Subhash Chandra & Others vs Union Of India & Others
2010 Latest Caselaw 470 Del

*         IN     THE    HIGH      COURT       OF    DELHI      AT    NEW     DELHI

+                                 W.P. (C.) No. 608/2001

%                            Date of Decision: 28.01.2010

      SUBHASH CHANDRA & OTHERS                .... PETITIONERS
                  Through Mr.Gyan Prakash, Advocate

                                         Versus

      UNION OF INDIA & OTHERS                    ....RESPONDENTS
                    Through Mr.K.R.Sachdeva, Advocate for
                            Respondent Nos. 1 to 3
                            Mr.K.Venkataraman, Advocate for
                            Respondent No. 9

      CORAM:
      HON'BLE MR. JUSTICE ANIL KUMAR
      HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether reporters of Local papers may be                             Yes
       allowed to see the judgment?
2.     To be referred to the reporter or not?                               No
3.     Whether the judgment should be reported in                           No
       the Digest?

      MOOL CHAND GARG, J.

*

1. The basic issues raised in this writ petition filed by the petitioners

against the judgment dated 24.12.1999 passed by the Central

Administrative Tribunal (for short "the Tribunal") in OA No. 2499/1998

are as under:-

1. Whether the private respondents who were admittedly not regularly appointed through the UPSC according to statutory rules but have been directed to be regularized as per direction and procedure laid down by Hon'ble Court or by executive order can supersede the petitioners in seniority list after 15 to 20 years. The petitioners had been appointed and subsequently promoted in accordance with statutory rules

notified under Article 309 of the Constitution of India. The petitioners are relying on the ratio in the case of Direct Recruit Class-II Engineering Officers Association and Others Vs. State of Maharashtra (1990 2 SCC 715) and M.A. Haque and Others Vs. UOI SLJ 1993(3) 65 SC.

2. Whether the benefit of Adhoc service de hor the rules granted to the private respondents from back dates can also be granted to the petitioners also.

3. Whether deemed service without actually working on the post can be taken as qualifying service for future promotions of private respondents.

4. Official Respondent No.2 have given promotions to private respondents immediately after completion of qualifying service from back date. Whether such a procedure should be adopted in the case of petitioners also, who never got promotion immediately after completion of qualifying service.

5. Whether settled seniority of petitioners should be disturbed after a lapse of 15 to 20 years specially when petitioners were not parties in the concerned Court cases although their vested rights and interest were involved.

2. Brief facts giving rise to filing of the present writ petition are :-

(i) Petitioner No.1 joined service as regular Statistical

Assistant, a feeder post for Junior Field Officer (for

short "JFO")/Handicrafts Promotion Officer (for short

"HPO"), with respondent No.2 on 3.2.1966. Similarly,

Petitioner No.2 joined as regular Investigator, another

feeder post for promotion to the post of JFO/HPO with

respondent No.2.

(ii) On 20.6.1972 All India Handicrafts Board (Junior

Field Officer) Recruitment Rules (1 -1972) were

notified. On that basis, Petitioner No.1 was promoted

as Adhoc JFO and his name appeared in the seniority

list issued by Respondent No.2 in 1972.

(iii) On 17.2.1976 private respondents i.e. Respondent

Nos. 5, 7 and 9 were selected as JFO. Similarly,

Respondent Nos. 6 and 8 were also selected. It is the

allegation of the petitioners that these selections were

without following the Recruitment Rules. Respondent

No.7 (Shri S.K.Jana) joined service as Adhoc JFO on

18.3.1976 and Respondent No.5 (Shri. S.K.Sehgal)

joined service as Adhoc JFO on 22.3.1976 and

Respondent No.6 (shri V.V.S. Suryanarayana) joined

service as Adhoc JFO on 16.5.1977.

(iv) On 16.8.1978 when a regular DPC was held

Petitioner No.1 was empanelled as per rules against

the vacancy of JFO which arose on 16.12.1974 and

Petitioner No.2 was empanelled as JFO against the

vacancy which arose on 10.9.1976. However,

Petitioner No.1 was promoted as JFO w.e.f. 1.9.1978

whereas Petitioner No.2 was promoted w.e.f.

30.10.1978. It has been submitted that they were not

granted seniority as per the date/year of empanelment

for which they were entitled.

(v) The post of JFO was re-designated as Handicrafts

Promotion Officer (HPO) w.e.f. 4.6.1979.

(vi) On 7.8.1978 Petitioner NO.1 was promoted as

Adhoc Assistant Director (AD) in the Carpet Scheme of

Respondent No.2.

(vii) On 27.1.1987 the Central Administrative Tribunal,

Chandigarh Bench decided the application filed by

Respondent No. 5 being OA No.175/1986. The matter

went up to the Hon'ble Supreme Court, who vide its

order dated 13.9.1994 gave directions for

regularization of Respondent No.5 from the back date

without going into the merits of the controversy. On

that basis, Respondent No.2 issued orders for

regularization of Respondent No.5 as HPO from back

date i.e. 22.3.1976. The petitioners were not party

before the Hon'ble Supreme Court.

(viii) The final eligibility list of Deputy Directors for

promotion to the grade of Regional Director was issued

on 30.10.1995. The names of private respondents

except Respondent No.9 were not included while the

names of Petitioner Nos. 1 and 2 was included in that

list and appeared at Serial No. 8 and 9 respectively.

(ix) On 20.11.1995 the revised seniority of Respondent

No.5 as HPO was issued and on that basis, the Central

Administrative Tribunal (Hyderabad) vide order dated

29.3.1996 passed in OA No. 1130/1995 directed

regularization of Respondent No.6 as HPO from back

date i.e. from 16.5.1997. Here also, the petitioners

were not parties. Accordingly, on 27.3.1978 revised

seniority of Respondent No. 6 was issued. Respondent

No.6 was also promoted as Assistant Director w.e.f.

15.5.1980 vide order dated 22.4.1998.

(x) Respondent No. 7 was also regularized despite their

being no court order w.e.f. 31.3.1996. Revised

seniority of Respondent No.7 as HPO was issued on

13/18.5.1998. According to the respondents, seniority

to respondents No. 5 to 7 was given in terms of

judgment given in favour of respondent No.5. The

effect of that seniority list has been reflected in the

subsequent seniority list.

(xi) On 6.10.1998 Respondent No. 5 was appointed as

Deputy Director from back date i.e. w.e.f. 1.5.1990.

(xii) The petitioners then filed OA No. 2494/1998

before the Central Administrative Tribunal, Delhi

challenging regularization and subsequent promotion

of Respondent Nos. 5, 6 and 7 from the back dates

which was dismissed by the Tribunal.

(xiii) Accordingly, Respondent Nos. 6, 7 and 8 were

also appointed as Deputy Directors on 30.12.1999. As

stated above, Respondent No. 5 was appointed as

Deputy Director on 1.5.1990 as per the order dated

6.10.1998. Respondent No. 6 was appointed as

Deputy Director w.e.f. 5.9.1989 while Respondent No.

7 was appointed as Deputy Director w.e.f. 5.9.1989.

Respondent No. 8 was appointed as Deputy Director

w.e.f. the date he joined the post as per the order

dated 30.12.1999. His claim for seniority from back

date was however dismissed by the Central

Administrative Tribunal. But in view of the orders

dated 25.11.1999 passed by the Central

Administrative Tribunal, Madras Bench in OA No.

56/1998, he was appointed as Deputy Director from

the back date i.e. 19.11.1993.

(xiv) In so far as respondent No. 9 is concerned,

an order was passed in his favour by the Central

Administrative Tribunal in OA No. 79/90 vide order

dated 28.01.1992. His, regularization, seniority and

promotion was decided in terms of the said order. The

order passed in that OA was challenged by the

petitioner before the Hon'ble Supreme Court in SLP

(Civil) No. 689/1993 which was dismissed.

(xv) The petitioner despite failing in respect with

the orders passed in favour of respondent No.9 tried to

challenge the seniority of respondent Nos. 5, 6, 7 & 9

again by filing OA No. 2494/98 which as stated was

decided on 24.12.1999. Pursuant thereto fresh

seniority list was drawn against which the petitioners

gave representation in August, 2000. However, the

same was not responded to. Accordingly, the

petitioners filed the present writ petition against the

seniority list issued on 20.7.2000.

3. It is the case of the petitioners that the order passed by the

Tribunal while disposing of OA No. 2494/1998 on 24.12.1999 was

contrary to the judgments of the Hon'ble Supreme Court in the case

of:-

1. Judgment of Constitution Bench of Hon'ble Supreme Court in the case Direct Recruit Class II Engineering Officers Association and Others Vs. State of Maharashtra, 1990 (2) SCC 715.

2. M.A. Haque and Ors. Vs. Union of India and Ors., SLJ 1993(3) 65 SC.

3. State of West Bengal Vs. Aghose Nath Dey, 1993 (2) JT 598.

4. Keshav Dev and Anr. Vs. State of U.P. and Anr. 1999 (3) SLJ 10 SC.

5. Dr.Anuradha Budy Vs. M.C.D., 1998 (5) SCC 293.

4. In M.A. Haque's case (Supra) it has been held:-

8. Since the private respondents are admittedly

not regularly appointed through the UPSC according to the

rules but have been directed to be regularized by following the

procedure laid down by this Court, it is obvious that they are

not appointed to their posts according to the rules. Under no

circumstances, therefore, they fall within the scope of

guideline (A) laid down in Direct Recruit Class Engineering

Officer's Association's case (supra). In fact, they do not fall

under guideline (B) given therein either, since their

regularization is not in accordance with the rules but as

consequence of special procedure laid down by this Court.

The expression "in accordance with the rules" or "according to

rules" used in the said guidelines (A) and (B) means the rules

of recruitment are not the special procedure laid down by this

Court. The petitioner applicants thus fall in an altogether

different category not covered under any of the guidelines

given in Direct Recruit Call II Engineering Officers'

Association's case (supra). We have, therefore, to evolve a

procedure for fixing their seniority. That procedure cannot be

in violation of the guidelines laid down in Direct Recruit Class

II Engineering Officers' Association's case (supra). Secondly,

the seniority given to the petitioner applicants will have to be

below the seniority of the outside; directly recruited through

the UPSC as well as below that of the directly recruit erstwhile

adhoc Medical Officers. This is not and cannot be disputed

on behalf of the petitioner applicants."

5. It has been submitted that since the private respondents were not

initially appointed as per the statutory rules i.e. selection by UPSC but

were regularized later in terms of the order of the Hon'ble Supreme

Court they have to be placed below the petitioners as per the statutory

Rules in terms of the law laid down by the Hon'ble Supreme Court. In

view of the aforesaid, it is submitted that since Respondent No.2 has

acted against the law laid down by issuing impugned seniority list of the

HPO and other higher posts, the impugned amended list and the latest

eligible list of July, 2000 and the promotion based upon this is liable to

be struck down. The writ petition was also amended subsequently by

the petitioners without permission of the Court but later on it was taken

on record.

6. The respondents have opposed the writ petition filed by the

petitioners and separate replies have been filed by Respondent No. 5 as

well as the official respondents. Reply has also been filed by respondent

No. 9 to which a rejoinder has also been filed by the petitioner.

7. A perusal of the reply filed by the respondents goes to show that

the issues raised by the petitioner are no more res integra inasmuch as

the petitioner is trying to assail the seniority fixed in this matter by

Respondent No.2 based upon the regularization of some of the

respondents under the orders of the Apex Court and consequent

seniority drawn from time to time. It is apparent that respondent No.5

was regularized and promoted in accordance with the directions given

by the Apex Court in Civil Appeal No. 3009/1989. Seniority was given

to respondents 6 & 7 on that basis. Respondent No.9 has been

promoted in terms of direction given by the Hon'ble Supreme Court in

SLP (Civil) bearing No. 689/1993. In this case earlier the matter was

taken up before the Madras Bench of Central Administrative Tribunal in

OA No. 79/1990 to which petitioner no.1 was also a party as

respondent no.11. The said OA was dismissed against the interest of

the petitioner.

8. The factum of his going to the Apex Court in case of respondent

No.9 was not so mentioned by the petitioner no.1 in this writ petition

but he has admitted this fact in the rejoinder filed to the counter

affidavit of respondent No.9.

9. It is only after his petition before the Central Administrative

Tribunal was dismissed twice, he has filed the present writ petition

obviously to reiterate his submissions which stands concluded under

the orders passed by the Apex Court. The orders passed in M.A.

Haque's case to which a reference has been made by the petitioner no.1

have also been discussed and considered by the Tribunal in the case of

Ramamurthy which matter had gone up to Supreme Court and,

therefore, even that judgment is of no help to the case of petitioner no.1.

10. In the impugned order challenged after about one year of the said

decision before us, the Tribunal has taken into consideration all these

aspects of the matter. Reference has also been made by the Tribunal to

a judgment of the Apex Court in the case of S.K. Sehgal Vs UOI (Civil

Appeal No. 3009/89). The relevant paragraph of the aforesaid judgment

in the case of S.K. Sehgal as quoted in the impugned judgment is

reproduced hereunder :

"the appellant shall be treated as a regular substantive holder

of the post of HPO in Marketing and Service Extension Center,

Ministry of Textiles. We make it clear that the total service of

the appellant shall be taken into consideration for all

purposes, including post retiral benefits"

11. After quoting the aforesaid, the Tribunal also held:

"The order was passed on 13.9.1994. In the light of this

order, we are unable to agree with the contentions of the

learned counsel for the applicants that the total service of the

applicant would be considered only for retiral benefits but not

for purposes of promotion and seniority. As Respondent 5

has been directed to be regularized as HPO w.e.f. 18.3.1976

i.e. the date from which he has been continuously holding

that post, the respondents had to comply with this order of

the Apex Court and consider him for further promotions as

AD(H) and DD(H) by holding review DPCs in accordance with

law. The order dated 20.4.1995 passed by the respondents in

respect of Respondent 5 in pursuance of the Supreme Court

order dated 13.9.1994 has been marked to all the concerned

officers in the Office of Development Commissioner

(Handicrafts)- Respondent No.2, the subsequent order passed

on 6.11.1995 in respect of the same officer has also been

similarly marked and we have no reason, therefore, to reject

the contention of the respondents that this OA is highly

belated."

"9........ even on merits we find no substance in the

contentions raised by the applicants that the respondents

could not have revised the seniority lists or issued the

promotion orders of Respondents 5-7 in terms of the judicial

pronouncements they have obtained in their favour. In the

case of Respondent No. 7, S.K. Jana, although he might not

have litigated earlier, it is settled law that Respondents cannot

deny the benefit to him as he is similarly situated as the other

two private respondents. The contention of the applicants

that the order of the Supreme Court dated 13.9.1994 has not

given any specific directions regarding seniority and,

therefore, there was no need to revise the seniority list begs

the question because the Apex Court itself had directed that

the appellant shall be treated as a regular substantive holder

of the post form the date he was continuously holding the

post and the total service of the appellant should be taken

into consideration for all purposes. That being so he would be

entitled to claim his seniority as HPO w.e.f. 22.3.1976, that is

the date from which he was holding the post on adhoc basis

as stated in the order dated 20.4.1995 with all benefits wich

flows from that order. In the circumstances of the case, we

find no infirmity in the orders passed by the respondents

promoting the private respondents 5-7 in accordance with the

review DPCs held by them and in pursuance of the orders of

the Supreme Court and the Tribunal passed in their favour.

The judgment of the Supreme Court in M.A. Haque's case

(supra) does not appear to be relevant in the facts and

circumstances of this case.

12. In so far as respondent No.9 is concerned, it would be appropriate

to take note of the preliminary submissions made by the said

respondent in his counter affidavit available at page 228, which is

reproduced for the sake of reference:-

Preliminary Objections:

i) The answering respondent was not a Respondent in O.A.

No.2494/1998, filed by the present petitioners before the Hon'ble CAT, Principal Bench, New Delhi, whose judgment and order dated 24.12.1999 has been sought to be assailed in the present writ petition. This, therefore, appears to be a misjoinder. Hence it is prayed at the outset that the name of the respondnent No.9 may kindly be deleted.

ii) Moreover, the writ petition challenges the seniority of respondent No.9 and others vis-à-vis the petitioners. The seniority/promotions given to the respondent No.9 became finally settled as early as in 1993 in pursuance of implementation of orders dated 28.01.1992 in O.A. No.79/1990 (S. Ramamoorthy Vs. Union of India & Others) of CAT, Madras Bench and order dated 3.8.1993 of the Hon'ble Supreme Court in the Special Leave Petitions 698/1993 and I.A./93. The said S.L.Ps. filed by the present petitioners and one another and respondents No.1 and 2 herein were dismissed by the Hon'ble Supreme Court on 3.8.1993 and the order dated 28.1.1992 of the Hon'ble CAT, Madras become final and binding on petitioners. Hence, the petitioners are precluded from challenging the earlier final orders of Hon'ble CAT and Hon'ble Supreme Court and petition is barred by principles of constructive res judicata. ON this count alone the present petition deserves to be dismissed with extra ordinary costs especially as the petitioners are seeking to achieve indirectly what they could not achieve directly years before.

iii) Further the petitioners are seeking to add the period of their adhoc service to count towards their seniority which plea had never been taken by them either as respondents in O.A. No.79/1990 or as appellant in S.L.P. 698/1993. As such they are precluded from agitating or raising the said new pleas in the present writ petition on the principle of constructive res judicata.

iv) In the judgment and order dated 25th November, 1999 in O.A. No.56/1998 (S. Ramamoorthy Vs. Union of India & Ors.) the Hon'ble CAT, Madras has also reiterated that the principle of res judicata will equally apply to the respondents in O.A. No.56/1998, and others who were parties in O.A. No.79/1990 and who may like to reagitate the issues decided in O.A. No.79/1990 and reiterated the legitimate benefits/orders issued in 1993 after implementation of Supreme Court order dated 3.81993.

v) The seniority in the Grade of Deputy Director (H) of respondent No.9 with effect from 19.11.1993 and the petitioners with effect from 6.5.1994 was determined in the final seniority list dated 16.5.1995 issued after judicial orders and without any objection from the present writ petitioners. The writ petitioners are again correctly shown as juniors to respondent No.9 in the impugned seniority list dated 20.07.2000. Hence the petitioners are stopped from challenging the seniority in this writ petition and the writ petition against the respondent No.9 is against all canons of law and natural justice.

13. On merits, this respondent also stated in reply to para 1.1. that:-

It is incorrect to say that the petitioners were not made parties in the Court cases filed by the respondent No.9. On the contrary the petitioner were parties to the O.A. No.79/1990 filed by the respondent No.9 in Hon'ble CAT, Madras. It is only because of they being the parties to the said O.A., they filed an S.L.P. No.698/1993, challenging the order dated 28.1.1992 of O.A. No.79/1990, and their S.L.P. was dismissed on 3.8.1993 after confirmation of Tribunal Order. It is incorrect to say that the seniority of Deputy Director (H) was revised against the law laid down by the Hon'ble Supreme Court. The initial appointment of respondent No.9 as Junior Filed Officer, with effect from 23.4.1976 was as per the provisions and the U.P.S.C. (Exemption from Consultation Regulations, 1958 specified in the Recruitment Rules, 1972 referred by petitioners in Annexure P-4 (page 57-60) and hence the subsequent regularization with effect from 23.41976 in the post held by him and the seniority/promotions granted to respondent No.9 in 1993 were as per Rules and after

recommendation of review DPS/UPSC. It is again incorrect to say that the Hon'ble CAT, New Delhi in its order dated 24.12.1999 in O.A. 2494/1998, gave wrong interpretation of order dated 13.9.1994 of Hon'ble Supreme Court in Sehgal's case. The Hon'ble CAT correctly upheld its implementation.

14. The memo of parties with respect to OA No. 79/90 filed in the

Central Administrative Tribunal, Madras Bench is available on record at

page 261 goes to show that Subhash Chandra, Petitioner No.1 herein

was one of the respondents as his name appeared in the list of

respondents as respondent No. 11.

15. As stated above, the petitioner no.1 who was respondent No.11 in

that case admittedly filed an SLP against this order which was

dismissed. The said order is available at page 286 of the paper book,

wherein it has been held :-

We are not inclined to interfere with the order of the Tribunal. It is open for the Union of India to make whatever comments it likes to the UPSC in the matter of work and conduct of the applicant during the period concerned including the alleged failure of Mr. Ramamoorthy in the year 1979. The Special Leave petition is dismissed.

16. The factum of filing of this SLP stands admitted by the petitioner

no.1 in his rejoinder. The relevant portion of the said admission is at

page 366 and reads as under:-

The petitioner would respectfully submit that they have challenged the seniority of private respondents including respondent No.9 on the basis of ratio decided by Hon'ble Supreme Court in M.A. Haque's case (1990) 2 SCC 715 : (1993) 3 SCC 213 which is based on the judgment of Constitution Bench of Hon'ble Supreme Court in Direct Recruit's case (1990) 2 SCC 715. The issues raised by

the petitioner are fully applicable to the alleged illegal seniority of respondent No.9 vide impugned order dated 20 July 2000 and fully valid in the eyes of law. The petitioner never wanted any case of seniority to be decided without impleading all the necessary parties. They have, therefore, impleaded respondent No.9 as a necessary party.

17. Thus, it will be seen that the efforts are made by the petitioners to

reiterate the issues which have been settled by the Apex Court. Even if

it is presumed for the sake of reference that the orders passed by the

Apex Court is not in consonance with the orders passed by the said

Court earlier or by any constitutional court, this Court cannot sit in an

appeal against the order passed by the Apex Court. It is for the said

court to correct itself whenever an appropriate opportunity is brought

before that Court. Hence we do not find any infirmity in the orders

passed by the Tribunal inasmuch as the seniority fixed by Respondent

No. 2 is in accordance with the directions of the Apex Court in the case

of S.K.Sehgal (supra) as well as in the case of Respondent No.9. The

other respondents have got consequential benefits, some of whom have

also approached the different benches of the Tribunal.

18. Taking all these facts into consideration, we find that the order

impugned before us of the Tribunal dated 24.12.1999 does not suffer

from any infirmity as those orders are in accordance with the directions

given by the Apex Court which cannot be interfered with by us sitting in

the High Court while exercising our powers under Article 226 of the

Constitution of India. Accordingly, the writ petition is dismissed with

no orders as to costs, taking into consideration that petitioner No.1 is a

senior citizen.

MOOL CHAND GARG, J.

JANUARY 28, 2010                               ANIL KUMAR, J.
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