Central Administrative Tribunal - Chandigarh
Sukanya Devi And Anr. vs Union Territory Of Chandigarh And Ors. on 5 December, 2006
Equivalent citations: 2007(2)SLJ38(CAT)
JUDGMENT Shyama Dogra, Member (J)
1. In the present case, the applicants have prayed for quashing of order Annexure-A/1, to the extent it relates to them along with Memo. dated 20.4.2005 (A-8). They have also prayed for issuance of directions to the respondents not to revert them from the post of Social Studies Mistress (S.S. Mistress for short) and also not revise the gradation list without affording them an opportunity of hearing. The applicants have also prayed for promoting them to the post of S .S. Mistress from 1992 when respondent No. 8 had been promoted and allow this O.A. with costs.
2. In order to determine the controversy involved in the present case, it will be proper to give brief facts of the case. The applicants were selected and appointed as Nursery Teacher in the year 1986 and joined as such on 15.4.1986. They were promoted as S.S. Mistresses on the recommendations of. DPC vide Annexure A-3, dated 9.12.2003. They had also joined the said promotional post. The respective dates of their confirmation as Nursery Teacher are 11.4.1991 and 9.4.1990.
3. The applicants claim that they have been working on the promotional post of S.S. Mistress satisfactorily but have been reverted to the post of Nursery Teacher vide impugned order dated 19.5.05 (A-l) without issuing them any prior notice to that effect in utter violation of principles of natural justice. Further claim that in the year 1989, Distt. Education Officer, Chandigarh had issued Gradation List of Nursey Teachers as it stood on 31.10.88 (A-5) which was a provisional Gradation List. The objections thereto were invited. In the said list, applicants were shown at SI. Nos. 86 and 82, whereas, respondent No. 8 (Ms. Meena Ghai) was at Sr. No. 90. Subsequently, provisional Gradation List as it stood on 30.4.97 was issued on 14.7.97 (A-6) which was also provisional and objections were invited. In this list also, the applicants were shown senior to the private respondents No. 3 to 8. Again other provisional Gradation List vide Memo. dated 27.10.03 as it stood on 30.9.03 was issued vide Annexure A-7 also inviting objections thereto. In this list also, the applicants were shown senior to the private respondents. Thus, making it abundantly clear that through out these years, the applicants stood senior to the private respondents Nos. 3 to 8 and no objections whatsoever have been raised by them at any point of time with regard to showing them junior to the present applicants. No further list whatsoever has been issued by the respondents thereafter, which clearly shows that the Gradation List of 1997 (Annexure A-6) and of 2003 (A-7) have become final. Resultantly, applicants have been promoted as S.S. Mistresses vide Annexure A-3, on the basis of there seniority position in the seniority list (A-7).
4. The main contention of the applicants while challenging their reversion order is to the effect that private respondents have never objected to their promotion made in the year 2003. Thus, they have accepted their seniority position in the aforesaid Gradation Lists issued from time to time. All of sudden showing them senior to the applicants vide Memo. dated 20.4.05 (A-8) is nothing but violation of principles of natural justice as the applicants have not been heard before passing the reversion order of changing their seniority position. Moreover, applicants cease to be Nursery Teachers with effect from the date of their promotion from 11.12.03. Therefore, bringing them at par with the private respondents to change their seniority position was otherwise unwarranted. They have been condemned unheard even before passing this reversion order which is against the law of the land that any administrative order infringing the civil rights of the employee is liable to be set aside if passed without following the principles of audi alterant partem. The applicants have been continuing on their promotional post by virtue of stay order passed by this Court on 26.5.2005.
5. The learned Counsel for the applicants further emphasized that applicants are fully eligible for the said promotional post of S.S. Mistress as per rules of Chandigarh Education Service (School Cadre, Group 'C') Recruitment Rules, 1991. Since the DPC, after due consideration of their eligibility and other criteria has selected and promoted them therefore, it was unfair, unreasonable and unjust to disturb the gradation list/seniority position in such an arbitrary manner causing discrimination to them vis-a-vis respondent No. 8 who was promoted as such in the year 1992 despite the fact that she was at Sr. No. 90 in the gradation list of the year 1988. Respondents No. 3 to 7 have not even challenged her promotion made in 1992. Thus, the impugned order of their reversion is liable to be quashed and set aside.
6. The official respondents as well as private respondents have filed their detailed written statement and contested the claim of the applicants mainly on the ground that the applicants were promoted in 2003 with clear stipulation that in the event of any person possessing requisite qualification is found to be senior to them and left out for promotion will have prior claim of promotion in preference to these applicants. One Smt. Sushma Dogra (respondent No. 7 in the present O.A.) when filed O.A. No. 16/CH/05, it transpired that seniority list of Nursery Teachers as existed on 31.10.88 was prepared on the basis of merits at the time of their selection. In the said seniority list Smt. Sushma Dogra was senior to both these applicants being at Sr. No. 70, whereas the applicants were at Sr. Nos. 86 and 82 respectively. Thus, the subsequent seniority lists were wrongly prepared on the basis of the date of joining of these Teachers in the years 1997 and 2003 which was required to be revised. Therefore, the fresh provisional seniority list was prepared on the basis of merits which was circulated vide Annexure-R/1, dated 18.2.2005 to invite objections from the affected teachers. After considering the objections/reports (Annexures-R-2 and R-4), revised seniority list was circulated on 20.4.05. Keeping in view that the applicants have not submitted any objections thereto, they cannot now turn around to say that their seniority position has been disturbed without following principles of natural justice. Even in the subsequent appointments of Nursery Teachers made in the years 1992 to 1994, their names were shown as per their merit list prepared by the Selection Committee vide Annexures R-7 to R-9. Subsequently, their names have also been added in the seniority list of 20.4.2005 according to their inter-se merit. Earlier their names were included on the basis of their dates of joining vide Annexures A-6 and A-7. Correct seniority list of 2005 has been prepared. The applicants have been correctly placed at Sr. Nos. 50 and 46 and the Nursery Teachers at Sr. Nos. 38, 32, 33 and 35 who had been left out have to be considered and promoted as S.S. Masters/Mistresses as and when the vacancies falling to the share of Nursery Teachers become available. Thus, all this exercise of revising the gradation list as per merit as it stood in 1988 and subsequently has been done to place all these incumbents on their right place in the seniority as per their merit at the time of their selection as the appointment of Nursery Teachers is purely on selection basis by way of direct recruitment.
7. The private respondents have further supplemented the submissions of the official respondents in their written statement as well as in the brief arguments placed on record. They have contended that as per Govt. of India instructions issued by DOPT, dated 3.7.86, the relevant seniority of direct recruitment is to be 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 say that seniority prepared by the respondents and circulated in 1989 as it stood on 31.10.88 on the basis of their merit of appointment was perfectly correct. They have also placed reliance on the decision of Hon'ble Punjab and Haryana High Court, in the case of The Punjab State Agriculture Sub-Inspectors Confederation v. State of Punjab and Ors. 2000(6) SLR 296, wherein this controversy has been resolved to fix the inter-se seniority of direct recruits. Paras 10 and 11 thereof are relevant which are quoted as under:
10. During the course of arguments, Counsel representing the parties admitted that no statutory rules governing the conditions of service of the employees in the respondent-Department had been framed. In order to check arbitrariness, the State Govt. had issued instructions to all the Heads of Department etc., contained in circular letter No. 1625-F-56/19079, dated 16.3.1956 (Annexure P-l) regulating the appointments qua recruitment being made through the Board. It specifically provides as under:
I am directed to say that it has been brought to the notice of Govt. by the Subordinate Services Selection Board, Punjab, that as a rule they recommend candidates to departments in the order of merit obtained by them in the test/interview conducted by the Board. Some departments, however, do not appoint the candidates in the order prescribed by the Board but adopt the policy of "pick and choose" which is clearly objectionable and hardly fair to the candidates who attain higher positions. I am to add that the ordinary convention in such cases is that the advice of the Board should normally be accepted and the order of merit determined by them should not be disturbed. I am accordingly to request that this practice of "pick and choose" by the departments should cease and the candidates should ordinarily be appointed in the order recommended by the Subordinate Services Selection Board.
11. Counsel representing the respondents have submitted that the above-noted instructions only emphasise that appointments should be made in the order of merit recommended by the Board, but they do not specifically lay down that seniority of the members of the Service should be determined in that order and that for that reason the respondents were justified in taking the dates of joining as the basis for determining the seniority of the members of the service, as stated by them in the written statement. The submission made as such is not sustainable in law. Where no statutory rules have been framed, seniority of the members of the service has to be reckoned in the order in which they had been selected by the Board and fortuitous circumstances of joining the duty earlier would not change the ranking given by the Board. The question raised is not res integra. In Dr. Satyabrata Dutta Choudhury v. State of Assam and Ors. 1977(1) Supreme Court Cases 283 : (1976(1) SLR 189(SC), it was held down that instructions would hold the field in the absence of service rules though in that case, the dispute raised was based on its own facts. Dr. Satyabrata Dutta Choudhury and Dr. Guru Prasad Sarma were appointed as Registrars in Surgery in Government Colleges of Assam in 1961, under Regulation 3(0 of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951. On 23.4.1962 they took over the charge of the posts of Assistant Professors of Surgery under Regulation 3(e) aforesaid. Dr. Hamiduddin Ahmad, Dr. Pradipta Kumar Das Gupta and Dr. Jotimoy Dutta were also appointed as Assistant Professors of Surgery thereafter. The Assam Public Service Commission was consulted in regard to recruitment to these posts. Interview of the above-stated persons were held by the Commission in September, 1963, along with other candidates. The Commission recommended that Dr. Hamiduddin Ahmad, Dr. P.K. Dass Gupta, Dr. Jyotimoy Dutta, Dr. Satyabrata Dutta Choudhury and Dr. Guru Prasad Sarma be appointed as Assistant Professors of Surgery, in that order and their appointment was, accordingly, notified on 9.12.1963. It was also mentioned in the notification that their inter se seniority would be decided and notified in due course. By subsequent Notification dated 14.5.1964, Dr. Satyabrata Dutta Choudhury and Dr. Guru Prasad Sarma were made junior to the above-named three doctors. The representation filed by them to the authorities did not succeed. Aggrieved by the Notification dated 14.5.1964, Dr. Satyabrata Dutta Choudhury and Dr. Guru Prasad Sarma filed writ petitions, which were dismissed by the High Court. Their appeals were also dismissed by the Apex Court. The reasons which led to the dismissal of the appeals of Dr. Satyabrata Dutta Choudhury and Dr. Guru Prasad Sarma by the Apex Court are contained in Para 6 of the judgment, which read as under:
6. It is no doubt true that no rule had been made to govern the seniority of Assistant Professors, but it is not in controversy that Government had notified the aforesaid instructions dated February 2, 1964 in regard to the seniority of the persons appointed under Regulations 3(e) and 3(f) of the Regulations. As the appointments of the appellants and respondents Nos. 4,5 and 6 were admittedly regularized in one batch, after reference to the Service Commission, by order dated December 9, 1963, their inter se seniority had to be determined according to the merit list of the Commission. As has been pointed out, it is not in dispute that the impugned seniority list had to be fixed on the recommendation of the Commission, so that it is in accordance with the instructions of the Government. The High Court has therefore rightly held that the instructions would hold the field in the absence of the service rules. In these facts and circumstances, there can be no question of applying Article 16 to these cases.
8. Thus, the private respondents have also averred and support submissions of the official respondents that the tentative seniority lists prepared in the year 1997 as stood on 30.4.1997 and in 2003 after 15 years not being based on merits were not correct as these were prepared by changing the criteria from merit to age (date of birth and date of joining Govt. service) in contravention of the Govt. instructions. The seniority with gradation list dated 20.4.2005 has been prepared after duly considering various representations and objections from the affected teachers who have not been given right place in the seniority list as it stood on 31.10.1988 which remained operative till revised seniority list was issued on 20.4.05. The applicants have also been given opportunity to submit their objections, if any, when the same was circulated to the concerned Principals of all Schools.
9. It is further submitted by respondent No. 7 in her reply that she had made various representations challenging wrong seniority list prepared in 2003 when both these applicants were promoted on the basis of the said seniority list. She claims that she had requested for correction of seniority list and promotion prior to her junior i.e. present applicants and her representations were not considered. She preferred the aforesaid O.A. which was disposed on 9.8.2005 by this Bench in view of reply filed by the official respondents while giving directions to the department to consider her case for such promotion in either of the disciplines from due date as the official respondents have admitted in their reply that one Kiran Khanna who was at Sr. No. 36 and junior to Smt. Sushma Dogra, who was at Sr. No. 35 has been promoted. As a sequence of the said order, said Smt. Sushma Dogra (respondent No. 7) has been promoted vide order dated 16.11.05 and promotion has been given effect from 8.7.2005 from the date her junior Kiran Khanna was promoted. The present applicants never challenged her promotion. The position already settled cannot now be unsettled at this stage. Respondent No. 3 Smt. Harvinder Bali has also been promoted who was at Sr. No. 38 in the revised seniority list. Since the applicants have failed to challenge the seniority list of 1988, which still holds good keeping in view that the same was prepared on the basis of merit of the candidates, the applicants cannot now turn around to say that since in subsequent provisional gradation lists they have been shown senior to the private respondents, the entire matter be reshuffled at this stage which is otherwise not permissible.
10. The respondents further allege that there is no violation of principles of natural justice in the present case while reverting applicants to the post of Nursery Teachers keeping in view that when promotion orders were issued in their favour they were fully aware that in case any person senior to them is found to be left out in the seniority list, they may be reverted to their original post. Thus, even if had they been issued show cause notice, the position would have remained the same as it stands today before issuing any show cause notice to them in view of the clear stipulation in their promotion order to that effect. To support their contention in this regard, the learned Counsel for the respondents has drawn our attention to the decision rendered by the Hon'ble Apex Court in the case of M.C. Mehta v. Union of India and Ors. , wherein it has been observed as to under what circumstances, it is necessary to follow the principles of natural justice. In this case, it has been held that Court can refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of principles of natural justice or is otherwise not in accordance with law. If on the admitted or undisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of principles of natural justice. Even if the applicants are eligible to be promoted and were promoted by the duly constituted DPC, they have rightly been reverted to their substantive post to give room to their seniors who have been left out for such promotion due to wrong seniority list prepared in the years 1997 and 2003, while not preparing it on the basis of their merit position at the time of their selection. They are otherwise now estopped to raise all these objections to these seniority lists which were duly circulated and the applicants have not cared to represent or file objections, if any, with regard to their seniority position in the seniority list of 2005.
11. In rejoinder, the applicants have reiterated their submissions as made in the O.A. with no new addition to the points already raised in the written statement filed by the respondents. They are just stressing on the gradation list prepared in the years 1997 and 2003 on the basis of which they were promoted and categorically submitting that since the respondents have failed to disclose the basis/genesis for revising these seniority lists subsequently in the year 2005, their action to issue revised list (A-5) is nothing but clear violation of Article 14 of the Constitution of India causing injustice to the applicants who have legitimate expectations to continue on their present posts keeping in view that duly constituted DPC had promoted them after assessing over-all merit and seniority of Nursery Teachers. Thus, the O.A. deserves to be allowed.
12. We have heard learned Counsel for the parties and carefully gone through the record.
13. After close scrutiny of the material on record, we find that the applicants have failed to substantiate their submissions on both points relating to the revision of gradation list in the year 2005 as well as on the point of violation of principles of natural justice.
14. It is not disputed that when the seniority list of the Nursery Teachers (A-5) was issued in the year 1989 on the basis of seniority as it stood on 31.10.88, the objections were invited from the affected persons while circulating it to the Heads of all Govt. Sr. Secondary Schools under the Chandigarh Administration. It is also admitted fact that the private Respondents No. 4 to 7 are at Sr. Nos. 58,62,64 and 70, whereas, the present applicants are at Sr. Nos. 86 and 82 respectively showing their seniority position as per their merit. Since nobody filed objection to this seniority list, it clearly stipulates that the applicants had accepted their seniority position in the said gradation list. They have also failed to show to this Court as to how all of a sudden their position was changed and they had been shown senior to respondent Nos. 3 to 7 in the subsequent gradation lists issued in the year 1997 (A-6) and September, 2003 (A-7), whereas, the respondents have been able to satisfy this Court that when these seniority lists were issued and circulated, various representations from Nursery Teachers were received from the persons whose names were either left out or were not shown on their relevant places of seniority as per merit position during selection which has resulted into issuance of subsequent seniority list of 20.4.2005 (A-8). On perusal of various documents placed by the respondents on record, it is found that the same were also circulated to the Principals of the Schools where the present applicants were working who have also certified to that effect that it was properly circulated and placed on notice board and no objections were received from any of the teachers. It is also an admitted fact that the applicants have not filed any objections to this seniority list. Thus, they cannot now challenge this Memo. on the ground that there is violation of principles of natural justice and they have been condemned unheard while changing their seniority position as they themselves chose not to make any objections thereto, perhaps, keeping in view that they were very well aware that they have been assigned the correct position in the seniority list as per their place in the seniority as it stood in the year 1988 based on their merit position at the time of their selection.
15. The plea of the applicants that it is nowhere the requirement of Rules of 1991 that the seniority is to be prepared on the basis of merit, is also not acceptable in view of the decision rendered by the Hon'ble Apex Court keeping in view that when the Rules are silent on a particular aspect, the instructions hold good for the purpose of fixing the inter-se seniority of direct recruits as has been discussed hereinabove. The DOPT instructions of 1986 are also there to show as to how the inter-se seniority of direct recruits is to be fixed. We find no fault in the seniority lists of 1988 (A-5) and dated 20.4.05 (A-8) which were prepared while determining the seniority of all these direct Nursery Teachers by the order of their merit in which they were selected for such appointment. Thus, the provisional seniority lists issued in the year 1997 and September, 2003 on the basis of date of birth or date of joining of the Nursery Teachers is held to be not showing the correct position of the persons concerned. Thus, keeping in view that the applicants have accepted their seniority position of 1988 which was further confirmed in the seniority list of 20.4.2005, they are now estopped to raise any objection with regard to their seniority position vis-a-vis respondents No. 3 to 7. So far as their grievance to the promotion of respondent No. 8 in the year 1992 is concerned, it is too late in a day to accept their prayer to promote them to the same effect as they have failed to challenge the promotion order of respondent No. 8 at relevant point of time and the position already settled almost 14 years back cannot now be unsettled at this stage.
16. The second ground taken by the applicants with regard to violation of principles of audi alteram partem is also held to be not available to them keeping in view the clear stipulation in their promotion order that in case as a result of revised seniority list, both the applicants became junior and do not fall in the zone of consideration for promotion as Masters/Mistresses and in order to promote senior Nursery Teacher, they will have to face reversion. Therefore, in our considered opinion, there is no infringement of principles of natural justice in the present case as the applicants were fully aware of their seniority position as it stood in the year 1988 vis-a-vis these private respondent Nos. 3 to 7 who were at Sr. Nos. 28, 30,32, 33 and 35 respectively, whereas, these applicants were at Sr. Nos. 50 and 46 respectively. Now the question arises, had they been issued show cause notice what effect would have been on their promotion. The answer is that even if they had been afforded an opportunity of hearing, the position would have remained the same as it stands alter passing of order of their reversion, keeping in view their seniority position in the year 1988 which was never objected to by them vis-a-vis private respondents No. 3 to 7, who have rightly been placed on their respective place of seniority vide Annexure A-8 after duly considering their representations and objections, wherein they had categorically asserted that their seniority which was made on the basis of merit in the year 1988 has been disturbed without any reasons and has been left out for further promotion. The stipulation provided in the order of their promotion leaves no room to doubt that their promotion was a conditional promotion subject to reversion in case necessity arises and keeping in view that it is not always necessary to issue show cause notice in such eventuality. We are of the considered opinion that there is no violation of principles of natural justice while passing order of their reversion vide impugned order Annexure A-l. In the case of M.C. Mehta (supra), the Hon'ble Apex Court while speaking through Hon'ble Mr. Justice M. Jagannadha Rao, discussed in detail that under what circumstances, the principles of natural justice are to be followed or not to be followed. In Para 21, His Lordship has concluded as under:
21. It is true that in Ridge V. Baldwin, 1964 AC 40, it has been held that breach of principles of natural justice is in itself sufficient to grant relief and that no further de facto prejudice need be shown. It is also true that the said principles have been followed by this Court in several cases but we might point out that this Court has not laid down any absolute rule. This is clear from the judgment of Chinnappa Reddy, J. in S.K. Kapoor v. Jagmohan, (1980) 4 SCC 379 : AIR 1981 SC 136. After stating (p. 395) (of SCC) (at p. 147 of AIR) that 'principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed' and that 'non-observance of natural justice is itself prejudice to a man and proof of prejudice independent of proof of denial of natural justice is unnecessary', Chinnappa Reddy, J. also laid down in important qualification (p. 395) (of SCC):(at p. 147 of AIR) as follows:
As we said earlier, where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs.
22. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of principles of natural justice.
23. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice, do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases here is a considerable case law and literature as to whether relief can be refused even if the Court thinks that the case of the applicant is not one of "real substance" or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed. See Malloch v. Aberdeen Corporation (1971) 1 WLR 1578, (per Lord Reid and Lord Willberforce)...The latest addition to this view is R v. Ealing Magistrates' Court exp. Pannaran (1996) 8 Admn. LR 351 (358) (See Desmith Suppl. P. 89) (1998) where Straughton L.J. held that there must be 'demonstrable beyond doubt that the result would have been different....We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma , Rajendra Singh v. State of M.P. that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.
17. The present case is also not a case of legitimate expectation for the simple reason that the promotion of the applicants was conditional and the respondents in order to give proper place in the seniority list to the affected persons have rightly reverted them to their substantive post. The applicants cannot raise and invoke theory of legitimate expectation in the present case.
18. It cannot also be held that the official respondents have promoted the applicants free from all encumbrances as they have put rider in the order of promotion of the applicants that in case there are affected persons, left out in seniority, they would have to be reverted. Thus, the applicants were fully aware of the result and the consequence, if any, at the time of their promotion.
19.The seniority position with regard to applicants vis-a-vis private respondents stands settled in the year 1988, therefore, the settled position cannot be unsettled at this belated stage to the detriment of other affected persons, who are not before us. It is not for the Court to cause injustice to other persons while granting justice to the parties before it.
20. We also do not find substance in the submissions of the applicants that after their promotions, their juniors have not challenged these orders. Keeping in view that on perusal of original record, we have found that number of representations and objections were raised by the Teachers, who were either left out in the provisional gradation list prepared in the year 1997 or Sept. 2003. They have prayed for placing them at right place in the seniority list prepared on the basis of their merit as it stood after selection in the year 1988 which has resulted into issuance of gradation list dated 20.4.05 (A-8), which was never challenged by the applicants. They are also silent about seniority position of respondent Nos. 3 to 7 as it stood in 1988-89 in their pleadings.
21. Thus, even if they had been afforded an opportunity of being heard before passing order of their reversion, in view of these undisputed and admitted facts, the position would have remained the same.
22. Therefore, for the foregoing reasons, it is held that there is no violation of principles of natural justice in the present case while issuing these impugned orders A/1 and A/8. Hence, the same are hereby upheld while holding the present O.A. bereft of merits. Consequently, the same is hereby dismissed and disposed of accordingly. Needless to mention here that the stay already granted by this Court, stands vacated and the respondents are directed to proceed further accordingly. No order as to costs.