K.P. Dubeyand Others vs Union Of India & Ors.
2011 Latest Caselaw 2033 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Reserved on: April 05, 2011

                                           Date of decision: April 08, 2011

+     W.P.(C) No.3818/1998

      K.P. DUBEY AND OTHERS                 ...Petitioners
                   Through Mr.G.D.Gupta, Sr. Advocate with
                            Mr.Satya Mitra Garg, Advocate

                            Versus

      UNION OF INDIA AND OTHERS               ...Respondents

Through Mr.Sachin Datta and Mr.Abhimanyu Kumar, Advocates for the UOI.

Mr.R.K.Kapoor and Ms.Anita Sharma, Advocates for Resp. 8, 22, 25 and 31.

Mr.R.N.Singh and Ms.Sangeeta Rai, Advocates for Resp. 20 and 51.

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether reporters of the local papers be allowed to see the judgment? YES

2. To be referred to the Reporter or not? YES 3 Whether the judgment should be reported in the Digest? YES

DIPAK MISRA, CJ

The petitioner was offered an appointment to the post of

Section Officer (Horticulture) in the Central Public Works

Department (CPWD) on the basis of selection in open competition

through direct recruitment. By communication dated 18th July, 1983,

he was asked to report for duty to the Deputy Director of

Horticulture, West Division, CPWD, New Delhi by the forenoon of 1st

August, 1983 and if he failed to report for duty latest by 10th August,

1983, the offer of appointment would stand cancelled.

2. As the petitioner was away from Delhi and the communication

did not reach him, he submitted an application on 19th August, 1983

requesting the Director of Horticulture to grant him extension of time

for joining the duty which was granted allowing him to join the duty

by 23rd August, 1983 vide letter dated 20th August, 1983 enclosed as

Annexure P-2. Thereafter, the petitioner joined the duty on 20th

August, 1983.

3. In September, 1992, the petitioner came to know that the second

respondent had taken a decision to prepare a seniority list on the

basis of date of joining and, accordingly, he sent a representation on

29th September, 1992 stating, inter alia, that the determination of

seniority in the grade of Sectional Officer (Horticulture) on the basis

of date of joining of an individual is contrary to the instructions

contained in the office memorandum of the Ministry of Home Affairs

dated 22nd December, 1959, which enumerates the principles for

determination of seniority. On the basis of the said representation, a

memorandum dated 14th January, 1993 was served on him seeking

certain clarification and as set forth, the petitioner had sent his

clarification on 17th March, 1993 as per Annexure P-6. Be it noted, a

clarification that was sought from the petitioner was that he was not

supplied a copy of the merit list.

4. The reply that was given by the petitioner categorically stated

that the merit list was in the custody of the department and it was

obligatory on the part of the department to follow the instructions

dated 22nd December, 1959 which clearly stipulates that a seniority

list is to be prepared on the basis of order of merit as reflected in the

merit list. As the petitioner did not receive any communication, he

submitted further representation seeking a copy of the merit list but

he was time and again asked to submit the documentary proof in

support of his claim. Eventually, the Director of Horticulture, vide

office memorandum dated 21st July, 1994, informed the petitioner

that in view of the instructions of the Ministry of Personnel and

Public Grievances dated 18th March, 1988, the seniority would follow

the order of confirmation and not the original order of merit when an

employee was confirmed subsequently in an order which was

different from the order of merit.

5. When the matter stood thus, the petitioner thought it

appropriate to approach the Central Administrative Tribunal,

Principal Bench, New Delhi (for short „the tribunal‟) in OA No.

780/1995. As pleaded, eventually, a seniority list was issued in the

year 1995. The tribunal took note of the fact that the petitioner had

not produced any documentary proof to substantiate his claim about

his merit position and further the seniority list has been prepared in

accordance with the length of service and, therefore, there was no

scope for interference by the tribunal. The tribunal eventually came

to hold that as the seniority list had been prepared on the basis of

length of service, which was founded on the date of joining, there

was no merit in the application and an application for review was

filed which did not meet with success.

6. Being dissatisfied with the aforesaid order, the petitioner

invoked the jurisdiction of this Court. It is worth noting, as the merit

list was produced before this Court and in view of the undisputed

position that the seniority is required to be determined in accordance

with merit, this Court dislodged the order of the tribunal and

directed that the seniority has to be determined in the order of merit.

The Division Bench further opined that where the seniority is

governed by the statutory rules, the doctrine of continuous officiation

would not apply. After the decision was rendered, the persons who

were affected and not impleaded as party approached the Supreme

Court in Civil Appeal No. 1274/2004 whereby the Apex Court set

aside the order of this Court and remitted the matter for disposing of

the same after impleading all the necessary parties and by giving

them a proper hearing. Thereafter, an application for impleadment

has been filed and the parties have been brought on record.

7. We have heard Mr.G.D. Gupta, learned senior counsel along

with Mr.Satya Mitra Garg, learned counsel for the petitioners.

Criticizing the order of the tribunal, the learned counsel have raised

the following contentions: -

(a) The instructions dated 22nd December, 1959 governs the

procedure of determination of seniority and, therefore, the

same has to prevail and not the date of joining. The continuous

officiation is not a ground for determining the seniority.

(b) Though the letter of appointment dated 8th July, 1983 was

issued in favour of the petitioner with a condition that he was

to report latest by 10th August, 1983, yet on the basis of a

request made by the petitioner, the same was extended and the

petitioner had accordingly joined and, therefore, the date of

joining cannot be pressed into service by the department. That

apart, the grant of extension is covered by clause 4 of the Office

Memorandum dated 6th June, 1978 and, hence, there was no

illegality or irregularity in grant of extension to join.

(c) In case of a direct recruitment by selection, merit is the criteria

for determination of seniority and the date of joining has no

role to play and, hence, the tribunal has committed a grave

irregularity by treating the date of joining to be the date of

reckoning for fixation of seniority.

(d) When the seniority was finally determined in the year 1995, the

petitioner approached the tribunal within the period of

limitation and, therefore, his claim cannot be thrown out or he

cannot be unsuited on the ground of delay and laches as put

forth by the respondents who have been treated senior to him

on erroneous basis.

To bolster the aforesaid proposition, Mr.G.D. Gupta, learned

senior counsel, has placed reliance on Chairman, Puri Gramya Bank

and another v. Ananda Chandra Das and others, (1994) 6 SCC 301, ,

Kuldip Chand v. Union of India and others, (1995) 5 SCC 680, V.P.

Shrivastava and others v. State of M.P. and others, (1996) 7 SCC 759

and Suresh Chandra Jha v. State of Bihar and others, (2007) 1 SCC

405.

8. Mr.R.K. Kapoor, learned counsel appearing for the contesting

respondents No. 8, 22, 25 and 31, resisted the aforesaid submissions

and contended as follows: -

(a) The offer of appointment clearly laid a postulate that the offer

of appointment shall be cancelled in case of non-joining and,

therefore, the question of granting extension in relaxation of the

aforesaid appointment does not arise inasmuch as the offer

stood annulled and once a particular thing becomes extinct, it

cannot be brought back to life.

(b) The seniority list was prepared in the year 1987 and 1989 but

the petitioner approached the tribunal in the year 1995 after

expiry of eight years, and such enormous delay in assail of

fixation of seniority cannot be permitted as that would unsettle

the settled position relating to seniority and other promotional

prospects.

(c) The petitioner had accepted the seniority position from the date

of his joining and, therefore, the cause of action for the same

arose in the year 1983 or maximum in the year 1989 when the

seniority list was prepared and, hence, the claim before the

tribunal was barred under Section 21 of the Administrative

Tribunals Act, 1985 (for brevity „1985 Act‟). Therefore, the

tribunal could not have dealt with the matter on merits and the

writ petition deserves to be dismissed on the ground that the

tribunal lacked the jurisdiction to entertain a petition after

expiry of three years.

(d) The department has been following the date of joining as the

date of reckoning for seniority and, therefore, it could not have

taken a somersault to determine the seniority on the grounds of

merit. The said practice, as contended by Mr.Kapoor, is in

vogue since 1965.

(e) The petitioner, in the relief clause before the tribunal, has not

challenged any seniority list or seniority of any person and,

therefore, the tribunal could not have addressed to the same.

Hence, this Court in exercise of extraordinary jurisdiction

should not interfere.

To buttress the aforesaid submissions, Mr.R.K. Kapoor, learned

counsel for the respondents, has placed reliance on Dr.Amarjit Singh

Ahluwalia v. State of Punjab and others, AIR 1975 SC 984, B.S.

Bajwa and another v. State of Punjab and others, (1998) 2 SCC 523,

G.N. Nayak v. Goa University and others, AIR 2002 SC 790, State of

Punjab and another v. Balkaran Singh, (2006) 12 SCC 709, H.S. Union

of India v. Dharam Pal and others, (2009) 4 SCC 170, and Vankani

and others v. State of Gujarat and others, (2010) 4 SCC 301.

9. Mr.Sachin Datta, learned standing counsel for the Union of

India, submitted that the merit list has been prepared on the basis of

the merit following the instructions and both the petitioner and the

respondents have been promoted to the cadre of Assistant Directors.

10. First, we shall deal with the issue whether by virtue of not

joining within the time frame given in the initial offer of

appointment, the order of appointment stood annulled and,

therefore, the petitioner cannot put forth his claim for seniority and

has to resign to his fate. It is not in dispute that the petitioner, as per

the terms of the offer of appointment, was to join on 1st August, 1983

or latest by 10th August, 1983. It is evincible that he had sought an

extension on the ground that he was out of Delhi. On the basis of his

letter, the competent authority, vide letter dated 20th August, 1983,

communicated to him as follows: -

"DIRECTORATE OF HORTICULTURE CENTRAL PUBLIC WORKS DEPARTMENT

No.8(2)/83-DH/Estt./6184-86.

New Delhi, dated the 20th Aug‟83 To,

Shri Kesho Prashad Dubey, Quarter No.G-726, Sriniwaspuri, NEW DELHI.

Sub: Recruitment of Sectional Officers (Hort.) -

Extension of Joining time.

Ref.: Your letter dated 19.8.83

Please refer to this office Memo. No. 8(2)/83-DH-Estt./

5341, dated 18-7-83. Instead of joining on 1-8-83 or latest by 10-8-83, you are hereby allowed to join duty as Sectional Officer (Hort.) in the Office of Deputy Director of Horticulture, West Division, I.P. Bhawan, C.P.W.D., New Delhi on or before 23-8-83 failing which the vacancy will be allotted elsewhere.

Other terms and conditions of the offer of appointment will remain unaltered.

Sd/-

K. SADDY DIRECTOR OF HORTICULTURE C.P.W.D. C-117, I.P. BHAWAN, NEW DELHI-110002"

11. On the basis of the aforesaid letter, he joined on 23rd August,

1983. It is a matter of fact that extension was granted. The question

that emerges is whether the extension could have been granted and

whether by virtue of his joining, as stipulated in the letter of

appointment, his seniority would be affected. Mr. G.D. Gupta,

learned senior counsel for the petitioner, invited our attention to the

office memorandum dated 6th June, 1978. The relevant clauses of the

said memorandum read as follows: -

"(i) In the offers of appointment issued by different Ministries/Departments, it should be clearly indicated that the offer would lapse if the candidates did not join within a specified period not exceeding two or three months.

(ii) If, however, within the period stipulated, a request is received from the candidates for extension of time, it may be considered by the Ministries/Departments and if they are satisfied, an extension for a limited period may be granted but the total period granted including the extension during which the offer of appointment will be kept open, should not exceed a period of nine months. The candidates who join within the above period of nine months will have their seniority fixed under the seniority rules applicable to the service/post concerned to which they are appointed, without any depression of seniority."

12. On scrutiny of the aforesaid clauses, it is clear as day that if a

candidate requests for an extension of time and an extension is

granted, the same cannot exceed a period of nine months and the

candidates who joined within the said period would have their

seniority fixed under the seniority rules. Thus, the argument in

oppugnation by Mr. Kapoor that the appointment stood annulled

and the respondent has to resign to his fate to accept his seniority

position melts into insignificance as the office memorandum clearly

saves the appointment and also the fixation of seniority as per the

rules and norms because the petitioner had joined within the period

postulated in the office memorandum dated 6th June, 1978.

13. We may also note with profit that the prayer for extension was

made on 19th August, 1983 and the authorities passed the order on

20th August, 1983. On a reading of the office memorandum, on a first

blush, one may think that the application for extension could not

have been entertained but the fact remains, in the present case that

the extension was granted.

14. The next aspect that requires to be addressed to is whether the

tribunal is justified in holding that the date of joining is the criterion

for determination of seniority. The office memorandum dated 22nd

December, 1959 issued by the Government of India, Ministry of

Home Affairs provides for the general principle for determination of

seniority in the central services. Clause 4 of the said instructions,

which deals with direct recruits, stipulates as follows: -

"4. Direct Recruits. - Notwithstanding the provisions

of para 3 above, the relative seniority of all direct recruits shall be determined by the order of merit in which they are selected for such appointment, on the recommendations of the UPSC or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection:

Provided that where persons recruited initially on temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their appointment seniority shall follow the order of confirmation and not the original order of merit."

15. On a scrutiny of the said clause, there cannot be any doubt that

merit is the criteria. In the merit list, the name of the petitioner

featured at serial No. 8. In this context, we may refer to the decision

in Ananda Chandra Das (supra) wherein it has been held as follows: -

"..........It is settled law that if more than one are selected, the seniority is as per the ranking of the direct recruits subject to the adjustment of the candidates selected on applying the rule of reservation and the roster. By mere fortuitous chance of reporting to duty earlier would not alter the ranking given by the Selection Board and the arranged one as per roster. The High Court is, therefore, wholly wrong in its conclusion that the seniority shall be determined on the basis of the joining reports given by the candidates selected for appointment by direct recruitment and length of service on its basis."

16. In G. Deendayalan Ambedkar v. Union of India and others,

(1997) 2 SCC 638, a two-Judge Bench of the Apex Court has held

thus-

"The learned counsel for the appellant contended that as per the Rule then in vogue, there was no option left to the authorities to determine the inter se seniority in the light of Rule 303(1)(a) of the Code, but on 31.5.1993, the Rule came to be amended amplifying what was latent with potential mischief for the arbitrary exercise of power in picking up and sending the candidates batchwise for training and giving them accelerated seniority over the candidates who were put below in the order of select list by the Railway Recruitment Board or any of the competent authority; that Rule cannot be applied to the case of the appellant and the respondents as the Rule in vogue in 1985 alone has to be considered. Though prima facie we found force in the contention of the learned counsel for the appellant, but on deeper consideration of the legality and justice, we find that there is no force in the contention. It is not in dispute that respondents 6 and 7 were selected in the same batch and rank; in the order of merit they were seniors to the appellant. Under these circumstances, since they had not been sent for training, necessarily their ranking given in the list of candidates selected in the order of merit by the Recruitment Board cannot be given a go-by and they cannot be given accelerated seniority to the appellant and the like by picking and choosing the persons as per the whim of the authorities empowered to send them for training. It is settled legal position that the order of merit and ranking given by the Recruitment Board should be maintained

when more than one person are selected, the same inter se seniority should be maintained for future promotions unless Rules prescribe passing of departmental test as a condition for confirmation but was not passed as on the date of determining of inter se seniority."

17. In the case of Suresh Chandra Jha (supra), the Apex Court

referred to the decision in Ananda Chandra Das (supra) and

thereafter held thus: -

"Since there was no rule in operation, obviously the ranking in the merit list was to decide the respective seniority. The ratio in Chairman, Puri Gramya Bank case has full application to the facts of the case. The appellant's claim that he was to be treated as senior to Respondent 8 was rightly accepted by learned Single Judge. Unfortunately, the Division Bench did not address itself to the specific question and has placed undue stress on Respondent 8 having joined earlier."

18. In view of the aforesaid enunciation of law and in view of the

fact that there are instructions of 1959 with regard to the procedure

for determination of inter se seniority, there cannot be any scintilla of

doubt that merit would be the governing factor for determination of

seniority.

19. The next issue that requires to be addressed to is whether the

claim of the petitioner pertaining to seniority is to be thrown

overboard on the ground of delay and laches and also on the ground

that the tribunal could not have entertained the original application

as it was barred under Section 21 of the 1985 Act. On a perusal of the

order passed by the tribunal, it is perceptible that the tribunal has

take note of the fact that the seniority list pertains to the year 1995

which was sought to be revised by the petitioner. Mr. G.D. Gupta,

learned senior counsel, has also drawn our attention to paragraph 7

of the counter filed by the respondents therein wherein it has been

stated that the seniority list of Sectional Officers in CPWD was issued

vide office memorandum dated 10th January, 1995 and the same has

been circulated in all the departments, divisions, etc.

20. In the case of R.M. Ramual v. State of Himachal Pradesh and

others, (1989) 1 SCC 285, the Apex Court took note of the fact that the

cause of action arose in the year 1982 when the seniority list was

changed and the challenge was made in quite promptitude and hence

the petition. The petition could not have been thrown overboard on

the ground that the seniority list was finalized earlier. The emphasis

was laid on the cause of action. In the case at hand, when the

seniority list was published in the year 1995 and the petitioner had

approached the tribunal in 1997, the principle of delay and laches or,

for that matter, limitation does not create a dent in the challenge.

Mr.R.K. Kapoor, learned counsel for the respondents, though has

commended us to the decisions in B.S. Bajwa (supra), Balkaran

Singh (supra), H.S. Vankani (supra), Dharam Pal (supra), G.N.

Nayak (supra) and Dr.Amarjit Singh Ahluwalia (supra), yet they

really have no assistance to throw the claim of the petitioner

overboard.

21. At this juncture, we may note with profit that a seniority list

has already been drawn on the basis of the merit list and promotions

have been conferred. We have noted this fact as this has been

brought to our notice. The conclusion, we are disposed to think, has

to be that the seniority list should have been fixed on the criterion of

merit and if the same has been done on the basis of the merit, it

cannot be found fault with. Needless to emphasize, we are concerned

with the initial seniority list in the cadre of Section Officer.

22. Consequently, the writ petition is allowed, the order passed by

the tribunal is quashed and the writ petition is disposed of giving the

stamp of approval to the drawing of the seniority list on the basis of

merit in the cadre of Section Officer. There shall be no order as to

costs.

                                                   CHIEF JUSTICE



APRIL 08, 2011                                     SANJIV KHANNA, J
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