Sh. Chandransh Pandey vs Uoi & Ors.
2010 Latest Caselaw 5253 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    RA No. 123/2010 in WP(C) No. 5341/2008

%                             Date of Decision: 19.11.2010

Sh. Chandransh Pandey                              .... Petitioner
                   Through Ms. Jyoti Singh, Advocate for the
                           petitioner.
                           Mr. Manjeet Singh Reen, Advocate for
                           the review applicants

                                          Versus

UOI & Ors.                                              .... Respondents
                             Through Mr. Ajay Vikram, Advocate for the
                                     Railway

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

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?


ANIL KUMAR, J.

*

CM No. 3844/2010

This is an application by the review applicants seeking

condonation of delay of 53 days in filing the application for review of

order dated 21st December, 2009 allowing the writ petition of the

petitioner and setting aside the order of the Central Administrative

Tribunal.

The applicants have contended that they were parties before the

Central Administrative Tribunal, which had passed the order dated 2nd

July, 2008 in OA No. 284/2008 in favour of the applicants. According

to the applicants, they were not impleaded as parties to the present writ

petition which was filed by the petitioner against the order dated 2nd

July, 2008 and consequently, the applicants were not heard and the

writ petition was allowed and the order dated 2nd July, 2008 passed by

the Tribunal was set aside.

The applicants have asserted that the other respondents, in

compliance of the order dated 21st December, 2009, issued a letter

dated 22nd February, 2010, which was displayed on the notice board.

The applicants came to know about the order dated 21st December,

2009 on 8th March, 2010 from the notice board and consequent thereto

the application for review has been filed on 16th March, 2010. In the

circumstances, the applicants have contended that neither they were

the parties to the present writ petition, although they are the necessary

parties, nor the order dated 21st December, 2009 was passed in their

presence nor was it communicated to them in any manner till they

came to know about the order passed by this Court in WP(C) No.

5341/2008 titled Sh. Chandransh Pandey Vs. Union of India and Ors.

on 8th March, 2010. In the circumstances, the applicants have pleaded

that there is sufficient cause for condoning the delay of 53 days in filing

the application for review of order dated 21st December, 2009.

Reply to the application has not been filed on behalf of the

petitioner/non-applicants. In any case, it has not been disputed by the

petitioner/non-applicants that the applicants were parties before the

Central Administrative Tribunal, however, the applicants were not

impleaded as parties to the above noted writ petition.

If the applicants were not impleaded as parties to the above noted

writ petition, the applicants could not have the knowledge about the

filing of the writ petition and its disposal by order dated 21st December,

2009. The application for condonation of delay of 53 days is supported

by the affidavit of the applicant Sh. A.K. Sharma, who had stated that

he came to know about the order on 8th March, 2010, when the letter

dated 22nd February, 2010 was put on the notice board. There is no

reason to disbelieve the applicants. In the circumstances, the

applicants have been able to make out sufficient cause for condonation

of delay of 53 days in filing the review application.

The application for condonation of delay, is therefore, allowed and

delay of 53 days in filing the review application is condoned.

RA No. 123/2010 & CM No. 3843/2010

This is an application seeking review of order dated 21st

December, 2009 passed by this Court in WP(C) No. 5341/2008 allowing

the writ petition and holding that the respondents, UOI and Ors. could

not have recalled its order/conscious decision dated 12th February,

2007.

The writ petitioner had filed a petition before the Central

Administrative Tribunal challenging the order dated 28th January, 2008

whereby his representation regarding his seniority and transfer to Delhi

Division had been rejected. The Tribunal by order dated 2nd July, 2008

in OA 284/2008 titled as Chandransh Pandey Vs. Union of India had

dismissed the petition against which order the Writ Petition No.

5341/2008 titled as Sh. Chandransh Pandey Vs. Union of India & Ors.

was filed, which was allowed by this Court by order dated 21st

December, 2009.

The grievance of the applicants is that they were impleaded as

parties in the original application No. 284/2008 by order dated 29th

April, 2008 and the applicants, namely, A.K. Sharma; Sh. Ravinder

Singh and Sh. Tilak Raj Sachdeva were impleaded as the respondents.

They further contended that though they were impleaded as parties,

however, the petitioner had failed to file amended memo of parties

before the Tribunal and to even implead them as party respondents

before this Court. However, the lapse on the part of the petitioner could

not deprive them of their right to be heard and oppose the prayer of the

petitioner in the writ petition.

The original application No. 284/2008, where the applicants were

impleaded as a party, was dismissed by the Tribunal by order dated 2nd

July, 2008 against which the above noted writ petition was filed.

However, the petitioner failed to implead the applicants as parties to the

present writ petition.

The assertion of the applicants is that they are necessary parties

and in their absence, the order dated 21st December, 2009 is not

binding on them as it has not been passed against them and

consequently, the order of the Tribunal dated 2nd July, 2008 which was

passed in their favour has not been set aside as far as the applicants

are concerned. It is also contended that in the facts and circumstances,

the order dated 21st December, 2009, could not have been passed

without impleading the applicants as parties to the writ petition and

without hearing them and in the circumstances, the order dated 21st

December, 2009 suffers from an error apparent on the face of the record

and is liable to be set aside. It is also contended by the applicants that

the order dated 21st December, 2010 has been passed against the

principal of natural justice as no reasonable opportunity was given to

applicants before reversing the order dated 2nd July, 2008, which was

passed in OA No. 284/2008 in their favor dismissing the Original

Petition of the petitioner.

The applicants have also contended on merit that the petitioner

had mentioned about the option form and the option was exercised by

him for the first time in the High Court in the writ petition, though, the

option letter dated 26th November, 2002 explicitly had indicated that it

was with reference to Railway Board's letter dated 19th July, 2002. The

applicants have also contended that the petitioner failed to appraise the

High Court about the list of the staff transferred to Delhi Division,

which was issued by the Northern Central Railway. The petitioner, who

was on deputation, had no authority to report to Delhi Division.

The applicants have also sought review of the order dated 21st

December, 2009 on the ground that the applicants being the necessary

parties, should have been impleaded as parties to the present writ

petition and should have been heard before setting aside the order of

the Tribunal, which was in their favour. In the circumstances, it is

contended that there is an error apparent on the face of the record and

the order dated 21st December, 2009 is liable to be set aside.

A reply has been filed on behalf of the petitioner/non-applicant

contending, inter alia, that the applicants should not be aggrieved by

the order dated 21st December, 2009 as the applicants were the

members of Northern Railway, Men's Union and for extraneous

consideration did not want the petitioner to come to Delhi Division and

gain seniority over them. It is further asserted by the writ petitioner

that although the Railway had granted seniority to the petitioner, the

applicants were instrumental in writing false and frivolous letters to the

department and getting his seniority cancelled. According to him, the

order which was challenged by the petitioner before the Tribunal, was

regarding action of the Railway in sending him back to Jhansi Division

from Delhi and cancelling his seniority illegally and thus, the cause of

action before the Tribunal was purely between the writ petitioner and

the department and consequently only the Railways and its officials in

official capacity were made parties as respondents. The plea of the

petitioner is that Senior DPO, Delhi had issued a notice to conduct

selection examination for 80% quota from Junior Engineers to Senior

Engineers and petitioner despite being the senior most was not called

for examination and pursuant to an interim order, he was allowed to

appear provisionally.

According to the petitioner, the applicants, after the interim order

was passed in favor of the petitioner to appear provisionally in the

examination, had filed an application to intervene in the matter and the

application was filed for the limited purpose to oppose the interim order

passed in favor of the petitioner. The Railway had, however, postponed

the examination and the examination was held after the judgment and

the petitioner was not allowed to appear.

The writ petitioner has also pointed out that the application for

impleadment by the applicants was also filed by the advocate of the

Railway and therefore, the impleadment was for limited purpose. In the

circumstances, it is contended that there are no errors in the order

dated 21st December, 2009 even though the applicants were not

impleaded as parties to the writ petition and were not heard. The writ

petitioner has also asserted various other facts on merit in reply to

various other allegations made by the applicants.

This Court has heard the learned counsel for the parties. The

order dated 29th April, 2008 in MA No. 583/2008 rather reveals that the

application to implead the applicants as parties to the original petition

before the Tribunal was not objected to and the application was

allowed. It had not been contended before the Tribunal that the

applicants be impleaded as parties for the limited purpose of opposing

the interim application of the petitioner. Even the plea that the

application for impleadment was filed on behalf of the applicants by the

counsel for the Railway, it cannot be inferred that the applicants were

impleaded as parties only in the interim application which was filed by

the petitioner before the Tribunal or that the applicants were not

impleaded in the Original application before the Tribunal. From the

order dated 29th April, 2008 in MA 583/2008 also, it cannot be inferred

in any manner that the impleadment of the applicants before the

Tribunal was for a limited purpose and they were not impleaded as

respondents. If the applicants were impleaded as respondents and

consequent to order dated 29th April, 2008 in MA 583/2008 if the memo

of parties was not filed by the writ petitioner, it will not affect the right

of the respondents in any manner. If the respondents were parties

before the Tribunal while dismissing the original application of the writ

petitioner being OA 284/2008 by order dated 2nd July, 2008, in the writ

petition filed by the writ petitioner against the said order, the applicants

should have been impleaded as the respondents as they were the

necessary parties before the High Court.

This cannot be disputed that the order dated 2nd July, 2008 was

passed by the Tribunal in OA 284/2008 in favor of the applicants,

which could not be set aside by this Court without hearing the

applicants. The pleas and contentions by the applicants raised in the

review application in support of sustaining the order dated 2nd July,

2008 are not to be considered at this stage and what is to be considered

is whether the applicants were necessary parties and whether the order

dated 21st December, 2009 could be passed without hearing their pleas

and contentions.

Considering the totality of the facts and circumstances, it is

inevitable to infer that the applicants are a necessary party in the writ

petition and the writ petitioner ought to have impleaded them as the

parties to the writ petition and the order dated 2nd July, 2008 in OA

248/2008 could be set aside only after hearing them. In the

circumstances, the order dated 21st December, 2009 has an error

apparent on it and is liable to be set aside.

Consequently, the order dated 21st December, 2009 allowing the

writ petition No. 534/2008 is set aside and in the facts and

circumstances, the writ petition is restored to its original number with

the direction to the writ petitioner to implead the applicants as parties

to the present writ petition. Consequently, the application for review

being RA 123/2010 is allowed.

Since the order dated 21st December, 2009 has been set aside,

consequently, the CM No. 3843/2010 seeking stay of order dated 22nd

February, 2010, which was passed pursuant to order dated 21st

December, 2009, is also allowed and the order dated 22nd February,

2010 is stayed during the pendency of the present petition.

By order dated 25th July, 2008 in CM No. 10191/2008, operation

of order dated 2nd July, 2008 passed by the Central Administrative

Tribunal was stayed. In the circumstances, the said application is also

restored and the interim order is also revived till the next date of

hearing.

WP(C) No. 5341/2008

The order dated 21st December, 2009 has been set aside

pursuant to review application filed by the applicants and the writ

petition and the interim application have been revived.

In the circumstances, list the writ petition and the interim

application on behalf of the petitioner before the Regular Bench on 3rd

December, 2010, subject to orders of Hon'ble the Chief Justice.

ANIL KUMAR, J.

NOVEMBER 19,2010                              VIPIN SANGHI, J.
'rs'