Delhi High Court
Shadi Ram Yadav vs Director General, Cisf And Ors. on 31 July, 1995
Equivalent citations: 1995IVAD(DELHI)179, 59(1995)DLT579, 1995(34)DRJ395
Author: R.C. Lahoti
Bench: R.C. Lahoti, Lokeshwar Prasad
JUDGMENT R.C. Lahoti, J.
(1) The petitioner serving the Central Industrial Security Force (CISF, for short) seeks a writ of Mandamus directing the respondents to treat the petitioner having satisfactorily completed the period of probation and having been confirmed w.e.f.28th March, 1985 in the rank of Inspector (Executive).
(2) According to the petitioner, on 8.3.79 he came on deputation from Bsf to Cisf as Inspector (Executive). S.C.Wadhwa, the respondent No.3 also came on deputation from Bsf to Cisf as Inspector (Executive) on 18.3.79. On 28.3.83, the petitioner and the respondent No.3 were absorbed as Inspector (Executive) in CISF. The petitioner was informed of his having satisfactorily completed the period of probation w.e.f. 23.3.1985 vide office order dated 29.5.85. A provisional seniority list in the rank of Inspector (Executive) for the period 1.1.82 to 30.4.1985 was issued wherein the petitioner is shown at SI.No.541 and the respondent No.3 is shown at SI.No.542. On 27.5.95, a seniority list of the rank of Inspectors (Executive) as on 31.12.88 has been issued. However, therein the petitioner has been assigned a place at SI.No.387 while the respondent No.3 has been placed at SI.No.276. The entries made in different columns of the list show the petitioner's date of appointment in the rank as 28.3.83 and the date of completion of probation as 27.3.85. Still the respondent No-.3 has been shown much above the petitioner. The result is that the respondent No.3 has been promoted to the post of Assistant Commandant in the year 1991 but the petitioner has been left out solely because he has been treated as junior to the respondent No.3. The petitioner served a notice for demand of justice and has then filed this petition.
(3) The respondent No.3 has not put in appearance. Counter-affidavit has been filed on behalf of the respondents No. 1 & 2.
(4) The respondents have admitted all the relevant facts as also the petitioner's plea that he had satisfactorily completed the two years' period of probation on 27.3.85. However their further plea is that mere completion of probation docs not entitle a person for automatic confirmation but the case has to be considered by duly constituted Dpc on availability of posts. The petitioner was found not fit for confirmation by the Dpc on 9.9.86 while the respondent No.3 and others junior to the petitioner were so found fit and confirmed w.e.f.31.12.85. The petitioner was considered in a subsequent Dpc and found fit for confirmation w.e.t. 1.1.88. Consistently with the dates of confirmation they were assigned appropriate places in the seniority list and as the respondent No.3 was confirmed earlier another point of time than the petitioner and became senior, be was promoted earlier than the petitioner.
(5) Learned counsel for the petitioner has in support of his submissions placed reliance on Rule 19 of Cisf Rule 65 and the law laid down by their lordships in the Supreme Court in Sewn Singh VS. Union of India, (CWP No.8228/82) decided on 28.8.90.
(6) Rule 19 provides as under :-
"19.Probation-
(1)All appointment by direct recruitment or promotion shall be on probation for two years subject to the provision that the appointing authority may extend this period in special cases.
(2)The appointing authority shall, on the expiry of the period of such probation or such extended period, pass an order declaring that the probationer has completed the period of probation satisfactorily and is suitable for confirmation in that rank. If he considers him unsuitable, the probationer shall be liable to be discharged in the case of a direct recruit or reverted to the substantive post in the case of a promotee."
(7) In Sewa Singh's case (supra) their Lordships have held :- The probation period is fixed for two years and unless extended in a special case must on the expiry subject to the period having been completed satisfactorily, entail automatic confirmation. It is only in the case of unsuitability that the probationer can be made to quit by an order of discharge."
(8) During the course of hearing, on a query raised by the Court, learned counsel for the respondents categorically stated that there has been no order passed by the respondents extending the petitioner's period of probation. That being so the period of probation came to a satisfactory end on 27.3.85. On 29.5.85, the respondents had passed a specific order (AnnexureP-3) declaring satisfactory completion of period of probation by the petitioner on 27.3.85. Once the period of probation had come to an end and confirmation had automatically taken place; the respondents could not have thereafter held DPCs and postponed the confirmation in the name of unsatisfactory service record of the-petitioner.
(9) For the foregoing reasons, the petitioner is entitled to the relief of declaration of confirmation in the rank of Inspector (Executive) w.e.f. 27.3.85 and being assigned a place of seniority in the seniority list consistently therewith.
(10) It may be stated that in view of the finding above said, the petitioner is likely to march over about 110 persons and secure a place of seniority just above the respondent No.3 but the petitioner has joined only S.C.Wadhwa, the respondent No.3 as party to the petition; such others as may be in between have not been joined as respondents. The Court was alive to situation and that is why on 18.1.94 while admitting this petition for hearing, the Court had made the following observation :- "THE petitioner seeks his seniority to be refixed in the rank of inspector (Executive) in CISF. His principal contention is that he and the third respondent were both in Bsf and were deputed to Cisf on different dates. The petitioner was deputed to Cisf on 8th March, 1979 while the 3rd respondent had gone on deputation to Cisf on 18th March, 1979. In the draft seniority list issued, both were shown one after other; the petitioner was at SI.No.541 and the 3rd respondent at 542. It appears that after the objections were invited the seniority has been re- fixed and now the 3rd respondent stands at SI.No.276 while the petitioner is at No.387. Other persons, in case the petitioner succeeds, who fall between SI.Nos.276 and 387 are not parties before us and the counsel submits that they are spread out in the country."
(11) The question is whether before allowing the desired relief to the petitioner, should we direct the petitioner to implead such about 110 personnel as respondents or dismiss the petition for non-joinder of necessary parties. The learned counsel for the petitioner has submitted that the petitioner has no grievance against any individual; what he is seeking is the determination of a principle and washing out the ill effects of a wrong interpretation placed by the respondents on the rule resulting in a totally unjust and unwarranted practice which was being followed by the respondents in determining the date of confirmation and assigning the place in the list of seniority of the Cisf personnel. Reliance has been placed on the decision of their Lordships in A' Janardhan VS. Union of India & Ors., wherein it has been held :- "In this case, appellant docs not claim seniority over any particular individual in the background of person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing-up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be imploded as respondents. We may in this connection refer to Secundrabad V. Avr Sidhanti . Repelling a contention on petitioners did not implead about 120 employees who were likely to be affected by the decision in the case, this Court observed that the respondents (original petitioners) are impeaching the validity of those policy decisions on the ground of their being violative of Arts. 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating to seniority of government servants is assailed. In such proceedings, the necessary parties to be imploded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. Approaching the, matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by anyone individual against another particular individual and, therefore, even if technically the direct recruits were not before the Court, the petition is not likely to fail on that ground."
(12) The law laid down in A Janardhan's case (supra) applies on all the fours to the case at hand. The petitioner need not join all the persons in the seniority list as parties to the petition. He has joined S.C. Wadhwa the person next below the petitioner in the seniority list of the year 1985 as party to the petition and by way of illustration. That is sufficient.
(13) It may be placed on record that the petitioner has been promoted on the post of Assistant Commandant during the pendency of this petition. However, that does "not fully redeem the grievance of the petitioner. He is justified in seeking the assigning of a due place in the seniority list, followed by consequently a direction for being considered for promotion by reference to a date with which personnel junior to him were considered for promotion and promoted.
(14) The petition is allowed. The respondents are directed to treat the petitioner as confirmed in the rank of Inspector (Executive) w.e.f. 27.3.85 and to assign the petitioner a place in the seniority list consistently therewith. The petitioner shall also be entitled to be considered for promotion to the post of Assistant Commandant with effect from the date with which the respondent No.3 was considered for promotion and promoted. No order as to the costs.