The Railway administration had placed the regularly selected and appointed typists as senior to the typists who were employed from the open market. This led to the typist employed from the open market filing an OA before the Central Administrative Tribunal. The Tribunal by its judgement dated 22nd April, 1998 allowed the OA. The Railway administration filed the present writ petition (CW. 4135/98) challenging the order of the Tribunal. This court by its order dated 24th August, 1998 dismissed the writ petition, thereby upholding the decision of the Tribunal.

3. The present review application has been filed by the typists who were employed regularly through the Railway Service Commission. Their main grievance is that they are directly affected by the decision of the Tribunal as also the decision of this court, which put a seal of approval on the decision of the Tribunal. By these decisions the typists employed through the open market have been given benefit of their entire service right from the day they were recruited. As a result whereof they have become senior to the regularly appointed typists. The Tribunal by its judgment gave the benefit of continuous length of service to the applicants before the Tribunal i.e. typists who were employed from the open market contrary to the rules. Thus the seniority of applicants in the review application has been directly affected as a result of the decision of the Tribunal. These persons were neither parties before the Tribunal nor were they imp leaded in the writ petition filed in this court. Their grievance is that they are aggrieved parties so far as the decision of the Tribunal and the decision of this court are concerned and they should have been heard before any decision adverse to them was taken.

4. In the review application the applicants have tried to show how injustice has been caused to them as a result of the decision of the Tribunal which was upheld by this Court. The typists who were employed from the open market had been made aware of by way of stipulations in their appointment orders and otherwise that they were not entitled to the benefit of seniority on the basis of the said appointment. It is also pointed out that as a matter of fact the department had circulated seniority lists in the year 1988 and 1990 in which the applicants in the review application, who are regularly appointed typists were shown senior to the other typists. No objections were filed to the seniority lists by the open market recruited typists and the seniority lists had, therefore, become final. In a nutshell, the submission is that the seniority granted to the open market recruited typists by the Tribunal was not in accordance with law. They submit that at least they were entitled to be heard before any such decision adverse to them was passed.

5. The review application was strongly opposed by the typists appointed through open market, who were arrayed as respondents in the writ petition. Mr. G.D. Bhandari, advocate appearing on their behalf raised some preliminary objections to the maintainability of the review application. He urged that an appeal against the order sought to be reviewed had been filed in this court, which was rejected by this court and, therefore, review application was not maintainable. For this proposition the learned counsel relied on Gopabandhu Biswal Vs. Krishna Chandra Mohanty, . We are afraid that this objection raised by Mr. Bhandari is not sustainable. The applicants in the review application had sought review of the order of this court dated 24th August, 1998, whereby the writ petition was dismissed. They are not seeking review of the order of the Central Administrative Tribunal at this stage. Against the order of this court, which is sought to be reviewed no appeal appears to have been filed so far. Therefore there is not merit in this submission. Secondly, it was urged that the order of the Tribunal is dated 22nd April, 1998. The present review application filed in September, 1998 is highly belated. This contention is also liable to be rejected for the simple reason that review is being sought of the order of this court dated 24th August, 1998 and not of the order of the Tribunal dated 22nd April,1998. Next it was urged that no ground for review had been made out and that the petitioners are not the aggrieved party. We are unable to agree with the learned counsel with respect to either of these contentions. The review applicants are aggrieved party. As a result of the impugned decision their seniority has been adversely affected. It is a basic principle of natural justice that a person who is going to be adversely affected by an order must be heard before such an order is passed against him. The review applicants were neither made parties before the Tribunal nor were they party in this Court. The order of the Tribunal has far reaching consequences so far as the applicants in the review application are concerned. As per the department, they were being shown senior to the typists who were recruited from the open market and who were the applicants before the Tribunal. As a result of the decision of the Tribunal, the open market typists become senior to the regularly recruited typists, who are the applicants in the present review application. From this it also follows that the applicants in the review application are aggrieved parties and are entitled to approach this court.

6. Counsel for the applicants in the review application relies on Dr. Anuradha Bodhi Vs. Municipal Corporation of Delhi, to urge that in view of this decision of the Supreme Court the employees, who are recruited outside the rules can get seniority only from the date of regularisation in service and not from the date of their initial appointment. Therefore, the typists who were recruited from open market contrary to the rules can get their seniority only from the date of regularisation of their service and not from the date of their initial appointment. It is urged that this is more so for the reason that while making the initial appointment itself it was made clear to the typists being appointed from open market that their appointments were ad hoc and by way of stop cap arrangement and they will not be entitled to claim seniority on the basis of such an appointment. It is not necessary to express any opinion on this submission for deciding the Review application and the same would be considered in the writ petition.

7. For all these reasons we find no merit in the contentions raised on behalf of the respondents by way of objections to the review application. We are of the considered view that in the facts of the present case, it is a fit case for review of our order dated 24th August, 1998. The applicants in the review application are adversely affected by the decision of the Tribunal dated 22nd April, 1998 and in this writ petition which is directed against the said decision of the Tribunal. They were entitled to be heard before a decision was taken with respect to the writ petition one way or the other. Accordingly the review application is allowed. The order dated 24th August, 1998 passed by this Court dismissing the writ petition in limine is hereby recalled. The writ petition be posted for hearing afresh. The applicants in the review application are directed to be imp leaded as parties in these proceedings.

8. R.A. stands disposed of.