Delhi High Court

Baljit Singh Bahmania vs Union Of India & Others on 3 September, 2012

Author: Badar Durrez Ahmed

           THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 03.09.2012

+           W.P. (C) 8955/2011

BALJIT SINGH BAHMANIA                                          ... Petitioner

                                       Versus
UNION OF INDIA & OTHERS                                        ... Respondents

Advocates who appeared in this case:
For the Petitioner                     : Mr Vinay Kumar with Ms Namrata Singh
For the Respondents                    : Mr B.V. Niren with Mr Prasouk Jain

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

                                  JUDGMENT

BADAR DURREZ AHMED, J

1. The petitioner is aggrieved by the order dated 24.11.2011

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi, whereby his original application being O.A. No.4154/2011 has

been rejected on the ground of limitation as well as on the ground of non-

joinder of all the affected persons.

2. The petitioner had approached the Tribunal seeking the

following reliefs:-

"a) quash seniority list circulated vide O.M. dated 01.08.2011 to the extent applicant has been placed at sl. No.791 therein; and

b) direct the respondents to accord the applicant his due seniority and place him below Sl. No.557 and above Sl. No.558 in the seniority list circulated vide O.M. dated 01.08.2011; and

c) direct the respondents to accord all the consequential benefits to the applicant w.e.f. the date when his juniors in the cadre of AE (Civil) have been accorded such benefits; and

d) pass any such further order or direction as may be deemed fit, proper and necessary."

3. From the above, it is apparent that the petitioner sought the

quashing of the final seniority list of Assistant Engineers (Civil) in

CPWD as on 01.01.2011. The said final seniority list was circulated

through the Office Memorandum dated 01.08.2011 issued by the

Directorate General of Works, CPWD, Government of India. The

petitioner had also sought a direction from the Tribunal to place him

below S.No.557 and above S.No.558 in the said final seniority list. The

petitioner had, as a consequence thereof, also prayed that he be given all

the benefits with effect from the date his juniors in the cadre of Assistant

Engineers (Civil) had been accorded such benefits. It is, therefore, clear

that the primary challenge of the petitioner was to the final seniority list

circulated vide the said O.M. dated 01.08.2011. In that seniority list, the

petitioner had been placed at S.No.791 and his claim was that he ought to

be placed below S.No.557 and above S.No.558.

4. The petitioner was initially appointed as a Junior Engineer

(Civil) in the CPWD on 01.11.1979. He was promoted on an ad hoc

basis to the post of Assistant Engineer (Civil) on 04.06.1993. The

respondent No.3 (Shree Pal Singh) was also appointed as a Junior

Engineer (Civil) on 30.10.1983. It may be pointed out that the

promotions to the post of Assistant Engineer (Civil) were on the basis of

50% from amongst the Junior Engineers (Civil), who had six years

regular service in the grade and the balance 50% through limited

departmental competitive examination.

5. A provisional seniority list was circulated by an Office

Memorandum dated 04.06.2002 which had been issued by the Directorate

General of Works, CPWD. The said O.M. dated 04.06.2002 was explicit

that the seniority list was provisional and was subject to the final outcome

of various court cases pending in various courts. In the said provisional

seniority list of Assistant Engineers (Civil), the petitioner was shown at

S.No.2600 and it had been indicated that he had been promoted to the

post of Assistant Engineer (Civil) with effect from 29.11.1994. It was the

case of the petitioner that his date of promotion as Assistant Engineer

(Civil) should have been indicated as 04.06.1993 and not as 29.11.1994.

According to the petitioner, this was a mistake. Because of this mistake,

a person, such as the respondent No.3 (Shree Pal Singh) who was,

according to the petitioner, junior to him, was shown at S.No.2078

inasmuch as the said respondent No.3 (Shree Pal Singh) had been

indicated to have been promoted as Assistant Engineer (Civil) with effect

from 17.09.1993. It was the grievance of the petitioner that the

respondent No.3 (Shree Pal Singh), who was the next immediate junior as

also the other junior officers, were shown to be higher in the seniority list

than the petitioner.

6. Thereafter, promotions to the post of Executive Engineer

(Civil) were ordered on 12.05.2006. These promotions were from

amongst the Assistant Engineers of both categories, namely diploma

holders and degree holders. Since the petitioner was not amongst the list

of persons who were promoted to the post of Executive Engineer (Civil)

and, according to him, officers junior to him had been promoted to that

post, the petitioner submitted a representation to the Directorate General

(Works), CPWD, through proper channel on 22.05.2006. In that

representation, the petitioner made a categorical grievance with regard to

him being wrongly placed in the seniority list on account of the fact that

his date of joining as Assistant Engineer (Civil) was shown as

29.11.1994, when, according to him, it should have been 04.06.1993. He

took the plea that his position in the seniority list was not correct.

7. This was followed by another representation dated

22.06.2006, which was in the nature of a reminder. Both these

representations went unheeded. As such, the petitioner filed an

application under the Right to Information Act, 2005 on 05.01.2007

seeking information with regard to his position in the seniority list.

8. Even this information was not forthcoming, as a result of

which, the petitioner had to approach the Central Information

Commission and it is only thereafter that the information sought by the

petitioner had been furnished to him as would be apparent from Annxure-

J to the writ petition which is a copy of an order of the Central

Information Commission dated 18.06.2008. As pointed out above, the

final seniority list of Assistant Engineers (Civil) in the CPWD as on

01.01.2011, was circulated by the said O.M. dated 01.08.2011. It is that

final seniority list which was challenged by the petitioner by virtue of the

said O.A. No.4154 which was filed immediately thereafter, in 2011 itself.

9. The Tribunal, however, at the admission stage itself, took the

view that the said O.A. was not maintainable on account of delay and

laches. According to the Tribunal, the cause of action accrued to the

petitioner on 01.04.2002 when the provisional seniority list of the

Assistant Engineers (Civil) in the CPWD was circulated. The date of

promotion of the petitioner as an Assistant Engineer (Civil) was shown in

that list as being 29.11.1994 and his serial number was also indicated to

be 2600 much below that of the respondent No.3 (Shreepal Singh), whose

serial number was 2078. Thus, according to the Tribunal, the petitioner

was well aware that persons, such as the respondent No.3 (Shreepal

Singh), had been shown senior to him as early as on 01.04.2002 when the

said provisional seniority list was circulated. The Tribunal also felt that

the cause of action again accrued to the petitioner in the year 2006 when

promotions were made to the next higher post of Executive Engineer

(Civil) based on the seniority position indicated in the said provisional

seniority list. According to the Tribunal, the claim of the petitioner in the

said O.A. No.4154/2011 was stale because the petitioner did not agitate

the matter in 2002 nor did he agitate the matter in 2006 and the validity of

the promotion order dated 12.05.2006 had not been challenged. The

Tribunal further held that the issuance of the final seniority list on

01.08.2011 would not result in an automatic condonation of the delay /

laches in respect of the original cause of action, which, according to the

Tribunal, had accrued on 01.04.2002. Since the petitioner had not filed

any application for condonation of delay, the Tribunal felt that it could

not even examine the case from the standpoint of the petitioner having a

sufficient cause for approaching the court after the said alleged delay.

10. The Tribunal also rejected the petitioner's said O.A.

No.4154/2011 on the ground that 233 persons would be adversely

affected if the prayers sought by the petitioner were to be allowed. Some

of those 233 persons, according to the Tribunal, might have even been

promoted to the posts of Executive Engineers (Civil) in 2006 itself. The

Tribunal felt that since the petitioner had not impleaded these 233

persons, except the respondent No.3 (Shreepal Singh), the said O.A. was

liable to be rejected on account of non-joinder of necessary parties. Thus,

both on the ground of delay and on the ground of non-joinder of

necessary parties, the Tribunal rejected the petitioner's said O.A.

11. The learned counsel for the petitioner submitted that the

Tribunal had erred on both counts. He submitted that the petitioner had

been agitating his alleged wrong placement in the seniority list and that

this would be evident from the representations made by him from time to

time as also from the fact that the petitioner was driven to seek recourse

under the Right to Information Act and ultimately to the Central

Information Commission to obtain information with regard to his

seniority. Therefore, according to the learned counsel for the petitioner,

this was not a case where the petitioner had accepted his position in the

provisional seniority list and was only agitating the matter after several

years had elapsed. Furthermore, the learned counsel for the petitioner

submitted that the petitioner was entitled in law to challenge the final

seniority list even though he had not approached the Tribunal insofar as

the provisional seniority list was concerned. He submitted that as the

final seniority list had been circulated only on 01.08.2011, the said

original application filed by the petitioner shortly thereafter cannot, by

any stretch of imagination, be regarded as a stale claim. According to the

learned counsel, the Tribunal committed a serious error in rejecting the

petitioner's said original application on the ground of limitation. In

support of this submission, the learned counsel for the petitioner placed

reliance on the following decisions of the Supreme Court:-

1) G.P. Doval and Others v. Chief Secretary, Government of U.P. and Others: 1984 (4) SCC 329;

2) V.P. Shrivastava and Others v. State of M.P. and Others: 1996 (7) SCC 759;

             3)    M. Pachiappan and Others v. S. Markandam and
                   Others: 2009 (16) SCC 616;

12. In response to the submissions made by the learned counsel

for the petitioner on the question of limitation, the learned counsel for the

respondent reiterated the stand and approach reflected in the impugned

order passed by the Tribunal. In support of the plea of the respondents

that the Tribunal was right in rejecting the original application on the

ground of limitation, the learned counsel for the respondents placed

reliance on the following decisions of the Supreme Court:-

1) B.S. Bajwa and Another v. State of Punjab and Others:

1998 (2) SCC 523;

2) Union of India and Others v. Tarsem Singh: 2008 (2) SCC (L&S) 765;

3) S. Sumnyan and Others v. Limi Niri and Others: 2010 (6) SCC 791.

13. On the second aspect of non-joinder of necessary parties, the

learned counsel for the petitioner submitted that, although the petitioner

had not impleaded all the 233 persons, who might have been adversely

affected if an order was passed in favour of the petitioner, the petitioner

had, in fact, impleaded the respondent No.3 (Shree Pal Singh), who was,

according to the petitioner, the next junior person to the petitioner. The

learned counsel submitted that having done so, it was not necessary for

the petitioner to implead all the persons who might be adversely affected,

particularly when the number of such persons was as large as 233. He

further submitted that, in any event, if the Tribunal felt that it was

necessary for the petitioner to implead all the 233 persons, it ought to

have given an opportunity to the petitioner to implead them. If the

opportunity to implead all the 233 persons had been given by the Tribunal

and the petitioner did not still implead such persons, then, perhaps, the

Tribunal would have been right in dismissing the original application on

the ground of non-joinder, but not otherwise. In support of these

submissions, the learned counsel for the petitioner placed reliance on the

following decisions:-

1) Prabodh Verma and Others v. State of U.P. and Others:

1984 (4) SCC 251;

             2)    V.P. Shrivastava (supra);

             3)    Shadi Ram Yadav v. Director General, CISF and
                   Others: 59 (1995) DLT 579 (DB);

             4)    S.K. Jain v. P.S. Gupta and Others: 2002 IV A.D.
                   (Delhi) 596.

14. On the other hand, the learned counsel for the respondents, as

in the case of limitation, relied upon the observations and findings of the

Tribunal on the aspect of non-joinder of the said 233 persons. He

supported the decision of the Tribunal that because the petitioner had not

joined all the adversely affected persons, the Tribunal was well within its

right in dismissing the original application on the ground of non-joinder

of necessary parties.

15. Let us now examine the decisions cited on both sides on the

issue of limitation. The first decision was that of the Supreme Court in

the case of G.P. Doval (supra). Paragraph 16 of the said decision had

been relied upon by the learned counsel for the petitioner. It reads as

under:-

"A grievance was made that the petitioners have moved this Court after a long unexplained delay and the Court should not grant any relief to them. It was pointed to that the provision seniority list was drawn up on March 22, 1971 and the petitions have been filed in the years 1983. The respondents therefore submitted that the Court should throw out the petitions on the ground of delay, laches and acquiescence. It was said that promotions granted on the basis of impugned seniority list were not questioned by the petitioners and they have acquiesced into it. We are not disposed to accede to this request because respondent 1 to 3 have not finalised the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners. Petitioners went on making representations after representations which did not yield any response, reply or relief. ..."

(underlining added)

16. It would be seen that in G.P. Doval (supra), the provisional

seniority list had been taken out on 22.03.1971, whereas the writ petitions

had been filed in the year 1983. The plea on behalf of the respondents

was that the petitions should be thrown out on the ground of delay, laches

and acquiescence. The Supreme Court, however, did not agree with the

respondents therein on the ground that the respondents had not finalized

the seniority list for a period of more than 12 years and were operating

the same for further promotions to the utter disadvantage of the

petitioners therein. Of course, in that case, the petitioners had gone on

making representations after representations which had not yielded any

response, reply or relief. In the present case also, we find that the

provisional list had been circulated on 01.04.2002 and even promotions

had taken place on the basis of that list, to the detriment of the petitioner.

It is not as if, in the present case, the petitioner was a silent sufferer. He

had, as pointed out above, made representations and was even driven to

approach the Central Information Commission in order to obtain

information with regard to his seniority. Of course, in G.P. Doval

(supra), the final seniority list had not been published at all by the time

the petitions came to be filed, but that would not make the petitioner's

case any worse. On the contrary, the petitioner's case is better inasmuch

as the final seniority list came to be published on 01.08.2011 and

immediately thereafter, the petitioner approached the Tribunal by way of

the said O.A. 4154/2011. Therefore, the decision in G.P. Doval (supra)

clearly supports the petitioner's plea that he had approached the Tribunal

within time.

17. The next decision referred to by the learned counsel for the

petitioner is that of the Supreme Court in the case of V.P. Shrivastava

(supra). In that case, in the year 1983, a provisional seniority list of

Additional Directors was drawn up by the State Government, wherein ad

hoc promotees were shown senior to the regular appointees like the

appellants before the Supreme Court. The appellants therein filed

objections to the said provisional list. Without taking a decision on the

same, the State Government issued another provisional list in the year

1986, but continued the mistake which was there in the 1983 list. The

appellants before the Supreme Court again put forward their grievances in

1987 and, thereafter, the seniority lists prepared in 1983 and 1986 were

withdrawn. Subsequently, on 19.09.1988, yet another provisional list was

brought out wherein the appellants were again shown junior to the ad hoc

promotees. The appellants before the Supreme Court again filed a

representation and finally on 23.12.1988 the State Government brought

out the final seniority list wherein the appellants were again shown junior

to the said ad hoc promotees. Thereafter, the appellants approached the

State Administrative Tribunal, which, inter alia, rejected their application

on the ground that the promotions in favour of the respondents therein in

the year 1980 could not be challenged at that length of time.

18. On behalf of the appellants before the Supreme Court, it was

argued on the question of delay and laches that the appellants did not

challenge the so-called ad hoc appointments of the respondents by way of

promotions, but that they merely challenged the position assigned to them

in the seniority list which was finalized only in the year 1988 and,

thereafter, their applications before the Tribunal in 1989 could, by no

stretch of imagination, be held to be barred on the principle of delay and

laches. The Supreme Court agreed with the submission made on behalf

of the appellants therein by holding that as the final gradation list was

prepared on 23.12.1988 and the appellants had approached the Tribunal

in 1989, the question of delay did not arise. The exact words used by the

Supreme Court in this connection were as under:-

"19. So far as question of delay and laches is concerned, as we have noticed earlier the final gradation list was prepared only on 23.12.1988 and the appellants had approached the Tribunal in 1989 and therefore the question of delay does not arise. In the

aforesaid premises the impugned order of the Tribunal is set aside and this appeal is allowed. ..."

19. So, it is seen that in the case of V.P. Shrivastava (supra) also,

the Supreme Court took into account the starting point to be the issuance

of the final gradation list. In the present case, as we have already pointed

out above, the final seniority list came to be circulated on 01.08.2011 and

shortly thereafter in 2011 itself the petitioner had approached the Tribunal

by way of the said O.A. No.4154/2011. Thus, in view of this decision

also, we do not see as to how the petitioner's said O.A. could have been

dismissed on the ground of delay and laches. This is all the more clear

from the observations of the Supreme Court in M. Pachiappan (supra),

wherein it has observed as under:-

"After the publication of the final seniority list, the provisional seniority list gets substituted by the final list".

Thus, the provisional seniority list of 01.04.2002 got substituted by the

final seniority list of 01.08.2011. In these circumstances, it would be

incongruous to hold that the petitioner could not challenge the final

seniority list. If it was open to the petitioner to challenge the final

seniority list, then, it is clear that he did so well within time.

20. We must also deal with the decisions which were cited by the

learned counsel for the respondents. The first of them being the case of

B.S. Bajwa (supra). The facts of that case, as indicated in the decision of

the Supreme Court itself, are as under:-

"3. The material facts in brief are this. Both B.S. Bajwa and B.D. Gupta joined the Army and were granted Short Service Commission on 30th March, 1963 and 30th October, 1963 respectively when they were students in the final year of the Engineering Degree Course. B.S. Bajwa graduated thereafter in June, 1963 and B.D. Gupta graduated in 1964. On being released from the Army B.S. Bajwa joined the PWD (B&R) on 4.5.1971 and B.D. Gupta joined the same department on 12th May, 1972. There position in the gradation list was shown throughout with reference to these dates of joining the department. It is sufficient to state that throughout their career as Assistant Engineer, Executive Engineer and Superintending Engineer both B.S. Bajwa and B.D. Gupta were shown as juniors to B.L. Bansal, Nirmal Singh, GR Chaudhary, D.P. Bajaj and Jagir Singh. It is also undisputed that B.L. Bansal, Nirmal Singh, G.R. Chaudhary, D.P. Bajaj and Jagir Singh got their promotions as Executive Engineer select grade and promotion as Superintending Engineer prior to B.S. Bajwa and B.D. Gupta. It is obvious that the grievance, if any, of B.S. Bajwa and B.D. Gupta to their placement below B.L. Bansal, Nirmal Singh, G.R. Chaudhary, D.P. Bajaj and Jagir Singh should have been from the very inception of their career in the department, i.e. from 1971-72. However, it was only in the year 1984 that B.S. Bajwa and B.D. Gupta filed the aforesaid writ petition in the High Court claiming a much earlier date of appointment in the department. The learned Single Judge allowed the writ petition which led to Letters Patent Appeal No. 424/86 being filed by B.L. Bansal, Nirmal Singh, G.R. Chaudhary, D.P. Bajaj and Jagir Singh before a Division Bench of the High Court."

In the backdrop of the aforesaid facts, the Supreme Court observed as

under:-

"7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the Single Judge and, therefore, the judgments of the Single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of latches because the grievance made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystalised which ought not to have been re-opened after the lapse of such a long period. At every stage the others were promoted before B.S Bajwa and B.D. Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition."

21. The learned counsel for the petitioner had placed strong

reliance on the observations of the Supreme Court to the effect that it is

well-settled that in service matters, the question of seniority should not be

reopened in such situations after the lapse of a reasonable period because

that results in disturbing the settled position which is not justifiable.

However, in our view, this decision does not, in any way, hurt the case of

the petitioner. This is so because the Supreme Court made the above

observations with reference to a 'settled position' with regard to seniority.

However, seniority based on a provisional list cannot be regarded as a

settled position unless and until the final seniority list is published.

Therefore, this decision of the Supreme Court would be of no use to the

respondents. The next decision on which the learned counsel for the

respondents placed reliance was that in the case of Tarsem Singh (supra).

The learned counsel for the respondents had specifically placed strong

reliance on the observations contained in paragraph 5 thereof. The same,

to the extent relevant, reads as under:-

"5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension,

relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches / limitation will be applied. ..."

22. Here again, we find that the Supreme Court's observations are

in the context and backdrop of 'settled rights of third parties". In the

present case, the seniority and promotions were on the basis of a

provisional seniority list which only came to be settled by the final

seniority list circulated on 01.08.2011. Therefore, this decision of the

Supreme Court in the case of Tarsem Singh (supra) also does not come

to the aid of the respondents. Similar is the case with the Supreme Court

decision in the case of S. Sumnyan (supra). The provisional seniority

lists in question in S. Sumnyan (supra), as would be evident from

paragraph 29, were never challenged. But, in the present case, we find

that, although the petitioner did not approach the Tribunal until the

publication of the final seniority list, it is not as if, he was a mere

spectator inasmuch as we have already noticed the fact that he had

submitted several representations and was even driven to approach the

Central Information Commission to obtain information with regard to his

seniority position. Therefore, on facts, the Supreme Court decision in S.

Sumnyan (supra) is clearly distinguishable and would not run counter to

the submissions made on behalf of the petitioner.

23. As a result of the foregoing discussion, we find that the

Tribunal ought not to have dismissed the petitioner's said original

application at the threshold on the ground of delay and / or laches. The

question of the Tribunal considering the issue of sufficiency of the cause

for such 'delay' would obviously not arise and there would obviously be

no reason for the petitioner to have filed a condonation of delay

application inasmuch as the original application in itself was not beyond

time.

24. We are now left to consider the other aspect with regard to

non-joinder of the 233 persons [except the respondent No.3 (Shree Pal

Singh)], who would have been adversely affected by any order passed in

favour of the petitioner. The submissions of the learned counsel on this

aspect of the matter have already been noted above. We shall now

consider the decisions which had been placed for our consideration by the

learned counsel for the petitioner. The first of those decisions is of the

Supreme Court in the case of Prabodh Varma (supra). Para 28 of the

said decision is relevant and the same reads as under:-

"28. The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh's case. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of nonjoinder of necessary parties. The only respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties-not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties."

25. From the above extract, two things are clear. First of all, all

the affected persons need not be added as respondents as some of them

could be impleaded in a representative capacity if the number of such

persons is too large. Secondly, when such a situation arises before a

court and, for that matter before the Tribunal, an opportunity should be

given to the petitioner to implead the necessary parties or at least some of

them in a representative capacity. If the petitioner still refuses to do so,

then the petition could be dismissed for non-joinder of necessary parties

and not otherwise. In the present case, no such opportunity was offered

by the Tribunal to the petitioner and, therefore, we are of the view that the

Tribunal erred in dismissing the original application at the admission

stage itself. Another important aspect which we must not lose sight of is

the fact that the petitioner had, in fact, impleaded one such person,

namely, the respondent No.3 (Shree Pal Singh), who was the person,

according to the petitioner, immediately below him in seniority.

Although, it is true that the petitioner has not stated in the original

application that the respondent No.3 was impleaded in a representative

capacity, but it is also clear that the respondent No.3 would, while

defending his case, also be espousing the case of all the 233 persons, who

were similarly situated to him.

26. The next decision referred to by the learned counsel for the

petitioner was that of the Supreme Court in V.P. Shrivastava (supra).

The Supreme Court had placed reliance on an earlier decision in the case

of A. Janardhana v. Union of India: 1983 (3) SCC 601, wherein it had

observed as under:-

"15. ... In this case, appellant does not claim seniority over particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing-up the impugned seniority list are invalid and illegal and the relief is claimed against the Union government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents."

It also placed reliance on the decision in Prabodh Verma (supra). In this

backdrop, the Supreme Court, in V.P. Shrivastava (supra) held as under:-

"17. Even in Janardhana case referred to supra, this Court also rejected a similar objection on the ground that 9 of the direct recruits having been impleaded as party, therefore the case of direct recruits has not gone unrepresented and therefore the non- inclusion of all the 400 and odd direct recruits is not fatal to the proceedings.

18. In the aforesaid circumstances we have no hesitation to come to the conclusion that the Tribunal was wholly in error in coming to the conclusion that the appellants application becomes unsustainable in the absence of all the promotees being impleaded as party."

27. This decision also, which is in the same line as that of

Prabodh Verma (supra), does support the plea advanced by the learned

counsel for the petitioner.

28. In Shadi Ram Yadav (supra), a Division Bench of this court,

following the decision of the Supreme Court in A. Janardhana (supra),

observed as under:-

"12. The law laid down in A. Janardhan's case (supra) applies on all the fours to the case at hand. The petitioner need not join all the persons in the seniority list as parties to the petition. He has joined S.C. Wadhwa the person next below the petitioner in the seniority list of the year 1985 as party to the petition and by way of illustration. That is sufficient."

29. In S.K. Jain (supra) also, a Division Bench of this court

followed, inter alia, the Supreme Court decision in A. Janardhana

(supra) and observed as under:-

"13. To support their contentions Mr. P.H. Parekh as well as Mr. G.D. Gupta placed reliance on various decisions. After going through those decision and the arguments of the learned counsel, we are of the view that when there is a challenge to the principle of determination of seniority the persons who are likely to be adversely affected are not necessary parties. They are at the most a proper party. Their absence is not fatal to the maintainability of the writ petition. In this regard we are supported by the decisions of Supreme Court in the case of (i) A. Janardhana v. Union of India, AIR 1983 SC 769; (ii) State of U.P. and Anr. v. Ram Gopal Shukla 1981 (2) SLR page 3 and (iii) The General Manager, South Central Railway, Secundrabad and Anr. v. A.V.R. Siddhanti and Ors. 1974 (1) SLR 597. In view of the law laid down by the Supreme Court we find that non impleading of each and every Assistant or Senior Assistants was not necessary nor fatal to the writ petition."

30. It is clear from the above mentioned decisions that the

Tribunal was in error in dismissing the petitioner's original application on

the ground of non-joinder of necessary parties without first giving an

opportunity to the petitioner to implead all the so-called persons who

would be adversely affected. The Tribunal also did not take note of the

fact that one such person, namely, the respondent No.3 (Shree Pal Singh)

had, in any event, been impleaded by the petitioner. This in itself was

sufficient in the view taken by this Court in Shadi Ram Yadav (supra).

31. For all these reasons, we are of the view that the Tribunal has

erred on both counts, that is, on the point of limitation as well as on the

point of non-joinder of parties. The impugned order is set aside and the

said O.A. No.4154/2011 is restored. The Tribunal shall dispose of the