Delhi High Court
Pranay Sinha vs Union Of India And Ors on 30 September, 2013
Author: Gita Mittal
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5319/2011
Date of Decision: 30th September, 2013
PRANAY SINHA ..... Petitioner
Through: Mr.Kirti Uppal, Sr.Adv. with
Mr.S.K.Pandey and Mr.Anshumaan
Sahni, Advocates.
versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr.A.K.Behura, Adv. with Ms.Meenu
Mainee, Advocates for
Pvt.Respondents.
Mr.Ankur Chhibber, Adv. for R-2.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE DEEPA SHARMA
ORDER
% 30.09.2013
GITA MITTAL, J. (Oral)
1. The instant writ petition raises a challenge to a judgment dated
30th September, 2010 passed by the Central Administrative Tribunal
in O.A.NO.567/2009 and order dated 4th July, 2011 in
R.A.No.95/2011 titled as M.K.Sharma & Ors. vs. Union of India &
Ors. The original application was filed before the Tribunal by the
promotees in the cadre of deputy directors with the Employees'State
Insurance Corporation (ESI) seeking a direction to the Director
General, ESI to draw a correct seniority list on the basis of the
principles set out in DoP&T Office Memorandum dated 3rd March,
2008 with all consequential benefits. The application was disposed of
by the impugned order with following directions:
"25. Resultantly, as we do not find a prayer to quash the
seniority list, we dispose of this OA with a direction to the
respondents to reconsider drawing up seniority list in the
cadre of Deputy Directors, strictly on the basis of the
principle culled out in DoP&T OM dated 3.3.2008 and
thereafter consider the claim of applicant for promotion, if
eligible, along with all consequential benefits. While doing
so, the observations made by us in the body of the order shall
also be taken note of. The directions shall be complied with
by the respondents within a period of 3 months from the date
of receipt of a copy of this order. No costs."
2. During hearing before us today, Mr.Kirti Uppal, learned senior
counsel who appears on behalf of the petitioners who are directly
recruited Deputy Directors with the ESI, has submitted that the issue
with regard to the validity and bindness of the office memorandum
dated 3rd March, 2008 and its implications thereof has been settled by
the Supreme Court of India which has ruled on the bindness thereof as
well as on the Office Memorandums dated 7th February, 1986 and 3rd
July, 1986. It has been held that the said memorandums would apply
to the fixation of seniority of government employees.
3. In this regard our attention has been drawn to the
pronouncement JT 2012 (12) 99 in Union of India (UOI) and Ors. Vs.
N.R.Parmar and Ors. Para 29 of this pronouncement is relevant and
reads as follows:
"29. A perusal of the OM dated 3.3.2008, would reveal,
that a reference to paragraphs 2.4.1 and 2.4.2 of the OM
dated 3.7.1986, has been made therein. Thereupon, the
meaning of the term "available" used in paragraph 2.4.2
of the OM dated 3.7.1986, is statedly "clarified". In view
of the conclusion drawn in the foregoing paragraph, the
said clarification must be deemed to be with reference,
not only to the OM dated 3.7.1986 but also the OM dated
7.2.1986. We have already noticed, in an earlier part of
the instant judgment, the essential ingredients of a
"clarification" are, that it seeks to explain an unclear,
doubtful, inexplicit or ambiguous aspect of an instrument,
which is sought to be clarified or resolved through the
"clarification". And that, it should not be in conflict with
the instrument sought to be explained. It is in the
aforesaid background, that we will examine the two
queries posed in the preceding paragraph. We have
already analysed the true purport of the OM dated
7.2.1986 (in paragraph 20 hereinabove). We have also
recorded our conclusions with reference to the OM dated
3.7.1986 wherein we have duly taken into consideration
the true purport of paragraph 2.4.2 contained in the OM
dated 3.7.1986 (in paragraph 21 hereinabove). The
aforesaid conclusions are not being repeated again for
reasons of brevity. We have separately analysed the
effect of the OM dated 3.3.2008 (in paragraph 26 of the
instant judgment). It is not possible for us to conclude
that the position expressed in the earlier office
memoranda is unclear, doubtful, inexplicit or ambiguous.
Certainly not on the subject sought to be clarified by the
OM dated 3.3.2008. A comparison of the conclusions
recorded in paragraph 20 (with reference to the OM dated
7.2.1986) and paragraph 21 (with reference to OM dated
3.7.1986) on the one hand, as against, the conclusions
drawn in paragraph 26 (with reference to OM dated
3.3.2008) on the other, would lead to inevitable
conclusion, that the OM dated 3.3.2008 clearly
propounds, a manner of determining inter se seniority
between direct recruits and promotees, by a method
which is indisputably in conflict with the OMs dated
7.2.1986 and 3.7.1986. Of course, it was possible for the
Department of Personnel and Training to "amend" or
"modify" the earlier office memoranda, in the same
manner as the OM dated 7.2.1986 had modified/amended
the earlier OM dated 22.11.1959. A perusal of the OM
dated 3.3.2008, however reveals, that it was not the
intention of the Department of Personnel and Training to
alter the manner of determining inter se seniority between
promotees and direct recruits, as had been expressed in
the OMs dated 7.2.1986 and 3.7.1986. The intention was
only to "clarify" the earlier OM dated 3.7.1986 (which
would implicitly include the OM dated 7.2.1986). The
OM dated 3.3.2008 has clearly breached the parameters
and the ingredients of a "clarification". Therefore, for
all intents and purposes the OM dated 3.3.2008, must
be deemed to be non-est to the extent that the same is
in derogation of the earlier OMs dated 7.2.1986 and
3.7.1986. Having so concluded, it is natural to record,
that as the position presently stands, the OMs dated
7.2.1986 and 3.7.1986 would have an overriding effect
over the OM dated 3.3.2008 (to the extent of conflict
between them). And the OM dated 3.3.2008 has to be
ignored/omitted to the extent that the same is in
derogation of the earlier OMs dated 7.2.1986 and
3.7.1986. In the light of the conclusions recorded
hereinabove, we are satisfied that the OM dated 3.3.2008
is not relevant for the determination of the present
controversy.
4. Learned senior counsel appearing for the petitioners contends
before us that the directions made by the Central Administrative
Tribunal have to abide by the principles laid down by the Supreme
Court of India in para 29 of N.R.Parmar (supra). It is further
submitted that if respondents abide by the same, the petitioners would
have no further objections. It cannot be disputed that the authoritative
enunciation of the applicable principles by the Supreme Court of
India binds all parties before us.
5. Mr.Ankur Chhibber, learned counsel for the official
respondents and Mr.A.K.Behura , learned counsel representing the
private respondents before us submit that the law laid down by the
Supreme Court of India binds them and they would have no objection
to the respondents drawing up seniority list complying the principles
laid down by the Supreme Court of India in para 29 of the said
judgment.
In view of the above, we direct as follows:
(i) The order dated 30th September, 2010 passed by the Central
Administrative Tribunal is hereby modified only to the extent
that the respondents shall re-consider the seniority list in the
cadre of Deputy Directors in terms of para 29 of UOI and Ors.
vs. N.R.Parmar & Ors.
(ii) In case, the seniority list is not in compliance with the above
directions, the respondents shall ensure that the seniority list is
expeditiously drawn up in terms thereof.
The writ petition is disposed of in the above terms.
C.M.Nos.10798-99/2011
7. In view of the order passed in the writ petition, these
applications do not survive for adjudication and the same are
accordingly dismissed.
GITA MITTAL, J
DEEPA SHARMA, J
SEPTEMBER 30, 2013/rb
