Delhi High Court
Union Of India & Anr. vs Indian Railways Civil Engineering ... on 30 May, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 18th May, 2011
% Judgment Pronounced on: 30th May, 2011
+ W.P.(C) No. 1353/2011
UOI AND ANR. ..... Petitioners
Through: Mr. R.V. Sinha, Adv.
Versus
INDIAN RAILWAYS CIVIL ENGINEERING
OFFICER ASSOCIATION & ORS. ..... Respondents
Through: Mrs. Jyoti Singh, Sr. Adv. with
Mr.Amandeep Joshi, Adv. for
R-1 to R-13
Mr. Naresh Kaushik, Mr.
Aditya Vikram, Adv. for UPSC
+ W.P.(C) No. 2020/2011
UNION OF INDIA ..... Petitioner
Through: Mr. V.S.R. Krishna, Adv.
Versus
Y.S. CHOUDHARY & ORS. ..... Respondents
Through: Mrs. Jyoti Singh, Sr. Adv. with
Mr.Amandeep Joshi, Adv.
+ W.P.(C) No. 2855/2011
N.P. GUPTA & ORS. ..... Petitioners
Through: Mrs. Jyoti Singh, Sr. Adv. with
Mr.Amandeep Joshi, Adv.
Versus
WP(C) 1353/2011 & connected cases Page 1 of 18
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. V.S.R. Krishna, Adv. for
Railways
Mr. Naresh Kaushik, Mr.
Aditya Vikram, Adv. for UPSC
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1 Whether reporters of the local papers be allowed to see the judgment? Yes
2 To be referred to the Reporter or not? Yes
3 Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
Regard being had to the similarity of issue that has emerged in these
writ petitions, they were heard together and are being disposed by a
common order. The fulcrum of controversy rests upon the adjudication of
the issue whether the delay in convening the meetings of the Departmental
Promotion Committees (DPCs) by the respondent, Railway Board, was
due to reasons beyond control or because of administrative delay for
which the respondent before the Central Administrative Tribunal (for
short „the tribunal‟) was held to be responsible and what would be the
consequence if the delay was caused due to the employer. At the very
outset, we may note with profit that the Original Application
WP(C) 1353/2011 & connected cases Page 2 of 18
No.2140/2009 preferred by Mr. N.P. Gupta and others which is the subject
matter of WP(C) No.2855/2011 was dismissed by the tribunal on the
foundation that the delay caused in holding of the meetings of the DPCs
was genuine and beyond the control of the authorities and, therefore, the
promotion would be prospective from the date of recommendation of the
DPCs.
2. The tribunal in other original application directed that benefit of
judgment dated 29.1.2010 rendered in Y.S. Choudhary, the applicant in
O.A. No.280/2008 be given to the applicants by promoting them to Group
A post with effect from 1.4.2002 with all consequential benefits.
3. For the sake of clarity and convenience, we think it appropriate to
refer to the facts in WP(C) No.2020/2011 which pertains to the case of Y.S.
Choudhary and others.
4. The applicants Y.S. Choudhary and four others were Group B
officers and were substantively appointed in Group A/Junior Scale of the
IRSE with effect from 14.1.2005 vide Ministry of Railways Notification
dated 23.03.2005 and their revised inter se seniority in IRSE on their
promotion to Group A from Group B was circulated vide Ministry of
WP(C) 1353/2011 & connected cases Page 3 of 18
Railways notification dated 18.5.2006. They were aggrieved by the
delayed induction from Group B to Group A. Being dissatisfied, they
approached the tribunal in OA No. 280/2008 for setting aside the
notification dated 18.5.2006 issued by the respondent inducting the
applicants in Group A Junior Scale of IRSE with effect from 14.1.2005
instead of 2002-03 when the vacancies arose and further to command the
respondents to provide the promotion/induction in Group A Junior Scale
IRSE to the applicant from the date when the vacancies arose in 2002-03
instead from 14.1.2005 when the DPC was conducted.
5. It was put forth before the tribunal that the applicants requested the
respondents by submitting numerous representations requesting that their
promotions be made effective from 1.4.2002 as the DPCs for induction to
Group A for the vacancies of 2002-2003 ought to have conducted before
December, 2001 to be effective from 1.4.2002 (for the vacancies of the year
2001, for panel of 2002-2003) but the respondents failed to take any action
in this regard. It was put forth that when clear vacancies in Junior Scale
Group A of IRSE were available and eligible Group B officer with the
requisite non fortuitous service was also available, there was no
justification for the delayed induction and the action of the respondent for
WP(C) 1353/2011 & connected cases Page 4 of 18
delayed promotion to Group A Junior Scale of IRSE from Group B with
effect from 14.1.2005 (instead of 1.4.2005) against the vacancies of 2002-
2003 is highly illegal and prejudicial to their interest. It was averred in the
Original Application that the applicants had been inducted against the
vacancies pertaining to the examination year 2001 (vacancies of 2002-2003)
in the promotion segment of Group A Junior Scale of IRSE for the year
2002-03 and according to the guidelines of the Department of Personnel &
Training (DOPT), the panel for the vacancy for the year 2002-03 should
have been available on 1.4.2002 whereas it was made effective from
14.01.2005, the date of the DPC, as a consequence of which the applicants
have been placed under the direct recruit IRSE officers of 1998 Officers
Examination Batch, causing loss of more than three years in their seniority
and future promotional prospects for no fault of theirs. It was contended
before the tribunal that there were instructions of the DOPT to take
advance action for filling up vacancies of a year and arrange DPCs of
Group B officers for promotion to Group A officer well in time so as to be
effective from the next calendar year but the respondents had failed to
follow these instructions.
WP(C) 1353/2011 & connected cases Page 5 of 18
6. The tribunal had gone through the rival contentions raised at the Bar
and discussed the authorities which were cited relating to grant of
conferral of benefit of retrospective promotion relating to DPC and the
requirements of following the instructions of DOPT and eventually
allowed the original application in part by quashing the notification dated
18.05.2006 and proceeded to direct as follows:
" .... The respondents are directed to convene a review
DPC to consider the promotion/induction of the
applicants from the date when the vacancies arose in
2002-2003, and thereafter to pass appropriate follow up
orders with regard to their seniority in Group „A‟,
subject to it being ensured that the seniority accorded
does not result in the applicants‟ superseding officers
who were senior to them in Group „B‟ and have already
been promoted to Group „A‟. This may be done within
a period of three months from the date of receipt of a
copy of this order."
7. Be it noted, in paragraph 34 the tribunal has observed as follows:
" As regards the plea of non-joinder of necessary
parties, i.e., the direct recruits, to the present
proceedings, the applicant‟s counsel in his written
submissions has submitted that the direct recruits are
not necessary parties to the present OA because the
grievance of the applicants is against the respondents
only as due to their illegalities and irregularities, delay
occurred in holding the DPC in time and in support of
this, he has relied on the Judgment of the Hon‟ble
WP(C) 1353/2011 & connected cases Page 6 of 18
Supreme Court in Post-Graduate Institute of Medical
Education and Research and Anr. vs. A.P. Wasan &
Ors., (2003) 5 SCC 321. There is merit in the submission
of the learned counsel for the applicant, and the same is
accepted in the facts and circumstances of the present
case."
8. Though the tribunal in the concluding paragraph has directed that a
review DPC shall be convened to consider the promotion of the applicants
therein from the date when the vacancies arose in 2002-03 and pass
appropriate orders while ensuring that the seniority accorded does not
result in the applicants‟ superseding officers who are senior to them in
Group „B‟ and had already been promoted to Group „A‟, yet, we really fail
to understand how the seniority would not be affected and further what
would be the real fall out when they are placed below. The aforesaid
direction is likely to create an anomalous situation. There may be other
promotions in the meantime.
9. As is manifest, the tribunal has repelled the submission with regard
to non-impleadment or non-joinder of the direct recruits as necessary
parties on the ground that the grievance of the applicants was against the
respondent only due to their illegalities and irregularities, and delay
occurred in holding the DPC on time. For the aforesaid purpose, the
WP(C) 1353/2011 & connected cases Page 7 of 18
tribunal has placed reliance on the decision in A.P.Wasan & Ors. (supra)
wherein a contention was raised by the affected parties that their career
prospects had been jeopardized by the decision of the High Court without
giving an opportunity of being heard to them. Their Lordships, in
paragraph 23, repelling the said submission have held thus:
"23. The arguments of the appellants appear plausible
but do not bear close scrutiny. It was not necessary for
Respondent 1 to have impleaded the interveners nor
can the High Court‟s decision be criticized because they
were not made parties. The grievance of Respondent 1
was against the appellant Institute and its alleged policy
to promote Technologist Grade II sectionwise. It was
for the appellant Institute to have justified its action.
The justification would serve to protect the interests of
other employees if it were legally sustainable. If it is not
legally sustainable it must be negated and not hearing
of employees who may be affected as a result of the
rejection of the justification, would not vitiate such
negation. G.M., S.C.Rly. v. A.V.R. Siddhantti; (1974) 4
SCC 335, A. Janardhana v. Union of India; (1983) 3 SCC
601 and V.P.Shrivastava v. State of M.P.; (1996) 7 SCC
759. Furthermore, both K.S.Sharma and R.K.Goel
whose stand on the promotional policy of the appellant
Institute coincides with those of the interveners, were
partners and had the opportunity of presenting their
case. Besides, the Division Bench had merely reiterated
the view taken in 1989 by the learned Single Judge
when he granted relief to R.K.Sareen holding that
promotions should be made cadrewise and not
sectionwise. No protest was made by the interveners at
that stage. They were content to allow the appellant
Institute to appoint R.K.Sareen on such basis. They
WP(C) 1353/2011 & connected cases Page 8 of 18
cannot now make a grievance that they were not heard
before the Division Bench granted Respondent 1 the
same relief."
10. In this regard we may usefully refer to the ruling in V.P.Srivastava
& Ors. (supra) wherein the Apex Court has held thus:
"14. The conclusion of the Tribunal that non-inclusion
of the affected parties is fatal to the appellants‟ case is
also unsustainable in law. It is to be stated that the
appellants do not challenge the so-called ad hoc
appointments of the promotee respondents but they do
challenge the position of the said ad hoc promotee
respondents over the appellants in the seniority list. In
other words the very principle of "determination of
seniority" made by the State Government is under
challenge and for such a case State is the necessary
party who has been impleaded. It has been held by this
Court in the case of G.M., South Central Rly. v.
A.V.R.Siddhantti; (1974) 4 SCC 335:
„„As regards the second objection, it is to be
noted that the decisions of the Railway Board
impugned in the writ petition contain
administrative rules of general application,
regulating absorption in permanent
departments, fixation of seniority, pay etc. of
the employees of the erstwhile Grain Shop
Departments. The respondents-petitioners are
impeaching the validity of those policy
decisions on the ground of their being
violative of Articles 14 and 16 of the
Constitution. The proceedings are analogous
to those in which the constitutionality of a
statutory rule regulating seniority of
government servant is assailed. In such
proceedings the necessary parties to be
WP(C) 1353/2011 & connected cases Page 9 of 18
impleaded are those against whom the relief is
sought, and in whose absence no effective
decision can be rendered by the Court. In the
present case, the relief is claimed only against
the Railway which has been impleaded
through its representative. No list or order
fixing seniority of the petitioners vis-a-vis
particular individuals, pursuant to the
impugned decisions, is being challenged. The
employees who were likely to be affected as a
result of the readjustment of the petitioner‟s
seniority in accordance with the principles laid
down in the Board‟s decision of 16-10-1952,
were, at the most, proper parties and not
necessary parties, and their non-joinder could
not fatal to the writ petition.‟‟
15. In the case of A.Janardhana v. Union of India, a
similar contention was also repelled by this Court in the
following words:
„‟In this case, appellant does not claim
seniority over any particular individual in the
background of any particular fact controverted
by that person against whom the claim is
made. The contention is that criteria adopted
by the Union Government in drawing up the
impugned seniority list are invalid and illegal
and the relief is claimed against the Union
Government restraining it from upsetting or
quashing the already drawn up valid list and
for quashing the impugned seniority list.
Thus the relief is claimed against the Union
Government and not against any particular
individual. In this background, we consider it
unnecessary to have all direct recruits to be
impleaded as respondents.‟‟
WP(C) 1353/2011 & connected cases Page 10 of 18
16. Further in view of the finding of the Tribunal that
Respondents 3 and 4 successfully safeguarded the
interest of the promotees, the Tribunal erred in law in
holding that non-inclusion of the affected parties is fatal
to the proceeding. It has been held by this Court in the
case of Prabodh Verma v. State of U.P.; (1984) 4 SCC 25,
that:
"A High Court ought not to hear and dispose
of a writ petition under Article 226 without the
persons who would be vitally affected by its
judgment being before it as respondents or at
least some of them being before it as
respondents in a representative capacity if
their number is too large to join them as
respondents individually."
17. Even in Janardhana case referred to supra, this
Court also rejected a similar objection on the ground
that 9 of the direct recruits having been impleaded as
party, the case of direct recruits has not gone
unrepresented and therefore the non-inclusion of all the
400 and odd direct recruits is not fatal to the
proceedings."
11. In Tridip Kumar Dingal and others v. State of West Bengal and
others, (2009) 1 SCC 768, a two-Judge Bench of the Apex Court dealt with
non-impleadment of affected persons and came to hold as follows: -
"Regarding protection granted to 66 candidates, from
the record it is clear that their names were sponsored by
the employment exchange and they were selected and
appointed in 1998-99. The candidates who were unable
to get themselves selected and who raised a grievance
WP(C) 1353/2011 & connected cases Page 11 of 18
and made a complaint before the Tribunal by filing
applications ought to have joined them (selected
candidates) as respondents in the original application,
which was not done. In any case, some of them ought to
have been arrayed as respondents in a "representative
capacity". That was also not done. The Tribunal was,
therefore, wholly right in holding that in absence of
selected and appointed candidates and without
affording opportunity of hearing to them, their selection
could not be set aside."
12. In Public Service Commission, Uttaranchal v. Mamta Bisht and
others, (2010) 12 SCC 204, their Lordships have opined thus -
"In Prabodh Verma v. State of U.P., AIR 1985 SC 167
and Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC
768, it has been held that if a person challenges the
selection process, successful candidates or at least some
of them are necessary parties."
13. In J.S. Yadav v. State of U.P. and another, 2011 (4) Scale 733, it has
been ruled thus -
"In Service Jurisprudence if an unsuccessful candidate
challenges the selection process, he is bound to implead
at least some of the successful candidates in
representative capacity. In case the services of a person
is terminated and another person is appointed at his
place, in order to get relief, the person appointed at his
place is the necessary party for the reason that even if
the Plaintiff/Petitioner succeeds, it may not be possible
for the Court to issue direction to accommodate the
WP(C) 1353/2011 & connected cases Page 12 of 18
Petitioner without removing the person who filled up
the post manned by Plaintiff/Petitioner."
14. In the case at hand, as is noticeable, the tribunal has repelled the plea
of non-joinder of parties on the ground that the direct recruits were not
necessary parties to the original application as the grievance of the
applicant was against the respondents. The only illegalities and
irregularities was the delay that occurred in holding the DPCs in time. For
the aforesaid purpose, the tribunal has based its foundation on the
decision rendered in A.P. Wasan and others (supra). On a perusal of the
authorities in the field, it is quite vivid that unless the very principle of
determination of seniority or promotion is called in question, the necessary
parties are to be impleaded. If the policy is basically illegal or a rule is
constitutionally invalid, then there may not be a necessity to implead an
affected person but in the case at hand, the whole thing hinges on the fact
whether the DPCs were belatedly conducted and whether the promotion
relates back to the date of arising of the vacancy. This would certainly
affect third persons who were appointed / promoted.
WP(C) 1353/2011 & connected cases Page 13 of 18
15. True it is, the tribunal has directed that their promotion shall relate
back to the date of vacancy but they would not have seniority over others
who were promoted earlier. But, this situation is inconceivable. This is
likely to create anomaly. In our considered opinion, the finding recorded
by the tribunal on this score is absolutely pregnable and vulnerable and,
accordingly, we set aside the same. Once we set aside this finding, other
findings are to be set aside as the matter has to be remitted to the tribunal
for a fresh adjudication after granting opportunity to the applicants therein
to implead the affected persons as parties and thereafter proceed to deal
with the matter in accordance with law.
16. In view of the aforesaid, the findings recorded in the case of Y.S.
Chaudhary forming the subject matter of OA No. 280/2008 and OA No.
2140/2009 with OA No.2661/2010 are set aside and the matter is
remanded to the tribunal to afford the applicants therein to implead the
necessary parties and to proceed afresh.
17. As far as WP (C) No. 2855/2011 is concerned, it relates to the case of
N.P. Gupta and others wherein the tribunal has recorded a finding that the
delay that was caused in holding the meetings of the DPC was genuine
WP(C) 1353/2011 & connected cases Page 14 of 18
and beyond the control of the respondents. The tribunal to arrive at the
said conclusion has opined thus -
"6. The facts in the instant OA are quite distinct. As
a result of the judgement dated 04.08.1995, which was
complied by the Respondents, orders of promotions
issued in September, November, December 1992,
February 1993 and March 1994 were cancelled and fresh
orders for regular promotions and ad Hon‟ble Court
promotions were issued from September 1995 to April
1996. In the process of readjustment and recalculation
of vacancies, DPCs for the year 1994 and 1995 could not
be held. As a result the other DPCs were also delayed.
However, the proposals for the vacancy years 2001-02
and 2000-01 were also considered by the DPC held in
March 2002. The judgement of the Honourable
Supreme Court necessitated entire re-look at the
promotions made from 1994 onwards up to the year
2000. There is no doubt that several complicated and
complex issues arose as a result of this reconsideration.
The suggestion of the Respondents to adjust the officers
empanelled for the year 1996 onwards by a judgement
against the vacancies of 1994 onwards was actuated by
bona fide desire to cause least disturbance and protect
the interest of the concerned officers. When the
proposal was rejected by the UPSC, another alternative
proposal was made, which was also rejected. With the
advantage of the hindsight, these proposals may be
considered to have been erroneous and wrong, but it
cannot be said that there was any malafide of the
Respondents in placing those proposals before the
UPSC. Formulation and consideration of such proposals
does take time because these have to be thought
through as several complex issues are involved. It is
not possible that immediately on receiving the advice of
the UPSC, the alternative proposal should be ready the
WP(C) 1353/2011 & connected cases Page 15 of 18
next day. While accounting for the time, we have to
take into account the fact that administrative processes
are such that the files have to travel from one level to
the other, which would take some time. On the whole, it
seems that the Respondents have been able to explain
the reasons for delay in holding the meeting of the
DPCs in a reasonable manner. There were certainly
factors beyond the control of the Respondents. In view
of this the judgement in Y.S. Chaudhary (supra) would
not apply to the facts of this case, as the explanation
given for delay in the former case was quite different
from the explanation given for delay in the instant OA.
7. It may be useful at this stage to advert to the
Office Memorandum dated 29.07.2004, which is
extracted below:
"....Normally, there should be no delay in
holding of DPCs and the system should be so
streamlined that the delay, if any, are
minimized. In fact, ideally the DPC should be
held as per the model calendar prescribed vide
DoPT OM dated 8th September, 1998.
However, there may still be a case where the
DPC may be delayed for a valid reason. If the
Department is unable to hold the DPC in time
for any bonafide reason, it does not give rise to
any vested right for promotion from the
date/year of vacancy in terms of some of
pertinent judgments enclosed."
(emphasis added)
The Office Memorandum of the DOP&T regarding the
guidelines for the meet of the DPCs provide that:
"6.4.1 Where for reasons beyond control, the
DPC could not held in a year (s), even though
the vacancies arose during that year ( or
WP(C) 1353/2011 & connected cases Page 16 of 18
years), the first DPC that meets thereafter
should follow the following procedures:-
(i) Determine the actual number of regular
vacancies that arose in each of the previous
year(s) immediately preceding and the actual
number of regular vacancies proposed to be
filled in the current year separately.
(ii) Consider in respect of each of the years
those officers only who would be within the
field of choice with reference to the vacancies
of each year starting with the earliest year
onwards.
(iii) Prepare a „Select List‟ by placing the
select list of the earlier year above the one for
the next year and so on."
It is further provided that:
"6.4.4 Promotions only prospective:- While
promotions will be made in the order of the
consolidated select list, such promotions will
have only prospective effect even in cases
where the vacancies relate to earlier year (s)."
(Source: Swamy‟s complete manual on
establishment and administration, 10th
edition, 2006, pages 857 to 860)
We are of the considered opinion that the delay
caused in the holding of the meetings of DPCs was
genuine and beyond the control of the Respondents. In
view of this the instructions at paragraph 6.4.4 would
apply and the promotion would be prospective from
the date of recommendations of the DPC.
WP(C) 1353/2011 & connected cases Page 17 of 18
8. In view of this the OA is found to be without any
merit and is, therefore, dismissed. There will be no
orders as to costs."
18. In our considered opinion, there is no reason to interfere with the
said finding of fact and, accordingly, we concur with the same, as a
consequence of which the writ petition has to pave the path of dismissal
and, accordingly, it is so directed.
19. Resultantly, WP (C) No. 1353/2011 and WP (C) No.2020/2011 are
allowed to the extent indicated hereinbefore and WP (C) No.2855/2011 is
dismissed. The parties shall bear their respective costs.
CHIEF JUSTICE
SANJIV KHANNA, J.
May 30, 2011 pk WP(C) 1353/2011 & connected cases Page 18 of 18