Delhi High Court
P.K. Paul vs Uoi on 11 September, 2012
Author: Badar Durrez Ahmed
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 11.09.2012
+ W.P.(C) 1993/2010
P.K. PAUL ... Petitioner
versus
UOI ... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr G.D. Gupta, Sr. Adv. with Mr Piyush Sharma, Adv.
For the Respondent : Mr Anuj Aggarwal,Adv. for R-1&2
Mr Padma S. Kumar, Adv. for R-3&4
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. This writ petition is directed against the order dated 05.05.2009
passed by the Central Administrative Tribunal, Principal Bench, New
Delhi, in O.A. No. 2196/2008. The issue involved in the present writ
petition concerns the relative seniority between the promotees and
direct recruits in the post of Junior Research Officer in Signals
Intelligence Directorate of Ministry of Defence, Government of India.
The petitioners are direct recruits and the respondent Nos.3 and 9 are
promotees.
2. This case has a chequered history. This was the 3rd round of
litigation before the Tribunal. Insofar as this petition is concerned, it
would be pertinent to only mention what happened in the 2nd round
before the Tribunal. The 2nd round was when the petitioner herein
filed OA No. 1719/ 2006 which was disposed of by the Tribunal by
an order dated 27.07.2007 after elaborately considering the decision
of the Supreme Court in the case of Nani Sha & Ors. v. State of
Arunachal Pradesh & Ors: 2007 (7) SCALE 521=AIR 2007 SC
2356. The decision of the Supreme Court in Nani Sha (supra) was
quoted in extenso in the said order dated 27.07.2007 wherein several
other decisions of the Supreme Court were also referred to including
the decision of the Supreme Court in the case of State of Uttaranchal
& Anr. v. Dinesh Kumar Sharma 2007 (1) SCC 683. The Tribunal
disposed of the said O.A. No. 1719/2006 by virtue of the said order
dated 27.07.2007 by giving the following directions:-
"8. Having regard to the above, we have no doubt in
our mind that the aforesaid decision of the Apex Court
disallows the seniority of the promotees from the date
they were not even borne in the cadre. Accordingly, the
aforesaid decision has to be followed. DOP&T
instructions, though no doubt in absence of statutory
rules govern the seniority aspect but the decision of the
Apex Court would override and prevail over the
instructions.
9. In the light of above, we partly allow this O.A.
Revised seniority list is set aside. Respondents are
directed to re-examine the aspect of seniority between
direct recruits and promotees in the light of the decision
of the Apex Court (supra) by a detailed and speaking
order to be passed within two months from the date of
receipt of a copy of this order, followed with publication
of final seniority list. No costs."
It is clear from the above that the Tribunal had given the direction to
the official respondent to re-examine the aspect of seniority between
direct recruits and promotees in light of the decision of the Supreme
Court decision in the case of Nani Sha (supra). The respondents
were directed to pass a speaking order within two months from the
date of receipt of a copy of the said order dated 27.07.2007.
3. The speaking order was passed by the respondent on
21.02.2008. But, from the speaking order we find that there is
absolutely no discussion with regard to the Supreme Court decision in
the case of Nani Sha (supra). Instead, reliance has been placed on the
DOP&T advise dated 23.09.2007 which had already been considered
by the Tribunal while passing the order dated 27.07.2007.
4. Being aggrieved by the speaking order dated 21.02.2008, the
petitioner herein filed O.A. No. 2196/2008 wherein the Tribunal
passed the impugned order dated 05.05.2009. In the impugned order,
we find that the entire issue of consideration on the basis of the
Supreme Court decision in the case of Nani Sha (supra) has been side
stepped. On the other hand, the Tribunal has gone on to examine the
DOP&T clarification dated 03.03.2008. It has essentially relied on
the last portion of the said clarification which says that cases of
seniority already decided with reference to any other interpretation of
the term "available" as contained in the OM dated 03.07.1986 need
not be re-opened. Consequently, the Tribunal came to the conclusion
that since the speaking order had concluded the matter on 21.02.2008
and the clarification had been issued on 03.03.2008, the issue could
not be re-opened.
5. We are afraid we do not agree with this manner of dealing with
the matter. It is absolutely clear that the speaking order did not at all
consider the Supreme Court decision in Nani Sha (supra). As such,
the speaking order was liable to be set aside on that ground alone
because the clear direction of the Tribunal in the order dated
27.07.2007 was that the respondents should re-examine the aspect of
the seniority between direct recruits and the promotees in the light of
the decision of the Supreme Court in the Nani Sha (supra). Since that
had not been done by the respondent and the speaking order did not
reflect any such consideration, the speaking order ought to have been
set aside by the Tribunal. On the contrary the Tribunal side stepped
the entire issue and decided against the petitioner by mis-interpreting
the DOP&T clarification dated 03.03.2008. We are clear that it is not
a case of review inasmuch as the issue of seniority was pending and
not had already been decided.
6. Consequently, the impugned order is liable to be set aside. It is
set aside. We also set aside the speaking order dated 21.02.2008 and
we direct the respondent to pass a fresh speaking order in terms of
what has been observed hereinabove and particularly in terms of the
Tribunal's earlier order dated 27.07.2007 passed in O.A
No.1719/2006 where there was a specific direction given to the
respondent to re-examine the aspect of seniority between the direct
recruits and the promotees in the light of the Supreme Court decision
in the case of Nani Sha (supra).
7. We direct that the speaking order be passed within six weeks
from today. The writ petition is allowed to the aforesaid extent. There
shall be no order as to costs.
BADAR DURREZ AHMED, J
SEPTEMBER 11, 2012 SIDDHARTH MRIDUL, J
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