Central Administrative Tribunal - Chandigarh
S.K. Bhandari And Anr. vs Union Of India (Uoi) And Ors. on 2 September, 2002
Equivalent citations: 2003(2)SLJ134(CAT)
ORDER
O.P. Garg, Vice Chairman
1. This is a second round of litigation with regard to the determination of seniority of the applicant vis-a-vis Respondent No. 4. The woodcut profile of the case is as follows;
The two applicants, namely, S/Shri S.K. Bhandari and Sukhdev Sharma, who were respectively Steno-typist and Clerk in the office of Deputy Commissioner, Chandigarh, were appointed as Taxation Inspectors by way of transfer in March, 1984. In the appointment letter dated 9.3.1984 (Annexure A/1), it was stipulated that the applicants shall be on probation for a period of one year and if during the said period their work and conduct is not found satisfactory, they will be reverted to their former post. It was further stipulated that they shall have to pass departmental examination within a period of 3 years from the date of their appointment failing which they were to stand reverted to their former post. Shri Sher Singh, Respondent No. 4, was also similarly appointed as Taxation Inspector by way of transfer vide order dated 25.1.1985 subject to the same stipulations. The two applicants qualified in the departmental examination on 12.6.1986 i.e. within a period of three years. The Respondent No. 4 passed the departmental examination in January, 1986, i.e. earlier to the applicants. The Respondent No. 4 was confirmed against a substantive post and on the basis of his passing the departmental examination earlier to the applicants, he was assigned seniority higher to the applicants. The applicants were confirmed w.e.f. 26.5.1986 by an order dated 4.6.1986 (Annexure A/4). The applicants, for the first time, came to know in the month of November, 1987 that their claim for seniority has been totally ignored and that the Respondent No. 4 had made a march over them. The applicants made a representation, but, it was of no consequence. In course of time, Respondent No. 4 was given powers of Assessing Authority to the serious detriment of the applicants. The applicants made another representation but it also did not evoke any favourable response.
2. In order to challenge the inaction on the part of the official Respondents No. 1 to 3 and illegal placement of the Respondent No. 4 in the seniority list, the applicants filed O.A. No. 775/CH/89. The said O.A. was dismissed after due contest on 10.10.1995. The applicants went before the Apex Court by filing S.L.P. (Civil) No. 24503/95. The respondent No. 4 appeared before Hon'ble Supreme Court to oppose the S.L.P. The S.L.P. was dismissed by the Hon'ble Court on 5.2.1996 by passing the following order:
"ORDER Heard learned Counsel for the parties.
The Special Leave Petition is dismissed as withdrawn.
However, we make it clear that we are not expressing any opinion so far the vires of Rule 9 of the Punjab Excise Subordinate Service Rules 1943 is concerned. That is left open."
Armed with the above order of the Hon'ble Supreme Court, the applicants have filed the present O.A. to challenge the vires of Rule 9 of the Punjab Excise Subordinate Services Rules, 1943 (hereinafter called the Rules of 1943) on the ground that the said provision is violative of the principles of natural justice and is also hit by Articles 14 and 16 of the Constitution of India. According to the applicants, seniority cannot be determined with reference to the date of confirmation and since Rule 9 implies that the seniority is to be reckoned from the date of confirmation, it is against the series of decisions of the Apex Court which has not approved linking of the seniority with the date of confirmation.
3. The official Respondents No. 1 to 3 and private Respondent No. 4 have filed separate written statements, though the pleas taken by them and the grounds of opposition are almost identical. According to the respondents, the present O.A. is not maintainable as it is barred by principles of constructive res judicata; application of the principle of estoppel and the fact that the plea which has been raised in the present O.A. could have been taken and canvassed in the earlier O.A.; that the order passed by the Apex Court dismissing the S.L.P. filed by the applicants does not permit them to take recourse to multiple proceedings and in any case even if the provisions of Rule 9 of the Rules of 1943 are found to be offending the Constitution of India or the principles of natural justice, the seniority which has already been determined in the light of the Rules which have remained operative for a period more than five decades cannot be unsettled.
4. A replication has been filed by the applicants.
5. Heard Mr. R.K. Sharma, learned Counsel for the applicants, Mr. N.K. Bhardwaj, appearing on behalf of official respondents No. 1 to 3 and Mr. Gopal Mahajan for private Respondent No. 4, at considerable length.
6. To begin with, it may be mentioned that the appointment and the service conditions of the incumbents manning the post of Taxation Inspector are governed by the Rules of 1943. The applicants as well as Respondent No. 4 were admittedly appointed as Taxation Inspectors by way of transfer and were put on probation in terms of Rule 8 and their seniority was determined with reference to the provisions of Rule 9 of the Rules of 1943. It is further an indubitable fact that the appointment of the applicants preceded the appointment of Respondent No. 4. The applicants joined the post of Taxation Inspector in the month of March, 1984 while the Respondent No. 4 joined in January, 1985. It is also not disputed that the Respondent No. 4 had passed the departmental examination earlier to the applicants i.e. in the month of January, 1986 and the applicants could pass the departmental examination in June, 1986 i.e. much after the passing of the departmental examination by the Respondent No. 4. It appears that on the basis of allocation of the substantive vacancy consequent upon the passing of the departmental examination by the Respondent No. 4 earlier to the applicants, he was placed higher in seniority than the applicants. For the sake of clarity and better understanding, it would be worthwhile to extract the relevant Rules 8 and 9 which read as follows:--
"8(1) Probation of Members of the Service No member of the service shall be confirmed in any post specified in Appendix 'A' except in the post of Excise Sub-Inspector (time scale) until he has served in that post on probation for a period of two years in the case of members recruited by direct appointment, or of one year in the case of members otherwise.
Explanation : Continuous officiating service shall be reckoned as period spent on probation but no member be confirmed otherwise than against a permanent vacancy.
(2) If the work or conduct of any member during his period of probation is, in the opinion of appointing authority, not satisfactory the appointing authority may dispense with his service if he has been recruited by direct recruitment or may revert him on his former post if he has been recruited otherwise than by direct recruitment.
(3) On the completion of the period of probation of any member, the appointing authority may appoint such member substantively, with retrospective effect, if a vacancy exists, or, if his work and conduct has in the opinion of the appointing authority, not been satisfactory, the appointing authority may dispense with his services if he has been recruited by direct appointment, or revert him to his former post if he has been recruited otherwise than by direct appointment, or may extend the period of probation and thereafter pass such order as it could have passed on the expiry of the first period of probation.
(i) provided that the total period of probation, including extensions, if any, shall not exceed three years in the case of persons recruited by direct appointment, and two years in the case of persons recruited otherwise.
(ii) provided further that, without the sanction of the Excise and Taxation Commissioner to be given only for special reasons, no person shall be appointed substantive Sub-Inspector time scale or leave reserve, unless he has passed the departmental examination prescribed from time to time by the Excise and Taxation Commissioner.
(iii) provided further that no person directly appointed to the service shall be retained in the service, unless he passes the departmental examination for Excise Sub-Inspectors within three years of continuous officiating or substantive service from the date of his appointment.
9. Seniority of Members of Service The seniority of members of the service shall, in so far as each class of posts specified in Appendix 'A' is concerned, be determined by the date of their substantive appointment to a post in that class.
Provided that if two or more members are confirmed in the same class of post on the same date, their seniority shall be determined by the Excise and Taxation Commissioner, whose decision shall be final."
7. On behalf of the applicants it was contended that the determination of seniority in terms of the above provisions has been made dependent on the factum of confirmation and in view of series of decisions of the Apex Court as well as various High Courts the date of confirmation cannot be a valid criteria for determining the seniority for one simple reason that the confirmation has been held to be an inglorious uncertainty and consequently it was urged that Rule 9 with regard to determination of seniority of the members of service (as quoted above) is invalid and bad in law as the criteria laid down therein for determination of seniority is the date of confirmation. In support of his contention Mr. Sharma placed reliance on the observations made by the Apex Court in the case of S.B. Patwardhan and Ors. v. State of Maharashtra and Ors., 1977(2) SLR 235=1979 SLJ 421 (SC). In that case, the seniority rule was held to suffer from the vice that the valuable right of seniority was made dependent upon the mere accident of confirmation which was not permissible.
Reliance was also placed on another decision of the Apex Court in the case of The Direct Recruit Class II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors., JT 1990(2) SC 264=1990(2) SLJ 40 (SC) in which it was observed that confirmation is one of the inglorious uncertainties of Govt. service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. It was further observed that the principle for deciding inter-se seniority has to conform to the principles of equality spelt out by Articles 14 and 16 of the Constitution of India. Emphatic reliance was also placed on yet another decision of the Apex Court in the case of O.P. Garg and Ors. etc. etc, v. State of U.P. and Ors., JT 1991(2) SC 359=1991(3) SLJ 61 (SC). A pointed reference was made to the observation that the Apex Court has time and again held that when an incumbent is appointed to a post in accordance with the Service Rules, his seniority has to be counted on the basis of continuous length of service and not in reference to the date of confirmation. In R.L. Bansal and Ors. v. Union of India and Ors., JT 1992(3) SC 243, the Apex Court held that seniority based on confirmation made on wholly unequal and discriminatory basis is violative of the equal opportunity enshrined in Articles 14 and 16 of the Constitution of India.
8. Fortifying himself with the decisions aforesaid, Mr. R.K. Sharma, learned Counsel for the applicants urged that Rule 9 of Rules of 1943 quoted above which takes within its sweep the date of confirmation for determination of seniority comes within the teeth of Articles 14 and 16 and, therefore, the said rule be declared as unconstitutional and violative of the provisions of Articles 14 and 16. In the present O. A., the only relief claimed by the applicant is that the rule of seniority (Rule 9) be struck down as being unconstitutional.
9. Mr. Gopal Mahajan, learned Counsel for private Respondent No. 4 took a preliminary objection that the present O.A. is not maintainable as it is barred by the principles of constructive res judicata. According to him, the applicants though could take the plea of invalidity and unconstitutionality of the rule of seniority, they have failed to do so and, therefore, they cannot be permitted to raise the said plea in the second O.A. With regard to the applicability of the principle of res judicata, Mr. Mahajan placed reliance on a series of decisions such as C. Subramanian v. Director of Accounts (Postal) Tamil Nadu Circle and Anr., (1988) 7 ATC 365=1990(1) SLJ 88 (CAT), in which it was observed that even assuming that the applicant has raised a new point, it is not possible to entertain a second application for the same relief merely on the basis that the applicant was able to raise the new point. Once an application is filed, an applicant is expected to urge all the points in support of that, for getting that relief and if he omits to raise a point and the Application is dismissed on merit, he cannot seek to raise a new point and file a fresh Application for the same relief. It was further observed that if such successive Applications are allowed for the same relief, then a person can go on filing successive Applications raising one point or the other on each occasion and this will lead to multiplicity of litigation and there will be no finality of any decision before the Tribunal. To the same effect are observations made by the Apex Court in the case of Forward Construction Co. and Ors. v. Prabhat Mandal (Regd.) Andheri, and Ors., AIR 1986 SC 391. The other decision on the point relied upon by the learned Counsel for Respondent No. 4 is that of State of U.P. v. Nawab Hussain, (1977) 2 SCC 806 wherein the Apex Court held that, "the principle of estoppel per rem judicatam is "the broader rule of evidence which prohibits the reassertion of a cause of action." This doctrine is based on two theories (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It, therefore, serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the Courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata" Reference was also made to Commissioner of Income Tax, Bombay v. T.P. Kumaran, (1996) 10 SCC 561 = 1996(3) SLJ 101 (SC); Zachariah Mathew v. Union of India and Anr., (1988) 7 ATC 478=1988(3) SLJ 33 (CAT); Ambika Prasad Mishra v. State of U.P. and Ors., (1980) 3 SCC 719; Rocky Tyres, Chandigarh and Ors. v. Ajit Jain and Anr., AIR 1998 Punjab and Haryana 202; The Direct Recruit Class-II Engineering Officers' Association and Ors. v. State of Maharashtra and Ors.; (supra) and Sulochana Amma v. Narayanan Nair, JT 1993(5) SC 448. The gamut of all the above decisions as well as other decisions cited by the learned Counsel for the parties is that an applicant is supposed to raise all the points in support of his claim in the OA. He cannot be permitted to raise the so called new points in successive OAs. The principle of res judicata would apply to the successive Applications.
10. Mr. R.K. Sharma, learned Counsel for the applicants did not challenge the applicability of the principle of res judicata and frankly urged that had there been no direction of the Apex Court in the matter, the applicants could not file the second OA. It was pointed out that the earlier OA filed by the applicants had been decided on merits, but the legality or otherwise of the seniority Rule 9 of the Rules of 1943 was not challenged. He pointed out that as would be apparent from para 4 of the decision dated 10.10.1995 in OA No. 775/CH/1989, an argument was advanced on behalf of the applicants that the rule which links seniority with the date of confirmation is null and void. This argument was not permitted to be a canvassed by the Tribunal on the ground that, "for declaring the Rules as ultra vires the provisions of the Constitution of India" one has to plead and seek the relief on valid grounds. Such challenge cannot be allowed light heartedly to the statutory rules. Reading of the relief clause of the present OA shows that there is no such prayer for declaring the rules as null and void...." The said point was allegated in the SLP before the Hon'ble Supreme Court. The SLP was dismissed as withdrawn with the observation as has been quoted above in para 2 of this judgment. The Apex Court did not express any opinion in so far as the vires of Rule 9 of the Rules of 1943 was concerned. It left the matter open. On behalf of the applicants, it was pointed out that it is in view of the observation made in the order dated 5.2.1996 dismissing the SLP that the present OA has been filed. As said above, Mr. Sharma did not dispute the legal position that in the absence of the direction of the Apex Court leaving the matter open and allowing the applicants to withdraw the SLP, the present OA could not be maintained. The learned Counsel for Respondent No. 4 vehemently argued that the order of the Apex Court does not confer a right on the applicant to file the second OA skipping the well established principle of constructive res judicata. It was also urged that the Petition was dismissed in the presence of both the parties and the Apex Court left the question open for being considered and determined in some subsequent case. We have given out thoughtful consideration to this aspect of the matter and would hasten to add that but for the order of the Hon'ble Supreme Court, the present OA is barred by the principle of constructive res judicata. Now the question is whether in the light of the observation made by the Apex Court dismissing SLP, the applicant is entitled to file the second OA, even though the earlier OA stands concluded on merits. In the present OA the applicants have challenged the vires of seniority Rules 9 on the ground that it is unconstitutional as the determination of seniority has been made dependent on the date of confirmation. This controversy could not be canvassed and determined in the earlier OA as there was no pleading on the point. The SLP was dismissed as withdrawn. The Apex Court did not express any opinion about the vires of the seniority rules and left the said question open. The said order was passed by the Apex Court in the presence of the Counsel for the parties. The private Respondent No. 4 had also put in appearance before the Supreme Court to contest the SLP filed by the applicants. In the background of the above facts, we are of the opinion that the Apex Court left the question open for being agitated by the applicants obviously before the appropriate forum i.e. this Tribunal. If the suggestion of Mr. Mahajan is accepted that the SLP was dismissed and the judgment of this Tribunal in the earlier OA, therefore, has become final is accepted in that event there was nothing to prevent the Hon'ble Apex Court to dismiss the SLP outright. The tone and tenor of the order passed by the Apex Court is that the Hon'ble Court did not enter into the controversy with regard to the vires of the seniority rule (due to no pleadings or insufficient pleadings) and expressed no opinion about its validity or otherwise. The applicants withdrew the Petition obviously on the advice that the vires of the seniority rule could be challenged by taking recourse to appropriate proceedings. The question was left open by the Apex Court and the Petition was dismissed as withdrawn. This order was passed as said above in the presence of the Counsel for the parties. The fact, therefore, remains that the vires of the seniority rule could not be challenged in the earlier OA for want of necessary pleadings. The point was raised again in the SLP but the Apex Court without going into the merits of the challenge and expressing no opinion left it open. The underlying idea of the order passed by the Apex Court in the presence of both the parties was that the vires of the seniority rule could be challenged before the appropriate forum. A point on which no decision on merits in the earlier OA was made could be agitated in the second OA in the background of the fact that the Apex Court left the question open and allowed the applicants to withdraw the SLP. To fortify the above conclusion we would do better to make a reference to a decision of the Apex Court in the case of N. Annappa v. State of Karnataka and Anr. JT 1999(9) SC 211. In that case, the Administrative Tribunal dismissed the Application challenging the gradation list for want of material "keeping open all the contentions raised." Subsequent Application filed before the Tribunal was dismissed on the ground that it was barred by the principle of res judicata. The High Court on appeal upheld the order of dismissal of the application. The mater was carried before the Apex Court. It was held that from the observation made in the earlier order that for want of material it is not possible to consider the application which was dismissed keeping open all the contentions raised, the Tribunal as well as High Court in rejecting the second application erred on the ground that it was barred by principle of constructive res judicata. It was observed that the earlier application was not dismissed on merits. The above decision would apply on all fours to the facts of the present case. As said above, the question of vires of the seniority rule was not decided in the earlier OA. The Apex Court left the question open without expressing any opinion about the validity or otherwise of the said rule. The order of the Hon'ble Supreme Court, in effect means that the SLP was allowed to be withdrawn with liberty to agitate the validity of the Seniority Rule in another OA. The present OA, therefore, cannot be dismissed on the ground that it is barred by the principle of res judicata.
11. Having cleared the decks from the cobweb of the preliminary objections raised on behalf of the respondents about the maintainability of the present OA, we now proceed to decide it on merits. The determination of the inter-se seniority of the applicants as well as Respondent No. 4 is primarily governed by Rule 9 which enjoins that the seniority of members of the service shall.... be determined by the date of their substantive appointment. Rule 8 deals with the substantive appointment of a member of service. It contemplates two specific conditions i.e., successful completion of the specified period of probation and passing of the departmental examination within the specified period. The applicants were required to take up the prescribed departmental examination under the Rules of 1943. The rule required the applicants to pass the departmental examination within a period of three years of their continuous officiating or substantive service from the date of appointment. The rule further enjoins that in case of failure of a person to pass the examination within the specified period, he is liable to be removed from the department. Substantive appointment, against a permanent vacancy postulates that the candidate has successfully undergone the probation period and has also passed the departmental examination within the specified period. If these twin conditions are satisfied the competent authority may appoint a member of the service substantively with retrospective effect if a permanent vacancy is available. Substantive appointment, therefore, depends on the existence of a permanent vacancy. The seniority rule in the instant case provides for the determination of seniority of the members of the service with reference to the date of their substantive appointment. This rule does not take into account the period spent by a member of the service prior to the substantive vacancy having been made available to him. Now the question is whether the rule which reckons the seniority from the date of the substantive appointment is to be held as bad in law.
12. There can be no quarrel about the proposition of law which is too well settled that the seniority of an employee in a cadre has to be determined in accordance with the rules, if such rules provided for the same (See, Union of India v. Lalita Rao, AIR 2001 SC 1792). In A.K. Bhatnagar and Ors. v. Union of India and Ors., 1991(1) SLR 191, it has been laid down that "the law is clear that seniority is an incidence of service and where the service rules prescribe the method of its computation, it is squarely governed by such rules. It is only in the absence of a provision for determination of seniority that ordinarily the length of service is taken into account." The criteria of determination of seniority from the date of substantive appointment has been approved by the Apex Court in the case of Keshav Chander Joshi and Ors. etc. v. Union of India and Ors., AIR 1991 SC 284=1991(2) SLJ 42 (SC). It was a case in which the seniority rule provided that the seniority of the officers on their appointment to the service, "shall be determined according to the date of their substantive appointment to the service." The rule was held to be valid and in the matter of determination of seniority, service from the date of substantive appointment was directed to be counted. An appointee becomes a member of the service in the substantive capacity from the date of his appointment only. In the same decision, it was observed that the rules, legislative in character, must harmoniously be interpreted as a connected whole giving life and force to each word, phrase and rules and no part thereof should be rendered nugatory or a surplusage. Resort to iron out the creases could be had only when the construction of the relevant rule, phrase or word would lead to unintended absurd results." The Rules being legislative in character cannot be struck down merely because the Court thinks that they are unreasonable and that they can be struck down only on the grounds upon which a legislative measure can be struck down. Vide B.S. Vadera v. Union of India, AIR 1969 SC 118 and B.S. Yadav v. State of Haryana, AIR 1981 SC 561=1981(2) SLJ 67 (SC). Emphatic reliance was placed by Mr. Mahajan on behalf of Respondent No. 4 on the decision of the Apex Court in the case of Mohan Lal and Ors. v. State of Himachal Pradesh and Ors., JT 1997(4) SC 197=1998(1) SLJ 9 (SC). It was a case of Himachal Pradesh Excise and Taxation Department (Inspectorate Staff--Class III). A parson appointed on probation for two years was required to pass a departmental examination within a period of two years and on successful completion of probation and passing of the examination, his seniority was to relate back to the date of appointment. Relying upon the earlier decision in the case of Ishwari Kumar and Ors. v. State of H.P., JT 1994 (4) SC 141, in which it was held that such of the candidates who passed the examinations within two years and were confirmed after passing the departmental tests, would get seniority from the respective dates of their joining the post and the date of passing the departmental test relates back to the date of appointment. But those who passed the examination after the said two years, would get seniority from the date of passing and would rank junior to those who passed the examination within two years. The Apex Court in Mohan Lal's case was concerned with a case of two sets of persons, namely, i.e., those who passed the examination within two years and another set of officers who sat for the examination within two years but passed the examination beyond two years. Those who passed the examination within two years were to rank senior to those who passed the examination beyond two years. This is precisely what has been done in the present case. The applicants passed the examination on a date much after the date of passing of the examination by Respondent No. 4.
13. Mr. Mahajan further pointed out that even if the concept of confirmation is read by implication in the seniority rule, it would not stand vitiated. To fortify his contention he placed reliance on the decision of the Supreme Court in the case of State of M.P. v. Ramkinkar Gupta and Ors., 2000( I) SLR 689. In that case, confirmation was subject to passing of departmental examination. The concerned employee passed the examination on 19.1.1984. His seniority was determined with effect from the date of passing of the examination. It was held to be in accordance with the rules. In this case, the earlier decision--M.P. Chandoria v. State of M.P. and Ors., JT (1996) 5 SC 38 was relied upon for upholding the principle that if a person does not pass the test then the appointing authority is empowered to assign the seniority in a lower level, then the one which was assigned by Public Service Commission. Also see, M.H. Patel v. State of Maharashtra and Ors. (1999) 1 SCC 249. Another decision in the case of S.K. Mathur and Ors. v. Union of India and Ors., JT 1998(2) SC 403=1998(3) SLJ 233 (SC) was also relied upon to support the contention that where the rules are silent or are absent, date of confirmation for purposes of determination of seniority would be a justified criteria. The Respondent Deptt., it was held, was fully justified in adopting "the date of confirmation" as the basis of seniority, particularly, as there were no service rules regulating seniority of the persons working in the department.
14. In the conspectus of the above decisions, we do not find any force in the contention of the learned Counsel for the applicants that the seniority rule is vitiated on account of the introduction of the date of confirmation for determination of seniority. Rule 9 of the Rules of 1943, as it stands, cannot be said to be ultra vires of the Constitution. Passing of the test/departmental examination is one of the essential ingredients for a person to be the "member of the services" and to secure substantive appointment against an available permanent post. He, who passes the test first, will push down the one who has failed to do so. The inter se seniority of the applicants and the respondent No. 4 has to be determined with reference to the date of substantive appointment on the fulfilment of the twin conditions mentioned above. In view of the positive rule, the seniority has to be regulated with reference to the substantive appointment which comes into being on the successful completion of the probation and passing of the departmental examination. The rule has been in existence for the last more than five decades and has been working well. We do not, therefore, propose to meddle with the service and to disturb the settled position. In our opinion, the existing seniority Rule 9 is not hit by any constitutional mandate.
15. In the result, the legal matrix canvassed in this case does not stand the test of scrutiny. The O.A., therefore, fails and is dismissed. No order as to costs.