Uttarakhand High Court
Purna Nanda Naik vs Union Of India And Ors on 17 May, 2016
Author: V.K. Bist
Bench: K.M. Joseph, V.K. Bist
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (SB) No. 194 of 2009
Purna Nand Naik. ........... Petitioner
Versus
Union of India & others. ............. Respondents
Mr. B.P. Nautiyal, Senior Advocate, assisted by Mr. Mohd. Matloob, Advocate for the
petitioner.
Mr. Yogesh Pacholia, Standing Counsel (Central Govt.) for respondent Nos. 1 to 4.
Mr. Shashank Pandey, Advocate for respondent No. 5.
JUDGMENT
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
Dated: 17th May, 2016 K.M. JOSEPH, C.J.
Petitioner was the applicant before the Central Administrative Tribunal, Allahabad Bench (hereinafter referred to as the "Tribunal") in Original Application No. 467 of 2008. He sought the following reliefs before the Tribunal:
"(a) To issue a writ, order or direction in the nature of certiorari quashing the impugned Orders dated 06.07.2007, 30.11.2007 & 10.03.2006 passed by the respondent no. 3 herein (Annexure No. A-1, A-2 & A-3 to the Compilation No. 'I' of the Original Application).
(b) To issue a writ order or direction in the nature of mandamus directing the respondent nos. 2 & 3 herein to relieve the respondent no. 5 treating him to have been relieved of his duties w.e.f. 24.12.2005 (A/N) and to constitute Review Departmental Promotion Committee and to consider the case of promotion to the post of Section Master (Group "A"
Gazetted) in the pay scale of Rs. 8000-13500/- of all eligible Masters including the petitioner and to promote the petitioner on the said post of Section Master in case he is duly recommended by the Departmental Promotion Committee for 2 the such promotion, within a period as may be fixed by this Hon'ble Tribunal.
(c) To issue a writ order or direction in the nature of mandamus directing the respondent nos. 2 & 3 herein to give effect to such promotion to the petitioner from the date when the respondent no. 5 has been allowed promotion to the said post i.e. 06.07.2007 with all consequential benefits including back wages, seniority, etc. within a period as may be fixed by this Hon'ble Tribunal."
2. The Tribunal has dismissed the Application. Hence, the writ petition.
3. We have heard Mr. B.P. Nautiyal, learned Senior Counsel for the petitioner; Mr. Shashank Pandey, learned counsel appearing for respondent No. 5; and Mr. Yogesh Pacholia, learned Standing Counsel appearing for the official respondents.
4. The case, as set up by the petitioner before the Tribunal, in brief, was as follows:
i. Petitioner was appointed as Master in History on the strength of the recommendation by the Union Public Service Commission (in short "UPSC"). He was recommended by the UPSC on 24.02.2000 and he joined with the fourth respondent on 11.09.2000. The fifth respondent was appointed as a Master in Biology on the basis of the recommendation by the UPSC dated 24.03.2000 and, pursuant to the appointment order, he joined with the fourth respondent w.e.f. 02.09.2000. The petitioner and the fifth respondent are alleged to have appeared in the same examination conducted by the UPSC and the petitioner was ranked above in the merit list and, thus, recommended for appointment by letter dated 24.02.2000; whereas, the fifth respondent was recommended subsequently vide letter dated 24.03.2000. Therefore, it is alleged that the petitioner is senior as a Master in all respects. In this connection, reference is made to Annexure No. A-5 in the Original Application before the Tribunal to contend that the combined subject-wise seniority list of Masters is prepared reckoning the seniority of Masters from the date of recommendation, irrespective of 3 the date of joining. There is a case that the relative seniority of all direct recruits is determined in the order of merit in which they are selected for such appointment on the recommendation of the UPSC or other selecting authority; persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection.
ii. The next higher post is the post of Section Master, which is only one post. DPC conducts the selection. The benchmark fixed is "very good", it is stated. In the year 2004, a vacant post of Section Master necessitated constitution of a DPC. Respondent No. 3, it is alleged, directed the fourth respondent to forward the seniority list and also the eligibility list to the DPC. It is further alleged that a Master should have completed two years of requisite eligibility service as Master from the date of joining to become eligible and included in the eligibility list for being considered. There is reference to letter dated 28.09.2004 (Annexure No. A-7) and it is stated that it was decided that two lists, namely, eligibility based on joining and subject-wise separate seniority list based on UPSC recommendations were to be prepared. It is further alleged that, in view of the above letter, an eligibility list as also a seniority list of Masters subject-wise (combined) on the basis of the directions in letters dated 10.09.2004 and 28.09.2004 were prepared by the fourth respondent.
iii. Thereafter, it is the case of the petitioner that the fifth respondent, without proper permission and without NOC from the official respondents, directly applied for being appointed as the Principal of the Delhi Public School, Rohtak and he was appointed by order dated 09.11.2005 on the post of Principal. He joined w.e.f. 26.12.2005. After the appointment order dated 09.11.2005, it is alleged that respondent No. 5 submitted his resignation showing some personal obligations and concealing the fact of taking-up the new appointment by giving resignation letter dated 13.11.2005. The resignation is alleged to have been accepted w.e.f. 24.12.2005 and respondent No. 5 was also relieved on the said date. After getting himself relieved from the office of the 4 respondents, it is alleged that, w.e.f. 26.12.2005, respondent No. 5 joined his duties as the Principal of the Delhi Public School, Rohtak. He worked there till 16.03.2006.
iv. Thereafter, respondent No. 5, vide application dated 03.02.2006, applied for withdrawal of his resignation from service on account of his personal reasons and concealing the whole factum of new appointment. Reliance is placed on Rule 26 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the "Rules"). Insofar as much turns on the substantial arguments advanced on the said basis, we deem it appropriate to extract the same hereunder:
"26. Forfeiture of service or resignation. - (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails forfeiture of past service.
(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.
(3) Interruption in service in a case falling under sub-rule (2), due to the two appointments being at different stations, not exceeding the joining time permissible under the Rules of transfer, shall not be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him.
(4) The Appointing Authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely:-
(i) that the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances, which originally compelled him to tender the resignation.
(ii) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper.
(iii) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a 5 result of permission to withdraw the resignation is not more than ninety days.
(iv) that the post, which was vacated by the Government servant on the acceptance of this resignation or any other comparable post is available. (5) Request for withdrawal of a resignation shall not be accepted by the Appointing Authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government.
(6) When an order is passed by the Appointing Authority allowing a person to withdraw his resignation and to resume duty, the order shall be deemed to include the condonation of interruption in service but the period of interruption shall not count as qualifying service.
(7) A resignation submitted for the purpose of Rule 37 shall not entail forfeiture of past service under the Government."
v. It was the case of the petitioner that, to have the benefit of the past service under the Rules, the Government servant should take up the appointment with proper permission and, that too, under the Union Government or the State Government. Secondly, it is the case of the petitioner that the request for withdrawal of resignation cannot be accepted, if the Government servant resigns his service with a view to take-up appointment with other than the Government, either Union or State. It was the case of the petitioner that respondent No. 5 has disqualified himself in view of the above and, therefore, the withdrawal of the resignation was accepted wrongfully violating the Rules. On the strength of the acceptance of the withdrawal of resignation, respondent No. 5, it is alleged, joined the fourth respondent as Master in Biology w.e.f. 20.03.2006. The order, accepting the withdrawal of resignation, is dated 10.03.2006. It is alleged in the Original Application that the acceptance of withdrawal of resignation and further regularisation of the intervening period giving benefit of past service was against Rule 26(2), read with Rule 26(5), of the Rules. It is alleged that, during the period from 24.12.2005 to 20.03.2006, respondent No. 5 was not in the strength of respondent Nos. 2 to 4 having resigned, which resignation was duly accepted, and having joined the new Department. Respondent No. 5 was 6 alleged to be beyond the zone of consideration for being promoted as Section Master. It is alleged that the promotion committee illegally considered the fifth respondent and recommended him for promotion, pursuant to which, respondent No. 5 was promoted by impugned order dated 06.07.2007. Petitioner filed appeal / representation and the same was rejected by order dated 30.11.2007, which is the next order which is impugned.
vi. Thereafter, we notice paragraphs 4.25 to 4.30 of the Original Application, which are reiteration of illegal acceptance of the withdrawal of resignation and it being violative of Rule 26 of the Rules. Thereafter, it is stated in paragraph 4.32 as follows:
"4.32 That in any view of the matter, in the circumstances mentioned above, when the respondent no. 5 concealed the material fact while submitting the resignation from service and also while submitted the request for withdrawal thereof after the same was duly accepted about the factum of having taken new appointment under the Registered Society without proper permission and No Objection Certificate, it was not proper for the respondent nos. 2 & 3 nor the respondent no. 5 was legally entitled to have been allowed the benefit of past service regularization the intervening period of 85 days by granting Extra Ordinary Leave. Of course, the respondent nos. 2 & 3 could have given the respondent no. 5 fresh appointment reckoning the seniority from the date of joining of the respondent no. 5 with the respondent nos. 2, 3 & 4 after accepting his request for withdrawal of resignation from service."
vii. It is, further, stated that, in case the above proper course would have been taken, respondent No. 5 would have become junior-most among all Masters and the petitioner rightfully and legally would have become senior-most. It is also necessary to notice paragraphs 4.34 and 4.37 of the Application, which read as follows:
"4.34 That to become eligible for being considered for promotion to the post of Section Master, a Master should have two years of regular service in his grade from the date of joining as Master pursuant to the recommendation of the Union Public Service Commission. In this way also, had the respondent 7 no. 5 not been illegally allowed the benefit of past service and would have been allowed to join the Department as a fresh appointee, reckoning the seniority from the date of such joining i.e., 20.03.2006, he would have become in-illegible for being considered by the Departmental Promotion Committee for promotion on the said post.
4.37 That the respondent no. 5, who, as a matter of fact, is junior than the petitioner, reckoning the seniority from the date of recommendation by the Union Public Service Commission, yet he has been deprived off from having been promoted to the next higher post of Section Master merely because of the illegal and arbitrary action of the respondent nos. 2 & 3, as disclosed above."
viii. Further, among the Grounds, we may notice paragraph 5.2, which reads as follows:
"5.2 Because, the petitioner in the eligibility list of Masters for promotion to Section Master (A-8 to Compilation No. II of the OA) has been placed at Sl. No. 2 just below than the respondent no. 5."
ix. Thereafter, what is stated in the Grounds all relate to the effect of the acceptance of the withdrawal of resignation and the taking-up of the employment with the Delhi Public School. We may also notice paragraph 5.13, which reads as follows:
"5.13 Because, the respondent no. 5, who, as a matter of fact, is junior than the petitioner, reckoning the seniority from the date of recommendation by the Union Public Service Commission, yet he has been deprived off from having been promoted to the next higher post of Section Master merely because of the illegal and arbitrary action of the respondent nos. 2 & 3, as disclosed above."
5. The Tribunal, inter alia, has found that sub-rules (2) & (3) of Rule 26 do not apply to the facts, as respondent No. 5 was not appointed under 'Government where services qualified'. It is, further, held that sub-rule (4) of Rule 26 had showed that the authority had jurisdiction to allow respondent No. 5 to withdraw his resignation in 'public interest' and without compelling the employee 'to loose advantage of', i.e. without 8 treating it as break in service. It is, further, found that the satisfaction under clause (iv) of sub-rule (4) of Rule 26 is a matter primarily between the authority and the employee and the petitioner had no locus. It is also noted that respondent No. 5 is older in age. The Original Application was, accordingly, dismissed.
6. Mr. B.P. Nautiyal, learned Senior Counsel appearing for the petitioner would submit that the petitioner was senior to respondent No. 5, as, even though he had joined later than respondent No. 5, the recommendation was made earlier in his case in comparison to respondent No. 5. It is, further, contended that Rule 26(1) stands violated, inasmuch as, there is no public interest made out for withdrawal of the resignation. It is, further, contended that, under Rule 26(4), the withdrawal of resignation in public interest was to be on condition that the resignation was tendered for some compelling reasons, which did not involve any reflection on the integrity, efficiency or conduct of the Government servant, and the request for withdrawal of resignation has been made as a result of material change in the circumstances, which originally compelled him to tender resignation. It is his contention that the records do not show as to what were the compelling reasons, which led to the resignation and, at any rate, the withdrawal could not be attributed to any material change in the circumstances, which compelled respondent No. 5 to resign. In this regard, he drew our attention to letter dated 03.02.2005 (Annexure No. SRA-2 to the supplementary rejoinder affidavit, at page 292 of the paper book) written by respondent No. 5, wherein what is stated is, inter alia, that owing to certain personal reasons, he had to tender resignation from the post of Master in Biology and that the resignation became effective from 24.12.2006 and, further, all that is said is that he requested for withdrawal of the above resignation. Therefore, it is submitted that the statutory requirement of law not being satisfied, the grant of permission to respondent No. 5 for withdrawing his resignation was not justified. Learned Senior Counsel would further submit that the approach of the Tribunal that the withdrawal of resignation is a matter between the authority and the concerned employee could not be sustained. It is 9 pointed out that the Rule in question is a statutory rule and the withdrawal could have been permitted only on fulfillment of the conditions, as provided in the Rule. It is submitted that it has affected the petitioner, as, if the withdrawal of resignation had not been accepted, respondent No. 5 would not have continued in service and would not have been in a position to vie for selection or be selected and, therefore, the petitioner had every right to challenge it.
7. Learned Senior Counsel for the petitioner relied on M/s Mahabir Prasad Santosh Kumar vs. State of U.P. & others, reported in AIR 1970 SC 1302 and also on Laxmi Devi vs. State of Bihar & Others, reported in (2015) 5 Supreme 116.
8. Learned Senior Counsel also submitted that, actually, the conduct of respondent No. 5 also should have been taken into consideration and merely closing the matter by issuing a warning for not having taken permission would not suffice. It is also pointed out that respondent No. 5 had, in purported compliance of the conditions under Rule 26(4), produced two certificates. Arguments are addressed on the basis of materials produced before this Court (not produced before the Tribunal) to show that the two teachers, whose certificates were relied on by respondent No. 5 to establish his conduct within the meaning of Rule 26(4) being good, have disowned giving such certificates and, therefore, they are forged certificates and they cannot be relied on. It is, therefore, submitted that, having regard to his conduct, respondent No. 5 should not have got any relief. It is submitted that only on the conditions being fulfilled under Rule 26(4), the withdrawal of resignation would become effective. It is submitted that respondent No. 5 was not entitled to join, as he did not comply with the conditions.
9. Learned Senior Counsel for the petitioner also drew our attention to letter dated 17.09.2002 (Annexure No. 3A filed with the Amendment Application, at page 168 of the paper book), which reads as follows:
10 "No. 4800/TM/GS/MT-7 17 Sep 2002
The Commandant,
Rashtriya Indian Military College
Dehradun Cantt - 248 003
SENIORITY OF DIRECT RECRUITS : MASTERS
1. Reference your letter No. 101/1/R/Est dated 31 May 2002.
2. The case regarding fixation of seniority of direct recruits has been examined in details in consultation with Ministry of Defence.
3. As per the DOP&T instructions on seniority, the relative seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendation of the UPSC or other selecting authority, persons appointed as a result of earlier selection being senior to those appointed as a result of subsequent selection.
4. For drawing the combined seniority list, the seniority is to be reckoned as per the date of UPSC recommendation irrespective of the date of joining.
5. RIMC is requested to take further necessary action accordingly.
Sd/-
(S. Chellam) Dy. Director / MT-7 For Dy Chief of the Army Staff"
10. The learned Senior Counsel for the petitioner would submit that the proceedings of the DPC would show that it has not considered the case of the petitioner. All that the DPC finds is that, since respondent No. 5 was found fit, there was no need to consider the case of the others, including the petitioner. He faults the DPC on two grounds. In the first place, he would submit that, while it may be true that the Rule may provide that those, who are found to be fit, cannot be superseded, in the sense, if a senior person is found to be fit, then there is no question of further probing merit to supersede him by his junior even if the junior is found fit; in this case, it cannot be said that respondent No. 5 is senior to the petitioner. Secondly, he would submit that, under the extant procedure, a panel of five names should have been considered and there is no justification for not considering the petitioner. Admittedly, the DPC has not considered the petitioner on the basis that respondent No. 5 having been found senior, he cannot be superseded.11
11. Per contra, Mr. Shashank Pandey, learned counsel appearing on behalf of respondent No. 5, would submit that no ground exists for the petitioner to feel aggrieved. Respondent No. 5 joined earlier than the petitioner. He would submit that, actually, there was only one selection; but the petitioner was selected in one subject (History), whereas respondent No. 5 was recommended and selected in Biology. Therefore, it is submitted that the petitioner cannot be permitted to rely on the principle that a person, who is selected in an earlier selection, will rank as senior to a person selected in a latter selection. Here, there is only one selection; though the subjects were different. He would, further, submit that the matter is to be decided with reference to the question as to who has completed greater period of service after joining.
12. In fact, in the supplementary rejoinder affidavit filed in this Court by the petitioner, we notice the following letter dated 08.03.2004 (Annexure No. SRA-1, at page 323 of the paper-book):
"Tele: 23373514 Dte General of Mil Training (MT-7) General Staff Branch Army Headquarters Sena Bhavan, DHQ PO New Delhi-110011 No. 75440/52/GS/MT-7 8 Mar 2004 The Commandant Rashtriya Indian Military College, Dehradun Cantt-248 003 FIXING SENIORITY OF MASTERS
1. Reference your letter No. 101/1/R/Est dated 07 Feb 2004.
2. The case regarding determining the seniority of direct recruits Masters at RIMC was referred to MOD and DOP&T. It has been clarified that:-
(a) Employees belonging to an earlier selection would rank en bloc senior to the employees of later selection.
(b) Within each selection, the inter-se-seniority of the employees would be as per their position in the panel recommended by the UPSC.
3. The representationists may be informed accordingly and the seniority list of Masters be prepared and circulated amongst the Masters. Any future representation received against the seniority list, may be disposed off accordingly.
4. With regard to filling up the posts of Section Master, it has been clarified that the eligibility list for promotion shall be prepared 12 with reference to the date of completion by officers of the prescribed qualifying service in the respective post.
5. Once the recruitment rules for the post of Section Master are published, RIMC may prepare the eligibility list accordingly and take necessary action to fill vacant Section Master post by appropriately constituted DPC.
Sd/-
(H. Bhaumik) OSD to DGMT"
13. Annexure No. SRA-2 to the supplementary rejoinder affidavit purports to be a subject-wise seniority list of Masters. Therein, no doubt, petitioner is shown at Serial No. 1 under the subject History; whereas, respondent No. 5 is shown at Serial No. 4 under the subject Biology. We further notice that, under the Column "UPSC Reference in which recommended / approved", which is arranged in descending order on the basis of the date of recommendation, petitioner is shown as recommended by the proceedings of the UPSC dated 24.02.2000; whereas, the other persons including respondent No. 5 are shown below the petitioner. The next list, which is produced, is the eligibility list of Masters for promotion as Section Master. In that, respondent No. 5 is shown at Serial No. 1; whereas, the petitioner is shown at Serial No. 2. Therein, the date of regular appointment to the grade is shown as 02.09.2000 in case of respondent No. 5; whereas, in the case of the petitioner, the date is 11.09.2000. Thereafter, under the column 'date of eligibility for promotion to Section Master (i.e. two years service in the grade)', the date is shown as 01.09.2002 for respondent No. 5 and 10.09.2002 for the petitioner. We are not concerned with the others. The UPSC reference in which recommended / approved is also shown, as already noted.
14. Thereafter, we notice Annexure No. SRA-3 to the supplementary rejoinder affidavit dated 13.10.2004 (at page 326 of the paper-book). Therein, it is stated that seniority list has been prepared subject-wise and in order of date of recommendation by the UPSC. There is also reference to the eligibility list prepared on the basis of completion of eligible service for promotion. It was further stated that the lists circulated vide letters dated 23.09.2004 and 01.10.2004 were to be treated as cancelled. Letter 13 dated 23.09.2004 is under the caption 'Seniority of Masters' and the seniority of Masters was circulated with copy to the petitioner among others. Thereupon, petitioner addressed the following letter dated 19.10.2004:
"P.N. Naik Master, History, RIMC, Dehra Dun.
The Commandant Rashtriya Indian Military College, Dehra Dun Cantt - 248 003 Sir, Through Proper Channel Subject: Promotion to the Post of Section Master on the Basis of Seniority
1. I would like to extend my gratitude for at last finalizing the Seniority List of Masters in RIMC on the basis of the date of recommendation of UPSC.
2. However, I would like to bring to your notice the following points with regard to the promotion of Section Masters for your consideration.
a. Refer to the DGMT letter no.
th 52401/SM/RIMC/GS/MT-7 dt. 10 September 2004 and General Staff Branch, MT-6 letter no A/36056/GS/MT-6(A) dt. 28 September 2004. b. In Para e(a) of the above mentioned letter it is clearly mentioned that there has to be only one list for all purpose, and not two, c. In Para 2(d) of the same letter, for promotion to the post of Section Master an eligibility list in order of completion of eligibility of service is asked for. d. Again letter No. A/36056/GS/MT-6(A) of General Staff Branch MT-6 asked for preparation of only two lists i.e., (a) Eligibility for promotion depending on date of joining RIMC, (b) Sub-wise separate seniority list of teachers based on UPSC recommendation. (This letter overlooked para 2 (a and b) of DGMT-7 above mentioned letter.) It seems that both the letters are contradictory and confusing and led to the preparation of a second list, as Para 2 of RIMC circular ION no 101/1/R/Est dt. 13 October 2004 shows different lists of seniority (copy attached).
e. As per promotion policy, the methods to be followed are: Selection cum seniority, Selection by merit, and Non-selection or Seniority cum fitness method.14
f. If promotion of Master is to be done on the basis of eligibility of service, there is no meaning of maintaining a seniority list of Masters on the basis of recommendation of UPSC.
g. It may be noted that on 13th March 2004 as per SRO No 33/20 Feb 04 and SRO No. 40/03 March 04 Part II Section IV of the Gazette of India some ne rules were made for the recruitment of Section Masters and Masters. But as I had already completed my eligibility period in September 2002, these rules should not be implemented at present. Further I want to bring the fact to your notice that as per letter no. 4800/TM/GS/MT-7 dt. 17th September 2002 of DGMT, there is no ambiguity in fixing the seniority of Masters (copy attached). However, it seems that the matter was delayed deliberately with malafide intention.
h. As per policy at the time of DPC, in case a person is under probation and has not completed the eligibility period, only then the junior can skip the senior for promotion. As per the date of UPSC recommendation I am the senior most as I completed my eligibility service for Section Master in September 2002.. i. Hence, it is requested that the case be studied properly and justice be given to me.
j. I would be obliged if you could forward the matter to the DGMT 7, General Staff Branch-MT-6 and Chairman UPSC (Chairman DPC). For my convenience, I am sending advance copies to the concerned authorities.
k. I shall be grateful if an early disposal of the grievance be addressed.
l. Further, I would like to request that I may be allowed to seek legal advice, if the matter cannot be redressed at your level as per the policy of the Government.
Enclosed: Three additional copies for Chairman UPSC, DGMT 7 and MT-6.
Yours truly, Sd/-
(P N Naik)"
15. Thereafter, there is letter dated 27.10.2004 (at page 333 of the paper-book), copy of which is marked to the petitioner also. Therein, it is stated that a seniority list of Masters has been prepared subject-wise based on the UPSC recommendations and an eligibility list in order of completion of eligibility service for promotion to the post of Section Master. Thereafter, it is stated that an application was received from the 15 petitioner and that the petitioner, in his application, has requested the same to be forwarded to the Chairman of the UPSC.
16. Thereafter, there is communication dated 07.01.2005 (Annexure No. SRA-4 to the supplementary rejoinder affidavit), wherein it is stated that, on receipt of further clarification from Army Headquarters, a fresh draft seniority list (subject-wise) is circulated and, if no reply is received by 15.01.2005, it was to be assumed as correct. It was further stated that the seniority list circulated vide letter dated 13.10.2004 was to be treated as cancelled. The seniority list, which accompanied communication dated 07.01.2005, consisted of the seniority list of Masters (History) with only the petitioner figuring in the said list and with various contents including the date of UPSC recommendation being shown as 24.02.2000. Petitioner has produced a letter dated 14.01.2005 as his objection to the communication dated 07.01.2005 regarding fixation of subject-wise seniority list. He points out that he has been representing for fixation of seniority of Masters as per the Government Rule for promotion as Section Master. The petitioner relied on communication dated 17.09.2002 and para 2 a & b of DGMT letter dated 10.09.2004 to contend that the date of recommendation by the UPSC must be the basis. A complaint was raised that it is not a combined seniority list of directly recruited Masters. Petitioner's seniority was not indicated, ran the complaint. It was pointed out that it is on the basis of date of joining. It was prayed that the petitioner's representation may be forwarded to the DGMT (MT-7), General Staff Branch. Communication dated 09.12.2004 indicates that the petitioner was advised that subject-wise fresh draft seniority lists are being circulated and he can object against the same and that he will be given suitable reply to his objections, if any, before issuing the final subject-wise seniority list. Thereafter, the petitioner was addressed a letter dated 28.01.2005 under the heading "Seniority List: Masters". Therein, it was stated that the objections raised by the petitioner were examined. It was reiterated as reply that the contention of the petitioner for overall seniority was not correct and the seniority for Masters will be maintained subject-wise, clarified by Army Headquarters MT-7. It was 16 also stated that the eligibility list is not based on the date of joining, but in order of completion of eligibility service. Petitioner was requested to confirm the subject-wise seniority list, as circulated by communication dated 07.01.2005.
17. Petitioner, again, addressed a letter dated 03.02.2005 (Annexure No. SRA-5 to the supplementary rejoinder affidavit), wherein petitioner, inter alia, reiterated his contention of overall seniority based on the date of recommendation by UPSC. Petitioner joined within the stipulated time and the seniority could not be affected in any case, it is pointed out. According to the petitioner, subject-wise seniority was irrelevant.
18. By communication dated 16.02.2005 (Annexure No. SRA-6 to the supplementary rejoinder affidavit), again, the authority has stated that MT-7 has, again, clarified that maintaining of subject-wise seniority list is as per the Central Government Rules. It is circulated to the petitioner for information and signature.
19. Petitioner, again, addressed communication dated 05.03.2005 (Annexure No. SRA-7 to the supplementary rejoinder affidavit) objecting to the maintenance of subject-wise seniority list of Masters. Thereafter, there is communication dated 10.03.2005, which shows that the subject- wise seniority list of Masters had been prepared and the petitioner has represented against the same. It was further stated that the application of the petitioner was sent to the General Staff Branch (MT-7) for information and necessary action.
20. Petitioner, again, addressed communication dated 01.04.2006 (Annexure No. SRA-8 to the supplementary rejoinder affidavit) to DGMT (MT-7), General Staff Branch, about his representation and about lack of confirmation about clear rule for fixation of seniority. Thereafter, there is another communication dated 20.04.2008, which reads as follows:
"Tele Mil: 6912 Rashtriya Bhartiya Sainya College Rashtriya Indian Military College Dehradun 131/M/07/Est 20 Apr 2006 17 The General Staff Branch (MT-7) Army Headuarters DHQ, PO, New Delhi-110011 SENIORITY LIST OF MASTERS
1. The subject wise seniority list of Masters was prepared in accordance with clarification received from your HQ vide letter No 52401/SM/RIMC/GS/MT-7 dated 09 Dec, 2001 for promotion to Section Master. The draft subject wise seniority list was circulated to the Masters. Shri PN Naik, Master of this College had represented against the subject wise seniority list.
2. His representation against subject wise seniority list was replied by the College vide our letter No 131/M/07/Est dated 28 Jan 2005 and of even No dated 16 Feb 2005.
3. Shri PN Naik Master was subjected to more applications on this issue which were fwd to your HQ vide our letter No 131/M/07/Est dated 10 Mar 2005 and of even No 31 Oct 2006.
4. Shri PN Nai, Master has submitted an application once again on the issue, the same is enclosed herewith for your info and necessary action please.
(Anurag Chander)
Lt. Col
Adm Officer
Encls: As above For Commandant.
Internal
Mr. PN Naik - For info please.
Master
RIMC"
21. The first question we must address is, whether the petitioner is justified in impugning communication dated 10.03.2006. As already noted, respondent No. 5, a Master in Biology, had joined the Delhi Public School and worked there for 85 days. He had resigned on 13.11.2005. His resignation was accepted, however, w.e.f. 24.12.2005. He had joined the Delhi Public School on 26.12.2005 without permission. It is, still later, that on 03.02.2006, respondent No. 5 applied for withdrawal of his resignation and the same was accepted by impugned order dated 10.03.2006. It is true that the Memorandum dated 29.06.2007 would show that the authority finds that respondent No. 5 had resigned and relieved on 24.12.2005 and he withdrew his resignation and allowed re- joining on 20.03.2006. It is reported that, during the intervening period between being relieved and rejoining duties, respondent No. 5 had served 18 in Delhi Public School, Rohtak, as the Principal. Respondent No. 5 admitted the same. He, however, pleaded that he was not aware of the rules concerning taking up of assignment at a non-profitable educational society and, hence, he did not inform his superiors. The document, further, shows that, considering the facts and circumstances relating to the omission, respondent No. 5 was counseled to be careful in future in observance of Government Rules, orders and instructions. Respondent No. 5 was also informed that such omission would attract disciplinary proceedings and that future good conduct on his part is essential. Therefore, it may be that respondent No. 5 had resigned and he had also joined the Delhi Public School and, in his resignation, he did not indicate that it was for joining the Delhi Public School.
22. In this connection, Rule 26(2) of the Rules provides that a resignation shall not entail forfeiture of past service if it is submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies. Admittedly, respondent No. 5 resigned. He did not resign for the purpose of taking up appointment under the Government, where service qualified. It is to be immediately noted that this is in the form of an exception to Rule 26(1), which provides that resignation, unless it is allowed to be withdrawn in public interest, would entail forfeiture of past service. Therefore, a perusal of sub-rules (1) & (2) of Rule 26 would show that resignation would entail forfeiture of past service. However, it will not so entail forfeiture of past service, if it is done with proper permission to take up another appointment under the Government, where service qualifies. The other exception to the resignation leading to forfeiture of past service is if it is allowed to be withdrawn in public interest by the appointing authority. Still further, interruption in service in a case falling under sub- rule (2), apparently, is intended to deal with cases covered by sub-rule (2). We would think that the Tribunal was fully justified in its finding that sub-rules (2) & (3) of Rule 26 are inapplicable, as respondent No. 5 was not appointed under Government, where service qualified. This is a case, where, admittedly, the authority permitted respondent No. 5 to withdraw 19 his resignation by order dated 10.03.2006, which is, no doubt, challenged by the petitioner.
23. It is, in this context, that we must appreciate, whether the withdrawal of resignation is vitiated on account of the fact that it is not shown to be in public interest and, further, that it also contravenes the provisions of sub-rule (4) of Rule 26. As already noted, sub-rule (4) provides that withdrawal of resignation may be permitted on the condition that it is found that the resignation was made for compelling reasons not owing to the integrity, efficiency or conduct of the employee and, furthermore, that the request for withdrawal is made because of a material change in the circumstances, which originally compelled him to tender the resignation.
24. It is true that, in the application seeking withdrawal of resignation, no reasons were mentioned for withdrawing the resignation. There is also nothing on record as such for respondent No. 5 to point out that he had given reasons as such for establishing a case of material change in circumstances from the circumstances which compelled him to tender his resignation. In this context, we must notice that the petitioner did not call in question the impugned order, except by filing the Original Application. The Original Application is seen dated 20.04.2008. In other words, petitioner acquiesced with the order and allowed respondent No. 5 to continue in employment. We cannot assume that the petitioner was not aware of the resignation, withdrawal of the resignation, the acceptance of the withdrawal of resignation, the re-joining of respondent No. 5 and, lastly, the continuance of respondent No. 5. Therefore, the petitioner did not raise his little finger against respondent No. 5 continuing for a period of more than two years. No doubt, the petitioner would try to get over the same by pointing out that it is only when his rights were in peril by way of promotion being denied to him that he chose to challenge the acceptance of the withdrawal of resignation. We may also, incidentally, notice that, in his appeal / representation (Annexure No. 10 to the writ petition), in regard to the question relating to withdrawal of resignation, 20 what we find is that, after referring to the resignation and joining in the Delhi Public School, what is stated is as follows:
"8. That since Mr. Sharma tendered his resignation as per the position has been made clear in the paras ibid and thus lost all the chances of seniority and promotion to that date when he was promoted. Further, it has been assumed that the aforesaid officer has also not submitted any request to withdraw the resignation to the Competent-Authority and thus to claim his seniority and promotion during that period does not entitle him.
In view of the defacto position, it is clear that the above officer can only claim his seniority and promotion from the date when he has again re-joined the RIMC, Dehradun. In this context, the orders of the Govt. of India issued from time to time are clear which stated that when any officer does not have a lien with the department, he forfeits his seniority when he was out of the Government service and his seniority should not be counted from the retrospective date."
25. No doubt, finally, the prayer is as follows:
"PRAYER:- Having discussed and laid as above, it is conclusive that your humble representator has rendered his service to the Cause of the Nation and committed no act of dis-obedience to his superiors which he ever considered his duty and he is a almighty will prevail senses of truth to give him all the benefits and honours of services taking into consideration (i) Educational Qualification, (ii) Period of Service in the Department, (iii) Work and Conduct and Integrity which is an axiomatic-document. As you are abode of Justice and hence it is prayed that being a "Supreme- Commander", you will use your "Omnipotent-Power" for the welfare of a Government Officer."
26. The said representation stands rejected by order dated 30.11.2007, wherein it is stated that the representation with regard to seniority and withdrawal of resignation has been examined in the light of the rules, regulations, guidelines and factual position. It was done in consultation with the authorities mentioned therein, wherever necessary. It was stated that the competent authority, after careful consideration of all facts and rules, regulations and clarifications, has rejected the representation. Therefore, even in the appeal / representation, petitioner has not taken any contention in regard to there being no public interest within the meaning 21 of Rule 26(1) or the conditions not being satisfied with reference to Rule 26(4). Coming to the Original Application itself, what we find is that the case set up by the petitioner was essentially based on violation of Rules 26(2) & 26(5). We may also notice the case set up in paragraph 4.18 of the Original Application, which reads as follows:
"4.18 That in the meantime, the respondent no. 5 vide his application dated 03.02.2006 sought withdrawal of resignation from service on account of his personal reasons concealing the hole factujm of new appointment, which he took without proper permission with the aforesaid Registered Society i.e. Delhi Public School Society, which is totally a private body and the respondent nos. 2 & 3 illegally, arbitrarily in violation of Rule 26(2) of C.C.S. (Pension) Rules, 1972, read with Sub-Rule (5) of the same Rule, a copy of which too is annexed herewith and marked as ANNEXURE No. A-12 to Compilation No. 'II' to this petition.
As per the aforesaid Rules, resignation from service shall not entail forfeiture of past service only when it has been submitted to take up, with proper permission, another appointment whether temporary or permanent, under the Government where service qualifies. Further under the above Rules, the request for withdrawal of resignation cannot be accepted by the appointing authority where a Government servant resigns his service or post with a few to taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government 4.1. That two features are noticeable in the above Rules, firstly to have the benefit of past service, a Government servant should take up the appointment with proper permission that too under the Government i.e. Union Government or the State Government.
In the present case, it is proved on the record that the respondent no. 5 applied for being appointed as Principal under the aforesaid Society without proper permission directly and not through proper channel and further that while submitting resignation he did not disclose about the factum of new appointment, which he was going to take up. Further, while submitting withdrawal of resignation of service too he did not disclose about the above factum of the aforesaid new appointment. In this way, under Rule 26(2), the respondent no. 5 cannot allowed to be given benefit of past service and his request for withdrawal of resignation has illegally and wrongly been accepted by the respondent nos. 2 & 3 on account of which not only the petitioner's seniority as Master has been adversely affected but also he has suffered a lot in the matter of promotion to the post of Section Master.22
Another feature of the above Rule is that the request of withdrawal of resignation cannot be accepted by the respondents if Government servant resigns his service with a view to take up an appointment other than under the Government either Union or State Government. In view of above also, the respondent no. 5 disqualifies himself and as such, the respondent nos. 2 & 3 have wrongly accepted withdrawal of his resignation violating the above Rules on the subject."
27. Therefore, the pointed question, on which much emphasis is laid, namely, non-compliance with conditions mentioned in Rule 26(4), was not a matter, which was actually put in issue. Added to that, it is submitted on behalf of the respondents that respondent No. 5 was a Master in Biology, who resigned thinking that he can become Principal of the Delhi Public School, which is a reputed institution and, thereafter, for personal reasons, he could not continue there and, as respondent No. 5 was a good teacher and as there was scarcity of teachers, it was considered good enough reason to allow him to join by accepting the withdrawal of his resignation. Though it may not be stated in so many words in the order, having regard to the totality of facts, which we have already indicated, we do not wish to permit the petitioner to impugn the decision of accepting the withdrawal of resignation of respondent No. 5. It is to be noted that this Court cannot be oblivious to the effect of accepting the challenge to the said order, as it would mean that respondent No. 5 would lose his job, as the resignation would stand. Therefore, we reject the contention of the petitioner based on violation of Rule 26.
28. We are also not impressed by the contention of the petitioner based on Rule 26(5). Rule 26(5) forbids acceptance of withdrawal of resignation when the resignation from service is for taking up an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government. In the first place, we would think that the taking up an appointment in the Delhi Public School cannot be treated, in our view, as taking up an appointment in or under a private commercial company. There is nothing to show that it is a company. It must, further, be 23 established that it is a private and commercial company. In this regard, on the other hand, we have clear pleading on the part of the petitioner in paragraph 4.15 of the Original Application that Delhi Public School is a society registered under the Societies Registration Act. Also more importantly, we would not base our rejection of the petitioner's case on the said score; we would think that the circumstances, which we have already indicated otherwise, dissuade us from entertaining the challenge to the order accepting the withdrawal of resignation. We also do notice the finding by the Tribunal that respondent No. 5 is older in age than the petitioner.
29. The next question relates to the aspect of the inter se seniority of the petitioner and respondent No. 5 and also the legality of the promotion order.
30. It is true that, in order dated 17.09.2002, which we have already adverted to in paragraph 9 of this judgment, it is stated that for drawing the combined seniority list, the seniority should be reckoned on the basis of the date of UPSC recommendation irrespective of the date of joining. But, we must also notice that this is preceded by the earlier paragraph, wherein it is indicated that the relative seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendation of the UPSC or other selecting authority and persons appointed as a result of earlier selection will be senior to those appointed as a result of subsequent selection. In this case, the definite case of the respondents is that there was only one selection, but in different subjects. Perhaps, because of the difference in subjects, the recommendation of the petitioner was made earlier and, on the basis of the interview, the recommendation of respondent No. 5 was made later. This cannot be treated as a case, where persons are appointed on the basis of different selections, as there is only one selection about which there is not much controversy. Furthermore, even going by the material, which is made available in the writ petition, we have noticed that, by order dated 28.01.2005, the contention of the petitioner for overall seniority is 24 categorically stated to be not correct. We do not see any challenge to the said document in the Original Application. Equally, there is a reiteration of the principle that there will be subject-wise seniority list in communication dated 16.02.2005, which we have already referred to. It is, no doubt, true that the claim of the petitioner is referred to the General Staff Branch (MT-7) by communication dated 20.04.2008. Petitioner has not challenged either of the said communications. In fact, a perusal of the Original Application would give us an impression that though the petitioner, while it is true, did refer to the respective dates of recommendation of the petitioner and respondent No. 5 and the date of joining and, in paragraph 4.6, would say that combined subject-wise seniority list as per Rules is prepared reckoning seniority of Masters from the date of recommendation irrespective of the date of joining and he also refers to, apparently, communication dated 17.09.2002 in paragraph 4.7; it is categorically stated in paragraph 4.8 that the petitioner and respondent No. 5 appeared in the same examination conducted by the UPSC. So, this also would show that there is only one selection and it is not a case of separate selections. We may also refer to paragraph 4.13 and 4.14 of the Original Application, which read as follows:
"4.13 That, further vide letter 28.09.2004, it was decided that two lists namely- the eligibility for promotion depending on the date of joining RIMC and subject-wise separate seniority list of teachers based on Union Public Service Commission recommendations be prepared. A copy of the aforesaid letter dated 28.09.2004 is being annexed herewith and marked as ANNEXURE NO. A-7 to Compilation No. 'II' to this petition.
The aforesaid letters dated 10.09.2004 & 28.09.2004 have been obtained by the petitioner under the Right to Information Act from the respondents herein.
4.14 That accordingly in view of the above letter, an eligibility list of Masters for promotion to Section Master as also seniority of Masters Subject-wise (combined), keeping in view of the directions contained in the aforesaid two letters dated 10.09.2004 & 28.09.2004, were prepared by the respondent no. 4. The copies of the aforesaid lists, as supplied to the petitioner by the respondents herein under the Right to Information Act, which was placed before the Departmental Promotion Committee, is being annexed herewith and marked as ANNEXURE Nos. A-8 & A-9 to Compilation No. 'II' to this petition."25
31. Petitioner, thereafter, makes allegation in relation to the appointment of respondent No. 5 in the Delhi Public School. Thereafter, petitioner refers to the appointment and all other developments, which we have already referred to. He finally refers to Rule 26 and the regularisation of the leave and the illegal withdrawal of the resignation. He, then, refers to himself being placed in the eligibility list of Masters at Serial No. 2, just below respondent No. 5 (see paragraph 4.25 of the Original Application). Petitioner specifically contends that it is not proper for the respondents to have allowed the benefit of past service for the intervening 85 days by granting extra-ordinary leave and he points out that respondent Nos. 2 & 3 could have given respondent No. 5 a fresh appointment reckoning his seniority from the date of joining with respondent Nos. 2 to 4 after accepting his request for withdrawal of resignation. In paragraph 4.33, it is stated that, in case the above proper course would have been taken, respondent No. 5 would have become junior-most among all Masters and the petitioner rightfully and legally would have become senior-most. From this, we would deduce that the pleading set up was not, actually, based on a claim for seniority on the basis of earlier recommendation as such; but, on a claim for seniority on the strength of the developments beginning from the taking up of the employment by respondent No. 5 in the Delhi Public School, the resignation, the withdrawal of resignation and its acceptance.
32. In regard to two years' service to become eligible, it is further relevant to notice paragraph 4.34 of the Original Application, which we have already adverted to. No doubt, petitioner again reiterates his stand in paragraph 4.37, which also we have already adverted to. The grounds set up by the petitioner are, essentially, reiteration of the pleadings. We have already noticed the prayers sought in the Original Application. Petitioner does not seek any relief based on the documents, which he has produced in this Court, namely, preparation of the subject wise seniority list and his objections thereto; its rejection; his purportedly taking up the case being referred to the higher authority; and the non-preparation of a combined seniority list. None of these things are, at least, referred to in the 26 pleadings or in the reliefs. Therefore, petitioner was, in fact, basing his claim on seniority based partly, no doubt, on the recommendation being earlier; but, more emphasis was given to the losing of whatever right respondent No. 5 may have had by joining earlier on account of his resignation and taking up employment in the Delhi Public School. Interestingly, we would notice that the order of the Tribunal also would show that there is nothing reflected in the order relating to petitioner's case based on seniority and the order is devoted to consideration of the contentions based on Rule 26.
33. The DPC, undoubtedly, as we have noticed, proceeded on the basis that respondent No. 5 was found fit. The DPC also proceeded on the basis that respondent No. 5 is to be treated as senior. This is on the basis that the benchmark for promotion is 'Good'. Thereafter, the DPC has referred to the instructions contained in DOP&T O.M. dated 08.02.2002, which, inter alia, provided that the DPC shall determine the merit of those being assessed for promotion with reference to the prescribed benchmark and, accordingly, grade the officers as fit or unfit only. Only those, who are graded fit, i.e. who meet the prescribed benchmark, by the DPC are to be included and arranged in the select panel in order of their inter-se seniority in the feeder grade. Those officers, who are graded unfit, in terms of the prescribed benchmark, by the DPC shall not be included in the select panel. Thus, it is stated that there will be no supersession in promotion among those, who are graded fit in terms of the prescribed benchmark by the DPC. It is, thereafter, that the DPC, after examining and assessing, recommended the case of respondent No. 5 for promotion. In Annexure-I to the said recommendation, it is stated that respondent No. 5 is assessed as fit and, thereafter, in respect of four other persons, who were considered and who were in the panel, the assessment is stated to have been found not necessary as an officer with prescribed benchmark has already become available.
34. From this, we can understand that, in order of seniority as it was found by the DPC, which, in turn, obviously was based on the order in 27 which the persons completed two years' service, apparently, the senior- most being found fit with reference to the benchmark 'Good' and the principle being that there cannot be supersession of a senior; the DPC felt that it was not necessary to further assess the juniors. Thus, there was indeed a panel of five persons. Petitioner, in fact, has produced Office Memorandum dated 08.02.2002 (Annexure No. SRA-5) of the Government of India regarding the procedure to be observed by Departmental Promotion Committees and, under the heading "Subject", it is stated that 'no supersession in selection promotion'. The Office Memorandum, inter alia, provides for fixation of benchmark and grading of officers as fit or unfit. Only those, who are graded as fit, i.e. who meet the prescribed benchmark, by the DPC are to be included and arranged in the select panel in order of their inter-se seniority in the feeder grade. Those, who are graded as unfit, are not to be included in the select panel. There is to be no supersession in promotion for those, who are graded as fit. No doubt, under clause 3.5 "zone of consideration", it is stated that the guidelines relating to the zone of consideration in its existing form (twice the number of vacancies plus four) shall continue to have general application; but, in view of the modifications in promotion norms indicated in paragraph 3.3., which relates to promotion to the revised pay- scale (grade) of ` 12,000-16,500 and above, it is indicated that the DPC may, while the zone of consideration would remain as already prescribed, assess the suitability of eligible employees in the zone of consideration (in the descending order) for inclusion in the panel for promotion up to a number, which is considered sufficient against the number of vacancies. It is further provided as follows:
"While the zone of consideration would remain as already prescribed. The DPC, in the aforesaid category of cases, may assess the suitability of eligible employees in the zone of consideration (in the descending order) for inclusion in the panel for promotion up to a number which is considered sufficient against the number of vacancies. With regard to the number of employees to be included in the panel, the DPC may also be required to keep in view the instructions issued vide Department of Personnel and Training Office Memorandum No. 22011/18/87-Estt(D) dated April 9, 1996 relating to norms for preparing extended panel for promotion. In 28 respect of the remaining employees, the DPC may put a note in the minutes that "the assessment of the remaining employees in the zone of consideration is considered not necessary as sufficient number of employees with prescribed bench-mark have become available."
35. It is, apparently, with reference to the same that the DPC has put up the note that the assessment is not considered necessary. It is to be remembered that there is only one vacancy. Therefore, we cannot find fault with the DPC as such. It is also, no doubt, pointed out by the respondents that the DPC proceedings as such are not challenged. It is true that the said proceedings are not challenged. No doubt, the petitioner has challenged the order by which, acting on the recommendation of the DPC, respondent No. 5 has been promoted; but, there is no challenge to the proceedings as such of the DPC.
36. In the circumstances of the case, we do not think that we should be persuaded by the challenge to the order of promotion as such. Irrefutable facts would be that, in a common selection, petitioner and respondent No. 5 vied for selection in two different subjects. There are no two selections. UPSC recommended the case of the petitioner first and the recommendation of respondent No. 5 came later. Admittedly, respondent No. 5 joined earlier. The principle in order dated 17.09.2002 is meant, undoubtedly, to apply to a case, where recommendations are made in different selections, in which case, the recommendee in the first selection will have seniority over the recommendee in the latter selection. This is not the case here, as there is a common selection. Proceeding on the basis that respondent No. 5 joined earlier and as there is a requirement of completion of two years' service for being eligible for promotion, apparently, the respondents have proceeded to send the subject-wise seniority list, in which petitioner's name figures as a lone candidate in his subject, along with the list showing the seniority on the basis of date of joining, in which list, respondent No. 5 figures over the petitioner. Proceedings were conducted by the DPC and treating respondent No. 5 as senior and finding him fit and acting in terms of the Office Memorandum, 29 which we have already adverted to, the DPC recommended respondent No. 5.
37. The case of the petitioner, in our view, revolved substantially around the effect of the resignation by respondent No. 5, taking up employment in Delhi Public School, withdrawal of resignation and re- joining involving the restoration of the entire service period to respondent No. 5. While it may be true that no decision as such is seen taken by the higher authority to whom the representation was forwarded going by the document produced in the writ petition, it is also true that the appeal of the petitioner has been rejected by the appellate body. There is no prayer in the Original Application relating to the declaration of seniority or seeking preparation / publication of a combined seniority list based on the criterion of earlier recommendation by the UPSC. Therefore, in the context of the facts, even though we do recognise that there is no determination by the higher authority on the complaint on the basis of the document produced; petitioner also having not challenged the orders produced before this Court, which we have adverted to, namely, communications dated 28.01.2005 and 16.02.2005, we cannot allow the petitioner to contend that the promotion is illegal on the basis that the petitioner is senior and the DPC has proceeded on the basis that respondent No. 5 is senior and that there has been no consideration of the case of the petitioner.
38. We are also not inclined to consider the case of the petitioner based on certain documents produced in this Court to contend that the two conduct certificates, given as part of the condition imposed under Rule 26(4), should not have been acted upon. These documents were not subjected for consideration before the Tribunal. It involves producing new material and it may not form part of the functions of judicial review to go into such questions. In essence, the contention was that the two persons, who gave the certificates, have said that they do not remember having given such certificates. The concerned authority had allowed the application for withdrawal of resignation subject to the fulfillment of the 30 conditions stipulated in Rule 26(4) and respondent No. 5 had to produce the certificates and then he joined. Even though the same is also attacked as being illegal as the authority had to be satisfied of the conditions, we noticed that the said argument may not stand for more reasons than one. The authority cannot be said to have acted illegally when it had to comply with the conditions. Secondly, for the reasons, which we have given otherwise also, petitioner is not entitled to take such a contention.
39. The upshot of the above discussion is that the writ petition is found to be merit-less and it is dismissed. No order as to costs.
(V.K. Bist, J.) (K.M. Joseph, C. J.) G