Prabhakar Singh vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 403 Del

JUDGMENT

S.B. Sinha, C.J.

1. The petitioner in the instant case has questioned an order dated 30.07.1997 passed in O.A. No. 1668 of 1997 by the Central Administrative Tribunal, Principal Bench, New Delhi ( hereinafter referred to as, 'the Tribunal).

2. The factual position, in a nutshell, is as follows:-

2.1 The petitioner joined as Assistant Legislative Counsel (Grade IV) (in short, 'ALC') through Union Public Service Commission (in short, 'UPSC') as a direct recruit on 28.12.1989. The respondent NO. 4 herein, i.e. Sanjay Singh, was also appointed as ALC (Grade IV) through UPSC as a direct recruit on 18.06.1991.

2.2 The respondent No. 1 published seniority list dated 01.03.1994 in respect of all the Officers of the Legislative Department wherein the name of petitioner figured at serial No. 1 and those of respondent Nos. 3 and 4 figured at serial Nos. 6 and 4 among ILS Grade IV Officers.

2.3 On 29.06.1994, one post of Deputy Legislative Counsel (Grade III) fell vacant on account of Shri K.N. Chaturvedi, whose name figured at serial No. 1 in the said list among ILS Grade III Officers figured at serial No. 1 in the said list among ILS Grade III Officers. Thereafter on 02.01.1995, another post fell vacant in DLC (Grade III) on account of promotion of Mr. Z.S. Negi, whose name figured at serial No. 2 in the said list among ILS Grade III Officers.

2.4 Pursuant to and in furtherance thereof, allegedly UPSC did not hold DPC for the post of DLC (Grade III) during the years 1994 and 1995 while DPC for other posts of Indian Legal Service was held by UPSC.

2.5 On 04.07.1996, respondent No. 4 was selected to the post of DLC against direct vacancy by UPSC and he joined the said post on the same date. The petitioner was given promotion to DLC on 06.09.1996.

2.6 Allegedly, as the petitioner was denied promotion to DLC since 29.06.1994, i.e. the date on which the post fell vacant, the petitioner gave a representation on 24.09.1996 that he be treated in the post of DLC w.e.f. 29.06.1994 since, according to him, in law he became eligible for the post of DLC after completing 3 years of service in the post of ALC.

2.7 Upon coming to know that DPC is going to meet on 30.07.1997 for considering the cases of eligible candidates for promotion to the post of Additional Legislative Counsel (Grade II) (in short, 'Addl. LC'), the petitioner submitted a representation to the respondent No. 1 herein in this behalf.

2.8 Since no action was taken by respondent No. 1 on the said representation, the petitioner filed the aforesaid original application before the learned Tribunal inter alia praying for deemed promotion in the post of DLC w.e.f. 29.06.1994 along with all the legal consequences flowing from the notional promotion, where after the impugned order, which is being challenged by the petitioner in this writ petition, was passed by the learned Tribunal on 30.07.1997.

2.9 The claim of the petitioner mainly rests on a seniority list of 01.03.1994 wherein respondent No. 3 has been shown as the junior-most DLC and the petitioner has been shown as the senior-most ALC.

3. The relevant rules, i.e., Rules 6 and 11 of the Indian Legal Service Rules, 1957 (in short, 'the Rules') read thus:-

"6. FILLING UP DUTY POSTS:

(1) A duty post in Grade I or grade II shall be filled by promotion of a member of the Service in the next lower grade unless the Central Government decided to fill any such post by direct recruitment.

(2) A duty post in Grade III shall be filled alternatively by direct recruitment and by promotion of a member of the Service in Grade IV.

(3) A duty post in Grade IV shall be filled by promotion of persons holding any post specified in the Third Schedule and by direct recruitment in the ratio of 1:1 (namely 50% by promotion and 50% by direct recruitment).

(4) Notwithstanding anything contained in Sub-rules (2) (3), a vacancy required to be filled by promotion or direct recruitment may if a suitable person is not available to fill such vacancy, be filled by direct recruitment, or, as the case may be, by promotion.

11. SENIORITY:

(1) A list of members of the Service shall be maintained separately for each Department in the order of their seniority.

(2) Seniority of members of the Service in each Department shall be determined in accordance with the following principles, namely:-

(i) a member of the Service appointed to a duty post in a substantive capacity in any grade shall be senior to a member of the Service appointment to a duty post in an officiating capacity or on probation in that grade;

(ii) seniority of members of the Service appointed to duty posts in any grade in a substantive capacity shall be determined in accordance with the date of appointment to a duty post in that grade in substantive capacity; and where two or more members of the service are appointed in a substantive capacity to duty posts in the same grade on the same date, their seniority shall be determined in accordance with their seniority while holding such duty posts in an officiating capacity or on probation;

(iii) subject to the provisions contained in Clause (iv), seniority of members of the service appointed to duty posts in any grade in an officiating capacity or on probation shall be determined in accordance with the order of selection for appointment to duty post in that grade or to a post in the Ministry of Law, which in the opinion of the Central government, corresponds to that duty post; and

(iv) the relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotoees."

4. Mr. Amrendra Saran, the learned counsel appearing on behalf of the petitioner, would submit that having regard to the legal position, there cannot be any doubt that 7th vacancy should have been filled up be a promotee.

5. Our attention, however, has been drawn to the fact that during pendency of the writ petition, a change in the seniority list has been effected with retrospective effect and retrospective operation in terms whereof a change had been made in relation to 4th and 5th vacancy.

6. The learned counsel would contend that in a case of this nature, it was incumbent upon the unofficial respondents to follow the rota quota rule.

7. However, it appears that the petitioner has no grievance, having regard to the facts and circumstances of this case, as against respondent No. 3. Even otherwise no relief can be granted against respondent No. 3 at this stage.

8. However, the dispute, if any, subsists between the petitioner and the respondent No. 4 herein who is a subsequent direct recruit.

9. We amy notice that respondent No. 4 Sanjay Singh was not a party before the learned Tribunal. He has been made a party before this Court for the first time.

10. It is not in dispute that the claim of the petitioner vis-a-vis the changed stand taken by the respondent (as it made amendments in the vacancy position with retrospective effect), the only relief which could be claimed by the petitioner is against respondent No. 4.

11. Having regard to the decision of the Apex Court in L. Chandra Kumar v. Union of India and Ors. we are of the opinion that the claim of the petitioner is required to be gone into by the learned Tribunal at the first instance.

12. In this view of the matter, we are of the opinion that the interest of justice will be sub-served if the petitioner be permitted to agitate the said question at the first instance before the learned Tribunal, who may go into the matter on its merits having regard to the subsequent event, which had taken place, wherefor the petitioner will be at liberty to file an appropriate application under Section 19 of the Administrative Tribunal Act, 1985.

13. This writ petition is disposed of accordingly.