Delhi High Court
Sandip Kumar Roy vs Union Of India & Ors. on 26 May, 2011
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Writ Petition (Civil) No. 3661/2011
% Date of Decision: 26th May, 2011
Sandip Kumar Roy ....Petitioner
Through Mr. Gyan Prakash, Advocate.
VERSUS
Union of India & Ors. .....Respondents
Through Mr. Ankur Chhibber, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
SANJIV KHANNA, J.
The petitioner, Sandeep Kumar Roy, has assailed order dated 23rd
April, 2010 passed in OA No. 1259/2010 and order dated 7th July, 2010
passed in RA No. 159/2010, by the Central Administrative Tribunal,
Principal Bench, New Delhi (tribunal, for short).
2. By order dated 23rd April, 2010, learned Tribunal held that the
Original Application filed by the petitioner was time barred and the
application for condonation of delay deserves to be dismissed. In these
circumstances, the merits were not examined. R.A. No. 159/2010 was
dismissed vide order dated 7th July, 2010 on the ground that the first
order was passed on the basis of pleadings made in the Original
Application and there was no occasion for review on the basis of new
material.
3. The petitioner was selected as Geologist (Junior), Group 'A',
junior scale post in the Geological Survey of India. The said
examination was conducted by Union Public Services Commission and
the petitioner was 25th in the order of merits as per the list published in
October, 1999. The petitioner was issued an appointment letter dated
15th May, 2002. It appears that some others were issued appointment
letters in the year 2000. It is pointed out that this delay in issue of
appointment letter was on account of a stay order passed by the
Central Administrative Tribunal, Allahabad.
4. On 16th January, 2009, the petitioner was recommended by the
Departmental Promotion Committee (DPC, for short) for promotion to
the post of Geologist (Senior), Group A, senior time scale. The
petitioner, thereafter gave a number of representations that his juniors
had been promoted as Geologist (Senior) Group A, senior time scale, in
the year 2007 and he should be given promotion from the date his
juniors were promoted. As the petitioner did not receive any reply and
response to his representations, he approached the tribunal in OA
1259/2010.
5. It is apparent from the order dated 23rd April, 2010, that the
tribunal has taken the view that the petitioner was challenging the
seniority list on account of the delay and default in appointment or the
delay in issue of appointment letter. This challenge as per the tribunal
should have been made in 2000/2002 or soon thereafter but not in
2010.
6. The petitioner has placed on record copy of the seniority list of
Geologist (Junior) as on 1st July, 2005. The petitioner is shown at Sr. No.
25 in the said seniority list. It is pointed out by the petitioner that a stay
order was passed by the Central Administrative Tribunal, Allahahad, in
the year 2000, pursuant to which successful candidates could not be
issued appointment letters. Thus, it is submitted that this fortuous
circumstance over which the petitioner had no control, cannot give a
march or work as an advantage for those who were lower down on the
merit list. Accordingly it is urged that the petitioner was not at fault.
7. Further, Geologist (Junior) with 5 years service were/are eligible
for promotion as Geologist (Senior). Therefore, in the DPC held on 6th
August, 2007, the petitioner was not eligible as he had not completed 5
years. Whereas the petitioner was eligible as had completed 5 years of
service when the DPC was held in 2009.
8. In view of the aforesaid facts, the contention of the petitioner is
that there was no delay on his part in approaching the tribunal. The
petitioner states that he was given seniority as per the merit list at
serial No.25 as Geologist (Junior) He claims that he should be treated as
senior to his juniors, after he was promoted to the post of Geologist
(Senior) in 2009. The petitioner has contended that the cause of action
in fact arose after the petitioner was promoted as Geologist (Senior) in
2009 but he came to know that he was not to be given seniority and he
would rank junior to others who were promoted in 2007. The
petitioner is right in his contention that at best, the cause of action
arose only in August, 2007, when juniors to him were considered and
promoted to the post of Geologist (Senior). The contention of the
petitioner is that the aforesaid conduct of the respondents is contrary
to law. In this connection, our attention is drawn to the averments
made in the review application wherein these facets have been
highlighted. The petitioner has stated that he was selected and included
in the team which had toured Antarctica, South Pole in the year 2007-
2008. It is noticed that these aspects have not been discussed and
considered in the order dated 23rd April, 2010. The review application
was dismissed holding that the tribunal had earlier decided the original
application on the basis of pleadings and would not take into
consideration the new material.
9. Keeping in view the aforesaid facts, the two impugned dated
orders 23rd April, 2010 and 7th July, 2010 deserve to be set aside and the
matter is remanded to the tribunal for fresh adjudication. While
examining the original application including the application for
condonation of delay, the facts pointed out above by the petitioner will
be taken into consideration. Observations made above will be treated
as a prima facie view and will not be binding on the tribunal.
10. The tribunal in its order dated 23rd April, 2010 has also recorded
that the petitioner had not chosen to array the persons junior to him as
parties/respondents. The contention of the petitioner is that no
opportunity was given to the petitioner to array them as respondents.
In this connection, our attention is drawn to A. Sagayanathan & Ors.
vs. Divisional Personnel Officer, (1992) Suppl. (2) SCC 172. It is
submitted that the petitioner was under a bonafide impression that
they need not be impleaded as respondents as he was seeking relief
against his employers.
11. As matter has been remanded for fresh decision, we give liberty
to the petitioner to move an application to implead 'his juniors' as
parties in the original application before the tribunal. The writ petition
is accordingly disposed of with no orders as to costs.
SANJIV KHANNA, J.
CHIEF JUSTICE
May 26, 2011
kkb
