Delhi High Court
Union Of India & Ors. vs Mukta Srivastava & Ors. on 17 March, 2025
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16 January 2025
Pronounced on: 17 March 2025
+ W.P.(C) 3303/2021, CM APPLs. 10087/2021, 28433/2021 &
26569/2022
UNION OF INDIA & ORS. .....Petitioners
Through: Mr. R.V. Sinha, Mr. A.S.
Singh, Mr. Amit Sinha and Ms. Shriya
Sharma, Advs.
versus
MUKTA SRIVASTAVA & ORS. .....Respondents
Through: Mr. Anil Singal, Adv. for R-1
to R-5
Mr. Akarsh Sharma, Adv. for R-9 & R-10
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE AJAY DIGPAUL
% JUDGMENT
17.03.2025
C. HARI SHANKAR, J
1. By this writ petition, the Union of India1 calls into question the
correctness of order dated 20 February 2020 passed by the Central
Administrative Tribunal2 in OA 1645/20183, and order dated 17
November 2020 passed by the Tribunal in RA 55/2020, whereby the
1 "UOI" hereinafter
2 "the Tribunal" hereinafter
3 Mukta Srivastava & others v UOI & others
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UOI sought review of the order dated 20 February 2020. The Tribunal
has allowed the OA in part and has dismissed the RA.
2. We have heard Mr. R.V. Sinha for the UOI, Mr. Anil Singal for
Respondents 1 to 5 and Mr. Akarsh Sharma for Respondents 9 and 10.
Facts
3. We may note, at the outset, that the prayer in OA 1645/2018
appears to suffer from a typographical error, as it seeks quashing of
the "final Seniority List dated 16 May 2014 and Memorandum dated
27 June 2016", whereas no such Seniority List or Memorandum forms
part of the record. The challenge is actually to a revised Seniority List
dated 19 December 2017, issued by the Central Board of Excise &
Customs4, Department of Revenue, Ministry of Finance for the grade
of Chemical Examiner-II5 in the Central Revenues Control
Laboratory6.
The impugned order of the Tribunal
4. There were five applicants before the Tribunal, of which
Applicant 1 was Mukta Srivastava, who is Respondent 1 in the present
writ petition. There were five private respondents before the Tribunal,
of which the first private respondent was Respondent 4 Ajay Kumar
Singh, who is Respondent 6 in the present writ petition. Respondents
1 to 5, therefore, were the applicants before the Tribunal and
4 "CBEC" hereinafter
5 "CE-II" hereinafter
6 "CRCL" hereinafter
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Respondents 6 to 10 were the private respondents before the Tribunal.
They shall be referred to, hereinafter, as "Mukta Srivastava etc." and
"Ajay Kumar Singh etc." respectively.
5. Mukta Srivastava etc. were working as Chemical Examiner-I7,
at the time when they petitioned the Tribunal. They had been
promoted as CE-I in 2015, on the basis of a Seniority List of CE-II
published by the CBEC on 29 January 2014, reflecting the seniority of
CE-IIs as on 1 January 2012 and 1 January 2013.
6. On 19 December 2017, the CBEC issued a revised Seniority
List of CE-II, superseding the earlier Seniority List of 29 January
2014. The seniority of Mukta Srivastava etc. in the revised Seniority
List of 19 December 2017, was lower than their seniority position as
reflected in the Seniority List of 29 January 2014. The CBEC was
also proposing to constitute a review Departmental Promotion
Committee8, to review the promotion of CE-II to CE-I which had
taken place in 2015 on the basis of the earlier Seniority List of 29
January 2014. In other words, the fate of the promotion of Mukta
Srivastava etc. to CE-I, already granted in 2015, also hung in the
balance.
7. In these circumstances, Mukta Srivastava etc. approached the
Tribunal by way of OA 1645/2018, challenging the revised Seniority
List dated 19 December 2017 and contending that the CBEC could not
have revised, thereby, the seniority position as reflected in the
7 "CE-I" hereinafter
8 "DPC" hereinafter
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Seniority List dated 29 January 2014. The proposal to conduct a
review DPC, on the basis of the revised Seniority List of 19 December
2017, was also challenged. It was contended that the CBEC had no
justifiable cause to revise the promotions to CE-I of Mukta Srivastava
etc., which had already taken place in 2015, based on the Seniority
List of 29 January 2014.
8. In the counter-affidavit filed by way of response to the OA, the
UOI contended that the revised Seniority List dated 19 December
2017 had been issued in compliance with the direction of a Division
Bench of this Court in its judgment dated 18 December 2014 in
Bhuwan Ram v UOI9. As such, it was submitted that the prayers of
Mukta Srivastava etc. lacked merit.
9. The impugned order dated 20 February 2020, of the Tribunal,
adjudicates these rival claims. Paras 6 to 10 of the order of the
Tribunal read thus:
"6. The various facts mentioned above are borne out by record.
The applicants were assigned certain places in the seniority list
dated 29.01.2014, and they were also promoted to the post of CE-1
on that basis. In the covering letter for the revised seniority list
dated 19.12.2017, it is mentioned that the draft seniority list dated
22.12.2016 was circulated, and thereafter the final seniority list is
being published in respect of the seniority list, referable to the
years 2004, 2008, 2009 and 2011 to 2014. However, the basis for
that is not indicated.
7. In their counter affidavit, the respondents have made an
extensive reference to the judgment of the Hon'ble Delhi High
Court in WP(C) No. 6435/2002 and 4396/2008. The relief in that
Writ Petition, in turn, was granted on the basis of the judgment of
9 MANU/DE/3958/2014
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the Hon'ble Supreme Court in N.R.Parmar10. The relevant
paragraph reads as under:-
"26. For the above reasons, we find no merit in WP(C)
No. 6345/2002. The same is rejected. WP(C) No.
4396/2008 has to succeed. The findings and reasoning
given in OA No. 1694/2006 are, accordingly, unsustainable
and are set aside. The UOI is directed to calculate the
seniority of the direct recruits and promotes afresh in the
light of the orders of this Court in and in the light of the
decision in Parmar (supra) within ten weeks. WP(C) No.
4396/2008 is, accordingly, allowed. Parties shall bear their
own costs."
8. It is no doubt true that in N.R. Parmar's case, a principle
was laid to the effect that in case the direct recruitment process is
delayed for any reason, the candidates selected in the process
cannot be denied of the benefit of their seniority vis-a-vis the
promotees of the same panel year. However, that judgment was
revisited by the Hon'ble Supreme Court recently in K.
Meghachandra Singh & Ors. v Ningam Siro & Ors., Civil Appeal
No.8833-8835/201911, and their Lordships specifically overruled it.
In Para 40, it was observed that the inter se seniority, which is
already decided, on the basis of the judgment in N.R. Parmar's
case be not disturbed.
9. We find a typical situation, obtaining in the instant case.
The revised seniority list, no doubt, was published. However, the
resultant revision of promotions which have already taken place,
was not done. The OA was filed at a time when the respondents
were about to revisit the promotion of the applicants. Therefore,
even while honouring the observations of the Hon'ble Supreme
Court in K. Meghachandra Singh's case that seniority list, which
is already prepared in accordance with the judgment of the Hon'ble
Supreme court in N.R. Parmar, shall not be disturbed, the
promotions, which have already been extended to the applicants,
cannot, equally be disturbed. It is now for the respondents to
examine the steps to be taken in light of the judgment of the
Hon'ble Supreme Court in K. Meghachandra Singh.
10. We accordingly allow the OA in part, by directing that the
promotion of the applicants to the post of CE-I shall not be
disturbed on the basis of the revised seniority list dated 19.12.2017,
and it is for the respondents to take the necessary steps in
accordance with law, regarding fixation of the seniority in the post
10 UOI v N R Parmar, (2012) 13 SCC 340
11 (2020) 5 SCC 689, referred to, hereinafter, as "Meghachandra"
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of CE-II. We clarify that the further promotions beyond the post of
CE-I shall be without disturbing the positions of the applicants as
they exist now. The respondents shall also fix the seniority for the
cadre of CE-II, in accordance with law.
Interim order passed earlier shall cease to be in force, in view of
the final adjudication. Pending MA, if any, shall also stand
disposed of. There shall be no order as to costs."
(Emphasis supplied)
Thus, the Tribunal has proceeded on the following reasoning:
(i) The revised Seniority List dated 19 December 2017
purported to have been issued on the basis of the judgment of the
Supreme Court in Parmar, in compliance with the directions of
the judgment of the Division Bench of this Court in Bhuwan
Ram.
(ii) Parmar, however, stood revisited by the Supreme Court
in Meghachandra.
(iii) While directing that seniority of direct recruits and
promotees would not be fixed on quota-rota basis, but would be
on the basis of their respective dates of joining their service, in
the absence of any rule to the contrary and, thereby, overruling
Parmar, Meghachandra, in para 4012, observed that the inter se
seniority, which was already decided on the basis of Parmar was
not to be disturbed.
(iv) In the present case, the revised Seniority List of 19
12 para 39 in the SCC
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December 2017, no doubt, already stood issued prior to the
decision in Meghachandra, which was rendered on 19
November 2019.
(v) However, if the seniority position which already stood
finalized prior to the rendition of the decision in Meghachandra
could not be disturbed, by virtue of para 40 of that decision, "the
promotions, which had already extended to the applicants,
cannot, equally, be disturbed".
Following this line of reasoning, the Tribunal allowed the OA filed by
Mukta Srivastava etc. in part, by directing that their promotion to the
post of CE-I would not be disturbed on the basis of the revised
Seniority List dated 19 December 2017. Thereafter, the Tribunal
directed the UOI "to take necessary steps in accordance with law,
regarding fixation of the seniority in the post of CE-II" and further
directed that "further promotions beyond the post of CE-I shall be
without disturbing the positions of the applicants (i.e., Mukta
Srivastava etc.) as they exist now".
10. Aggrieved by the aforesaid order, the UOI has approached this
Court by means of the present writ petition.
Rival contentions
11. Mr. R V. Sinha, learned Counsel appearing for the petitioners,
submitted that the revised Seniority List dated 19 December 2017,
having been issued strictly in compliance with the directions contained
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in the judgment of the Division Bench of this Court in Bhuwan Ram,
and the review DPC, revisiting the promotions from CE-II to CE-I
based on the earlier Seniority List dated 29 January 2014, having been
effected in compliance with the directions contained in the said
judgment, the Tribunal was in error in interfering therewith. He
submits that, in fact, Contempt Case 561/201713 had been filed
alleging non-compliance with the directions in Bhuwan Ram. It was
only when this Court was apprised of the holding of the review DPC -
with which Mukta Srivastava etc. were aggrieved - that the Court
closed the contempt proceedings, observing that the directions in
Bhuwan Ram's stood compliance with.
12. Mr. Sinha submits that Mukta Srivastava etc. were, in fact, by
their OA, calling upon the Tribunal to review the decision in Bhuwan
Ram, which was clearly impermissible.
13. Mr. Akarsh Sharma, learned Counsel who appears for
Respondents 9 and 10, who were private respondents before the
Tribunal along with Ajay Kumar Singh, points out that the decision of
the Division Bench of this Court in Bhuwan Ram was carried to the
Supreme Court by way of SLP (C) Diary No. 5640/201814, which was
dismissed by the following order dated 12 March 2018:
"There is a delay of 1063 days in filing the special leave petition,
which we are not inclined to condone.
Even on merits, no ground for interference is made out in exercise
of our jurisdiction under Article 136 of the Constitution of India.
13 Arun Kumar Maurya v Hansmukh Adhia
14 Sahdev Kumar v UOI
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The special leave petition is accordingly dismissed on the ground
of delay as well as on merits. Pending application, if any, stands
disposed of."
14. Thus, Mr. Akarsh Sharma submits that the judgment in
Bhuwan Ram stood affirmed on merits by the Supreme Court, and
there could, therefore, be no question of any interference with the
Seniority List dated 19 December 2017 or the review DPC, which was
reviewing the promotions from CE-II to CE-I based on the earlier
Seniority List dated 29 January 2014.
15. As against this, Mr. Anil Singal, learned Counsel appearing for
Respondents 1 to 5, submits that para 40 of Meghachandra would not
apply in the present case, as, on 13 November 2019, when
Meghachandra was rendered, OA 1645/2018 was pending before the
Tribunal. The seniority position of CE-II could not, therefore, be
treated as "settled" on the date when Meghachandra was pronounced.
He relies, for this purpose, on the following paragraph from the
judgment of a Coordinate Division Bench of this Court in Yash
Rattan v UOI15:
"16. We have examined the rival contentions. It is a matter of
fact that the seniority position in the present case was not finally
settled when the judgment in the case of K. Meghachandra Singh
(supra) was delivered by the Hon'ble Supreme Court on 13th
November, 2019. The impugned seniority list was issued on 15th
March, 2018 and immediately thereafter, various representations
were filed on behalf of the private respondents against the said
seniority list. When no response was received on the said
representations, the private respondents filed the OA before the
CAT, challenging the said seniority list, from which the present
petition arises. In fact, OA was also filed before the judgment in
K.Meghachandra Singh judgment (supra) was delivered.
Therefore, it is incorrect on the part of the petitioners to say that
15 2021 SCC OnLine Del 1598
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the seniority position was settled and therefore the same has to be
protected in terms of the judgment in K. Meghachandra Singh
judgment (supra). Accordingly, once the seniority list itself was
subject matter of challenge before CAT, the law laid down in the
case of K. Meghachandra Singh (supra) had to be applied."
The Tribunal, therefore, according to Mr. Singal, was entirely justified
in holding as it did.
Analysis
16. We may observe, here, that while issuing notice in the present
matter on 15 March 2021, a Coordinate Division Bench of this Court,
in para 4 of its order, expressed a prima facie view that the reasoning
of the Tribunal, in para 9 of the impugned order, appeared to be
correct.
17. Having heard learned Counsel for the parties and examined the
matter thoroughly, we regret our inability to concur with this view.
18. To our mind, the impugned order of the Tribunal is inherently
contradictory and, in fact, impossible of compliance. This is apparent
at a plain reading of paras 9 and 10. The Tribunal has not disbelieved
the stand of the UOI that the revised Seniority List of 19 December
2017 was in fact issued in compliance with the directions contained in
the judgment of the Division Bench of this Court in Bhuwan Ram.
The Tribunal also defers to the observation, in para 40 of the judgment
of the Supreme Court in Meghachandra, that seniority, which stood
settled prior to the rendition of the decision in Meghachandra, on the
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basis of Parmar, would not be disturbed. We may, for ready
reference, reproduce the said observation in Meghachandra thus:
"However, it is made clear that this decision will not affect the
inter se seniority already based on N.R. Parmar and the same is
protected. This decision will apply prospectively except where
seniority is to be fixed under the relevant rules from the date of
vacancy/the date of advertisement."
In effect, therefore, the Tribunal acknowledges that Meghachandra
did not permit interference with the revised Seniority List dated 19
December 2017, as it had been issued on the basis of Parmar, prior to
the rendition of decision in Meghachandra.
19. Strangely, however, the Tribunal observes that, even while
honouring the observation of the Hon'ble Supreme Court in
Meghachandra that the Seniority List, which was already prepared in
accordance with the judgment of the Hon'ble Supreme Court in
Parmar, could not be disturbed, "the promotions, which have already
been extended to the applicants, (could not), equally, be disturbed".
These italicized words are markedly contradictory to the preceding
part of the same sentence. There is no dispute about the fact that the
promotion of Mukta Srivastava etc. as CE-I had been made on the
basis of the pre-revised Seniority List of CE-II dated 29 January 2014.
The revision of that Seniority List, by the Seniority List dated 19
December 2017, necessarily entailed, in its inexorable wake, revision
of the promotions from CE-II to CE-I which had taken place on the
basis of the earlier Seniority List.
20. The Tribunal could not have, therefore, upheld the revision of
the Seniority List of 29 January 2014 by the Seniority List dated 19
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December 2017 and, at the same time, directed that the promotions of
Mukta Srivastava etc. as CE-I, which had taken place on the basis of
the superseded Seniority List of 29 January 2014, would remain
undisturbed. Even on this sole ground, therefore, the impugned order
of the Tribunal cannot sustain.
21. We do not deem it necessary to enter into the intricacies of the
decision in Bhuwan Ram, as it is not necessary to do so. Bhuwan
Ram, which was rendered on 18 December 2014, concludes with the
following directions:
"26. For the above reasons, we find no merit in WP(C)
No.6345/2002. The same is rejected. WP(C) 4396/2008 has to
succeed. The findings and reasoning given in OA No.1694/2006
are, accordingly, unsustainable and are set aside. The UOI is
directed to calculate the seniority of the direct recruits and
promotees afresh in the light of the orders of this Court and in the
light of the decision in Parmar (supra), within ten weeks. WP(C)
No.4396/2008 is, accordingly, allowed. Parties shall bear their own
costs."
22. Following Bhuwan Ram, therefore, the petitioner had no option
but to revise the Seniority List of CE-II, published on 29 January
2014. It was thus that the revised Seniority List of CE-II dated 19
December 2017, came into being.
23. Promotions from CE-II to CE-I which had already been made
on the basis of the earlier Seniority List of 29 January 2014 had
necessarily, therefore, to be revisited. Those promotions had been
made on the basis of a Seniority List which was not in accordance
with Parmar. The Seniority List of 19 December 2017, on the other
hand, was in accordance with Parmar and was prepared as per the
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directions contained in para 26 of Bhuwan Ram. The Tribunal could
not, therefore, legitimately have interfered with the decision of the
UOI to revisit the promotions made from CE-II to CE-I, on the basis
of the Seniority List dated 29 January 2014, which stood revised.
24. The impugned decision, apparently, has been passed by the
Tribunal more on considerations of equity than of law. The Tribunal
appears to have been persuaded by the consideration that it was unfair
to revisit the promotions of Mukta Srivastava etc., which had already
taken place. In adopting this view, however, the Tribunal, with
respect, failed to notice that the said promotions had been effected on
the basis of Seniority List of 29 January 2014, which could not
continue to subsist after the judgment in Bhuwan Ram, rendered on
18 December 2014, which stood affirmed, on merits, by the Supreme
Court. The necessity of reworking the seniority, in compliance with
the directions contained in the said judgment, also resulted in the
necessity of revising promotions made on the basis of the earlier
seniority. It was unfortunate, but unavoidable. To reiterate, the
Tribunal could not simultaneously have upheld the revised Seniority
List dated 19 December 2017, as well as the promotions of Mukta
Srivastava etc. from CE-II to CE-I based on the earlier Seniority List
dated 29 January 2014.
25. We now advert to the contention of Mr. Singal, predicated on
the judgment of the Coordinate Bench of this Court in Yash Rattan.
Para 16 of Yash Rattan, on which Mr. Singal relies, in our view, does
not apply. That was a case in which the Division Bench of this Court
categorically noted that, on the date of rendition of the judgment in
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Meghachandra, the seniority position of Inspectors in the Delhi
Commissionerate, which was subject matter of dispute before it, had
not yet been finally settled. It is noted, in the said decision, that the
Seniority List, which was issued on 15 March 2018, was immediately
subjected to various representations and that the representationists, on
finding no response to their representations, had forthwith approached
the Tribunal by filing OAs, before Meghachandra was rendered.
26. As against that, in the present case, the revised draft Seniority
List of CE-II were circulated by the CBEC on 22 December 2016.
Comments from all were invited. Mukta Srivastava etc. also
represented against the draft Seniority List. Their representations
were considered and disposed of, by the competent authority, on 19
December 2017, while issuing the final Seniority List of CE-II.
27. Unlike the position which obtained in Yash Rattan, therefore,
the present case is not in one in which the representations against the
draft Seniority List were remaining undecided, and the
representationists had approached the Tribunal before Meghachandra
was rendered. In the present case, the representations were not only
decided, but a final Seniority List was also issued on 19 December
2017. By no stretch of imagination can it, therefore, be said that the
seniority position had not been decided prior to the rendition of the
judgment in Meghachandra. The mere fact that Mukta Srivastava
etc. may have chosen to challenge the final Seniority List dated 19
December 2017, and that, too when review DPCs were at the cusp of
being held, and that the said OA may have been pending on the date
when Meghachandra was decided, cannot insulate them from the
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effect of para 40 of the decision in Meghachandra. The reliance, by
Mr. Singal, on Yash Rattan, is, therefore, in our opinion, misplaced.
28. We are fortified in the view that we take by the fact that
Bhuwan Ram was also affirmed, on merits, by the Supreme Court, in
its order dated 12 March 2018 in Sahdev Kumar.
29. There was, therefore, merger of the judgment in Bhuwan Ram
with the order passed by the Supreme Court in Sahdev Kumar. The
impugned decision of the Tribunal, which directs status quo to be
maintained with respect to the promotions of Mukta Srivastava etc.,
from CE-II to CE-I, and injuncts the UOI from revisiting the said
promotions, cannot, therefore, sustain.
30. As a result, we are constrained to set aside the impugned order
dated 20 February 2020 passed by the Tribunal in OA 1645/2018.
Resultantly, OA 1645/2018 shall stand dismissed.
31. The present writ petition is allowed accordingly, with no order
as to costs.
C. HARI SHANKAR, J.
AJAY DIGPAUL, J.
MARCH 17, 2025
dsn
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