Vijay Kumar Kaul And Ors. vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1990 Del

JUDGMENT

Vipin Sanghi, J.

1. In this writ petition under Article 226 of the Constitution of India the petitioners, who are four in number, seek a writ or certiorari to quash the order dated 10.3.2005, passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal) in OA No. 2082/2004 and the order dated 9.5.2005 passed in review application No. 102/2005 in the aforesaid original application filed by the petitioners.

2. Petitioners also seek quashing of the order dated 21.7.2004 and 31.7.2004 passed by the respondents whereby the respondents rejected the claim made by the petitioners seeking anti-dating of their date of appointment to the year 1985 based on the judgment passed by the Punjab and Haryana High Court in the case of Union of India v. Parveen Kumar and Ors. in W.P (C) No. 1158/2001 dated 12.7.2001, on the ground that they are similarly placed as the respondents in the said petition, namely, Parveen Kumar and others.

3. The facts in brief are that the petitioners participated in a selection process conducted by the Second Field Ordnance Depot (2 FOD) in the year 1984 for the posts of Lower Division Clerks (LDCs). However, they were not issued appointment letters. While petitioner No. 4 was issued an appointment letter in December, 1993 and in pursuance of the order passed in OA No. 29/JK/92 by the Chandigarh Bench of the Tribunal dated 24.8.1993, petitioner Nos. 1 to 3 were given appointment in May, 1996 in compliance of the judgment dated 24.7.1995 of the High Court of Jammu and Kashmir in SWP No. 1052/1991.

4. All the petitioners seek the anti-dating of their appointments w.e.f May, 1985 with other consequential benefits. The foundation of the said claim made by the petitioners is as follows:

5. The petitioners state that they were not given appointment letters on the pretext that there was a ban on appointments, whereas various appointments were made by the respondents between 15.12.1984 to 1.9.1992 leaving aside the list of selected candidates which included the petitioners who had been selected in the year 1984. It appears that the recruitment to the various Field Ordnance Depot (FODs) functioning under the Army Head Quarters is done at the level of the FODs under the overall control and supervision of the Army Head Quarters. In the year 1984, the process of recruitment was undertaken in respect of 9 FOD and 2 FOD. As aforesaid, the petitioners claimed to have participated in the selection process conducted for 2 FOD for the posts of LDC. The petitioners state that in 9 FOD there were 10 vacancies for LDCs while in 2 FOD there were 27 vacancies for LDCs. The petitioners state that separate merit lists were prepared of the selected candidates against the sanctioned strength and approved vacancies in each of these FODs.

6. It is further stated that when the selected candidates in 2 FOD and 9 FOD were not given appointments despite, the fact that some of the other candidates who were similarly placed were given appointments in the year 1985, 7 candidates (Parveen Singh and others) who figured in the select list pertaining to 9 FOD preferred OA No. 539-HP of 1986 before the Chandigarh Bench of the Tribunal. This Original Application was allowed on 25.8.1987 directing the respondents to issue appointment letters to the applicants (Parveen Singh and Others). The petitioners state that instead of appointing Parveen Singh and Others against the vacancies in 9 FOD, the respondents appointed them against the vacancies falling in 2 FOD w.e.f 1.11.1990. They state that these appointments were given hurriedly since the applicants Parveen Singh and Others had initiated contempt proceedings vide a CP No. 25/1988 in OA No. 539-HP-86. The petitioners raise a grievance that Parveen Singh and Others ought to have been appointed against the vacancies falling in 9 FOD and by appointing them against the vacancies of 2 FOD, the petitioners rights were prejudiced.

7. The petitioners also question the genuineness of the reason given by the respondents for the non issuance of the appointment letters following the recruitment process undertaken in the year 1984, by stating that the delay in the appointment was on account of administrative delays and lapses and not on account of any ban on making appointments as claimed by the respondents. It is also claimed that the seven appointees i.e. Parveen Singh were subsequently transferred to 9 FOD since they belong to 9 FOD and should have been appointed against vacancies in 9 FOD in the first place.

8. The petitioners further state that Parveen Singh and Others filed a second original application being OA No. 1476-Pb-1991 before the Chandigarh Bench of the Tribunal with a prayer that a direction be issued to the respondents to appoint them as LDCs w.e.f. 1.5.1985 with all consequential benefits including seniority, pay and allowances etc. on the ground that similarly situated persons who had got selected along with them had been appointed w.e.f 1985. The Tribunal allowed the original application vide order dated 13.10.2000 while granting relief of anti dating of appointment w.e.f 1.5.1985 and also granting the relief of 50% of back wages since 1.5.1985 till the date the applicants were actually appointed. The respondents challenged the said order dated 13.10.2000 of the Tribunal by filing CWP No. 1158/2001 before the High Court of Punjab and Haryana. Vide its judgment dated 12.7.2001 the Punjab and Haryana High Court has set aside the order of the Tribunal to the extent that applicants (Parveen Singh and Others) were not entitled to 50% back wages. However, the anti-dating of appointment of these applicants to 1.5.1985 was upheld by the High Court.

9. The petitioners herein state that while the issue of anti dating of appointment and payment of 50% of back wages in the case of Parveen Singh and Others was still under challenge before the Punjab and Haryana High Court, the petitioner Nos. 1 to 3 filed SWP 1052/1991 before the High Court of Jammu and Kashmir seeking a direction to the respondents to appoint them as LDCs. That petition was allowed on 24.7.1995 where after petitioner Nos. 1 to 3 were appointed in 2 FOD in the year 1996. Similarly, petitioner No. 4 herein had approached the Tribunal Bench at Chandigarh by filing OA No. 29/JK/92 and in consequence of the orders issued therein dated 24.8.1993, petitioner No. 4 was appointed as LDC in 2 FOD in December, 1993.

10. The petitioners state that they are similarly situated as Parveen Singh and Others, who have been granted back dated appointments and seniority from 1.5.1985. This claim is justified, the petitioners say, due to the fact that persons out of Punjab cases (9 FOD) had been posted at the 2 FOD from November 1990, where the petitioners are posted. These persons have been given seniority with retrospective effect from May, 1985. The petitioners claim that the same relief should be granted to them as well, since it is desirable in service jurisprudence to maintain uniformity of treatment to similarly placed individuals.

11. On the other hand, learned Counsel for the respondents, Mr. A.K. Bhardwaj submits that though the petitioners, like Parveen Singh and Others had been selected by the respective FODs in the year 1984, they sat over their rights and did not take any action till as late as the year 1991 (in the case of petitioner Nos. 1 to 3) and 1992 (in the case of petitioner No. 4) to seek appointment with the respondents. Even with regard to the anti dating of appointment to the year 1985, the petitioners did not seek any relief when they filed their respective petitions, even though Parveen Singh and Others had sought the said relief in the year 1991 by moving the Bench of the Tribunal at Chandigarh by filing OA No. 1476-Pb-1991. This relief was sought by the petitioners only after a judgment of the Punjab and Haryana High Court dated 12.7.2001.

12. Learned Counsel for the respondents further contends that the petitioners filed the original application seeking the relief of anti dating their date of appointment to 1985 only on 12.8.2004 i.e. more than three years after the decision of the Punjab and Haryana High Court dated 12.7.2001. Consequently, the submission of the learned Counsel for the respondents is that the Original Application filed by the petitioners was highly belated and ought to have been dismissed as being barred by limitation.

13. According to the learned Counsel for the petitioners, there has been no delay in institution and prosecution of the OA. He submitted that after the judgment of the Punjab and Haryana High Court in July, 2001, petitioners had represented through their Commanding Officers as would be seen from the letters annexed with the additional affidavit when their Commandant wrote for pay fixation and their struggle therefore. The correspondence with the affidavit bears ample testimony to the same. As there was no response, petitioners made representation dated 14th May, 2004 which was rejected vide orders dated 21st July, 2004 and 31st July, 2004. In these circumstances, in August, 2004, an OA was preferred by the petitioners. Petitioners in these circumstances do not assert their claims for 50% back wages as was awarded by the Tribunal but was later on set aside by the Punjab and Haryana High Court. Petitioners confine their prayer for grant of seniority. The cause of action for filing the original application, according to the petitioners, arose upon rejection of their representations on 21.7.2004 and 31.7.2004 of which the petitioners have also sought quashment in their original application as well as before this Court. It is, therefore, urged that there is no delay or laches on the part of the petitioners in approaching the Tribunal. It is also urged that the Tribunal also did not consider the Original Application as being barred by Limitation and did not reject the same on the grounds of limitation.

14. The Tribunal while rejecting the Original Application took note of the stand of the respondents that the petitioners were general candidates and that the respondents had appointed only such of the candidates earlier in point of time, who were placed higher in the merit list when compared to the petitioners excepting one Sh. Kala Ram, whose name was appearing at Sl. No. 14 in the merit list, and that too because he belonged to the Scheduled Caste category. The petitioners/applicants were at Sl. Nos. 25,19,24 & 8 respectively in the merit list and that they had not been superseded. They could not be given appointments due to imposition of ban on recruitment by the Government. However, subsequently as per the directions of the Tribunal Bench at Chandigarh and High Court of Jammu & Kashmir, the petitioners were given appointments as and when vacancies became available in accordance with their position in the merit list. The respondents also relied upon the operative part of the order passed by the Tribunal in OA No. 29/JK/92 dated 24.8.1993 filed by petitioner No. 4 herein. The Tribunal had given the following directions:

this OA is allowed in terms of the directions to the respondents to issue appointment letter to the applicant for the post for which he was duly selected in 1984 within a period of six weeks from the date of receipt of copy of this judgment. It is made clear that the appointment shall have prospective effect and the applicant is held not entitled to any back wages or seniority for the simple reason that it is neither the case of the applicant nor it has been shown to us that any person junior to him in the panel has already been appointed.

15. The respondents also contended that the aforesaid order of the Tribunal was accepted by petitioner No. 4 and that when petitioner No. 4, who was the most meritorious amongst all the petitioners, had not been given back-date seniority or other consequential reliefs, the other petitioners could certainly not be granted that relief.

16. Before the Tribunal, the petitioners relied upon the judgment of the Supreme Court in the case of K.C. Sharma and Ors. v. Union of India and Ors. . The Tribunal distinguished the said judgment by observing that the judgment of the Tribunal in K.C. Sharma's case was a judgment in rem, since the Tribunal had quashed the notification in question. Consequently the benefit of the judgment was available even to those who had not approached the Tribunal at the same time. The Tribunal held that the judgment in the case of Parveen Singh and Ors. was a judgment in personam, since the relief was granted specifically to the applicants before the Tribunal. The Tribunal relied on the decision of the Supreme Court in Collector of Central Excise Calcutta v. Alnoori Tobacco Products and Anr. 2004 (6) Scale 232 wherein it had been held that disposal of cases blatantly by placing reliance on a decision is not proper and that the Court must see how the factual position fits in with the fact situation of the decision relied on. Even a single additional or different fact may make a world of difference between the conclusions in two cases. Consequently the Tribunal dismissed the Original Application on the ground that the applicants/petitioners had to be given appointment as per their placement in the merit list and as and when the vacancies became available and therefore their appointment could not relate back to an earlier date, especially when the applicants had not been able to show that any person in the general category, junior to them, had been given appointment from a retrospective date or any other similar benefit.

17. The petitioners thereafter preferred a review application bearing No. 102/05 which was also rejected by the Tribunal vide order dated 9.5.2005. The Tribunal held that the applicants sought to make out an absolutely new case in the Review Application than what had been made out in the Original Application even though all the facts were within their knowledge. The Tribunal observed that a review cannot be filed to enlarge the scope of the Original Application or to reargue the case. The Tribunal also recorded that it was incorrect for the applicants to claim that they were granted liberty to file documents since that position was not reflected from the order sheet. The Tribunal quoted from the decision of the Supreme Court in Ajit Kumar Rath v. State of Orissa and Ors. 2000 SCC (L&S) 192 and a few other decisions of the Supreme Court on the aspect of the scope of the review proceeding.

18. We have given our thoughtful consideration to the matter. The petitioners before us, though selected for the post of LDC in 2FOD in the year 1984 did not agitate their rights till as late as 1991 (in the case of petitioner nos 1 to 3) and 1992 ( in the case of petitioner No. 4) when they sought appointment with the respondent. Even at that stage the petitioners did not agitate that they should be granted appointment from a back date. We may also refer to some of the averments made by the petitioners in their writ petition whereby they have tried to cover up their unexplained inaction over the years in agitating their cause. While in Sub-paras (n) and (o) of para 15 of the petition, the petitioners state:

(n) That since at the time of filing writ by applicant/petitioner Nos. 1, 2 and 3 and an O.A by applicant/petitioner No. 4, the issue of entitlement to anti-dating appointment and backwages was under adjudication before the Hon'ble High Court of Punjab and Haryana in the case of Parveen Singh and Ors., the applicants/petitioners in the present O.A did not seek such relief in their respective writ and O.A.

(o) That when the High Court upheld the orders of the Tribunal in case of Parveen Singh and Ors., that they are entitled to the benefit of anti-dating appointment and the consequential benefits, the applicants/petitioners made individual representations to the respondents seeking the benefit of High Court's judgment dated 12.7.2001 delivered in C.W.P No. 1158 of 2001. A true photocopy of this judgment is already available as Annexure A-5 at Page 22-32 of the O.A;

in Sub-para (s) the petitioners claim that they became aware about the irregularity in appointment of Parveen Singh and Ors. much later after their appointment with the respondents. While on the one hand the petitioners tried to justify not claiming the relief of anti-dating of appointment and back wages on the ground that the said issues had been raised by Parveen Singh and Ors. and were pending before the Punjab and Haryana High Court, on the other hand they claim to have learnt of the so-called irregularity in the appointment of Parveen Singh and Ors. much later after their appointment with the respondents.

19. In fact in the case of petitioner No. 4, who ranked the highest in the merit list amongst all the petitioners, it was specifically ordered by the Tribunal that the appointment shall be prospective and that the applicant would not be entitled to any back wages or seniority. This decision of the Tribunal was accepted by petitioner No. 4. In order of merit Petitioner Nos. 1,2 & 3 were placed at serial Nos. 25, 19 & 24, while petitioner No. 4 was placed at serial No. 8. These petitioners, in any case, therefore could not be better off when compared to petitioner No. 4 in terms of anti-dating of their date of appointment or granting them seniority from a retrospective date.

20. The Tribunal, according to us has rightly concluded that the petitioners are not entitled to any relief also on account of the fact, that they have not been superseded by any other person placed below them in the select list in order of merit. Appointments have been made by the respondent strictly in accordance with merit and as and when vacancies arose, except in the case of Sh. Kala Ram, who belonged to the Scheduled Caste category.

21. In view of our aforesaid discussion, we find no reason to interfere with the well considered order passed by the Tribunal in the Original Application as well upon the Review Application. We accordingly dismiss the present petition leaving the parties to bear their respective costs.