Om Prakash Singh & Ors. vs Union Of India & Ors.
2010 Latest Caselaw 3230 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                                    Date of decision: 13.07.2010


+                               WP (C) No.5429 of 1998


OM PRAKASH SINGH & ORS.                                         ...PETITIONERS
                   Through:                     Mr. M.P.        Raju & Ms. Maria,
                                                Advocates.


                                          Versus


UNION OF INDIA & ORS.                                        ...RESPONDENTS
                    Through:                    Ms. Saroj Bidawat, Advocate
                                                for Respondents 1 & 2.
                                                Mr. R.K. Saini, Advocate
                                                for Respondents 4 & 5.



CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE VALMIKI J. MEHTA

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?                   No

2.        To be referred to Reporter or not?                    No

3.        Whether the judgment should be
          reported in the Digest?                               No


VALMIKI J. MEHTA, J. (Oral)

1. This petition under Articles 226 & 227 of the Constitution of India

challenges the judgement dated 16.9.1998 passed by the Central

Administrative Tribunal (for short „CAT‟), and by which judgement,

the CAT dismissed the Original Applications (OAs) which were

preferred by the present petitioners challenging the seniority list

prepared pursuant to impugned order dated 30.11.1995 by respondent _____________________________________________________________________________________________

No.3 (Director of Respondent No.2) in the OA and also respondent

No.2 herein.

2. The facts of the case are that the petitioners were appointed as Senior

Translators on the basis of a written examination held on all India

basis followed by an interview and medical examination. The

appointment of the petitioners were, however, called as ad hoc

appointments. Since there was threat of termination of services of

the petitioners, OAs were preferred before CAT, being OA

Nos.1917/1988 and 2240/1988, in which a direction was sought to

restrain respondents 1 & 2 herein from terminating the services and a

further direction was sought for regularization of their services w.e.f.

the date of their initial appointment. These OAs were allowed by the

CAT vide its order dated 4.3.1994. The operative portion of the

order dated 4.3.1994 reads as under:

"4. On a consideration of all the circumstances, since the applicants have continued in service for a long duration and interim order has continued to be operative till date and the only infirmity pointed out to resist the claim of the applicants for regularization, was the requirement in the service rules in consultation with the UPSC, we direct the respondents to regularize the services of the applicants in both the OAs w.e.f. the respective dates of their original appointment on ad hoc basis in consultation with the Union Public Service Commission and on evaluation of their Confidential Reports in respect of the period from the dates of their respective appointments within a period of six months from the date of receipt of a copy of this judgement. No costs."

(emphasis supplied)

3. In implementation of the said order dated 4.3.1994, a fresh

provisional seniority list was drawn up. The private respondents

being aggrieved by the drawing up of such provisional seniority list

_____________________________________________________________________________________________

in which the present petitioners were placed higher than the private

respondents herein, a petition came to be filed before CAT being OA

No.1448/1995. The apprehension expressed by the private

respondents herein in this OA was that in view of the provisional

seniority list some of these private respondents who were holding

higher post of Translation Officer on ad hoc basis would be reverted

on the basis of the provisional seniority list prepared pursuant to the

order dated 4.3.1994. The Union of India in the said OA

No.1448/1995 took up a categorical stand that the provisional

seniority list had been prepared only pursuant to the directions given

by CAT in its judgement dated 4.3.1994. This OA No.1448/1995

was disposed of by CAT vide its judgement dated 31.10.1995 by

observing that the Union of India should consider the representation

of the private respondents herein (applicants in the said OA) after

duly considering all aspects including the representations as also the

earlier judgements.

4. This led to passing of the impugned order dated 30.11.1995 by the

respondent No.3, which denied the benefit to the present petitioners

of the judgement dated 4.3.1994 as per which the present petitioners

were to be regularized from the respective dates of their original

appointment. This order dated 30.11.1995 placed the private

respondents senior to the present petitioners.

5. The present petitioners, therefore, preferred the subject OAs which

resulted in passing of the impugned judgement dated 16.9.1998. By

the impugned judgement, CAT has dismissed the OAs by holding

that the second judgement of the CAT dated 31.10.1995, in fact, _____________________________________________________________________________________________

appeared to have thrown open the issues, once again, which had been

concluded by the first judgement dated 4.3.1994 of CAT. We

reproduce below para 13 of the present impugned judgement dated

16.9.1998, which holds so, as under:

"13. We are of the view that the order of the Tribunal dated 31.10.95 had opened the gates for a review of the provisional seniority list and the principles on which it was based. In accordance with the statements made by the rival parties, it was only a provisional seniority list. Objections were invited for the same. It was open to review and correction. There was nothing final about that seniority list. The applicants have already filed a representation and this Tribunal by its order dated31.10.1995 gave complete freedom to the respondents to consider all judicial authorities and objections of the direct recruits and departmental promotes as well as the case law cited. Accordingly the basic principle relied upon is that the date of commencement of seniority is from the date the UPSC has given its approval. That date for the applicants was 16.9.94. Approval of the UPSC is a pre-condition for a regular appointment and is not merely a procedural irregularity. The appointment itself becomes ad hoc and stop gap for a limited period without the approval of the UPSC. Regularization and seniority are two different concepts. It would be an inappropriate imputation that the UPSC regularized their services with effect from the date of their initial appointment when it gave its approval only on 16.9.94. Even if it had done so, as was argued, UPSC must be held to have exceeded in its jurisdiction. While considering seniority, competing claims of various streams have to have adjudged and adjudicated. It is in this view of the matter that we find Hague‟s case to be more relevant. In that case also the petitioners worked as ad hoc employees by way of stop gap arrangement. In accordance with the court‟s order passed in 1987-99, they were regularized in service and appointed as Assistant Medical Officers. It was only by the orders of the court that the appointments were regularized by a special procedure laid down by the court. The Supreme Court had to contend with three classes: namely, the outsider direct recruits, the in service direct recruits and the ad hoc employees. The Supreme Court held that the seniority of the direct recruits both outsiders and insiders, have to determine according to the dates of their regular appointment through the UPSC and the applicants to be placed in the seniority list after the direct recruits recruited till date."

_____________________________________________________________________________________________

6. Before us, the counsel for the petitioners has emphasized three basic

issues: - (i) the judgement dated 4.3.1994, admittedly inter parties is

res judicata and it was not open to respondent No.3 to disturb the

finality of that judgement by relying upon the observations in the

subsequent judgement dated 31.10.1995. It was further contended

that by the impugned judgement CAT has wholly misunderstood the

operative portion of the judgement dated 31.10.1995 by holding that

the judgement dated 30.11.1995 had opened the gates for review of

the provisional seniority list, meaning thereby, the judgement dated

4.3.1994 was not res judicata; (ii) it was contended that the direction

in the judgement dated 4.3.1994 so far as the petitioners were

concerned was only for consultation with UPSC and therefore, the

CAT erred in taking this issue of consultation with UPSC as a

retrospective appointment of the petitioners without any basis

because the consistent stand of the Union of India has been that the

judgement dated 4.3.1994 requiring regularization of the petitioners

from their initial dates of appointments was being implemented by

drawing up the provisional seniority list pursuant thereto and which

was not upset by the subsequent judgement dated 31.10.1995; and

(iii) it was finally argued that the appointment of the petitioners was

though called as ad hoc, however, the same appointments were not

such which could have been said to be illegal because as per the

relevant recruitment rules appointment to the post was done by

conduct of examinations and which examination as per relevant rule

was not required to be conducted by the UPSC and nor were the

appointments to be with „prior‟ consultation with the UPSC. The _____________________________________________________________________________________________

relevant Rule pertaining to the petitioners appointment which is

relied upon reads as under:

"Consultation with the UPSC necessary while making direct recruitment."

7. The counsel for the private respondents, in reply, argued that the

subsequent judgement dated 31.10.1995, in fact and in substance had

set aside the finality of the judgement dated 4.3.1994 and therefore it

was permissible for respondent No.3 to not act as per the directions in

the judgement dated 4.3.1994 and thereby respondent No.3 validly

denied the benefit of regularization of the services to the present

petitioners from the dates of their initial appointments. It was also

secondly contended, a stand which was supported by the counsel

appearing for the Union of India, that the appointments of the

petitioners is illegal because the examinations in this case, pursuant

to which the petitioners were appointed was not a valid and legal

examination because the examination ought to have been conducted

by the UPSC but such examination was not conducted by the UPSC

and it was done only by respondents 1 & 2 herein.

8. We have given our anxious consideration to the arguments of the

counsels for the parties.

9. We are of the view that the impugned judgement deserves to be set

aside and the contentions raised by learned counsel for the petitioners

are correct. In our opinion, there are two basic issues which, if

addressed, would result in the impugned order being set aside and the

present petition being allowed:

_____________________________________________________________________________________________

i. The first issue is that the judgement dated 4.3.1994 inter

parties whereby the appointment of the petitioners were

regularized w.e.f. the date of their respective dates of original

appointments is not an issue whose finality can be challenged

in any manner. This judgement, admittedly became final, and

there was no challenge to this judgement either by the private

respondents herein or by the Union of India, who were parties

to the said judgement. Further, in our opinion, when the order

dated 31.10.1995 asked the Union of India to consider the

representations of the private respondents herein it cannot be

said that by that judgement the finality of the judgement dated

4.3.1994 could at all have been affected. Neither does the

judgement dated 31.10.1995 reflects so nor can any law

permits a Co-ordinate Bench of CAT in collateral proceedings

to set aside an earlier binding judgement given by a different

Bench earlier of the same Tribunal. Thus, both the respondent

No.3 as also CAT in the impugned judgement, has fallen into

a grave error by holding that by the order of the Tribunal dated

30.11.1995 gates have been opened for review of a provisional

seniority list by ignoring the first judgement dated 4.3.1994.

By observing so it is quite clear that without using the

technical expression res judicata, respondent No.3 and CAT

by the impugned judgement are in effect diluting and affecting

the finality of the principle of res judicata qua the judgement

dated 4.3.1994. The findings and observations of the Tribunal

in the impugned judgement are, therefore, totally against the _____________________________________________________________________________________________

record and the facts of the case and are, therefore, set aside. In

our opinion, there is no reason to hold that the finality of the

judgement dated 4.3.1994 has been in any manner affected by

the subsequent judgement dated 31.10.1995 of the Tribunal,

and therefore, it was not permissible for the Tribunal by the

impugned judgement to hold so.

ii. The second basic issue is that the subject rule, as already

reproduced above, does not require that the examination

should be conducted by the UPSC. Not only this, the counsels

appearing both for the Union of India and the private

respondents have failed to show us any pleading either in this

Court or before the Tribunal that the examination conducted

by respondent No.2 herein can be said to be violative of the

Rules because the examination, in fact, ought to have been

conducted by the UPSC and not by respondent No.2 herein. It

needs to be borne in mind at this stage that the labeling of the

appointments of the petitioners as ad hoc cannot be strictly

said to be a pick and choose method because appointments of

the petitioners was through regular All India Examination and

they were appointed after interviews were conducted and their

having cleared the medical examination. Further, the

requirement of the Rule was not with regard to any „prior‟

consultation with the UPSC but only consultation with the

UPSC. It is for this reason that the operative portion of the

first order dated 4.3.1994 directed regularization of the

appointments of the petitioners, subject to „consultation‟ with _____________________________________________________________________________________________

the UPSC. UPSC has not denied the benefit to the petitioners

for regularization in employment from the dates of their initial

appointment, being fully in the know of the fact that only a

consultation process with the UPSC was not carried out there

being no requirement of „prior‟ consultation. UPSC cannot be

said to have given „retrospective appointments‟ as per its

actions because UPSC was only acting in accordance with the

mandate of the judgement of the CAT dated 4.3.1994 and as

per Rules.

10. We are persuaded to exercise our powers under Article 226 of the

Constitution of India in the facts of the present case because if the

impugned judgement is allowed to stand grave injustice will be

caused to the petitioners who would be denied benefits and seniority

which flows from the binding nature of the judgement dated 4.3.1994

inter parties which had become final as neither the Union of India nor

the private respondents have ever challenged the same in any manner

whatsoever.

11. In view of the above the impugned judgement dated 16.9.1998 and

the impugned order dated 30.11.1995 are set aside. The appointment

of the petitioners shall be taken pursuant to the judgement dated

4.3.1994 w.e.f. the respective dates of their original appointment and

as also so approved by the UPSC. A fresh seniority list in

accordance with our present judgement be now drawn up within a

period of two (2) months from today.

_____________________________________________________________________________________________

12. The petition is, therefore, allowed leaving the parties to bear their

own costs.

VALMIKI J. MEHTA, J.

JULY 13, 2010                                           SANJAY KISHAN KAUL, J.
b'nesh

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