Gujarat High Court
S.D. Sharma Secretary & 9 vs Union Of India & 15 on 20 September, 2016
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.G.Uraizee
C/SCA/2008/2004 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2008 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
================================================================
S.D. SHARMA SECRETARY & 9....Petitioners
Versus
UNION OF INDIA & 15....Respondents
================================================================
Appearance:
DECESED LITIGANT, ADVOCATE for the Petitioner
MR SN SHELAT, LD SENIOR COUNSEL WITH MR MITUL K SHELAT,
ADVOCATE for the Petitioners No. 1 - 7 , 8.1 - 8.3 , 9 - 10
DELETED for the Respondent No. 7
MR MANAN MEHTA AGP for the Respondents No. 2
MR KARTIK V PANDYA, ADVOCATE for the Respondent No. 1
MR S TRIPATHY, ADVOCATE for the Respondents No. 8 , 10 , 14
Page 1 of 54
HC-NIC Page 1 of 54 Created On Wed Sep 21 07:15:16 IST 2016
C/SCA/2008/2004 CAV JUDGMENT
NOTICE SERVED for the Respondents No. 5.1 - 5.2
SERVED BY RPAD - (N) for the Respondent No. 13
SERVED BY RPAD - (R) for the Respondents No. 3 - 4 , 6 , 9 , 11 - 12 , 15 - 16
================================================================
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : /09/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. The petitioners have approached this Court under Articles 226 and 227 of the Constitution of India, challenging the order dated 29.11.2002 passed by the Central Administrative Tribunal, Ahmedabad Bench, in O.A. No. 307 of 1997, rejecting the application of the petitioners by reminding the Government of India about the necessity of taking urgent steps in deciding the representation of the promotees IAS Officer for assigning them higher year of allotment in IAS at the earliest, but less than six months from the date of receipt of the order; and impugned notification dated 16.07.1996 as well as decision of the Government of India contained in the communication dated 17.04.1997, with following prayers;
(A) This Honourable Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari quashing and setting aside the judgment and order dated 29.11.2002 passed by the Central Page 2 of 54 HC-NIC Page 2 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT Administrative Tribunal, Ahmedabad Bench in O.A. No. 307 of 1997.
(B) This Honourable Court be pleased to quashed and set aside the impugned notification dated 16.07.1996.
(C) This Hon'ble Court may be pleased to quash and set aside the impugned decision of the Government of India contained in the communication dated 17.04.1997.
(D) This Hon'ble Court may be pleased to direct the Respondent No.1 and 2 herein to see that the implementation of the judgment dated 02.02.1990 in T.A. No.43 of 1986 as clarified by its order dated 11.02.1993 in Misc. Application No.449 of 1992 is done strictly in accordance with the directions of the Tribunal contained in the said judgment and the said order and that the same shall not affect or upset in any manner the position of officers in the 1979 Select List (Annex. F), whose appointments had already been made to I.A.S. on the basis of the said Select List of 1979.
(E) The Hon'ble Court may be pleased to direct respondent Nos.1 & 2 to consider from the year 1974 onward the cases for Page 3 of 54 HC-NIC Page 3 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT promotion of officers of Gujarat State Civil Service to the senior duty posts in accordance with the promotion quota recalculated on the basis of totality of State Senior Duty Posts, Central Deputation Reserve and Internal Deputation Reserve Posts within the State and to assign appropriate year of allotment based on the availability of such enhance quota to those who are surviving in service on the relevant dates and to re-fix the seniority of the officers who are in service on notional basis, against such additional posts made available.
2. Facts in brief, as could be culled out from the memo of petition, deserve to be set hereunder hereunder, in order to appreciate the rival contentions of the parties.
2.1 The petitioners herein were the State Service Officers and had been selected and nominated to I.A.S. Cadre. Though there were clear cut vacancies in I.A.S. Cadre of Gujarat and the Officer from the 1979 select list, their appointment to I.A.S. Cadre was delayed due to seniority disputes resulting into litigation in Courts.
2.2 It is the case of the petitioners that because of seniority disputes and stay orders of various Courts in the State of Maharashtra and Gujarat, the seniority list of Gujarat Administrative Service could not be finalized and meeting of Selection Committee could not be held.
Page 4 of 54HC-NIC Page 4 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT Hence, no appointments could be made in the IAS Cadre of Gujarat.
2.3 This Court in Civil Application No. 2440 of 1978 in Special Civil Application No. 1407 of 1978 directed the Government to prepare working seniority list, call the Selection Committee to prepare a Select List according to the provisions of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 and make appointments against the cadre posts but not to give appointment to I.A.S till final decision. It is case of petitioner that in the year June, 1979, Selection Committee prepared select list of 42 officers on the basis of W.S.L. (Working Seniority List) as on 19.1.1978, considering the vacancies available as on 1.1.1979. The State Government made appointments against IAS cadre posts from this select list till it was exhausted in the year 1984 and in the said list, M/s. V.P. Shah and N.P. Parikh, who were at Sr. No. 18 and 20 respectively, in the WSL as on 19.1.1978, came to be dropped as they were not coming up to the mark in accordance with the criteria for promotion revised in 1977. As against them, the first petitioner Shri S.D. Sharma was at Sr. No. 51 in the said list and other petitioners were further below in the seniority list. Thus, though senior, M/s. V.P. Shah and N.P. Parikh had been superseded interalia by the petitioners and they were dropped on the ground of merit by the Selection Committee, they approached this Court by filing Special Civil Application No. 918 of 1980 contending interalia, that they were eligible for consideration prior to 1977 when the criteria was "merit Page 5 of 54 HC-NIC Page 5 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT and suitability in all respects". Since the criteria merit- cum-seniority came into effect after 1977 and their case was considered in 1979 on the basis of such criteria, they were dropped which was illegal. During the pendency of the said litigation, Shri VP Shah and NP Parikh retired in 1982/1983. It is submitted that though granting relief in this petition was bound to affect the position of the petitioners and a number of other officers who were promoted, neither the procedure laid down by Order 1 Rule 8 of the CPC was restored to by the petitioners of the said petition nor any of the petitioners were made party respondents in the said petition so that they could bring to the notice of the Court the true facts and position pertaining to this case.
2.4 It is the case of petitioners that pending above referred petition, the Supreme Court in C.M.A No. 28255 of 1983 in C.A. 2359/80 permitted State to prepare further Select List on the basis of Seniority List dated 19.1.1978 for making appointments to I.A.S cadre. It was also directed that such preparation of Selection List can take place from year to year according to rules but that appointment made, if any, would be subject to the result of the Appeal No. 2359/80, meaning thereby that only officiating appointments could be made till the final disposal of the said Appeal by the Supreme Court. Resultantly, till 14.12.1983, i.e. till the above order was passed, no other select list except one prepared on the basis of WSL dated 19.1.1978 could be prepared in view of this Court's order dated 13.10.1978.
Page 6 of 54HC-NIC Page 6 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT 2.5 It is case of petitioners that in April, 1986, upon resolution of the dispute finally by the Supreme Court, some officers officiating against IAS cadre posts on the basis of WSL came to be scrutinized and appointed in IAS cadre on 25.11.1986 and remaining officers were again scrutinized and were appointed in IAS cadre on 9.3.1987. So far as petition filed by Shri V.P. Shah and N.P. Parikh, was concerned, during this year, said petition being Special Civil Application No. 918 of 1980 came to be transferred by the High Court to the Central Administrative Tribunal on the establishment of Ahmedabad bench of the said Tribunal in 1986, and numbered as Transferred Application No. 43 of 1986.
2.6 It is case of petitioners that in the year 1988-89, a representation was made to Government of India by the officers including the petitioners who had been selected and appointed to IAS in 1986/87 seeking assignment of Higher Year of Allotment in IAS on the ground that though there were clear cut vacancies in IAS cadre of Gujarat and officers from 1979 Select List were also available, their appointments were delayed due to litigation in Courts. Said T.A. No. 43 of 1986 was finally heard and disposed of by the Tribunal on 2.2.1990. As none of the petitioners were joined as party respondents in the said petition, they could not bring to the notice of the Tribunal the true facts and circumstances relating to the orders of their appointments passed by Government and how the challenge to the same from Shri V.P. Shah and N.P. Parikh was unsustainable. Thus, in the absence of the say of the party who was likely to be materially Page 7 of 54 HC-NIC Page 7 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT affected, the Tribunal directed the Government to consider said two persons from 1974 onwards by preparing year wise select list from 1974 to 1979 in accordance with the criteria that was applicable at the relevant time, however, the Tribunal took particular care to direct categorically that granting of relief to the petitioners need not upset the position of the persons already selected and appointed.
2.7 The Supreme Court in SLP No. 9969 of 1990 filed by Government against the above devision, did not consider it fit to interfere since the respondents had already retired from service and dismissed the SLP vide order dated 5.10.1990 without expressing any opinion on the merit of the contentions raised in the petition. However, in another case having similar facts situation, where the original petitioner was still in service (C.A. No. 4786 of 1994), the Supreme Court gave detailed directions for implementation of similar orders passed by the Tribunal in his case.
2.8 Even the Tribunal in Misc. Application No. 449 of 1992 in T.A. No. 43 of 1996 clarified that the claim of the two applicants would have to be considered weightage shall be given to the observations in para-9 of the original judgment that granting of relief to the original applicants who have retired in 1982 and 1983 need not upset the position of the persons already selected and appointed. Pursuant to the representation of the officers who had been selected and appointed to IAS in 1986/87, which is referred to hereinabove, Page 8 of 54 HC-NIC Page 8 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT Government of India issued a memorandum pointing out that it was considering the assignment of Higher Year of Allotment to those officers by relaxing the provisions of Seniority Rules under Rule 3 of the IAS (Conditions of Service Residuary Matters) Rules, 1960. Direct recruits were called upon to make a representation against the said proposal if they so desired. The said Memorandum was challenged by the Direct Recruits before the Tribunal in O.A. No. 108 of 1995 and 162 of 1995. The Tribunal was pleased to quash and set aside the memorandum and direct the Government of India to issue fresh notices to the direct recruits as well as the beneficiaries and then decide the the matter afresh. This order was passed by the Tribunal on 26.4.1995 mainly on the ground that the language used in the Memorandum indicated that the proposed action was in fact a foregone conclusion which could not be legally done without first hearing the affected parties.
2.9 It is the case of petitioners that instead of proceedings to bring the above issue of assignment of Higher Year of Allotment to the petitioners to its logical conclusion, Government of India, taking advantage of the directions of the Tribunal in T.A. No. 43 of 1986 issued notification dated 6.7.1996 appointing to IAS , the officers who were dropped from 1979 select list, in purported compliance of the direction of the Tribunal, so that the exercise undertaken by the Government of assigning Higher Year of Allotment to the petitioners is rendered nugatory and futile and the direct recruits could be protected from losing the advantage Page 9 of 54 HC-NIC Page 9 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT fortuitously received by them of getting uncontested placement in Senior Posts.
2.10 It is case of petitioners that thereafter, petitioner filed O.A. No. 307 of 1997 before the Tribunal challenging aforesaid action of Government and praying to quash and set aside said order and the Tribunal vide impugned order dated 29.11.2002 dismiss the petition. As certain contentions raised by petitioners in the petition as well as in the arguments at the time of hearing of said O.A were not considered by the Tribunal in its judgment, the petitioners filed Review Application No. 11 of 2003 before the Tribunal and Tribunal by order dated 27.11.2000 was pleased to reject the Review Application, which is impugned in the present petition under Article 226 and 227 of the Constitution of Indian.
2.11 It is the case of petitioners that thereafter on 9.4.2003, the Government rejected the representation of the officers appointed to IAS cadre on 26.11.1986 and 9.3.1987 for assignment of higher year of allotment in IAS but again even without complying with the formality of giving any notice to the petitioners on the ground that the officers who qualified for appointment on the basis of year wise select list were to be given their due benefit in accordance with the said list in terms of the judgment of the Tribunal in T.A. No. 43 of 1986 and hence, the petitioners have also challenged said order before this Court in present petition under Article 226 and 227 of the Constitution of India.
Page 10 of 54HC-NIC Page 10 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT
3. Learned counsel appearing for the petitioners submitted that in coming to the conclusion, the Tribunal has totally misread the judgment of the Tribunal in T.A.No. 43 of 1986 and the Supreme Court judgment in C.A. No. 4786 of 1994 decided on 25.10.1996 and committed grave error of law apparent on the fact of the record in coming to its conclusion that the Government was acting in consonance with the judgment of the Tribunal in preparing fresh Select List for the period from 1974 to 1979. Learned counsel appearing for the petitioners submitted that implementation of the direction of the Tribunal in T.A. No. 43 of 1986 ought not to have affected the process of consideration undertaken by the Government of India vide Memorandum dtd October, 1994 for relaxing the provisions of Seniority Rules under Rule 3 of the IAS (Conditions of Service - Residuary Matters) Rules, 1960, in order to assign higher year of allotment in IAS to the State Civil Service Officers promoted and appointed to IAS on 26.11.1986 from the select list of 1979 and those whose names were included in the Select List approved by the UPSC on 14.1.1987 who were appointed to IAS on 9.3.1987. Learned advocate for the petitioners also submitted that the Tribunal has totally misdirected itself in coming to the conclusion that 'all the officers falling within the zone of consideration and petitioners were to be included with those officer' were to be considered. The Tribunal failed to appreciate that in para-9 of the judgment in T.A. No. 43 of 1989, the Tribunal had held in unambiguous terms that the 1979 list would have to be held not valid to the extent that the petitioners were made to compete with Page 11 of 54 HC-NIC Page 11 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT persons who could not have come within the zone of consideration, if the vacancies for each year had been separately considered. The Tribunal, however, made it clear that the petitioners having retired from services, granting of relief to the petitioners need not upset the position of the persons already selected and appointed. In coming to its conclusion in O.A No. 307 of 1997, that all the officers falling within the zone of consideration were to be considered, the Tribunal failed to see that the exercise was to be undertaken for the limited purpose only 'to consider the petitioners' suitability and to appoint them into the Indian Administrative Service' if they were found suitable in any of the years notionally and 'to give them all consequential benefits arising out of such appointment.
4. Learned counsel appearing for petitioners submitted that in any event, it was clear that even though notional Select Lists were drawn for the year 1975 and onwards the Officers brought on the Select List were entitled only to the benefit as contemplated by the High Court's order dated 13.10.1978 passed in C.A. No. 2447 of 1978 in Special Civil Application No. 1407 of 1978, i.e. nothing beyond an officiating appointment against IAS cadre post and consequential monetary benefits. Even the petitioners in SCA No. 918 of 1980 renumbered as T.A. No. 43 of 1986 had not claimed anything beyond this contemporaneous benefit when they filed their petition. As per Rules, those officers would be subject to review each year as none could have been nominated in IAS till 1986 when the seniority disputes were finally Page 12 of 54 HC-NIC Page 12 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT resolved. When officers were subject to review every year, those who could find place in the conceptual select lists in the year 1975 and onwards, were liable to be reviewed every year and when the rules in the year 1977 came to be amended, they would be subjected to the scrutiny as per the revised rules for subsequent years before being appointed to IAS. Therefore, even though any officers were considered according to year wise select list drawn as per the orders of the Tribunal, they could be given only officiating appointment against IAS cadre posts and were liable to be rejected when reviewed on and after the criteria was amended in June, 1977. Learned counsel appearing for the petitioners further submitted that Tribunal ought to have appreciated that the benefits, if any, which was required to be given pursuant to the orders of the Tribunal in T.A. No. 43 of 1986, was to be given only to the applicants of said T.A and not to the other officers who were required to be considered only for the purpose of determining the suitability of those petitioners for being taken on the select list and for giving them appointment to IAS cadre. Learned counsel appearing for the petitioners further submitted that Tribunal ought to have appreciated the fact the officers mentioned in the impugned notification at Annexure - G were appointed to IAS and further given year of allotment under the impugned letter at Annexure - G, contrary to the directions of the Tribunal, only to deprive the present petitioners of their rightful higher year of allotment as originally proposed by the Government of India vide Memorandum, so as to eliminate the competition by promotee officers viz-a-viz Page 13 of 54 HC-NIC Page 13 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT direct recruits.
5. Learned counsel appearing for the petitioners, in support of their aforesaid submissions, relied on the following decisions:
(i) Judgment reported in JT 2010 (11) SC 598, in case of Girjesh Shrivastava and ors Vs. State of M.P and others;
(ii) Judgment reported in AIR 2006 SC 2432, in case of Indu Shekhar Singh and Ors Vs. State of U.P. And ors.;
(iii) Judgment reported in 2012 (7) SCC 610 in case of Vijay Kumar Kaul & Ors Vs. Union of India (UOI) & Ors.;
6. Learned advocate appearing for the respondent no.1 has placed on record the written submissions and relied on the same, which in verbatim reads as under:
"1. The petitioners challenge of order dated 29/12/2002 passed by the Central Administrative Tribunal in OA No.207 of 1997 and the order in Review Application No.11 of 2003 dated 23/11/2003 is totally misconceived and without any justification for reopening the issue which has already been settled and therefore, the present petition requires to be dismissed as being devoid of merit.
2. Necessary preliminary submissions to substantiate the contention that the present petition is devoid of merit are as under :-Page 14 of 54
HC-NIC Page 14 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT 2.1 Due to dispute in the seniority matters in respect of State Civil Services of the State of Gujarat, no appointments to I.A.S. Cadre could be made for the years from 1974 to 1979. It was only on the basis of direction dated 13/10/1978 of the Hon'ble High Court of Gujarat in the Special Civil Application No.1407/1978 that a combined seniority list of SCS officers was drawn in the year 1979. The Hon'ble High Court also directed the State Government in the aforesaid application to convene a meeting of the Selection Committee for preparation of Select list for making appointments against I.A.S. Cadre posts but not to issue appointment letters to the officers appointed on the basis of the said Select List till the litigation in the Court was over.
2.2 In pursuance of the judgment referred above, a combined seniority list was drawn in the year 1979 and on the basis of this seniority list, a Select List consisting of 42 officers was drawn based on 21 number of vacancies for the years from 1974 to 1979.
But, none of the officers could be appointed till 1986 in view of the direction of Hon'ble Court as referred above. It was on resolution of the dispute in the year 1986 that 15 officers including Shri S.D.Sharma, Page 15 of 54 HC-NIC Page 15 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT one of the petitioners, were appointed w.e.f. 26/11/1986. Six vacancies could not be filled up as the officers available in the combined Select List of 1979 had already retired by 26/11/1986.
2.3 In the meantime, two officers Shri N.P.Parikh and Shri V.P. Shah, who were not include in the combined Select List of 1979 moved Hon'ble High Court of Gujarat and challenged the Select List of 1979 by filing Civil application No.918/1980 which was later on transferred to the CAT and numbered as T.A. No.43/86. The Administrative Tribunal, vide there order dated 2/2/1990 held the Combined Select List of 1979 to be invalid as the cases of the petitioners were not considered properly on account of illegal clubbing of vacancies and enlarging the zone of consideration. The Hon'ble Tribunal directed to convene a meeting of Selection Committee afresh and draw a year-wise Select List from the years from 1974 to 1979 on the basis of vacancies to be calculated for each year and make appointments under the rules and regulations applicable in the relevant year. The Tribunal further modified its order in the M.A. 449/92 and directed that granting of relief to the two petitioners (Shri Parikh and Shri Shah) need not upset the position of the Page 16 of 54 HC-NIC Page 16 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT officers already appointed. This judgment of the Tribunal became final with the dismissal of SLP No.9669/90 of the Union of India by the Supreme Court on 5/10/1990.
2.4 In pursuance of the direction of the Hon'ble Tribunal in T.A. No.43/1986, a Selection Committee meeting was held in the year 1993, year-wise Select List for the years 1974 to 1979 were drawn and appointments were made. The two petitioners in T.A. No.43/86 (Shri N.P.Parikh & Shri V.P.Shah) were appointed w.e.f. 31/12/1977 vide Notification No.14015/37/91-AIS (I) dated 2/1/1996. Rest were also appointed against the remaining vacancies w.e.f. the years ranging from the years 1974 to 1979 vide Notification No.14014/89-AIS (I) dated 16/7/1996.
2.5 The petitioner Shri S.D. Sharma and others filed OA No.307/97 in the Hon'ble Tribunal, Ahmedabad Bench challenging the Notification dated 16/7/1996 by which appointments were made on the basis of year-wise Select List drawn from the years 1974 to 1979 on the basis of vacancies calculated for each year in compliance of T.A. No.43/86. The Hon'ble Tribunal, Ahmedabad Bench dismissed the said OA Page 17 of 54 HC-NIC Page 17 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT No.307/97 rejecting all the contentions made by the petitioner and upholding the appointments on the basis of year-wise Select List prepared in compliance of Order dated 2/2/1990 in T.A. No.43/86 and the said orders were meant to be implemented in personam and not in rem. However, the main thrust of the order dated 2/2/1990 in T.A. No.43/86 is that the Combined Select List of 1979 have been held invalid and the Tribunal directed that fresh year-wise Select List may be prepared and appointments made accordingly. The direction of the Hon'ble Tribunal in T.A. No.43/86 were mandatory and fresh appointments were made strictly in compliance of the said directions and in accordance with relevant rules and regulations. In view of this there is no logic in the contentions of the petitioners and hence the writ petition need to be dismissed.
3. In furtherance of the above narrated submissions, it is humbly submitted that the year wise Select List were drawn and appointments were made in compliance of the directions of the Hon'ble Tribunal in T.A. No.43/86, which were mandatory. The Hon'ble Tribunal in OA No.307/97 has correctly upheld the Notification No.14014/89-AIS (I) dated 16/7/1996 issued Page 18 of 54 HC-NIC Page 18 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT by the Union of India making appointments on the basis of year-wise Select List drawn in compliance of the said T.A. No.43/86.
Regarding the petitioners' contention that the Combined Select List of 1979 should not have been abandoned by the Union of India, it is humbly submitted that earlier an exercise was proposed to be undertaken by the Union of India to assign higher year of allotment to officers appointed on the basis of Combined Select Lists of 1979 and 1986 because it was felt that "hardship" was caused to the officers included in the said Combined Select Lists. Since the Selection Committee could not meet for a long time due to which vacancies could not be filled up immediately on their occurrence, it was then decided to relax the provisions of the Seniority Regulations under Rule 3 of the IAS (Conditions of Service- Residuary Matters) Rules, 1960 in order to consider them for promotion to IAS from the Combined Select List of 1979. However, since the Hon'ble Tribunal in T.A. No.43/86 had itself directed to prepare year-wise Select List on the basis of vacancies calculated for each year, it was felt that such of the officers who qualified for appointment on the basis of such preparation of year-wise Page 19 of 54 HC-NIC Page 19 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT Select Lists would get due benefit without any need to relax Seniority Regulations. It was further felt that with the preparation of year-wise Select Lists in compliance of the Order dated 2/2/1990 of the Hon'ble Tribunal in T.A. No.43/86, the issue of "hardship" was addressed in accordance with the provisions of rules and regulations and there was no need to pursue the earlier proposal to assign higher year of allotment by relaxing the rules as the action to implement the Combined Select Lists of 1979/1986 became incompatible with the decision to implement the order dated 2/2/1990 in T.A. No.43/86 to prepare year-wise Select List.
4. It is humbly submitted that the directions of the Hon'ble Tribunal in T.A. No.43/86 were mandatory. According to these directions year-wise Select Lists had to be prepared and appointments made accordingly. It is further submitted that earlier an exercise was proposed to be undertaken by the Union of India to assign higher year of allotment to officers appointed on the basis of Combined Select list of 1979 and 1986 because it was felt that "hardship" was caused to the officers included in the said Combined Select List of 1979 since the Selection Committee could not meet for a long time due to which vacancies could not Page 20 of 54 HC-NIC Page 20 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT be filled up immediately on their occurrence. It was then decided to relax the provisions of the Seniority Regulations under rule 3 of the IAS (Conditions of Service-Residuary Matters) Rules, 1960 in order to consider them for promotion to IAS from the relevant Combined Select List of 1979. However, since the Hon'ble Tribunal in T.A. No.43/86 had itself directed to prepare year-wise Select List on the basis of vacancies calculated for each year, it was felt that such of the officers who qualified for appointment on the basis of such preparation of year-wise Select List on the basis of vacancies calculated for appointment on the basis of such preparation of year-wise Select Lists would get due benefit without any need to relax the Seniority Regulations to give higher year of allotment as proposed earlier in respect of officers appointed on the basis of Combined Select List of 1979. It was further felt that with the preparation of year- wise Select Lists in compliance of the order dated 2/2/1990 of the Hon'ble Tribunal in T.A. No.43/86, the issue of "hardship" was addressed in accordance with the provisions of rules and regulations and there was no need to pursue the earlier proposal to assign higher year of allotment by relaxing the rules as the action to implement the Combine Select List of 1979 became incompatible Page 21 of 54 HC-NIC Page 21 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT with the action to prepare year-wise Select Lists prepared in compliance of the order dated 2/2/1990 in T.A. No.43/86. There was no need to give any notice to the petitioners for abandoning the exercise to give higher seniority appointed from the 1979 Combined Select List as the action was taken in compliance of directions of the Hon'ble Tribunal in T.A. No.43/86.
5. It is humbly submitted that the petitioners have not assigned any reasons to prove their contention that Hon'ble Tribunal in OA No.307/97 has wrongly interpreted the judgment in T.A. No.43/86 and the Supreme Court's judgment in C.A. No.4786 of 1994. It is submitted that the interpretation made by the Hon'ble are correct.
6. At the cost of repetition it is submitted that the Hon'ble Tribunal in T.A. No.43/86 had directed to prepare year-wise Select List on the basis of vacancies calculated for each year. In this connection it has been clearly explained that with the preparation of year-wise Select List in compliance of the Hon'ble Tribunal in T.A. No.43/86, the issue of "hardship" was addressed in accordance with the provisions of rules and regulations and there was no need to pursue the proposal to assign higher Page 22 of 54 HC-NIC Page 22 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT year of allotment to officers appointed from the 1979 Combined Select List by relaxing the rules.
7. It is further submitted that while complying with the directions of the Hon'ble Tribunal in T.A. No.43/86 for preparation of year-wise Select List from the years 1974 to 1979 on the basis of vacancies to be calculated for each year, the zone of consideration of eligible candidates would become different from the zone of consideration for the purpose of preparation of Combined Select Lists. The Select List prepared on year-wise basis cannot include the same officers in the same order as in Combined Select List which had larger zone of consideration due to clubbing of vacancies for several years. The averments made by the petitioners in para 22 that only the petitioners Shri N.P. Parikh and V.P.Shah were to be considered in year-wise are misconceived and not correct as the Hon'ble Tribunal in the aforesaid application directed to constitute the Selection Committee afresh and to consider the officers including the petitioners therein fro inclusion in the Select List for each year from 1974 to 1979 separately. From the wordings "Officers including petitioners" it is quite clear that Page 23 of 54 HC-NIC Page 23 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT while the Hon'ble Tribunal gave relief to the petitioners before them in the case, they did not exclude others for such a benefit.
8. It is humbly submitted that the direction of the Hon'ble Tribunal to prepare year-wise Select List could not be implemented "in personam" with reference to the petitioners. This is clear from para 10 of the order dated 2/2/1990 in T.A. No.43/86 which reads as under :-
"In the conspectus of the facts and circumstances in view of the legal position discussed and on the basis of the judicial pronouncement referred to, we allow the application in part. We hold that the Select List of suitable officers prepared by the committee at its meeting held in 1979 under Regulation of the IAS (Appointment by Promotion) Regulation 1955 is invalid to the extent that the case of the petitioners have not been properly considered on account of the illegal clubbing of vacancies and enlarging the zone of consideration and also by adopting the provisions of IAS (Appointment by Promotion) Regulations as amended in the year 1977 in regard to vacancies which arose prior to the amendment. We direct the respondents to Page 24 of 54 HC-NIC Page 24 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT constitute the committee afresh and to consider the officers including the petitioners for inclusion in the Select List for each year from 1974 to 1979 separately considering only those would have come within the zone of consideration in the individual years adopting the procedure as per the regulations which stood prior to the amendment in 1977 for vacancies which arose prior to the date on which the amendment took effect to consider the petitioners suitability and to appoint them into the Indian Administrative Service, if they are found suitable in any of the years notionally and to give them all consequential benefits arising out of such appointment. There wall be no order as to costs."
9. From the above it is clear that considering the case of other officers in the year-wise Select Lists for grant of benefits (as to be given to petitioners) has not been barred by the Hon'ble Tribunal and the order cannot be implemented "in personam". It is also clear that only those officers coming within the zone of consideration were required to be considered in accordance with the Rules in force prevailing at the given point of time and action was taken accordingly as directed by the Hon'ble Page 25 of 54 HC-NIC Page 25 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT Tribunal.
10. It is humbly submitted that Combined Select List of 1979 were held to be invalid by the order dated 2/2/1990 in T.A. No.43/86 and the issue of "hardship" caused due to non-preparation of Select List from 1974 to 1979 was duly addressed with the implementation of the said directions of the Hon'ble Tribunal in T.A. No.43/86 in accordance with rules/regulations according to which officers who qualified for appointment on the basis of such preparation of year-wise Select Lists would get due benefit without any need to relax the Seniority Regulations to give higher year of allotment as proposed earlier. It was in this context that a Memorandum dated 9/4/2003 was issued to clarity that compliance was being made of the directions in OA No.108/95 and 162/95 by which fresh notices were issued vide Memorandum of December 1985 calling for objections to relax the provisions of Seniority Rules on the ground of hardship caused due to inordinate delay in preparation and operation of the Select Lists concerned. However, since the combined Select List of 1979 and 1986 were declared to be invalid by the Tribunal in T.A. No.43/86 and OA No.646/88 and year-wise vacancies in terms of the directions of the Tribunals in Page 26 of 54 HC-NIC Page 26 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT the above mentioned T.A./O.A., it was clarified in the said memorandum dated 9/4/2003 that the issue of "hardship" caused due to delay in holding Selection Committees meetings in time was duly addressed by implementation of the directions of the Hon'ble Tribunal in T.A. No.43/86 and OA No.646/88 and according to which such of the officers who qualified for appointment on the basis of year-wise Select List were to be given their due benefit in terms of the said year-wise Select Lists.
11. It is submitted that when general directions concerning all the officers are given by the Hon'ble Tribunal in T.A. No.43/86 with respect to preparation of Combined Select List for the period from 1974 to 1979 for their promotions to IAS cadre, it is not relevant whether a particular officer was made a party to that T.A. Or not as the directions issued by the Hon'ble Tribunal concerns all the officers who are otherwise qualified for being promoted to IAS cadre.
12. In view of what is stated herein above there is no merit in the averments made by the petitioners and the action of the Government of India is in full accord with the observations made by the Hon'ble Tribunal Page 27 of 54 HC-NIC Page 27 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT in this regard. Therefore, the Hon'ble Court may kind enough to dismiss this petition with a view not to disturb the already settled issue".
7. Learned advocate appearing for respondent No. 2 submitted that he is adopting the submissions canvassed by respondent no.1 in support of their case and over and above, he submitted that Regulation 5 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 provides for preparation of Select List every year for promotion of the State Civil Service officers to the Indian Administrative Service. However, no Select Lists could be prepared during the years 1974 to 1978 due to the then on-going disputes in the matters of inter-se seniority between direct recruit and promotee State Civil Service officers of the State of Gujarat. Consequent upon the direction dated 13.10.1978, of the Hon'ble High Court in Special Civil Application No.1407/1978, a provisional Select List was drawn in the year 1979, but no appointments to the Indian Administrative Service could be made from this Select List as this Court had directed that the State Government could convene a meeting of the Selection Committee for preparation of Select List for making appointments on Indian Administrative Service cadre posts, but will not make appointments of the State Civil Service officers in the Select List to the Indian Administrative Service till the litigation in the Court was over.
Page 28 of 54HC-NIC Page 28 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT
8. It is also submitted by learned advocate for respondent No. 2 that the petitioners had also filed a Review Application bearing No.11/2003 in the Central Administrative Tribunal, Ahmedabad Bench and had urged the Tribunal to reconsider its decision. But vide its judgment and order, the Tribunal had rejected the Review Application also and therefore, no interference is required.
9. As regards the facts and circumstances of the case are concerned, the following aspects are submitted for kind consideration of this Court by learned advocate for respondent no.2, which are reproduced verbatim for ready reference:-
(i) In so far as the directions contained in the judgment of 2.2.90 rendered by the Hon'ble Tribunal in T.A. No.43/1986 are concerned, no breach has been committed by the Respondent no.2 at any point of time during the course of preparation of year-wise select lists, as directed by the Hon'ble Tribunal.
(ii) The petitioners appear to be endeavouring to make a mountain of the mole hill through vehement reliance on a few words like "grant of relief to the petitioners need not upset the position of the persons already selected and appointed" appearing in Para 9 of the said judgment order dated 2.2.90 of the Page 29 of 54 HC-NIC Page 29 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT Hon'ble Tribunal. In this connection, it is necessary to bear in mind the basic principles governing the interpretation of a Court order;
it is not open to anybody to pick and chose certain words here and there to interpret the judgment, but the Court's order needs to read and implemented in the letter of its spirit. If the words mentioned above are read in the context of what has been observed in the immediately preceding part, it would be amply clear that the aforesaid observation is not in the nature of the direction to the Respondent no.2. The Hon'ble Tribunal merely drew an inference from the two premises viz. - (a) the select list prepared by the Committee in 1979 for appointment for the years 1974 to 1979 cannot be held to be legal, as the petitioners were made to compete with the persons who could not have come within the zone of consideration, if the vacancies for the each year had been separately considered and (b) both the petitioners (Shri V. P. Shah and N. P. Parikh) must have by now retired from service. The directions of the Hon'ble Tribunal are to be found in para-10 of the judgment order which is absolutely clear.
(iii) The interpretation of the Hon'ble Tribunal's order dated 2.2.90 is absolutely correct and is corroborated by the fact that even though the said judgment was taken to Page 30 of 54 HC-NIC Page 30 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT the Apex Court in appeal by the Union of India, the Hon'ble Supreme Court by its order dated 5.10.90, without expressing any opinion on the merit of the contention raised in the appeal, dismissed the appeal solely on the ground that the respondents in appeal had already retired from the service. Thus, the judgment of the Hon'ble Tribunal dated 2.2.90 stood merged with the aforesaid order of the Hon'ble Supreme Court.
(iv) In pursuance of the directions given by the Hon'ble Tribunal, the Selection Committee met to prepare year-wise select lists of the State Civil Service officers for the years 1974, 1975, 1976, 1977, 1978 and 1979 for promotion to the Indian Administrative Service cadre of Gujarat. In the process of preparation of the said year-wise select lists, all the eligible State Civil Services officers who satisfied the requirements of the promotion regulations as they stood for each year, were considered. At the end of this exercise, the Govt. of India issued the Notifications dated 2.1.96 and 16.7.96, appointing in all 21 State Civil Service officers to the Indian Administrative Service.
It is pertinent to mention here that the seniority of the petitioners did not change to the disadvantage of any of the petitioners Page 31 of 54 HC-NIC Page 31 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT due to such exercise of preparation of year- wise select lists, instead the years of allotment of some of the petitioners changed to their advantage as they got higher years of allotment. It is a different matter that the petitioners might be expecting still higher years of allotment and hence the petition.
This being the position, the select list prepared, keeping in view the directions of the Hon'ble Tribunal dated 2.2.90, cannot be said to be contrary to the directions of the Hon'ble Tribunal. If the petitioners were not the party in the TA No.43/1986, the Respondents are not be blamed.
(v) In the Original Application
No.646/1988 filed before the Hon'ble
Administrative Tribunal, challenging the
clubbing of vacancies done in the course of preparation of a consolidated select list for the years 1980 to 1986, the Hon'ble Tribunal by its judgment dated 30.11.1993 directed the respondents to prepare the select list from year to year for the period 1980 to 1986 and thereafter on the basis of the vacancies from year to year without clubbing vacancies in any particular year. The Hon'ble Supreme Court, while upholding the judgment of the Hon'ble Tribunal, was pleased to issue certain directions in substitution of the directions of Page 32 of 54 HC-NIC Page 32 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT the Hon'ble Central Administrative Tribunal. The aforesaid substituted directions of the Hon'ble Supreme Court pertaining to the select list for the vacancies for the years 1980 to 1986 support the interpretation of the respondents of the Hon'ble Tribunal's order dated 2.2.90 in T.A. No.43/1986 which pertains to preparation of year-wise select list for the vacancies for the years 1974 to 1979. In this context, the following observations of the Hon'ble Supreme Court in its judgment dated 25.10.96 deserves to be noted :-
"In the instant case, the State Civil Service Officers who were selected in the select list prepared in December 1986/ January 1987, have not been impleaded as parties and, therefore, their appointments to the Service cannot be upset. In this application before the Hon'ble Tribunal, the respondent sought directions for consideration of his case afresh for the purpose of inclusion in the select list. The respondent can seek such consideration only in a way that it does not disturb the appointment of other State Civil Service officers who have been appointed to the service on the basis of the select list of December 1986/ January 1987. For that purpose, out of the said officers whose appointment is not be disturbed, those who were senior to the respondent in the State Page 33 of 54 HC-NIC Page 33 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT Civil Service will have to be adjusted against the vacancies of a particular year/years are completely filled, then no further action is to be taken in respect of the vacancies for that/those year/years, separately from amongst State Civil Service Officers who are eligible and fall within the zone of consideration for selection in respect of the vacancies of the particular year. If the name of the respondent is included in the national select list/lists so prepared for any particular year/years during the period 1980-86 and is so placed in the order of merit so as to have been entitled to be appointed against a vacancy of that year. But that appointment would not affect the appointment of other State Civil Service Officers, though junior to the respondent, made on the basis of the select list of December 1986/ January 1987 and the vacancy against which the appointment of the respondent would be made will have to be adjusted against the subsequent vacancies falling within the promotion quota prescribed for the State Civil Services Officers."
It is further submitted that the aforesaid unambiguous directions pertaining to the select list prepared for the years 1980- 86 hold good in so far as the interpretation of the directions given by Hon'ble Central Administrative Tribunal on 2.2.90 in T.A. Page 34 of 54 HC-NIC Page 34 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT No.43/1986 is concerned. Thus, there is no merit or substance in the allegation that the notification dated 16.7.1996 issued by the Govt. of India is contrary to the directions of the Hon'ble Tribunal in T.A. No.43 of 1986.
The impugned orders are the
orders issued by the Govt. of India,
Department of Personnel & Training on
16.7.1996 and 17.4.1997. These orders have been issued by the Govt. of India on the basis of the year-wise select lists prepared by the Committee constituted under the Promotion Regulations which is headed by Chairman/Member, Union Public Service Commission, New Delhi. Thus, it is necessary to make Union Public Service Commission, New Delhi a party to this petition. Moreover, the Govt. of India Department of Personnel & Training being the author of the orders dated 16.7.1996 and 17.4.1997, their affidavit-in- reply to the petition would be of utmost relevance and necessary.
It is further submitted that all the officers mentioned in the Govt. of India's Notification dated 16.7.1996 (the one which is under challenge) have since been retired and in this backdrop of the matter, there is no justification for reopening the issue which is already settled."
Page 35 of 54HC-NIC Page 35 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT
10. We have heard learned counsels for the parties and perused the records as the controversy is spanning over the long period touching upon the seniority aspect, it would be most appropriate to set out herebelow few indisputable facts emerging therefrom.
(i) The petitioners were the State Service Officers entitled and eligible for being considered to be appointed by way of nomination into the IAS cadre.
(ii) Their seniority after being induction into the service would depend upon the year of allotment to them and this year of allotment is based upon their nomination into the services and as per seniority list known as per Rule 3 of Indian Administrative Service (Regulation of Seniority) Rules, 1954.
(iii) The peculiar facts of seniority dispute prior to induction of the petitioners into the IAS cadre, resulted into litigation, in which no seniority list could be prepared for appointment to Indian Administrative Services (IAS) from 1974 onwards, gave rise to filing Special Civil Application No. 1047 of 1978. This Court gave interim directions for preparing seniority list pending resolution of the dispute in the proceedings of Special Civil Application No. 1047 of 1978, whereunder, the Government was to operate combine seniority list for making appointment to the ex-cadre posts during pendency of the litigation in the Court. However, it was made clear that appointment made based thereupon, Page 36 of 54 HC-NIC Page 36 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT would be expressly subject to the final outcome of the litigation in the Court. The State was permitted to make appointment from the select list to the cadre post but were restrained from giving appointment in Indian Administrative Service, till final outcome of the litigation. The Tribunal in the impugned order before this Court has set out the relevant direction, which needs to be reproduced hereunder :
"(vi) The State Government will make appointment to cadre posts from the said select list bout those officers will not be given appointment in I.A.S till this litigation ends in this Court.
(vii) For the purpose of determining seniority under Rule 3 of the Indian Administrative Service (Regulation of Seniority) Rules, 1954 only legal continuance officiation will be taken into account and the officers in select list will not be entitled to the benefit of illegal officiation, that is to say, if these petitioners in Special Civil Application No. 1407 of 1978 succeed and as a result thereof it is found that the person selected and appointed to cadre posts could not have been so appointed, their officiation in such post will not be taken into account for the purpose of determining their seniority."
(iv) The State accordingly, prepared the seniority list and operated the same for giving appointment to the ex- cadre post. The judgment and order in Special Civil Application rendered in the year 1980 was subject matter of Appeal before the Supreme Court being Appeal No. 2359 of 1980. The Supreme Court also with consent of the parties, gave interim directions in line of Page 37 of 54 HC-NIC Page 37 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT the directions given by the High Court, whereunder, the State was allowed to operate the combine Seniority list prepared in accordance with law in para (i) and (ii) of the order dated 13.10.1978 only for making appointments to said combined seniority list on the express understanding that all the conditions laid down in the order dated 13.10.1978 of this Court be carried out when the dispute between the parties is finally decided by this Court.
(v) Subsequently the Supreme Court also permitted the State Government to make appointment in IAS from select list prepared. The select list so prepared for appointment to IAS, two officers namely V.P. Shah and N. P. Parikh, were left out, who were senior to present petitioners in the seniority list at Sr. No. 18 and 20 respectively, wherein, first petitioner Shri S.D. Sharma was at Sr. No. 51 and other petitioners were below him.
(vi) The non-inclusion of said two persons namely Shri V.P. Shah and N.P. Parikh, gave rise to filing Special Civil Application No. 918 of 1980 in this Court, which came to be transferred to Central Administrative Tribunal, Ahmedabad Bench on its constitution and renumbered as T.A. No. 43 of 1986.
(vii) The petitioners namely Shri V.P. Shah and N. P. Parikh essentially contended that the select list was not prepared considering the year-wise vacancies but by clubbing the vacancies and as such, the select list was illegal and the appointments itself was illegal.
Page 38 of 54HC-NIC Page 38 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT
(viii) It is pertinent to note at this stage that though the challenge was to the select list, which was operative to the appointment of IAS, the petitioners had not chosen to implead the persons like present petitioners who are likely to be affected on account of the outcome of said petition.
(ix) The petitioners in this petition, have also contended that neither the present petitioners were joined nor the procedure under Order 1 Rule 8 of the CPC was followed and the Tribunal in the proceedings of TA No. 43 of 1986 held that the Select List prepared by the Committee at its meeting held in 1979 under Regulation of the IAS (Appointment by Promotion) Regulation 1955, is invalid as the petitioners had not been properly considered on account of the illegal clubbing of vacancies and enlarging the zone of consideration and also by adopting the provisions of IAS (Appointment by Promotion) Regulations as amended in the year 1977 in regard to vacancies which arose prior to the amendment.
(x) In view of the aforesaid discussion, the Tribunal in the proceedings of TA No. 43 of 1986, directed the respondents to convene meeting afresh and consider the officers including the petitioners for including in the select list for each year from 1971 to 1979 separately. In other words, the direction was issued to the Government to convene the Committee afresh for preparing year wise select list considering the officers falling in very year for Page 39 of 54 HC-NIC Page 39 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT inclusion. It is required to be noted at this stage that direction of the Tribunal was absolutely in consonance with the relevant provisions of law at that time and rules prevailing. The year-wise consideration was the only correct method of avoiding clubbing of vacancies.
(xi) The operative part of the Tribunal's order, which had also been stated by the Bench in the impugned order in this proceedings, deserve to be set out herebelow also:
"We direct the respondents to constitute the Committee afresh and to consider the officer including petitioners for inclusion in the select list for each year from 1974 to 1979 separately, considering only those would have come within the zone of consideration in the individual years adopting the procedure as per the regulations which stood prior to the amendment in 1977 for vacancies which arose prior to the date on which the amendment took effect to consider the petitioners suitability and to appoint them into the Indian Administrative Service, if they are found suitable in any of the years notionally and to give them all consequential benefits arising out of such appointment."
(xii) The said direction incorporated by the Government in the judgment impugned in present proceedings that all the officers falling within the zone of consideration were required to be considered and petitioners were thus also required to be included in that exercise and the Page 40 of 54 HC-NIC Page 40 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT Bench found no illegality thereunder so as to accept the submission of petitioners that the 'notional' phraseology meant that it was a direction for consideration of the two officers case only namely Shri V.P. Shah and N.P. Parikh, as sought to be canvassed on behalf of the petitioners.
(xiii) It would be most appropriate to set out the observations of the Tribunal in the judgment and order dated 29.11.2002 in OA No. 307 of 1997, wherefrom, present Special Civil Application is arising, which would indicate that the subsequent order in M.A. being M.A. No. 449 of 1992 and order passed by it do not affect the position of the petitioners.
"para-13: As regard the grievance of the applicants that their position in the select list was not to be disturbed and their seniority ought to have been retained in view of the directions given by the Tribunal in MA/449/1992, we find that the applicants have not demonstrated as to how they are aggrieved by the impugned orders. Applicant no. 1 Shri S.D. Sharma was allotted originally the allotment year 1974 and no difference has been made in his year of allotment in the impugned orders. Similarly, applicant no. 2, 3 and 4 i.e. S/Shri Anil Joshi, S.K. Saiyad and N.C. Dave were given the year of allotment as 1971, 1974 and 1976 respectively and in the impugned orders also the same year of allotment is given to them."
(xiv) The decision of the Tribunal rendered in TA No. 43 of 1986 dated 2.2.1990 was assailed by the State in the Page 41 of 54 HC-NIC Page 41 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT proceedings of SLP No. 9969 of 1990, which came to be dismissed by the Supreme Court essentially on the ground that as the two officers in question had retired, without observing on merits of contentions of the State, SLP was dismissed on 5.10.1990.
(xv) The Government of India was in fact considering the representation of the petitioners for assigning them appropriate year of allotment on their contention that they were eligible to be appointed in IAS cadre and there were vacancies in the IAS cadre, however, on account of litigation in respect of seniority, the appointments were not made in time, on which it ought to have been made and therefore, the earlier year of allotment which they have dubbed to be higher year of allotment is required to be granted to them. Therefore, as it is stated hereinabove, the Government of India issued Memorandum inviting objections from all the concerned including Direct Recruit IAS officers for amending the relevant rules being Rule 3 of the Indian Administrative Service (Condition of Service matters) Rules, 1960 for relaxing the provisions for granting benefits to the present petitioners and similarly situated persons by way of giving them higher year of allotment.
(xvi) The said memorandum was assailed by the Direct Recruit IAS Officers by way of Original Application No. 108 of 1995 and 162 of 1995, wherein, the CAT vide its order dated 26.4.1995 quashed and set aside the said memorandum and issued direction to State and GOI for inviting fresh objections if any as the language of the Page 42 of 54 HC-NIC Page 42 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT memorandum indicated that there was a predetermination and objection and invitation of objections were mere formalities.
(xvii) The Government of India, instead of undertaking that exercise of inviting objections afresh from all concerned, dropped the very idea of relaxing the provisions of the Seniority Rule under Rule 3 of the A.I.S. (Conditions of Service Residual Matters Rule), 1960, which would have been beneficial to petitioners for granting them higher year of allotment on their plea of they being eligible and not getting promotion on the relevant time.
(xviii) The Government of India issued memorandum after taking exercise afresh in terms of Tribunal's order in TA No. 43 of 1986, wherein, it prepared the select list on year basis, taking the vacancies fallen in the year and appointing officers accordingly. The said exercise culminated into notification dated 6.7.1996, which gave rise to filing of OA No. 307 of 1997, in which Tribunal rendered decision on 29.12.2002, which is subject matter of challenge before this Court.
(xix) It is also required to be noted that present petitioners had also preferred Review Application being Review Application No. 11 of 2003, which was also rejected by the Tribunal vide order dated 23.11.2003.
11. Against the aforesaid factual backdrops, the petitioners Page 43 of 54 HC-NIC Page 43 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT have called upon this Court to quash and set aside the decision of the Tribunal dated 29.11.2002 passed by the CAT in OA No. 307 of 1997 and also order in Review Application No. 11 of 2003 dated 23.11.2003 on the ground that Tribunal did not appreciate the fact that the petitioners' selection and appointment was after due process of law and exercise undertaken by the Union of India in preparing the select list dated 17th July, 1996 and grant in the year of allotment based thereupon, was the exercise, contrary to the directions issued by the Tribunal's order in Transfer Application being TA No. 43 of 1986, as could be seen from the order dated 2.9.1990 and order in Review dated 11.2.1993, the Tribunal did clarify that the order was being made at the instance of two officers, who were left out in the select list, which had been prepared earlier, namely Shri V.P. Shah and N.P. Parikh. These two officers had chosen not to join the petitioners or similarly situated officers as parties in the petition and therefore, their non-inclusion in the earlier select list, they could not have succeeded in assailing the petitioners' and/or similarly situated persons position, who were not party to the proceedings. It is contended on behalf of the petitioners that it is well settled principle of law that if the parties are not heard and if they are not joined then the orders that has been rendered in their absence would not be binding upon them. In the instant case, it was the basic contention raised by petitioners that in the proceedings challenged by Shri V.P. Shah and N.P. Parikh, the petitioners were not party and therefore, the Tribunal rendered its decision in the Transfer Application. The said decision Page 44 of 54 HC-NIC Page 44 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT was required to be appreciated by the Union of India and all the concerned in its true prospective and based thereupon, only the notional benefits could have been granted to those two left out officers and granting of benefits of notional to Shri V.P. Shah and N.P. Parikh have disturbed the others, like present petitioners and other similarly situated officers. The petitioners right have been affected by the observation of Tribunal in its order made in Transfer Application No. 43 of 1986 and order rendered in review in support of their contention.
12. The petitioners have further contended that the challenge by Union of India to the orders of Tribunal in form of Special Leave Petition being SLP No. 996 of 1990 came to be disposed of by the Supreme Court on the ground that as the respondents therein namely Shri V.P. Shah and N.P. Parikh had retired by then, there was no need to decide the matter and accordingly, the matter came to be disposed of by the Supreme Court and the Supreme Court did not render its decision on merits. The Supreme Court's observation qua non- interference with the order of the Tribunal, assailed therein, also cannot be construed granting the Union of India any liberty to go beyond the order of the Tribunal, in which, the Tribunal had categorically informed to see that list should have been prepared considering the vacancies on the year in which it had occurred and the vacancies which had occurred in the year prior to 1977 i.e. prior to amendment in the Rules. The said vacancies should have been governed by the then extant rules, therefore, even if originally two officers namely Shri V.P. Page 45 of 54 HC-NIC Page 45 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT Shah and N.P. Parikh should have been granted benefits of judgment, then, they should have been given benefits notionally and that should not have any effect of disturbing the position of present petitioners and others.
13. The petitioners counsel have relied upon various authorities as stated hereinabove, which have been elaborately cited in support of this proposition. The petitioners entire thrust is upon they being subjected to the exercise of preparing select list and year of allotment, rendered by the Tribunal in the proceedings where they were not party and therefore, it was not open to the Union of India to disturb their position, which have been adhered to by the Tribunal in its order impugned in this petition.
14. The Tribunal has categorically mentioned in the order that the petitioners position in the IAS cadre was shown on the basis of the selection list of the year 1979 as well as December, 1986/January, 1987 and they have contended that position should not have been effected on account of the judgment of the Tribunal rendered in Transfer Application No. 43 of 1986.
15. The Tribunal has observed in para-2 of the judgment that the dispute of the seniority amongst the State Civil Service Officers had resulted into non-preparation of the Select List for making the appointment to the IAS cadre from the year 1974. The dispute was between the Direct Recruit Deputy Collectors and promoted Deputy Collectors, who had moved the High Court and till Page 46 of 54 HC-NIC Page 46 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT 17.10.1978 the State Government was not in a position to operate the seniority list prepared of the Deputy Collectors and Officers of the Gujarat Development Services Class-I for appointment to IAS Cadre. In this scenario, the Gujarat High Court vide order dated 17.10.1978 directed the State Government to operate the seniority list. However, the State Government was though permitted to make appointment to the cadre post but was not permitted to make appointment in the IAS Cadre till final outcome of the writ petition. In the Appeal filed in the Supreme Court, in which, it was clarified by the Supreme Court that select list had to be prepared from year to year. The Tribunal has further recorded that State of Gujarat had drawn two combined seniority list of the officers of State Civil Service, one in the year 1979 and the second in the year 1986. The select list for the purpose of appointment by promotion to the IAS was drawn up on the basis of these two seniority list. The first seniority list was drawn on the basis of 1979 combined seniority list clubbing all the vacancies from the year 1974 to 1979 and second one was drawn up by clubbing all the vacancies from the year 1982 to 1986. Both these select lists were challenged before the Tribunal. The first one was challenged by one Shri V.P. Shah and Shri N.P. Parikh by filing Special Civil Application No. 918 of 1980 before the High Court of Gujarat, which came to be transferred to CAT and renumbered as TA No. 43 of 1986 and second list was challenged by Shri V.P. Shah by filing OA No. 646 of 1986. Both the matters were decided separately. In TA No. 43 of 1986, the decision was Page 47 of 54 HC-NIC Page 47 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT rendered on 2.2.1990 and select list was quashed and set aside and respondents were directed to convene the Select Committee afresh and draw year wise select list on the basis of the vacancies to be calculated for each year and make appointment with reference to the Rules and Regulations in force prior to 1977. It was further directed that the Committee should consider the officers including the petitioners for inclusion in the Select list for each year from 1974 to 1979 separately considering only those who came within the zone of consideration in the individual years adopting the procedure as per regulations which stood prior to the amendment in 1977. The Special Leave Petition being SLP No. 9969 of 1990 came to be disposed of, as stated hereinabove, as the officers namely Shri V.P. Shah and N.P. Parikh had already retired. The State of Gujarat thereafter preferred M.A. No. 449 of 1992 before the Tribunal seeking clarification for implementation of the orders passed in the TA No. 43 of 1986 and while disposing said M.A No. 449 of 1992 on 11.2.1993, the Tribunal directed as under:
"1. The claims of the two officials (Original applicants) have to be considered only for the vacancies which arose in 1974 and thereafter and not for any vacancy which arose prior to 1974.
2. The consideration should be done separately for each year keeping in view that the relevant provisions of the rules/regulations applicable to the vacancies of that year, as brought out in para-7 of the original judgment.
3. Weightage shall be given to the Page 48 of 54 HC-NIC Page 48 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT observations in para 9 of original judgment that granting relief to original applicants, who have retired in 1982 and 1983 need not upset the position of the persons already selected and appointed."
16. At this stage, it is also required to be noted that O.A No. 646 of 1986 filed by Shri V.P. Shah also came to be decided on the same lines of Tribunal directing the respondent to prepare year wise select list instead of resorting to clubbing of vacancies. The judgment passed in case of Shri V.P. Shah was assailed before the Supreme Court by Union of India by way of Civil Appeal No. 4786 of 1994 and that Appeal was decided on 25.10.1986. The Supreme Court gave following fresh directions, which Tribunal has stated in its order in para- 3, which needs to be set out hereinbelow for ready reference:
1. "The number of vacancies falling in the quota prescribed for promotion of State Civil Service Officers to the Service shall be determined separately for each year in respect of the period from 1980 to 1986.
2. The State Civil Service Officers who have been appointed to the Service on the basis of the impugned Select List of December 1986/January 1987 and were senior to the respondent in the State Civil Service shall be adjusted against the vacancies so determined on year wise basis.
3. After such adjustment if all the vacancies in a particular year or years are filled by the Officers referred to in paragraph (2) no further action need be taken in respect of those vacancies for the said year/years.Page 49 of 54
HC-NIC Page 49 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT
4. But, if after such adjustment vacancy/vacancies remain in a particular year/years during the period from 1980 to 1986, notional Select list/lists shall be prepared separately for that year/years on a consideration of all eligible officers falling within the zone of consideration determined on the basis of the vacancies of the particular year.
5. If the name of the respondent is included in the notional select list/lists prepared for any particular year/years during the Period 1980 to 1986 and if he is so placed in the order of merit so as to have been entitled to be appointed against a vacancy of that particular year, he be appointed to the Service against that vacancy of that year with all consequential benefits.
6. The vacancy against which the respondent is so appointed would be adjusted against the subsequent vacancies falling in the promotion quota prescribed for the State Civil Services Officers.
7. Such appointment of the respondent would not affect the appointments that have already been made on the basis of the impugned Select List of December, 1986/January, 1987."
17. The respondent, Union of India and others prepared select list based upon these directions and as a result thereof, notification dated 16.7. 1996 came to be issued, which had resultant effect, which gave rise to the petitioners to file this petition. The Tribunal had elaborately discussed thereafter the development and effect of their exercise. The petitioners have unfortunately not indicated as to how and in what Page 50 of 54 HC-NIC Page 50 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT manner there was any illegality in the exercise undertaken prepared afresh. The petitioners' entire emphasis is only upon the fact that they were not party before the Tribunal in which the orders came to be passed but unfortunately, the petitioners could not challenge the legality and validity of the original order of the Tribunal and also the subsequent order of the Tribunal, which was substituted by the Supreme Court and Supreme Court undertook to issue fresh direction so far Civil Appeal No. 646 of 1986 is concerned and therefore, in absence of any valid ground to challenge the exercise undertaken, taking into consideration the vacancies year wise and preparing zone and making the select list, the same cannot be assailed on the ground that directions being given when the petitioners were not party in the proceedings. The submission though appears to be attractive, is required to be rejected as the direction in OA No. 43/86 cannot alone be considered in isolation as Tribunal in its order has clearly established that select list which was assailed before the Tribunal by Shri V.P. Shah and Shri N.P. Parikh had patent inference inasmuch as it was not prepared strictly in accordance with extant Rules nor was it prepared on year wise vacancies based, in other words, non convening of the Select Committee in a given years, the entire lot of vacancies were clubbed together and all the officers were considered, which resulted into officer getting benefits when they were not due for consideration. This proposition of law has not been assailed by the petitioners in any manner. In case if petitioners were justified in assailing this proposition of law with Page 51 of 54 HC-NIC Page 51 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT supporting decisions, the result would be different, but in the instant case, the petitioners have omitted to assail the proposition of law that clubbing of vacancies is definitely an invalid exercise and resultant benefits if taken away on account of the exercise taken afresh, under the Court's order, then the same cannot be found fault with, as it would have been otherwise strictly in accordance with rules and on this ground also, petitioners have no right to assail the select list.
18. The petitioners have also not challenged the said Select list and year of allotment, as petitioners were not parties in said proceedings before the Tribunal and subsequent exercise undertaken by the respondents. The petitioners perhaps could not have challenge the same, as the law prevalent then and today, enuring benefits with clubbing of vacancies so far as IAS cadre is concerned in respect of the State Civil Service officers is illegal action of expanding the zone of consideration and therefore, same is found to be incorrect and resultant select list was declared to be invalid, what prevented the petitioners from challenging said decision. The petitioners could not have been complacent of their understanding of the direction of Tribunal. The respondents are right in their contention that judgment though applicable in persona, was not stare on their face, as otherwise it would have amounted to perpetuating the illegal exercise, which has resulted into two select lists, which were given effect. The respondents' attempt to assuage the hardship by pondering after plausible amending the Rule 3 of the IAS (Conditions of Service Residuary Matters) Rules, 1960 Page 52 of 54 HC-NIC Page 52 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT also cannot be held to be helping the petitioners as ultimately, the entire consideration was dropped and that dropping cannot be said to be illegal when the authorities chose to rectify their own mistake and prepare the list strictly in accordance with law.
19. The petitioners have not indicated anywhere as to how and in what manner fresh exercise was contrary to law or rules. Their challenge is only based upon the specious plea of not disturbing them on account of order passed in the proceedings where they were not party. This proposition, of course cannot be said to be incorrect, but the factual backdrops and facts that petitioners were benefited of the exercise which had not been undertaken in accordance with law and when the petitioners were not in a position to establish that exercise being correct and valid, the petitioners cannot be permitted to assail the subsequent exercise of preparing the select list afresh, which have been prepared in consonance with Rules and established principles of law.
20. There cannot be any dispute qua ratio laid down by this Court as well as Supreme Court, which were relied upon by the petitioners, but said decisions pertaining to proposition of law that the parties before being adjudicated needs to be heard but those judgments and ratio will have to be viewed in peculiar facts and circumstances of the case, whereas, in the present case, the original select list, which have been subject matter of granting benefits to the petitioners was found to be incorrectly prepared and prepared contrary to establish Page 53 of 54 HC-NIC Page 53 of 54 Created On Wed Sep 21 07:15:16 IST 2016 C/SCA/2008/2004 CAV JUDGMENT principles of law, then in that situation, when on account of decision of the Court, when the authority is undertaking and exercising afresh to bring the select list within the legal rubric and in accordance with law and make it in consonance with established principles and rules, then, the same cannot be assailed only on the ground that judgment rendered by Tribunal was judgment in absence of the petitioners. In fact, the petitioners could not challenge the same in appropriate forum and therefore, the reliance on the same is of no avail to the petitioners.
21. The Court also needs to be mindful of the fact that this petition is essentially filed under Article 227 of the Constitution of India, therefore, when there is no error apparent on the face of record and when the petitioners have failed in establishing any jurisdictional error on the part of the Tribunal, then the findings of Tribunal need not be interfered with by this Court in exercise of powers conferred under Article 227 of the Constitution of India.
22. In the result, the petition being merit-less, fails and deserves to be dismissed and is dismissed accordingly. Rule is discharged.
(S.R.BRAHMBHATT, J.) (A.G.URAIZEE,J) pallav Page 54 of 54 HC-NIC Page 54 of 54 Created On Wed Sep 21 07:15:16 IST 2016