Union Of India And Another vs A.K. Singhal And Others
2010 Latest Caselaw 3529 Del

 *            IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                       W.P.(C) No. 1230/1999

                                                    Reserved on: 26th July, 2010.

                                                 Pronounced on: 29th July, 2010.

 UNION OF INDIA AND ANOTHER                                 ...... Petitioners

                                Through:        Mr. R.V. Sinha, Advocate with
                                                Mr. A.S. Singh, Advocate and
                                                Ms. Sangeeta Raj, Advocate.

                                VERSUS

 A.K. SINGHAL AND OTHERS                                    ......Respondents

                                Through:        Mr. K. T. Anantharaman,

                                                to 4.
                                                None for the respondent Nos.5 to

 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?

 2.    To be referred to the Reporter or not?

 3.    Whether the judgment should be reported in the Digest?


 %                              JUDGMENT

 VALMIKI J. MEHTA, J

1. By means of this petition under Articles 226 and 227 of the

Constitution of India, the Union of India through the Secretary, Ministry of

W.P.(C) No.1230/1999 Power and the Central Electricity Authority, the petitioners, seek setting aside

of the order dated 24.9.1998 passed by the Central Administrative Tribunal

(CAT). By the impugned order dated 24.9.1998, the Original Application

(OA) filed by the private respondent Nos. 1 to 4 herein (hereinafter referred to

as the „successful private respondents‟) before CAT was allowed whereby they

were given seniority over the private respondent Nos. 3 to 9 in O.A. No.266/94

and the private respondents Nos.3 to 14 in O.A. No.267/94. These latter

private respondents are hereinafter referred to as the „unsuccessful private

respondents‟.

2. Two points arise for determination in the present case and were so

canvassed by the counsel appearing on behalf of the petitioners. The first

issue and the ground of challenge raised was that the OAs were either barred

by the limitation or by the principle of delay and laches. The second argument

and issue is that the grant of seniority to the successful private respondents

herein (applicants in the OAs) was in violation of the Office Memorandums

issued by the Ministry of Home Affairs on 22.12.1959, 20.4.1961 and

12.9.1968. It is argued that as per these office memorandums, the seniority of

the unsuccessful private respondents ought to have been over the successful

private respondents because the seniority is not on the basis of the seniority as

per the select list prepared as per the original appointments but on the basis of

differing dates of confirmations of the private respondents.

W.P.(C) No.1230/1999

3. The facts of the case are that the private respondents belong to the

Central Power Engineering Services Group-A. These private respondents, i.e.

both these successful and unsuccessful private respondents belong to the 1979

and 1980 batch. The recruitment of these private respondents was through

regular channel through examination and selection as per the merit list

prepared and approved by the UPSC. In this select list, as prepared by the

UPSC, the successful private respondents were placed higher than the

unsuccessful private respondents. Subsequently, on 25.8.1986 a provisional

seniority list was issued wherein the unsuccessful private respondents were

shown higher in the seniority list than the successful private respondents.

Other seniority lists followed thereafter between 1986 to 1991, though no

promotions were made pursuant to these subsequent lists. A representation

was given by one of the successful private respondents to the seniority list of

1986, however, this representation was not decided. Thereafter, the seniority

list was issued on 26.9.1991 which again showed the successful private

respondents below the unsuccessful private respondents and again a

representation dated 25.6.1992 was made to the petitioners which failed to

elicit any response. The petitioners, thereafter, published the impugned

seniority list dated 24.2.1993 which reflected materially the same position as

in the seniority lists of 1986 and 1991. Since promotions were sought to be

effected on the basis of this seniority list of the year 1993, the successful

W.P.(C) No.1230/1999 private respondents approached CAT and have succeeded in their OAs thereby

granting them seniority over the unsuccessful private respondents.

4. So far as the issue of limitation and delay/laches is concerned, we

do not find that there is any error in the impugned order. Admittedly, no

promotions of the unsuccessful private respondents took place pursuant to the

earlier seniority lists and therefore there was no immediate cause of action for

the successful private respondents to have approached CAT. Not only that, the

list of 1986 was admittedly only a provisional seniority list and there was

therefore no need to challenge the same except making a representation there

against and which admittedly was made. There would not arise the issue of

applicability of the petition being barred under Section 20(2) of the

Administrative Tribunals Act, 1985 inasmuch as admittedly there are no rules

prescribing a representation and consequently there would not be an issue of

any limitation with respect to such a representation. The Tribunal has on the

issue of limitation rightly observed as under:

"15. We have carefully considered the rival submissions. First we will take up the plea of limitation. We notice that the OA has been admitted. The applicant has filed this OA on 3.1.1994. He has challenged the seniority list as Annexure-A-10 dated 24.2.1993 because he has not received any reply to his representations to earlier seniority lists dated 25.6.1992 and because the seniority list dated 24.2.1993 perpetuated according to them the illegality of the earlier seniority lists. The respondents only state that the representations were not traceable.

The genuineness of the filing of the representations was not denied. If the 1993 seniority list was only a repetition of earlier

W.P.(C) No.1230/1999 seniority list, the question at issue is why it was issued at all? The moment the 1993 seniority list is issued, for whatever reasons, it gives a cause of action to the applicants. We will presently see that the inter se seniority fixed by the respondents is not based on correct law. We are satisfied that the grounds relating to limitation would not apply in the special facts and circumstances of this particular case."

5. So far as the second issue is concerned viz of applicability of the

Office Memorandums of the years 1959, 1961 and 1968, we need to refer to

only one memorandum of the year 1959 as all other memorandums are same.

A reference to this office memorandum of the year 1959, and which is relied

upon by the learned counsel for the petitioner to contend that the seniority list

will be in terms of differing dates of confirmations and not as per the order of

merit in the select list prepared at the time of initial appointments, we find that

the said memorandum does not apply to the facts of the present case as it

applies only where persons are recruited on temporary basis. Admittedly, the

successful private respondents as also the unsuccessful private respondents

were appointed on a regular basis through examination and interview and after

approval of UPSC. It cannot be therefore contended that the private

respondents were appointed on a temporary basis. They were, in fact,

appointed on a regular basis, subject, of course, to completion of the probation

period. The learned counsel for the petitioners does not dispute that the letters

of appointments of the private respondents refer to the appointments of these

private respondents on „officiating‟ basis, i.e. surely not on temporary basis.

W.P.(C) No.1230/1999 The appointments of the private respondents thus not being temporary, there is

no scope for applicability of the OMs relied on behalf of the petitioners.

6. At this stage, we may note that the counsel for the petitioners has

strenuously challenged certain observations made in paras 20 and 21 of the

impugned order with regard to roster point system for promotion and other

directions. During the course of hearing, it transpires that these directions

have not been followed by the petitioners and therefore parties are agreed that

the observations made in paras 20 and 21 in the impugned order were really

not necessary for the Tribunal to decide this case and in fact are also not

necessary for us to pronounce upon for deciding the present case. Therefore,

we make it clear that we are leaving the issues open with respect to the

directions given by the Tribunal in paras 20 and 21 of the impugned order and

we express no opinion either way on the observations made therein.

7. Finally, we take on record the statements made by the counsel

appearing for the successful private respondents that these successful private

respondents are not claiming any monetary benefits pursuant to the impugned

order and nor are they claiming any acceleratory promotion. They only seek to

sustain the impugned order for the purpose of drawing up of a seniority list in

their present post viz. of Director on such basis and the further promotions

made or to be made.

W.P.(C) No.1230/1999

8. Accordingly, we do not find any merit in this petition to exercise

our jurisdiction under Articles 226 and 227 of the Constitution of India. No

gross illegality or perversity has been shown in the impugned order. The

petition is, therefore, dismissed and we direct the petitioners to draw a

seniority list in terms of the impugned order whereby the OAs were allowed

giving benefit of seniority to the successful private respondents as against the

unsuccessful private respondents. The necessary seniority list be now made

showing the proper placement of the successful private respondents in their

present posts of Directors in the petitioner No.2 and all promotions effected or

to be effected should be according to the seniority in the post of Director.

The petition is accordingly disposed of, leaving the parties to bear

their own costs.

VALMIKI J. MEHTA, J.

JULY 29, 2010                                 SANJAY KISHAN KAUL, J.
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W.P.(C) No.1230/1999