Delhi High Court
H.K. Das And Ors. vs Union Of India (Uoi) And Ors. on 15 January, 2007
Author: M Mudgal
Bench: M Mudgal, A Suresh
JUDGMENT
Mukul Mudgal, J.
1. It is not in dispute that identical Writ Petition No. 4058 of 2002 and 5396 of 2002 raised the same issue of seniority between the Departmental Promotees and Direct Recruits in the service of Armed Forces Head Quarter, Civil Service staff officers. In fact this Court in the order dated 30.09.2005 had recorded the pleas of both the counsels that Ammini Rajan's decision is applicable to the facts of the present case.
2. By the judgment dated 14th November, 2006 the Writ Petitions No. 4058/2002 and 5396/2002 were allowed by this Court and the CAT's order dated 1st April, 2002 in OA No. 1356/1997 in Ammini Rajan's case was set aside.
3. Consequently, since the Writ Petitions are admitted after hearing on the basis of similar relief, the learned Counsel for the Petitioner submitted that this Writ Petition also deserves to be allowed in terms of judgment dated 14th November, 2006 and other connected Writ Petitions.
4. Ms. Jyoti Singh, appearing on behalf of Union of India also supports this plea. It is also submitted by the Petitioner that this court may while allowing the present Writ Petition, may fix the time for compliance of the judgment of this Court passed on 14th November, 2006.
5. In our view, since it is not disputed that the issues involved in this Writ Petition are the same as that in W.P.(C) No. 4058/2002 and W.P.(C) No. 5396 of 2002 and the order of this court dated 30.09.2005 has recorded the contention to that effect. We do not think it appropriate to grant further time as this Court cannot take any view contrary to that taken in its judgment dated 14th November, 2006.
6. Consequently, the Writ Petition is allowed in terms of the judgment dated 14th November, 2006 which reads as follows:
13. In our view, the direction of the CAT holding that the seniority of the DR's should be determined from the date of joining and the unfilled vacancies and not the slots can be carried forward is contradictory to the decision of the CAT in MG Bansal's case in TA 356/85 dated 20th November 1992 which decision attained finality when the SLP against that was dismissed by the Hon'ble Supreme Court on 20th January, 1995. This apart when the Department prepared the seniority lists as per the decision of the CAT dated 20th November, 1992, some of the DPs had filed contempt petitions alleging that the seniority lists had not been prepared as per the said decision and was in derogation of the same but the CAT had dismissed those contempt petitions.
14. Furthermore, merely because the private respondent Nos. 4 to 10 were not a party to the special leave petition in the Hon'ble Supreme Court or in the OA No. 1356/1997 can have no bearing on the efficacy and applicability of the judgment of the CAT in M.G. Bansal's case. The decision was rendered in what was in essence a class action between 14 petitioners (DPs), 24 respondents (DRs) and intervenors (DPs who had got imp leaded because of the retirement of some of the petitioners) also. The mere fact that one of the constituents of such a class was not a party cannot provide such a party with a charter to reopen the settled position of law.
15. Further the order of the CAT dated 1st April, 2002 holding that the seniority of the DR's should be determined from the year of joining and that the unfulfilled vacancies can be carried forward but the slots cannot be carried forward, is contrary to Rule 16(6) and 16(7) read with Schedule Third which respectively provide that DRs shall be ranked inter se in order of merit in which they are placed in the competitive examination and shall rank on the results on which they are recruited and the relative seniority of DRs and the DPs to a grade shall be determined according to the Third Schedule. According to the Third Schedule, the relative seniority of the DRs and the DPs shall be determined according to rotation of vacancies between them and which shall be based on quotas of vacancies reserved for promotion and direct recruitment.
16. We are also of the view that the CAT has rightly held that the DPs who had been granted promotions during all these years had to become juniors to the DRs as a result of the implementation of the judgment in M.G. Bansal's case wherein it had been held that the period of officiation as ACSOs by the DPs appointed against the unfilled vacancies of DRs under Note 2 cannot be counted for the purposes of the seniority of those promotee officers. The promotee officers becoming junior to the subsequently appointed DRs was the natural outcome of the finding of the CAT that the promotee ACSOs appointed under Note 2 cannot get the benefit of continuous officiation in the Grade of ACSO.
17. The other point urged on behalf of the DPs is that some of the DRs who had joined as ACSOs after a period of three years from the publication of the results of the competitive examination for 1988-89 and 1989-90 but still their approved service was considered from the date which could have been considered only if they had joined after selection within the period of three months unless the delay in their joining was caused because of some fault on the part of the department. In the present case, according to the promotees, some of the DRs had joined late of their own accord and had requested for extension of the joining period beyond three months. Along with the written synopsis the DPs had submitted a list of 48 DRs who had joined late but had been given approved service benefit as in other normal cases. The DPs had prayed for deleting the names of those DRs from the seniority list of the years in which their names had been included in the lists in the Grade of ACSO for promotion to the Grade of CSO when they had not completed the approved service in the Grade of ACSO. On this aspect of the matter the stand of the Government has been that the late joining of the DRs was not due to their fault and in fact it was the Government which was responsible for the delay in joining of the DRs. In our view this contention of the DPs cannot be entertained because if it is accepted that will adversely affect the seniority of the concerned DRs and that cannot be done without their having been imp leaded individually in the proceedings before the CAT as well as before this Court.
18. We are also of the view that once the Hon'ble Supreme Court dismissed the SLP filed by the DPs against the order of the CAT dated 20th November, 1992 in T.A. No. 356/1985, the said order of the CAT had become final in so far as the issue involved in the present writ petition is concerned. The CAT in its judgment dated 1st April 2002 in O.A. No. 1356/97, by deciding contrary to its earlier order dated 20th November, 1992 has in fact gone against the mandate of the Hon'ble Supreme Court, since the Hon'ble Supreme Court by dismissing the Special Leave Petition filed against the order of the CAT dated 20th November, 1992 had affirmed the same.
19. In view of our foregoing conclusions we allow CWP No. 4058/2002 and CWP No. 5396/2002 and consequently the order dated 1st April, 2002 of the CAT in OA No. 1356/1997 is set aside. The issue of seniority shall now be determined in accordance with the judgment of CAT in T.A. No. 356/1985 dated 20th November, 1992. WP(C) No. 62/2003 and WP (C) No. 4458/2002 filed by the DPs are accordingly dismissed. There will be no order as to the costs.
7. It is further directed that the judgment in this Writ Petition as well as W.P. (Civil) No. 4058/2002 and W.P. (Civil) No. 5396/2002 shall be implemented not later than 31st March, 2007 and all consequential benefits pursuant to the said judgment shall also be disbursed within the said period. Writ Petition stands disposed of accordingly.
