Naresh Singh & Ors vs Bharat Sanchar Nigam Limited & Ors
2010 Latest Caselaw 1458 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                WP(C) No.1787/2010

%                             Date of Decision: 16.03.2010

Naresh Singh & Ors                                           .... Petitioners
                  Through Mr.Amit Gupta, Advocate.

                                      Versus

Bharat Sanchar Nigam Limited & Ors                .... Respondents
                  Through Mr.Dinesh Agnani, Advocate for the
                           respondent Nos.1 to 3.

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                NO
             in the Digest?


ANIL KUMAR, J.

* The petitioners have challenged the order dated 19th October,

2009 passed by the Central Administrative Tribunal, Principal Bench,

New Delhi in T.A No.885/2009 titled as Sh.R.P.Prasad & Ors v. Bharat

Sanchar Nigam Limited & Ors whereby the counsel for the petitioners

was allowed to withdraw the original application of the petitioners with

liberty to the petitioners to challenge the recruitment rules and

methodology adopted by the respondents in their selection by

impleading the affected parties. The petitioners has also challenged the

dismissal of their miscellaneous application No.2585/2009 seeking

recalling/modification of the order dated 19th October, 2009 which was

also dismissed by the Tribunal by order dated 19th February, 2010

holding that miscellaneous application is not maintainable.

The learned counsel for the petitioners has very emphatically

contended that the order dated 19th October, 2009 withdrawing the

original application is based on wrong concessions made by the counsel

for the petitioner and the petition on behalf of petitioners was not liable

to be withdrawn in terms of the law laid down by the Supreme Court.

The learned counsel for the petitioner has relied on (1974) 4 SCC

335, The General Manager, South Central Railway, Secunderabad v.

A.V.R.Siddhanti; 1983 (3) SCC 601, A.Janardhana v. Union of India &

Ors; 1990(Suppl) SCC 701, Union of India v. M.P.Singh; 1996 (7) SCC

759, V.P.Srivastava v. State of M.P; (2001) 5 SCC 60, Central Council

for Research in Ayurveda & Siddha v. Dr.K.Santhakumari and 2003 (5)

SCC 321, Postgraduate Institute of Medical Sciences Education and

Research and Anr v. A.P.Wasan that other affected persons are not the

necessary parties and the petitioners do not wish to challenge the

recruitment rules and they only challenge the methodology adopted by

the respondents.

Perusal of the judgment relied on by the petitioners reveal that

they are distinguishable. In General Manager, South Central Railway,

Secunderabad & Ors (Supra), it was held that the employees who were

likely to be affected as a result of readjustment of the seniority of the

petitioner in that case in accordance with the principles laid down in

the Board‟s decisions were at the most could be proper parties and not

necessary parties and their non joinder could not be fatal for the writ

petition. The Supreme Court, however, had not decided in the said case

whether a petition which had been withdrawn could be allowed to be re-

agitated in the facts and circumstances as has been alleged by the

petitioner. In A.Janardhana (Supra), the dispute before the Apex Court

was regarding determination of inter se seniority of the promotees and

direct recruits and it was held that inter se seniority should be based on

just, clear and equitable criterion. In Union of India v. M.P.Singh

(Supra), it was held that all the parties need not be impleaded where

validity of a rule is being challenged especially where the Tribunal had

protected interest of all those persons who were working at that time by

directing that they shall not be disturbed and non impleadment of those

who should be affected in future could not render the petition

vulnerable. In V.P.Srivastava and ors (Supra), the dispute was

regarding the seniority of direct recruits and promotees and it was held

that non impleadment of all the promotees particularly when the

Tribunal found that the impleadment of two of the promotees had

safeguarded the interest of the promotees was not fatal to the

application.

In Central Council for Research in Ayurveda & Siddha and Anr

(Supra), an admission was made by the counsel contrary to rule and it

was held that a concession made contrary to rules will not bind the

parties. The case of the petitioner is, however, distinguishable as no

such concession had been made by the earlier counsel as considering

the facts and circumstances, it was deemed appropriate by the counsel

to withdraw the petition with liberty to file a fresh petition by

impleading the affected parties. Nothing has been filed by the

petitioners that the earlier counsel who withdrew the petition had acted

contrary to any written instructions of the petitioners. In Postgraduate

Institute of Medical Sciences and Anr (Supra), the dispute was whether

the promotion should be section wise or cadre wise where some

employees who were not parties before High Court sought intervention

on the ground that their career prospects would be jeopardized by the

decision of the High Court without their being given any opportunity of

being heard. In the peculiar facts of that case it was held that the plea

of interveners was not sustainable.

Apparently the decision cited by the petitioners are distinguishable and

do not support the pleas and contentions of the petitioners. It is no more res

integra that the ratio of any decision must be understood in the background of

the facts of that case. What is of the essence in a decision is its ratio and not

every observation found therein nor what logically follows from the various

observations made in it. It must be remembered that a decision is only an

authority for what it actually decides. It is well settled that a little difference in

facts or additional facts may make a lot of difference in the precedential value

of a decision. The ratio of one case cannot be mechanically applied to another

case without having regard to the fact situation and circumstances in two

cases. The Supreme Court in Bharat Petroleum Corporation Ltd and Anr. v.

N.R.Vairamani and Anr. (AIR 2004 SC 778) had held that a decision cannot be

relied on without considering the factual situation. In the judgment the

Supreme Court had observed:-

" Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

In P.S.Rao Vs State, JT 2002 (3) SC 1, the Supreme Court had held as

under:

". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one

additional or different fact may make a world of difference between conclusion in two cases.

In Rafiq Vs State, (1980) 4 SCC 262 it was observed as under:

"The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases."

The dispute in the present petition is not whether all the affected

parties are to be impleaded or not but whether the order withdrawing

the petition by the counsel who was duly authorized by the petitioner is

liable to be set aside or not. This is not the case of the petitioners that

the earlier counsel was not duly authorized by them to represent their

pleas and contentions. If the counsel on the basis of facts and

circumstances thought it appropriate to challenge the recruitment rules

as well as methodology adopted by the respondents in their selection

and also thought that the affected parties should be impleaded and

sought to withdraw the petition with liberty to file an appropriate

petition, the said order cannot be challenged merely on account of the

opinion of another counsel that the affected parties are not the

necessary parties and the petition ought not to have been withdrawn.

The learned counsel for the petitioners has also not pointed out that the

counsel who had withdrawn the petition with liberty to file an

appropriate petition has done so contrary to the specific instructions

given by any of the petitioners nor any malafide has been imputed

against the counsel who had withdrawn the petition with liberty to file a

fresh petition.

Not to implead any of the affected parties or not to challenge the

recruitment rules and only to challenge the methodology adopted by the

respondents, later on on the advice of another counsel will not make the

order passed by the Tribunal allowing withdrawal of original application

with liberty to file a fresh original application, illegal or having such

irregularity which require interference by this Court.

The learned counsel has also failed to show that any action has been

initiated by the petitioners against the earlier counsel for any alleged

misconduct against that counsel who had withdrawn the petition with

liberty to file a fresh petition. Filing a fresh petition may delay the grant

of relief to the petitioners as has been contended by the learned counsel

for the petitioners but that does not make the order passed by the

Tribunal on the basis of statement of the duly appointed counsel for the

petitioners before the Tribunal. There are also no grounds to interfere

with the order of Tribunal dismissing the application of the petitioners

seeking withdrawal of order dated 19th October, 2009 as not

maintainable.

For the forgoing reasons in these circumstances with respect to

the allegations now made by another counsel appearing for the

petitioner, the order dated 19th October, 2009 allowing the petitioners

through their earlier counsel to withdraw the petition with liberty to file

an appropriate petition challenging the recruitment rules and

methodology adopted by the respondents and also by impleading

affected parties, cannot be faulted nor it suffers from any such illegality

or irregularity which would entail any interference by this Court in

exercise of in exercise of its jurisdiction under Article 226 of the

Constitution of India.

The learned counsel for the petitioner has also very emphatically

contended that filing a new petition will delay the adjudication of the

pleas and contentions of the petitioners. This cannot be a ground to set

aside the order passed by the Tribunal on the lawful representation

made by a duly appointed counsel on behalf of petitioners. Since the

liberty has been granted to the petitioners to file a fresh petition and if

in the opinion of other counsel recruitment rules are not to be

challenged nor any other parties are to be impleaded in the fresh

petition, it will open to the petitioners to take such appropriate pleas

and relief as may be deemed fit and appropriate by them.

In the circumstances, we decline to exercise any jurisdiction in

favour of petitioners and set aside the orders dated 19th October, 2009

and 19th February, 2010 passed by the Tribunal. There are no grounds

to set aside the said orders and the writ petition is without any merit.

The writ petition is misconceived and the petitioners are not entitled for

any relief. The writ petition is, therefore, dismissed.

ANIL KUMAR, J.

MARCH 16, 2010                                    MOOL CHAND GARG, J.
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