Full Judgment Text
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PETITIONER:
DWARKA NATH SHARMA
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT08/08/1989
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
OZA, G.L. (J)
CITATION:
1990 AIR 428 1989 SCR (3) 767
1989 SCC Supl. (2) 225 JT 1989 (3) 373
1989 SCALE (2)205
ACT:
Civil Services: Military Engineering
Service--Seniority--Legitimate claim to higher
placement--Deprivation of--Whether justified.
HEADNOTE:
Appellant joined the Military Engineering Service as
Assistant Executive Engineer, upon his selection by the
Union Public Service Commission through the combined Engi-
neering Service Examination held in 1960. He represented
that his previous service in Central Government should be
considered in fixing his seniority. in the seniority list
published, the appellant’s name was shown at 483rd position.
The appellant made a representation against the lower place-
ment. Departmental Promotion Committee did not consider him
for promotion because of the lower placement. Challenging
the lower placement, the appellant filed a suit before the
Civil Court which was dismissed. His first appeal before the
District Judge as also the second appeal before the High
Court met the same fate.
This appeal, by special leave, is against the judgment
of the High Court. The respondents resisted the appeal on
grounds of limitation and res-judicata.
Allowing the appeal,
HELD: 1.1. There has been no dispute in the Courts
below, and here too, that the appellant has been legally
recruited to the service. The Union of India accepted the
position that recruitment through the Union Public Service
Commission had been regularly made and the post was not a
temporary one but as the performance of the appellant had
not been of a high order, he had been placed below treating
him to be temporary--a position for which there is not much
of legal support. [770B-C, E, F]
1.2. Strictly speaking, Janardhana’s decision may not
have the effect of res-judicata for the present litigation,
but in a dispute of the present dimension where hundreds of
employees are concerned, it would not be proper for the
employees to litigate over the same issue
768
from time to time. If it would be open to members of the
service from time to time to raise disputes of the same
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nature and introduce uncertainty into the service, that
would affect the efficiency of the service and would be
against public interest. That also would call into jeopardy
the guarantees of public service and expose the officers
into an atmosphere of insecurity. A seniority list of a
cadre should not be made the subject matter of debate too
often. [771B-D]
A. Janardhana v. Union of India & Ors., [1983] 3 SCC
601; affirmed.
2. The plea of limitation raised by the respondents
should not have been upheld in the facts of the case. The
seniority list was being changed from time to time. The
appellant had represented against the 1967 seniority list.
The dispute was already pending before this Court in Bachan
Singh’s case. In fact, without waiting for the judgment of
this Court in that case, the plaintiff came to Court on
22.3.1971. The appellant was entitled to make a representa-
tion against the seniority list and rejection of the repre-
sentation actually would have given him the cause of action.
In these circumstances, non-suiting him on the plea of
limitation would not at all be justified. [772E-G]
Bachan Singh v. Union of India, [1972] 3 SCR 898, referred
to.
3. Individual claims, could not have been barred from
consideration if by the time Janardhana’s case came to be
disposed of, claims were pending adjudication before the
Court. Appellant’s case was already before the High Court by
the time Janardhana’s appeal was disposed of by this Court.
The stand taken by Respondent No. 1 that it was open to the
appellant to appear in the competitive examination in the
succeeding year to better his position, is no justification
for depriving him of his legitimate claim to a higher place-
ment in the seniority in the cadre. Appellant’s position
shall be shown below the recuirts of 1960 and above those of
1961 and he may be bracketed with one who has been assigned
that position and an appropriate rectification shall be made
in the seniority list of 1967 on the basis of the placement
in terms of this judgment. His entitlement to promotion on
the basis of such position shall be considered by the re-
spondents within four months hence. [772H; 773A-D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3224 of
1989.
From the Judgment and Order dated 6.9.83 of the punjab &
769
Haryana High Court in R.S.A. No. 1092 of 1975.
M.R. Sharma and M.C. Dhingra for the Appellant.
Anil Dev Singh, P.P. Singh and C.V.S. Rao for the Re-
spondents.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. Special leave granted.
Appellant was recruited as an Assistant Executive Engi-
neer in the Military Engineering Service upon his selection
by the Union Public Service Commission through the combined
Central Engineering Service Examination of 1960 and he
joined as an Assistant Executive Engineer on 24.4.1962. A
provisional seniority list was prepared in August, 1963 as
claimed by him and the appellant represented that his previ-
ous service under the Central Government in consideration of
which he had been given three increments at the time of
joining should have been taken into account. In January,
1967, the seniority list was published where, as the appel-
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lant pleaded, he was shown at the 483rd position. He repre-
sented against the lower placement and asked for placing him
at the appropriate place. The Departmental Promotion Commit-
tee did not consider him for promotion on the basis of his
lower placement in the seniority list and he was not promot-
ed. Appellant, therefore, filed a suit for redress of his
grievance of lower placement and for consequential reliefs.
The suit was dismissed. Appellant’s appeal before the Dis-
trict Judge was also dismissed and thereupon the appellant
went before the High Court in second appeal but that too was
dismissed. It is against the judgment of the High Court
affirming those of the Courts below that this appeal has
been brought before this Court.
Before we go into the merits of the matter we must
indicate that the case has not been appropriately placed in
the Courts below and relevant material has not been made a
part of the present record.
The claim in this litigation has to be considered in the
backdrop of two earlier cases Bachan Singh v. Union of
India, [1972] 3 SCR 898 is the judgment of this Court where
a dispute relating to the same Military Engineering Service
involving inter alia of a claim of seniority came to be
disposed of by a Constitution Bench. It is not necessary to
refer at any length to the judgment in view of the fact that
the result of
770
the subsequent litigation in the case of A. Janardhana v.
Union of India & Ors., [1983] 3 SCC 601 would be sufficient
for the present
Notice was given in this appeal to hundreds of respond-
ents whom the appellant had impleaded, but no one has ap-
peared to contest his claim in this Court.
There has been no dispute in the Courts below and here
too that the appellant has been legally recruited to the
Service. In Janardhana’s case at p. 618 of the Report this
Court held:
"Keeping in view the exigencies of service and
the requirements of the State, temporary.
posts would be a temporary addition to the
strength of the cadre, unless it is made clear
to the contrary that the temporary posts are
for a certain duration or the appointments to
temporary posts are of an ad hoc nature till
such time as recruitment according to rules is
made. In the absence of any such provision,
persons holding permanent posts and temporary
posts would become the members of the service
provided the recruitment to the temporary
posts is legal and valid. Once the recruitment
is legal and valid, there is no difference
between the holders of permanent posts and
temporary posts insofar as it relates to all
the numbers of the service."
In the instant case, the Union of India accepted the
position that recruitment through the Union Public Service
Commission had been regularly made and the post was not a
temporary one but as the performance of the appellant had
not been of a high order, he had been placed below treating
him to be temporary--a position for which there is not much
of legal support.
Some controversy was raised as to whether Janardhana’s
decision would operate as res judicata in view of the fact
that the appellant had been impleaded in the litigation.
Janardhana’s civil appeal before this Court arose out of a
writ petition in the High Court and as paragraph 36 of the
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judgment at p. 625 of the Report indicates:
"By an order made by the High Court the names
of respondents 3 to 4 18 (in which the appel-
lant was included) were deleted since notices
could not be served on them on account of the
difficulty in ascertaining their present
771
addresses on their transfers subsequent to the
filing of these petitions."
It is not the case of the respondent that the appellant had
volunteered to appear in the writ petition or before this
Court in the Janardhana’s dispute.
Strictly speaking, Janardhana’s decision may not have
the effect of res Judicata for the present litigation, but
we do not think in a dispute of the present dimension where
hundreds of employees are concerned, it would be proper for
the employees to litigate over the same issues from time to
time. If it would be open to members of the service from
time to time to raise disputes of the same nature and intro-
duce uncertainty into the Service, that would affect the
efficiency of the service and would be against public inter-
est. That also would call into jeopardy the guarantees of
public service and expose the officers into an atmosphere of
insecurity. A seniority list of a cadre should not be made
the subject-matter of debate too often. We have, therefore,
to consider the claim of the appellant keeping these aspects
in view and referring to the conclusions reached in Janard-
hana’s case.
At p. 625 of the Report this Court came to the
conclusion:
"In our opinion, there was no justification
for redrawing the seniority list affecting
persons recruited or promoted prior to 1969
when the rules acquired statutory character.
Therefore, the 1974 seniority list is liable
to be quashed and the two 1963 and 1967 sen-
iority lists must hold the field."
The District Judge in appeal in paragraph 10 of his judgment
came to find that the appellant’s placement was raised from
serial 483 to 89. The High Court in its judgment has indi-
cated:
"Shri Sharma went up in appeal but the same
was dismissed by the learned District Judge.
He affirmed the findings of the trial Judge on
issues 1 and 3. He also held that the suit of
the appellant was barred by limitation. During
the pendency of appellant’s appeal before the
District Judge, Bachan Singh’s case had been
decided by the Supreme Court and as a conse-
quence thereof, his seniority was changed from
St. No. 483 in 1967 seniority list to Sr. No.
89. So he got the main relief. His claim
remained only for his reconsideration for
promotion on the basis of his new ranking on
the seniority list."
772
The High Court has again indicated:
"Pursuant to the judgment in Bachan Singh’s
case, fresh Seniority list was prepared in
1974 in which the appellant’s name figured at
St. No. 89 instead of 483. This list was
challenged by A. Janardhan. His appeal was
allowed and the said list was quashed. It was
further held that ’there is nothing to suggest
that 1963 and 1967 seniority lists were provi-
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sional or were likely to be re-drawn. There-
fore, till the 1949 Rules acquired statutory
character in 1969, the seniority lists of 1963
and 1967 in respect of Assistant Executive
Engineers were quite legal and valid and were
drawn upon the basis on the principle which
satisfies the test Article 16’. So the senior-
ity lists of 1963 and 1967 were upheld. The
grievance of the appellant stands disposed of
by this judgment to which he was a party."
As we have already pointed out, appellant was not a
party in Janardhana’s case inasmuch as no notice was taken
to him and the case was disposed of without affording an
opportunity to him of being heard.
The plea of limitation raised by the respondents should
not have been upheld in the facts of the case. As already
indicated, the seniority list was being changed from time to
time. The appellant has represented against the 1967 senior-
ity list. The dispute was already pending before this Court
in Bachan Singh’s case. In fact, without waiting for the
judgment of this Court in Bachan Singh’s case, the plaintiff
came to Court on 22.3. 1971. The appellant was entitled to
make a representation against the seniority list and rejec-
tion of the representation actually would have given him the
cause of action. In these circumstances, non-suiting himon
the plea of limitation would not at all be justified. We,
therefore, do not accept the conclusion of the High Court
that plaintiffs action was barred by limitation.
We take it that when this Court in Janardhana’s case
held on the facts placed before it that ’there was no justi-
fication made out for redrawing the seniority list affecting
persons recruited or promoted prior to 1969’ it meant a
total topsy-turvying of the list. Individual claims, if any,
could not have been barred from consideration if by the time
Janardhana’s case came to be disposed of, claims were pend-
ing adjudication before the Court. Appellant’s case was
already before the
773
High Court by the time Janardhana’s appeal was disposed of
by this Court. The appellant was certainly entitled to be
treated as a recruit of 1960 and to be placed above the
recruits of 1961. The stand taken before this Court in the
counter-affidavit filed by respondent no. 1 that it was open
to him to appear in the competitive examination in the
succeeding year, that is, in the year 1961 to better his
position is no justification for depriving him of his legit-
imate claim to a higher placement in the seniority in the
cadre.
While we affirm the view in Janardhana’s case that the
seniority list should not be disturbed, the appellant’s
claim has also to be accommodated. In these circumstances,
we direct that the appellant’s position shall be shown below
the recruits of 1960 and above those of 1961 and he may be
bracketed with one who has been assigned that position and
an appropriate rectification shall be made in the seniority
list of 1967 on the basis of the placement in terms of this
judgment. His entitlement to promotion on the basis of such
position shall be considered by the respondents within four
months hence. The appellant shall be entitled to his costs
throughout. Hearing fee is assessed at Rs.2,000.
G.N. Appeal
allowed.
774
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