Central Administrative Tribunal - Delhi
Hon Ble Mr. A.K.Bhardwaj vs Director on 10 August, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.2198/2013
New Delhi this the 10th day of August, 2015
Honble Mr. A.K.Bhardwaj, Member (J)
Honble Mr. V.N.Gaur, Member (A)
Shri V.K.Kadyan,
S/o Late Shri Kewal Singh,
R/o B-418, Meera Bagh,
Paschim Vihar, Delhi. Applicant
(By Advocate Shri Rajeev Sharma )
VERSUS
1. Director, Local bodies,
Players Building,
Delhi Secretariat, Govt. of NCT, Delhi
New Delhi.
2. North Delhi Municipal Corporation,
(Through its Commissioner)
Dr. S.P.Mukherjee Civic Centre,
J.L.Marg, New Delhi.
3. The Commissioner,
North Delhi Municipal Corporation,
Dr. S.P.Mukherjee Civic Centre, 4th Floor,
J.L.Marg, New Delhi.
4. Director (Personnel),
North Delhi Municipal Corporation,
Dr. S.P.Mukherjee Civic Centre, 5th Floor,
J.L.Marg, New Delhi.
5. The Additional Commissioner (Estt.),
North Delhi Municipal Corporation,
Central Establishment Department,
Dr. S.P.Mukherjee Civic Centre, 13th Floor,
J.L.Marg, New Delhi.
6. Shri N.C. Sharma,
Superintending Engineer (C),
Rohini Zone, North DMC,
Delhi. Respondents
(By Advocates: Shri R.N.Singh, Ms.Neetu for Mrs. Rashmi
Chopra and Ms. Kittu Bajaj )
O R D E R
Honble Mr. A.K.Bhardwaj, Member (J):
As has been captioned in the judgment of Honble High Court of Delhi in Shri Ansar Alam & others v. Municipal Corporation of Delhi & others (L.P.A. No.95/1994 with connected Applications) decided on 12.5.1998, the facts of the case are that on 30.6.1989, applications were invited to fill up 60 posts of Assistant Engineer (Civil) in the Engineering Department of the Municipal Corporation of Delhi (MCD). The essential qualifications for the post were; (a) degree in Civil Engineering and (b) two years professional experience. The individuals within the prescribed age limit i.e. within 30 years (relaxable for government servants and employees of the MCD) were eligible for the post. In all, 412 candidates, departmental as well as those sponsored by the Employment Exchange were called for interview. A list of candidates giving their names, date of birth, qualifications, percentage of marks, period of experience and marks allotted for qualifications, experience of interview was prepared. 60 candidates, who scored 16 or more marks were selected. 44 candidates were placed in the waiting list / reserved list for appointment against vacancies remaining unfilled due to non-acceptance of offer of appointment or failure to join duty. Some of the unsuccessful candidates filed Writ Petitions before the Honble High Court challenging the selection. The Petitions were decided by the Honble Single Judge in terms of the judgment dated 10.8.1994. The Writ Petition of Mr. Samender Negi was allowed and all other Writ Petitions were dismissed. The Order passed in the Writ Petitions was challenged before the Division Bench of the Honble High Court of Delhi by way of aforementioned Letters Patent Appeals. In the meantime, certain other candidates approached the Honble High Court by way of Writ Petitions. Since all the Appeals and Writ Petitions involved same issue and pleadings, those were taken up by the Division Bench of Honble High Court for disposal by way of a common order. Since during the pendency of the LPA Nos.94-96/1994, 113/1994 and C.W. No.4819/1994 it could transpire that for the same length of experience different candidates were given different marks, Honble High Court appointed Mr. Justice G.C. Jain (retired) to verify the case of each candidate and find out whether allocation of marks for the qualification and experience had been correctly done and if not in what manner it should have been done. In the wake, Mr. Justice G.C. Jain (retired) examined the records of all the candidates who had obtained 12 or more marks and prepared a list giving comments regarding each candidate. After scrutiny Mr. Justice Jain (retired) prepared list of first 60 candidates, next 40 candidates, the candidates, who became eligible after 17.7.1989 (cut-off date) and 31.7.1989 as well as the candidates, who enrolled themselves after 17.7.1989 and 31.7.1989. The criteria evolved for allocation of marks, as prescribed by the Selection Board for the year 1988, reproduced in the judgment of Honble High Court, was thus:-
Total Marks: 35
(a) Qualifications:
Break-Up Upto 50% marks 10 marks 55% marks 12 marks 60% marks 14 marks 65% marks 16 marks 70% marks 18 marks 75% marks 20 marks
(b) Experience Break-up Upto 2 years experience Nil Marks One mark for each years experience after 2 years experience upto 5 years 5 marks
(c) Viva Voce 10 marks The criteria prescribed by the Selection Board for selection in question (in the year 1989) noted in the said judgment reads thus:-
(1) Qualification; 10 marks Break-up Upto 50% marks 5 marks 51% marks to 60% marks 6 marks 61% marks to 70% marks 7 marks 71% marks to 80%0 marks 8 marks 81% marks to 90% marks 9 marks 91% marks to 100% marks 10 marks (b) Experience Break-up Upto two years experience Nil Marks 3 to 12 years and above experience = mark for each year of experience upto 5 Marks (c) Viva Voce 15 marks
The select list of 60 candidates prepared by Honble Mr. Justice G.C. Jain (retired) after verification of the record was reproduced in the judgment of Honble High Court and reads thus:-
S.No. Name of the candidate Position in the list of the Selection Board Position as per list of Mr. Justice Jain Marks awarded by the Selection Board Marks awarded by Justice Jain Remarks
1.
Pradeep Bansal 1 1 23-1/2 23-1/2 Prom. Reg.
2. Pradeep Khandewal 3 2 23 23 Prom. Reg.
3. Anil Tyagi 4 5 20 20 Prom. Adhoc
4. R.K. Ailahabadi 5 3 20-1/2 20-1/2 Prom. Adhoc
5. M.S. Rana 6 4 20 20 Prom.Reg.
6. R.K. Sharma 7 6 19-1/2 19-1/2 Prom.Reg.
7. R.K. Bhattacharya 8 9 18-1/2 18-1/2 Prom.Reg.
8. Qaiser Javed 9 15 18 18 Prom.Reg.
9. R.K. Gupta 10 7 18-1/2 18-1/2 Prom.Reg.
10. Dilip Ramnani 11 Nil 18-1/2 18-1/2 Prom.Adhoc
11. Manohar Dewani 13 11 18 18 Prom.Adhoc
12. S.N. Gupta 14 12 18 18 Prom.Adhoc
13. G.G. Tandon 15 13 18 18 Appointed
14. Arunesh Upadhya 16 20 17-1/2 17-1/2 Prom.Adhoc
15. R.P. Garg 17 21 17-1/2 17-1/2 Appointed
16. Grish Chand 18 35 15-1/2 16-1/2 Prom.Adhoc
17. N.K. Verma 19 8 18-1/2 18-1/2 Prom.Adhoc
18. Krishan Mohan 20 16 18 18 Prom.Adhoc
19. V.R. Bansal 21 21 17-1/2 17-1/2 Prom.Adhoc
20. Rajesh Wadhwa 22 19 18 18 Prom.Adhoc
21. R.P.S. Ahluwalia 24 WL3 16-1/2 15-1/2 Prom.Adhoc
22. Sunil Kumar 25 10 18-1/2 18-1/2 Prom.Adhoc
23. R.K. Taneja 26 23 17-1/2 17-1/2 Prom.Adhoc
24. A.K. Mittal 27 26 17 17 Prom.Adhoc
25. S.K. Sindhwani 28 32 16-1/2 16-1/2 App.
26. R.P. Kohli 29 25 17 17 Prom.Adhoc
27. Saminder Negi WL10 27 16 17 Prom.Adhoc
28. Moh. Illias 30 46 16 16 Prom.Adhoc
29. M.L. Khan 31 17 17-1/2 18 Appointed
30. Surender Pal 32 24 17-1/2 17-1/2 Prom.Adhoc
31. Manish Rastogi 33 29 17 17 Prom.Adhoc
32. V.K. Gupta 34 30 17 17 Prom.Adhoc
33. Dinesh Yadav 35 31 17 17 Appointed
34. A.K. Mittal 36 44 16 16 Appointed
35. V.K. Malhotra 37 28 17 17
36. C.K. Patel 38 48 16 16
37. R.K. Jain 39 WL5 15-1/2 15-1/2
38. Sunil Tyagi 40 52 16-1/2 16
39. A.K. Dikshit 41 36 16-1/2 16-1/2
40. A.K. Gupta 42 WL9 16-1/2 15-1/2
41. Naresh Gupta 43 38 16-1/2 16-1/2
42. R.P. Dabas 44 39 16-1/2 16-1/2
43. N.K. Gupta 45 41 16 16
44. Pushkar Sharma 46 42 16 16
45. M.K. Single WL3 33 16-1/2 16 LPA 95/94
46. R.B.S. Bansal 47 34 16-1/2 16-1/2 App.
47. D.S. Dhanda 48 60 15-1/2 15-1/2
48. M.S. Yadav 49 WL1 15-1/2 15-1/2
49. Arun Kumar 50 45 16 16
50. Ajay Gautam 51 WL26 15 14-1/2
51. Rajesh Khanna WL17 49 16 16
52. Anil Dalal 52 50 16 16
53. Mahavir Prasad 53 WL8 16-1/2 15-1/2
54. Ramesh Kumar 54 37 16-1/2 16-1/2
55. Devender 54 18 18 18
56. Anil Kumar Gupta 56 53 16 15-1/2
57. Ravinder Singh 57 55 16 16
58. D.D. Gulati 58 54 16 16
59. S.K. Mehta 59 56 16 16
60. V.K. Bhatia 60 40 16-1/2 16 After taking note of the facts and with the consent of the learned counsel for the parties, the Honble High Court evolved the following criteria:
a) Candidates, who were earlier found eligible and appointed by the M.C.D. and are later found by Mr. Justice Jain to be ineligible for appointment may be allowed to continue in service.
b) Candidates, who were earlier found ineligible by the M.C.D. and the later found by Mr. Justice Jain to be eligible for appointment and who have approached this Court within a reasonable time, should be accommodated by giving them employment against existing vacancies.
c) Candidates, who are found by Mr. Justice Jain to be ineligible for appointment on the ground that they had obtained employment by producing false/ fictious certificates, should be cashiered. Thereafter the individual cases were taken up for orders separately. In the present case, we are concerned only with the candidature of the applicant (V.K. Kadyan) and respondent No.5 (N C Sharma). Admittedly, Mr. N C Sharma was petitioner in Civil Writ Petition No.5087/1997 and the petition was dismissed as barred by latches. Relevant excerpt of the Order reads thus:-
Civil Writ Petitions Nos.5087/97, 805/98, 1871/96, 4927/97, 1516/98, 1484/98 and 1485/98:
By these writ petitions under Article 226 of the Constitution, the petitioners have challenged the selection and appointments of candidates on the same grounds mentioned earlier. We do not propose to set out here the averments made in these writ petitions because we have already mentioned the relevant facts in the earlier part of this order.
On 1.10.1996 and on 3.10.1996, S/shri J.S. Dhyani and S.K. Prabhakar filed two separate applications under Order 1 Rule 10 C.P.C. (C.M. No.6787/96 and 6676 respectively) for their impleadment in the Civil Writ Petition No.4819/94 on the ground of their non-selection for the posts in question. Mr. S.K. Katara, respondent No.63 in LPA No.95/94 (Ansar Alam and Ors. Vs. M.C.D. and Ors.), has filed CM671/98, praying for his transposition as an appellant in the appeal on the ground that he is also aggrieved by the impugned judgment dated 10-8-1994 passed by the learned single Judge.
Learned counsel for the M.C.D. has raised a preliminary objection with regard to maintainability of these petitions/ applications on the ground of delay and laches. it is significant to mention that in the instant case the list of the candidates selected by the M.C.D. was notified on 11.5.1990. On 23.11.1995, Mr. Justice Jain was appointed by this Court to verify the relevant records and he submitted his report to this Court on 12.8.1996. The petitioners/applicants kept sleeping over their rights for long and woke up when they had the impetus from the report submitted by Mr. Justice Jain. No doubt Article 226 of the Constitution prescribes no period of limitation, but the period fixed by the Limitation Act within which a suit in Civil Court must be brought can ordinarily be taken as reasonable standard by which delay in seeking the remedy under Article 226 can be measured. (Mafat Lal Industries Ltd. Vs. UOI (1997) 5 SCC 357). For this purpose, it does not seem to matter whether a suit would, in fact, lie or not. The inquiry should be when would a suit for the relief claimed becomes barred by time, if a suit lay. Unfortunately, on the date of filing of these petitions/applications, a suit for the relief claimed would have been barred. Consequently, these petitioners/ applicants are dis-entitled to any relief under Article 226 of the Constitution due to inordinate delay and laches. As far as the applicant herein, namely, Mr. V.K. Kadyan is concerned, he was appellant No.12 in LPA No.95/1994. His application was also dismissed. Relevant excerpt of Order of the Honble High Court dated 12.5.1998 reads thus:
On 10.3.1998, the appellant No.12 (Mr. V.K. Kadiyan) filed CM 682/98 in LPA 95/94 seeking a direction to restore the marks awarded to him by the Selection Board. The Selection Board had awarded 15 marks to him. On verificatioin of the record, Mr. Justice Jain has reduced the total marks awarded to the applicant from 15 to 14. Mr. Justice Jain, has assigned valid reasons for reducing the marks and we are not inclined to take a different view. Consequently the said application deserves to be dismissed. Nevertheless, he moved Review Application No.36/1998 before Honble Delhi High Court taking the plea that he had worked with M.E.S. w.e.f 28.06.1977 to 01.06.1978 and in the Auto Workshop, Mandir Marg from 2nd June, 1978 to 31st August, 1978, thus had 12 years experience and was entitled to the mark accordingly. Accepting the plea of the applicant, Honble High Court reviewed its order passed in the LPA qua the applicant and modified the same to the extent that the applicant should be given appointment on the post in question from the date, he is entitled to the same as per original selection in the year 1989. For easy reference relevant excerpt of the order passed in the RA is reproduced hereinbelow:-
The result is that this review application is allowed and the judgment dated 12th May, 1998 is modified to the extent that the applicant shall be given appointment for the post in question from the date he is entitled to as per the original selection in 1989 without giving him any monetary benefit for the period from the date he was entitled to the appointment to the date he is actually appointed and if necessary, he may be given deemed date of appointment. The applicant may be considered for promotion on completion of qualifying service in the rank as per rules. The applicants inter se seniority shall be determined by the respondent-MCD in accordance with the ranking in the original select list after affording an opportunity of hearing to the effected employees. Thereafter, the respondents issued Office Order No.F.1 13(244)/ CED (II)/93/ Pt.-III/ 10/ 8270 dated 19.03.1999 (Ann.R-7) appointing the applicant, herein to the post of Assistant Engineer in the pay scale of Rs.6500-10500. The Office Order is reproduced hereinbelow:-
In pursuance of Honble High Court orders dated 26.2.99 in R.A. 36/98, LPA 95/94, 94/94 & 113/94 & others, titled Ansar Alam & Ors Vs. MCD, Shri Vijay Kumar Kadyan, S/o Shri Kewal Singh, Junior Engineer (Civil) in Municipal Corporation of Delhi and with reference to acceptance of offer of appointment issued on 19.3.99 is hereby appointed to the post of Asstt. Engg.(Civil) in the pay scale of Rs.6500-10,500/- subject to police verification report and Medical fitness certificate.
2. Sh. Vijay Kumar Kadiyan should also submit the enclosed Attestation Form duly filed in an contact Administrative Officer (Health) personally and deposit Rs.16/- to obtain the date of Medical Examination.
3. He is directed to report to Engineer-in Chief for further posting.
4. This issues with the approval of the Commissioner and is subject to decision of cases pending in the Supreme Court.
Sd/-
19/3/99 (J.S.Sindhu) DIRECTOR (PERSONNEL) The seniority of the applicant was fixed in terms of Circular No.F/8145/CED (II)/92/RA/49 dated 08.10.1999 at serial No.306 (a). The Circular is reproduced hereinbelow:-
The Honble High Court vide its order dated 26.2.99 in RA No.36 of 1998 in LPA No.95/94 had ordered for appointment of Shri Vijay Kumar Kadyan to the post of Assistant Engineer (Civil) in the Municipal Corporation of Delhi and accordingly he was appointed to the said post vide office order No. F.13 (244)/CED(II)/93/Pt.III/8260 dated 19.3.99. The Honble Court while delivering its verdict had also ordered that the applicants inter-se-seniority shall be determined in accordance with his ranking in the original select list after affording an opportunity of hearing to the affected employees.
2. The seniority of Shri Vijay Kumar Kadyan (DOB: 31.8.55) has been fixed provisionally at Sl.No.213 (a), Srty N.306 (a) i.e. below the name of Shri M.M.Khan (Srty.No. 306) and above the name of Sri Mandir (Srty.No.306(b) in the revised final seniority list of Asstt. Engineer (Civil) circulated vide Circular No.F.8 (45)/CED (II)/92/RK/5 dated 15.2.99 read with Addenda No.F. 8(45)/CED (II)/92/4/6060 dated 24.2.99 and Circular No. F.8 (45)/CED (II)/92/RK dated 20.9.99.
3. Since no objection has been received from any of the affected officials, the seniority fixed in respect of Shri Vijay Kumar Kadyan as contained in para 2 above be treated as final.
This issues with the approval of Add. Commissioner (Rev.).
2. On the other hand, Mr.N.C.Sharma i.e. respondent No.5 also moved application for review of the order passed by the Division Bench of Honble High Court dismissing his Writ Petition. Admittedly, the Review Application was dismissed and finally the SLP filed by him before Honble Supreme Court was also dismissed. Nevertheless, he kept on espousing his claim before the departmental authority and finally vide Office Order No.F.13 (244)/ CED(II) / 93/Pt.III /03 /5277 dated 12.02.1999, he was also appointed to the post of Assistant Engineer (Civil) on regular basis in the pay scale of Rs.6500-10,500/- with immediate effect. The Office Order is reproduced hereinbelow:-
Municipal Corporation of Delhi (Central Establishment Department) TOWN HALL: DELHI No.F.13(244)/CED (II)/93/Pt.III/03/5277 Dated 12.2.99 OFFICE ORDER With reference to acceptance of offer of appointment issued on 12.2.99, Shri N.C.Sharma, S/o Shri L.R.Sharma is hereby appointed to the post of Assistant Engineer (Civil) on regular basis in the pay scale of Rs.6500-10500/- with immediate effect.
2. He is directed to report to Engineer-in-Chief for further posting.
3. This issues with the approval of the Commissioner and is subject to decision of High Court of Delhi in a case Ansar Alam & Others Vs. MCD in LPA Nos.95/94, 94/94 & 113/94 & Others.
Sd/-
(O.P.MEHTA) ADMN. OFFICER(ESTT.)-III Subsequently in modification of the said order, the applicant was given regular appointment as Assistant Engineer w.e.f. 28.02.1991 (26/2/1991). In due course, both the applicant and respondent No.5 got promotion as Executive Engineer (Civil) and finally the respondent no.5 got promotion as Superintending Engineer on ad hoc basis. In the wake, the applicant filed the present OA praying therein:
(a) to declare that applicant is senior to respondent No.5 in view of his appointment as 25.5.1990 as declare by Honble High Court.
(b) to issue direction to the official respondents to place respondent No. 5 at the appropriate place in the seniority list of Assistant Engineer (Civil) keeping in view the date of appointment of the respondent No.5 as Assistant Engineer (Civil) is 12.02.1999.
(c) to issue direction to the respondent that applicant is entitled for all consequential benefits and accordingly direction may be issued to the official respondents to consider applicant for all consequential benefits.
(d) the Honble Court may pass any other order/direction as deemed fit and proper in the circumstances of the present case and in the interest of justice. The solitary contention put forth on behalf of the applicant is that once the respondent No.5 remained unsuccessful before Honble High Court in Writ Petition, Review Petition and finally before Honble Supreme Court in SLP, the act of the respondent nos. 1 to 4 in giving him appointment is illegal, arbitrary and contemptuous.
3. On the other hand, Mrs. Kittu Bajaj, counsel for respondent No.5 submitted that the fact of appointment of the applicant as Assistant Engineer was brought to the notice of Honble High Court in CW No.3836/98 and CM 8114/1999 filed by Mr. J.P.Jain seeking the benefit as granted to the said respondent and in the order dated 21.07.2000 passed by Honble High Court, the stand taken by the respondents i.e. Respondent No.5 had approached MCD in 1994 itself was found wholly justified. She also espoused that both the applicant and respondent no.5 were assigned seniority as Assistant Engineer way back in the year 1999 and at this belated stage, the present OA is not maintainable.
4. Learned counsel for respondent no. 1-4 supported the argument put forth by learned counsel for respondent No. 5 and cited certain judgments. Finally, he relied upon the order dated 1.11.2011 passed by this Tribunal in OA No.3907/2011 to submit that certain individuals had approached this Tribunal seeking the same relief as had been sought by the applicant through Shri Rajeev Sharma, advocate for the applicant in the OA unsuccessfully. The order passed by this Tribunal in the said OA reads thus:-
Earlier in point of time, the applicants filed a Writ Petition bearing No.2547/2002, which came to be disposed of along with similar petitions by Delhi High Court vide order dated 24.02.2004. The applicants have now been given, by virtue of the orders passed by the High Court, appointment specifically mentioned in Para 24 of the judgment that the appointment would be with effect from the date when the office orders are issued. Said petitioners would not be entitled to seniority or any back wages to the post of Assistant Engineer. Having been appointed pursuant to the orders of the High Court, applicants would re-agitate the matter with regard to the seniority by comparing their case with that of Shri N.C.Sharma. We are of the firm view that once the High Court has declined the relief to the applicants as regards seniority, the Tribunal can only dismiss this OA. SO ordered. Rejoining the submission, Mr. Rajeev Sharma learned counsel for applicant, made reference to the order dated 24.02.2004 passed in a batch of Writ Petitions viz CW No. 2547/2002( R.P.Gupta & Ors Vs. Municipal Corporation of Delhi etc. etc ), whereby the Honble High Court dismissed the claim of the petitioners for seniority and back wages. Nevertheless immediately the counsel for respondents also placed reliance on the said judgment and espoused that in the said case, the Division Bench of Honble High Court could take note of the facts of the case of respondent no.5 extensively and did not find anything wrong in the action of respondents No. 1 to 4 in giving him appointment even after his remaining unsuccessful in the judicial proceedings before Honble High Court and Honble Supreme Court. The counsel for respondent No.5 also produced a copy of list of 60 candidates prepared in order of merit after scrutiny by Honble Justice Mr.G.C.Jain (retired) and submitted that the name of the applicant was at serial No.47 of the said list.
5. To meet the plea of delay raised on behalf of respondents, Mr. Rajeev Sharma, learned counsel for applicant submitted that being dismissed from service w.e.f. 7.04.2006, the applicant was out of service and it was after his reinstatement w.e.f. 10.09.2010 that he could know about the seniority position of respondent No.5 at serial no. 282-A only when in the order No F.8 (8)/CED (II)/96/Pt.VI/2011/Rev./6444 dated 5.12.2011 vide which the respondents sought RDA/Police case report in respect of, inter alia, the applicant and respondent No. 5, and immediately thereafter he made a representations to respondents No 1 to 4 on 18.01.2012 and 31.08.2012 asking for fixation of his seniority above respondent No.5. Confronted with such stand on behalf of applicant, Ms. Kittu Bajaj counsel for respondent No. 5 interjected and submitted that an order ref lecting the date of appointment and seniority position of Mr. N.C.Sharma was also circulated in the year 2005, thus when the applicant could know about his seniority position and date of regular appointment as AE in 2011, he had equal opportunity to acquire such information in the year 2005 also. To rebut the plea, Shri Rajeev Sharma submitted that after 2005, he was dismissed from service in the year 2006, thus being out of department and he could not get such opportunity.
6. We heard counsels for parties and perused the record. As far as the plea of delay raised on behalf of respondents is concerned, we find that the seniority list of Assistant Engineer circulated vide Circular No.F.8(45)/CED (II)/92/RK/5 dated 15.02.1999 did not contain the name of either the applicant or respondent no.5. Thereafter, admittedly no seniority list of Assistant Engineer has been issued. Such situation is quite weird and bizarre. It is strange that without circulating a seniority list of Assistant Engineer displaying the name of the applicant and R-5, the respondents even could make further promotions as Executive Engineer and Superintending Engineer. May be in the year 2005, the Municipal Corporation of Delhi had issued order No. F. 8(8)/CED-II/96/Pt.VI/26158-60 dated 13.09.2005 calling for report regarding service of charge sheet upon, inter-alia, applicant and R-5 and in the said list the particulars of applicant and respondent No. 5, including their seniority position as AE were reflected, but in the year 2006 i.e on 07.04.2006 just after little over five months, the applicant was dismissed from service, therefore, his plea that he could get no opportunity to know about such communication is plausible. Thereafter, he was reinstated in service on 10.09.2010 and when after said date the first communication reflecting the seniority position of the applicant and respondent No.5 was issued, the applicant made representation to the authority claiming seniority above R-5. In the wake, the plea of delay raised on behalf of the respondents is rejected. May be after judicial determination of a dispute between two private parties involving their individual interests, the party unsuccessful before the judicial forum on technical ground or even on merit may own its liability to grant the relief espoused by the opposite party in the judicial proceedings. In such situation, there may be no occasion for any one to make a complaint. But in such cases, where the successful party is the State and after judicial determination of a dispute, the State concedes such relief to an individual which was nixed by the judicial forum right upto Honble Supreme Court, the grouse would be raised. The authorities of the State or its instrumentalities represent the interest of the public and once at a given point of time, the State take a particular stand before the judicial forum and the stand is accepted right upto Honble Supreme Court, it is not open for the State authorities or the executive to act contrary to the judicial verdict. Such stand is not permissible even when there is change in the Government /Authority/Guard.
7. In Kshiti Goswami and Others Vs Subrata Kundu and Others (2013) 11 SCC 618), Honble Supreme Court ruled that the successor in office should not take a view contrary to one taken by his predecessor. Relevant excerpt of the judgment read thus:-
4. The State Government and its functionaries challenged the order of the Tribunal in WPST No. 169 of 1997. The same was dismissed by the Division Bench of the High Court vide order dated 12.09.1997, the relevant portions of which are extracted below:-
Accordingly, we are clear of the view that the decision of the successor Minister in charge of the Public Works Department is arbitrary and illegal and that in the facts and circumstances of the case in view of the principle laid down by the Privy council in R.T. Rangachari v. Secy of State for India in Council is binding upon the successor-in-office of the Minister concerned and the Minister concerned should not take a contrary view when the candidates appeared and they have acquired a right.
In this connection the Supreme Court in Shankarsan Dash V. Union of India held that it cannot be said that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. (S.C.C. p.50, para 7).
Of course keeping the name in the panel does not automatically offer to get employment. But in view of the principles laid down by the Supreme Court the State Government cannot make any discrimination or favouritism in the matter of giving employment that the departmental candidates should get employment and the candidates whose names were sponsored by the employment exchange should go out of consideration and the successor-in-office should not take a contrary view. Accordingly, there is no scope for acting in such an arbitrary manner.
Accordingly, we are of the view that the view taken by the learned Tribunal was justified and we do not find any reason to interfere with the decision taken by the learned Tribunal.
In terms of the order the Tribunal the offer of appointments should be given to the candidates on the basis of the merit list within a period of two months from the date of communication of this order.
5. It is borne out from the record that the direction given by the Tribunal, which was confirmed by the High Court was not implemented on the ground that the left of the merit list had come to an end in 2002. Therefore, some of the successful candidates filed Application No. OA/TA/MA/CCP/RA 215/2005, which was dismissed by the Tribunal vide order dated 5-4-2006. The writ petition filed by them was also dismissed by the High Court.
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9. The only question which requires examination in this petition is whether the High Court could have, while considering the grievance made by the respondents about non-compliance with order dated 12-9-1997 issued directions for appointment of the successful candidates despite the fact that prayer made by them for punishing the petitioners was not entertained.
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11. It is not in dispute that the Selection Committee had recommended the names of 179 candidates including the respondents. Shri Pijush Roy, learned counsel for the petitioners stated that out of 179 candidates recommended by the Selection Committee, 161 were appointed and the remaining 18 persons were not appointed despite the directions given by the Tribunal and the High Court because the merit list had become defunct. He made strenuous effort to persuade as to take the view that in exercise of contempt jurisdiction the High Court cannot issue direction for implementation of the order, violation of which led to the initiation of the contempt proceedings, but we have not felt persuaded to agree with him. Rather, we are in complete agreement with the High Court that one of the objects of the contempt jurisdiction which is exercised by the High Court under Article 215 of the Constitution read with the Contempt of Courts Act, 1971 is to ensure faithful implementation of the direction given by it. This is precisely what the Division Bench of the High Court has done in this case. Therefore, we do not find any valid ground or justification to entertain the petitioners challenge to the impugned order.
xxx xxx
13. The Chief Secretary, Government of West Bengal, the Principal Secretary, Public Works Department (Roads), West Bengal and the Chief Engineer, Public Works Department (Roads), West Bengal are directed to implement order dated 12-9-1997 passed by the High Court in Principal Secy. Writers Building v. Santanu Mitra within a period of four weeks from today. The appointments to be made hereinafter shall be effective from the date of the order of the Tribunal. It should be specifically mentioned in the appointment letters that the applicants shall get all consequential benefits including seniority except the pay which shall be notionally fixed. In the said case, Honble Supreme Court followed the view taken by the Privy Council in R.T. Rangachari Vs. The Secretary of State for India in Council (45 L.W.139). In the said case, it could be ruled that once the authority in command duly authorized in that behalf arrived honestly at one decision, the successor cannot purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision. Relevant excerpt of the judgment read thus:-
The answer to the first question seems to their Lordships plainly to be in the affirmative. It is not contended that R.351 of the pensions rules relating to conduct had any bearing on the matter or justified withdrawal of the pension. But their Lordships appreciate that for reasons which have already been indicated, irregularity or slackness of procedure may have given rise to suspicions of good faith which the investigation of the subject in this action has, or ought to have, entirely removed. In these circumstances the case becomes a case in which after Governments Officials duly competent and duly authorized in that behalf have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation, purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision. It seems to require no demonstration that an order purporting to remove the appellant from the service at a time when, as their Lordships hold, he had for some months duly and properly ceased to be in the service, was a mere nullity and cannot be sustained. It follows that in their Lordships view the appellant had and has, every right to complain of the stoppage of the pension as a breach of the rules relating to pensions. Both Courts below so held and their Lordships are in entire agreement with their decision on this point. In the present case, the Corporation had taken a view that on account of delay the R-5 had lost his right to appointment as Assistant Engineer and espoused the same before the Honble High Court successfully. Thereafter, it was not open to Corporation to act to the contrary and more so for the reason that such act could adversely affect the seniority position and promotional avenue of the other incumbents of the post of Assistant Engineer i.e the third parity. Nevertheless, normally in view of the fact that the appointment of R-5 was made long back in the year 1999 and he had got 16 marks in the selection, we could have nixed the relief in the OA summarily, but our such view would have shaken the confidence of the applicant not only in the Governmental system but also in the judiciary. The necessity of a judiciary which is in tune with the social philosophy of the Constitution as emphasized in the words of Honble Justice Krishna Iyer in S.P.Gupta Vs. Union of India and Another etc.etc. (1981 (Supp) SCC 87), is not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing. The quote is reproduced hereinbelow:-
Appointment of Judges is a serious process where judicial expertise, legal learning, life's experience and high integrity are component, but above all are two indispensable-social philosophy in active unison with the socialistic articles of the Constitution, and second, but equally important, built-in resistance to pushes and pressures by class interests, private prejudices, government threats and blandishments, party loyalties and contrary economic and political ideologies projecting into pronouncements.
Justice Krishna Iyer goes on to say in his inimitable style:
Justice Cardozo approvingly quoted President Theodore Roosevelt's stress on the social philosophy of the Judges, which shakes and shapes the course of a nation and, therefore, the choice of Judges for the higher Courts which makes and declares the law of the land, must be in tune with the social philosophy of the Constitution. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing. In the said case, it was held that it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. Relevant excerpt of the judgment read thus:-
it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective.
Independence of the Judiciary is not genuflexion; nor is it opposition to every proposition of government. It is neither Judiciary made to Opposition measure nor Government's pleasure.
Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says, "Be you ever so high, the law is above you." This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution.
With such role of the judiciary, the act of the Corporation to proceed to give such right to an individual which was nixed by the judiciary particularly by the highest Court of the land cannot be ignored lightly. As could be ruled by Honble Supreme Court in Oma @ OMprakash & Anr Vs. State of Tamil Nadu (AIR 2013 SC 825), Judge has no weapon or sword. Judges greatest strength is the trust and confidence of the people, whom he serves. The judicial decision is being perceived by the parties and by the society in general as being the result of a correct application of the legal rules, proper evaluation of facts based on settled judicial precedents and judge shall not do anything which will undermine the faith of the people. The relevant excerpt of the judgment read thus:-
19. Learned trial judge has also opined that the imposition of death sentence under Section 396 of the IPC is the only weapon in the hands of judiciary under the prevailing law to help to eliminate the crime. Judiciary has neither any weapon in its hands nor uses it to eliminate crimes. Duty of the judge is to decide cases which come before him in accordance with the constitution and laws, following the settled judicial precedents. A Judge is also part of the society where he lives and also conscious of what is going on in the society. Judge has no weapon or sword. Judge's greatest strength is the trust and confidence of the people, whom he serves. We may point out that clear reasoning and analysis are the basic requirements in a judicial decision. Judicial decision is being perceived by the parties and by the society in general as being the result of a correct application of the legal rules, proper evaluation of facts based on settled judicial precedents and judge shall not do anything which will undermine the faith of the people. Therefore, if the Corporation is found justified in itself giving appointment to applicant as Assistant Engineer, which was specifically nixed by Honble Delhi High Court and Honble Supreme Court, a wrong message/signal will go and the faith in judicial system would be shaken. We could have taken a serious view of the matter, but we can also not ignore the fact that appointment of the applicant even after being unsuccessful before Honble Delhi High Court and Supreme Court was taken note by High Court while deciding a batch of Writ Petitions including CW.No. 2547/2002 in terms of the judgment dated 24.02.2004 and once no adverse view is taken against the Corporation by Honble High Court, we have all reasons to believe that their act of giving appointment to Respondent-5 even after dismissal of his WP and RP by Honble High Court and SLP by Honble Supreme Court is acceptable. When the petitioners in CW No.2547/2002 etc before Honble High Court decided on 24.02.2004, sought extension of the benefit granted to Mr. N.C.Sharma, R-5 i.e. fixation of his seniority above the R-5 with consequential benefits, the applicant herein has questioned his seniority i.e. he has challenged the fixation of his seniority, thus there is difference between the claim of petitioners in said petition ( R.P.Gupta and Others etc. and that of applicant) and the applicant herein. When R.P.Gupta and Others etc. had no plea that appointment of respondent-5 was detrimental to their interests, the applicant before us has a plea that had Mr. N.C.Sharma been not appointed, he could be one step above in the seniority list of Assistant Engineer (Civil) and could have got consequential benefits. In other words, the plea of the applicant is that appointment of R-5 has worked to his detriment and the loss should be made good by giving him seniority above him. Anyhow though we may we have taken a view that the OA of the applicant may not be liable to be rejected as time barred, we cannot ignore the stand of the respondent-5 herein and the legal position that the settled position of seniority/promotion should not be unsettled after a long delay. As far as respondent No.5 is concerned, it is not the case of either of the parties that he had not got 16 marks in the selection process. He kept on working out his right before Honble High Court, Honble Supreme Court and before the Corporation thereafter. For one reason or the other, the Corporation could give him appointment as Assistant Engineer (Civil) in the year 1999 initially with immediate effect i.e. from 12.02.1999 and subsequently w.e.f. 26.02.1991. By now more than 16 years from the date of appointment of respondent no.5 have passed. At this belated stage, it would be highly unfair and unjustified either to interfere with his appointment or to lower his seniority. Any direction to lower the seniority of Mr.N.C.Sharma below applicant would bring him down by 29 slots. Likewise any direction to put applicant herein above R-5 would bring him up by 24 slots including i.e. above those whose seniority position is between 283 to 306 and who are not even party before us. No such direction can be issued at this belated stage. Besides, once R-5 had got 16 marks and was entitled to be included in the select list of 60 (sixty) persons, the Corporation could have given him his dues at appropriate stage. Nevertheless, as it is the case of R-5 himself that his name could be included only in the select list prepared by Honble Justice G.C. Jain (Retd.) during the pendency of the LPA and thereafter he started making efforts to get his dues, once he got appointment, irrespective of the date of his appointment i.e. 26.02.1991, in terms of the Department of Personnel and Training Office Memorandum No.22011/7/86-Estt.(D) dated 03.07.1986, he was entitled to fixation of his seniority with reference to his position in the select panel prepared by Honble Justice G.C.Jain (Retd.). Para 2.1 of the OM read thus:-
2.1 The relative seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendations 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. As could be viewed by Honble Supreme Court in the case of K.R. Mudgal and Ors Vs. R.P.Singh and Others ( AIR 1986 SC 2086), the seniority cannot be interfered after a long delay of 18 years. Para 7 of the judgment read thus:-
7. The respondents in the writ petition raised a preliminary objection to the writ petition stating that the writ petition was liable to be dismissed on the ground of laches. Although. the learned single Judge and the Division Bench have not disposed of the above writ petition on the ground of delay, we feel that in the circumstances of this case the writ petition should have been rejected on the ground of delay alone. The first draft seniority list of the Assistants was issued in the year 1958 and it was duly circulated amongst all the concerned officials. In that list the writ petitioners had been shown below the respondents. No objections were received from the petitioners against the seniority list. Subsequently, the seniority lists were again issued in 1961 and 1965 but again no objections were raised by the writ petitioners, to the seniority list of 1961, but only the petitioner No. 6 in the writ petition represented against the seniority list of 1965. We have already mentioned that the 1968 seniority list in which the writ petitioners had been shown above the respondents had been issued on a misunderstanding of the Office Memorandum of 1959 on the assumption that the 1949 Office Memorandum was not applicable to them. The June 1975 seniority list was prepared having regard to the decision in Ravi Varma's case (AIR 1972 SC 670) (supra) and the decison of the High Court of Andhra Pradesh in the writ petitions filed by respondent Nos. 7 and 36 and thus the mistake that had crept into the 1968 list was rectified. Thus the list was finalised in January, 1976. The petitioners who filed the writ petition should have in the ordinary course questioned the principle on the basis of which the seniority lists were being issued from time to time from the year 1958 and the promotions which were being made on the basis of the said lists within a reasonable time. For the first time they filed the writ petition in the High Court in the year 1976 nearly 18 years after the first draft seniority list was published in the year 1958. Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the Government servants created by the writ petitions filed after sevaral years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him should approach the court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the Government servants there would also be administrative complications and difficulties. Unfortunately in this case even after nearly 32 years the dispute regarding the appointment of some of the respondents to the writ petition is still lingering in this Court. In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches. The facts of this case are more or less similar to the facts in R. S. Makashi v. I. M. Menon (1982) 2 SCR 69: (AIR 1982 SC 101). In the said decision this Court observed at page 100 (of SCR): (at P. 115 of AIR) thus :
"In these circumstances, we consider that the High Court was wrong in overruling the preliminary objection raised by the respondents before it, that the writ petition should be dismissed on the preliminary ground of delay and laches, inasmuch as it seeks to disrupt the vested rights regarding the seniority, rank and promotions which had accrued to a large number of respondents during the period of eight years that had intervened between the passing of the impugned Resolution and the institution of the writ petition. We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 22, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition in so far as it related to the prayer for quashing the said Government Resolution should have been dismissed."
Also in B.S.Bajwa and Another Vs. State of Punjab and Another ( JT 1998(1) SC 57), it has been held thus:-
7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the Judgments of the single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance made by B. S. Bajwa and B. D. Kapoor only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystallised which ought not to have been re-opened after the lapse of such a long period.
At every stage the others were promoted before B. S. Bajwa and B. D. Kapoor and this position was known to B. S. Bajwa and B. D. Kapoor right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition. In the circumstances, particularly the fact that appointment of respondent No.5 is 16 years old and the seniority of 24 persons between the applicant who are not parties before us and that of respondent no.5 was determined in the year 1999, we are not inclined either to bring down the seniority of respondent No.5 below the applicant or to place the applicant before us in the seniority list above Mr. N.C.Sharma. The fact of appointment of the respondent no.5 being brought to the notice of Honble High Court in more than one proceeding any interference with his appointment at this stage is out of question. Nevertheless, the burning question raised by the applicant is that whether the Corporation could have overreached the judicial pronouncement. At best, he can argue that may be the respondent No.5 has been given the benefit despite judicial orders against him, but the loss caused to him on account of appointment of respondent No.5 should be made good. It cannot be the case of applicant that he is entitled to be pushed up in the seniority list by 24 stages. Had respondent 5 been not appointed, the applicant could have been only one slot of above in the seniority list and could have claimed only such right and privileges given to the person next above him. The respondent No.5 can also be not made to go down below 24 persons who never questioned his appointment or fixation of his seniority. May be the applicant could justify the belated claim on the ground of his being out of service for about four long years, such plea may not be available to all others who are assigned seniority between the applicant and respondent no.5. Moreover, after his appointment as Assistant Engineer (Civil), the fixation of seniority of Respondent 5 with reference to his position in the select list of direct recruit is in consonance with the Rules. Nevertheless, in the case of Ansar Alam and Others Vs. MCD and Others, to which both R-1 and Respondent No.5 were party, it was ruled that an efforts to do complete justice between the parties is a compulsion of judicial conscience and the Court can and should strive to evolve an appropriate remedy, in the facts and circumstances of a given case, so as to prevent injustice arising from the exigencies of the cause or the matter before it. Relevant excerpt of the judgment read thus:-
It has to be borne in mind that an effort to do complete justice between the parties is a compulsion of judicial conscience and the Court can and should strive to evolve an appropriate remedy, in the facts and circumstances of a given case, so as to prevent injustice arising from the exigencies of the cause or mater before it. Also in S.P.Gupta Vs. Union of India and Another etc. etc. (1981) (Supp.) SCC 87), Honble Supreme Court ruled that what is necessary is to have a Judges who is prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability. Relevant excerpt of the judgment read thus:
What is necessary is to have a Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statement with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability. In the present case, as is admitted by the parties, the applicant is due to retire on 31.08.2015. His only plea is that the appointment of respondent no.5 even after rejection of his Writ Petition by Honble High Court and SLP by Honble Supreme Court could cause loss of his seniority and promotional avenues. Such loss could be of one slot only. Such loss caused to him may be considered as contrary to the orders passed by Honble High Court and Supreme Court relating to the appointment of Respondent No. 5. Thus, to give a quietus to the controversy and to do justice to applicant herein before us, we dispose of the Original Application with direction to respondents to consider giving him all such benefits given or could have been given in normal course to the individual who is just next above him in his cadre in the department at present. The monetary benefits, if any, admissible to applicant, as a result of such consideration would be given to him only notionally and he would be entitled to actual benefits only from prospective date. Respondents are directed to do the needful within three weeks. Before parting with, we observe that the multifarious litigation in the MCD including the present one have cropped up only because the DPCs for promotion are not held timely. The respondents should take necessary steps to bring down such avoidable litigation. No costs.
(V.N.Gaur) (A.K.Bhardwaj) Member (A) Member (J) sunil/sk .. ..