Dr. Satya Prakash vs Govt. of NCT of Delhi and Others

A.K. Sikri, J.—OA No. 2175/2005 filed by the petitioner herein claiming seniority and promotion with effect from the date his junior got the same has been dismissed by the learned Tribunal on two counts, namely:-

(a) This OA was barred on the principles of constructive res judicata contained in Order XXIII Rule 1 of the Code of Civil Procedure, 1908 as the petitioner had filed similar OA claiming same relief on an earlier occasion, which was dismissed as withdrawn without giving any opportunity to the petitioner to file fresh OA on the same cause of action; and

(b) The petitioner had racked up the matter relating to seniority finalized long ago and, therefore, such an application was to be dismissed on the ground of delays and laches as a settled issue of seniority could not be reopened.

Following are the material facts which need a mention to understand the validity of the aforesaid reasons given by the Tribunal while dismissing the OA filed by the petitioner.

The petitioner was selected for the post of Drawing Teacher and he joined in that capacity with the respondent/Govt. of NCT of Delhi on 21.12.1981. The respondents 4 to 8 herein were appointed as Drawing Teachers on 4.2.1982. According to the petitioner, they were appointed in terms of subsequently held selections and at a later point of time and were, therefore, junior to the petitioner. The post of Drawing Teacher is in TGT scale.

Tentative seniority list of these drawing teachers was issued on 7.4.1986. The petitioner, in the seniority list, was shown junior to respondent Nos. 4 to 8 herein. He filed his objections to the said seniority list. According to him, he did not hear anything further in the meantime. Thereafter, only in 1997-98 he came to know that respondent Nos. 4 to 8 were promoted as PGT when he came across the eligibility list. He made representation dated 14.6.2001, which was followed by various representations/reminders seeking correction of the seniority list. According to him, when these representations were not replied to, he approached the Tribunal by filing OA No. 393/2004. It was disposed of by the Tribunal vide orders dated 16.2.2004 giving directions to the respondent to consider the representation dated 19.1.2004 and pass speaking orders. On the basis of this direction, matter was considered by the Director of Education, who passed orders dated 13.4.2004 rejecting his representation on the ground that the petitioner as well as the respondent Nos. 4 to 8 had been selected in the same panel in 1981-82 and since respondent Nos. 4 to 8 were above in the merit list, they were treated as senior to the petitioner. He challenged this decision dated 13.4.2004 by filing OA No. 1286/2004. This OA was dismissed as withdrawn on 28.10.2004 in the following manner:-

Counsel for the applicant has submitted that he has instructions from the client to withdraw this OA. Both the counsel for Respondents have no objection. OA is dismissed as withdrawn leaving the parties to bear their own costs.

According to the petitioner, though it was not specifically recorded in the aforesaid order, reason for withdrawal of the said OA was that representation made by the petitioner claiming seniority was under consideration with the Chairperson, Inter-Grievance Cell (Directorate of Education) and when he appeared before the Chairperson on 26.10.2004, he was asked to withdraw the OA before his representation could be considered, as is clear from the minutes of the meeting held on 26.10.2004, which are to the following effect:-

The case is about awarding correct seniority of Drawing teacher to the applicant and promotion with retrospective effect to the post of PGT w.e.f. 1999 Mrs. Mandakini Thakur, JDE (Admn.) and Sh. Ashok Kumar, Superintendent EII were present in the meeting. The applicant admitted that he has filed a court case against Deptt. in CAT and may apply for withdrawal of the same from the court on 28-10-2004 when case if fixed for hearing in the CAT. The chairperson directed that this case may be listed on 08-11-04.

He pointed out that it was because of the aforesaid reason that he withdrew the OA. Thereafter, he intimated the factum of withdrawal to the Chairperson vide his letter dated 6.11.2004. This fact was duly noted by the Chairperson. Only thereafter the grievance of the petitioner was considered, but unfortunately rejected vide orders dated 26.7.2005. On this basis submission was that withdrawal of OA No. 1286/2004 in the aforesaid circumstances could not be held against him as he was compelled to do so by the respondents themselves to enable them to consider his grievance. In a situation like this, argued the learned counsel, the provisions of Order XXIII Rule I CPC would not be applicable. He referred to the following two judgments in support of his contention:-

(i) V.D. Barot vs. State of Gujarat and Ors., (2002) 10 SCC 668

The order under challenge pertains to discharge of the appellant from the post of probationary Public Sub-Inspector. The appellant had been prosecuted for offences punishable under Sections 302, 307, 325, 324, 323, 452 read with Sections 147, 148 and 149 of the Indian Penal Code and for the offence punishable u/s 135 of the Bombay Police Act. The Additional Sessions Judge, Mehsana acquitted him of all charges by an order made on 25.8.1999. However, the appellant having been discharged from service by an order made on 13.1.1999 filed a writ petition to enable him to make a representation regarding his discharge and that request was allowed by the High Court. The representation having been rejected, the appellant filed another writ petition challenging the rejection of his representation. The petition was dismissed on the basis that the withdrawal was unconditional and hence the appellant cannot reagitate the same matter. LPA was filed against the said order. The High Court took the view that a fresh petition is not maintainable in respect of the same subject matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. In substance the appellant is challenging the order of discharge and not merely the order made rejecting the representation to reconsider the order of discharge.

The Division Bench of the High Court also held that as the appellant had abandoned the writ proceeding filed in the first instance, the Court is not expected to investigate further into the matter and the order of discharge had become final.

We cannot subscribe to the view expressed by the High Court in the order under appeal. In the first place the High Court ought to have examined whether the rejection of the representation was justified in the circumstances set forth in the order impugned in the High Court. Secondly, the matter had not been abandoned as such but to enable the appellant to make representation in the matter, the petition had been withdrawn. That course of action does not amount to abandonment of the matter. Moreover, such a matter should not be dealt with in a hypertechnical manner but on the totality of the circumstances arising in the case of the appellant. Hence, we set aside the order of the High Court and remit the writ petition to the High Court for fresh disposal on merits in accordance with law. The appeal is allowed accordingly.

(ii) Jet Ply Wood Private Ltd. and Another Vs. Madhukar Nowlakha and Others,

The aforesaid position was reiterated by the learned Single Judge of the High Court in his order dated 4.2.2005 though the language used by him is not entirely convincing. However, the position was clarified by the learned Judge in his subsequent order dated 14.3.2005 in which reference has been made to a Division Bench decision of the Calcutta High Court in Rameswar Sarka which, in our view, correctly explains the law with regard to the inherent powers of the Court to do justice between the parties. There is no doubt in our minds that in the absence of a specific provision in the CPC providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the CPC can be restored to in the interest of justice. The principle is well established that when the CPC is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, as follows: (SCR p. 459):

It is well settled that the provisions of the Code are not exhaustive for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them.

Based on the aforesaid principle, the Division Bench of the Calcutta High Court, in almost identical circumstances in Rameswar Sarkar case, allowed the application for withdrawal of the suit in exercise of inherent powers u/s 151 of the Code of Civil Procedure, upon holding that when through mistake the plaintiff had withdrawn the suit, the court would not be powerless to set aside the order permitting withdrawal of the suit.

Rebutting the ground of delay, learned counsel for the petitioner submitted that though the respondent stated before the Tribunal that after the tentative seniority list was issued on 7.4.1986, the final seniority list was circulated on 21.3.1988 wherein the petitioner was shown as junior to respondent Nos. 4 to 8, which was never brought to the notice of the petitioner and, therefore, the petitioner did not come to know about the same. He further submitted that only when respondent Nos. 4 to 8 were promoted to the higher post in 1997-98 on the basis of eligibility list that he came to know that they were treated as senior to the petitioner. His further submission was that after the directions dated 16.2.2004 passed by the Tribunal in OA No. 393/2004, the respondent No. 3 had passed speaking orders on 13.4.2004 rejecting his representation, it is that date on which cause of action accrued in favour of the petitioner. He further submitted that thereafter the Grievance Committee also looked into the matter and passed speaking orders dated 26.7.2005, which was challenged by the petitioner in OA No. 2175/2005 and the Tribunal failed to examine the matter from this angle which would clearly demonstrate that there was no delay. In this behalf, he referred to the following judgments of the Apex Court :

(i) Sualal Yadav Vs. The State of Rajasthan and Others,

A preliminary objection was taken by the State in the High Court that the application merited dismissal because of undue laches and delay on the part of the appellant. The High Court found that the review application was made to the Governor after a lapse of about two years which was unreasonable delay according to the High Court. That is the main reason why the High Court accepted the preliminary objection and dismissed the writ application. We are unable to hold that the High Court''s approach in this matter was correct. Since the Governor had not dismissed the review application on the ground of delay and having entertained the same held it to be a case not fit for review, we take the view that the Governor dismissed the review application on merits. That being the position, it was not open to the High Court to resurrect the ground of delay in the review application at a remote stage and make it a ground for dismissing the writ application. We therefore allow the appeal, set aside the order of the High Court and remit the writ application for disposal in accordance with law. It is hoped the High Court will be able to dispose of the same expeditiously. There will be no order as to costs.

(ii) G.P. Doval and Others Vs. Chief Secretary, Government of U.P. and Others,

A grievance was made that the petitioners have moved this Court after a long unexplained delay and the Court should not grant any relief to them. It was pointed out that the provisional seniority list was drawn up on March 22, 1971 and the petitions have been filed in the year 1983. The respondents therefore submitted that the Court should throw out the petitions on the ground of delay, laches and acquiescence. It was said that promotions granted on the basis of impugned seniority list were not questioned by the petitioners and they have acquiesced into it. We are not disposed to accede to this request because respondents 1 to 3 have not finalized the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners. Petitioners went on making representations after representations which did not yield any response, reply or relief. Coupled with this is the fact that the petitioners belong to the lower echelons of service and it is not difficult to visualize that they may find it extremely difficult to rush to the court. Therefore, the contention must be rejected.

We are unable to accept any of the aforesaid submissions of learned counsel for the petitioner in the facts and circumstances of this case.

We shall first deal with the ground of delay and laches given by the Tribunal in dismissing the OA of the petitioner.

Even as per the petitioner''s own showing, tentative seniority list was issued in the year 1986. The petitioner has alleged that he was not informed about the final seniority list which was issued on 21.3.1988. It is difficult to accept such a plea of the petitioner. This list was circulated along with the covering memo dated 21.3.1988 wherein it was specifically mentioned that said final seniority list was prepared after considering the objections received against the tentative seniority list dated 7.4.1986. In para 2 of this memo, Heads of schools were requested to circulate the seniority list to all Drawing Teachers, as is clear from the following stipulation :-

Head of the Schools are requested to circulate the seniority list to all the Drawing Teachers concerned working in their Schools and obtain their signature in token of having seen the same and a certificate to that effect be sent to this office by 15.4.1988.

Endorsement to this memo discloses that this was sent to all the Heads of the Schools for circulation. It could not be denied that the same was not received in the School where the petitioner was posted at that time. There may not be many Drawing Teachers in the School where the petitioner was posted. Therefore, it is difficult to accept the plea of the petitioner that this seniority list was not circulated or brought to his notice. It is difficult to obtain proof from the School after a lapse of 20 years. Had the petitioner approached immediately, things could have been different.

Even when we proceed on the basis of averments made by the petitioner regarding acquisition of knowledge about the seniority list, we find that the conclusion would remain the same. According to the petitioner himself, he came to know about the seniority position when he came across the eligibility list for the year 1997-98. Significantly, he does not give any specific date when he came to know of the same. Even when this list is of 1997-98 and he would have come to know of this in the year 1998, as per his own showing, first representation which he made was dated 14.6.2001, which is almost three years from acquiring the knowledge of his seniority position.

Furthermore, he only kept on making representations till 2004 and approached the Tribunal for the first time by filing OA No. 393/ 2004. It was after 6-7 years of his purported knowledge about his position in the seniority list. Section 21 of the Administrative Tribunals Act, 1985 prescribes one year limitation for filing applications u/s 14 of the said Act. If the representation is made and the same is not decided within six months, this one year period is to be counted after the expiry of six months. Reckoning on that basis, the petitioner was supposed to file the OA within 1 1/2 years from 14.6.2001. Therefore, even his first OA was clearly time barred.

It is necessary to point out at this stage that this OA was disposed of on 16.2.2004 without any notice to the respondents whereby the respondents were directed to consider the representation dated 19.1.2004 made by the petitioner. Therefore, on the basis of such an order, which was obtained in an OA that itself was time barred on the date of filing, the petitioner cannot be allowed to save limitation for him. In identical circumstances, in a recent case, the Supreme Court has laid down this principle in the following manner:-

We are constrained to refer to the several facets of the issue only to emphasize the need for circumspection and care in issuing directions for consideration''. If the representation is on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing ''consideration'' of such claims.

The present case is a typical example of ''representation and relief. The petitioner keeps quiet for 18 years after the termination. A stage is reached when no record is available regarding his previous service. In the representations which he makes in 2000, he claims that he should be taken back to service. But on rejection of the said representation by order dated 9.4.2002, he filed a writ petition claiming service benefits, by referring the said order of rejection as the cause of action. As noticed above, the learned Single Judge examined the claim, as if it was a live claim made in time, finds fault with the respondents for not producing material to show that termination was preceded by due enquiry and declares the termination as illegal. But as the petitioner has already reached the age of superannuation, the learned Single Judge grants the relief of pension with effect from 18.7.1982, by deeming that he was retired from service on that day. We fail to understand how the learned Single Judge could declare a termination in 1982 as illegal in a writ petition filed in 2005. We fail to understand how the learned Single Judge could find fault with the department of Mines and Geology, for failing to prove that a termination made in 1982, was preceded by an enquiry in a proceedings initiated after 22 years, when the department in which the petitioner had worked had been wound up as long back as 1983 itself and the new department had no records of his service.

We have to keep in mind that in the instant case we are dealing with the issue of seniority. It was settled in the year 1988 and the first OA was filed in the year 2004, i.e. after a gap of 16 years. The Supreme Court reminded, time and again, that the settled issue relating to seniority should not be allowed to be reopened after a long period and should be given a quietus. The Tribunal itself has taken note of two judgments in para 16 of its impugned order in the following manner:-

Further, in K.R. Mudgal and Others Vs. R.P. Singh and Others, the Hon''ble Supreme Court was dealing with a matter in which the first draft seniority list of Assistants issued in 1958 was stated to have been circulated but no objections were received and over the years, the seniority lists were issued again and finalized in 1976 after intervention of the Hon''ble High Court of Andhra Pradesh. It was noticed that the petitioner had approached the court nearly 18 years after the first draft seniority list was published. The Apex Court has held:-

Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the government servants created by the writ petitions filed after several years as in this case. It is essential that anyone 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.

Further, it was considered necessary to also refer to ".... the weighty observations made by a Constitution bench of this Court in Malcom Lawrence Cecil D''souza Vs. Union of India (UOI) and Others, as under:-

Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one''s position in the seniority after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time.

When we consider the issue in the aforesaid perspective, we are unable to accept the submission of the petitioner that there are no delays and laches on the part of the petitioner in approaching the Court. The judgment of the Supreme Court in Sualal Yadav (supra) was not a case relating to dismissal from service and issue of seniority was not involved therein. Likewise, in G.P. Goval (supra), the argument of delay was not accepted as it was found that seniority had not been finalized and further that the petitioners were making repeated representations which did not yield any response. Another reason which weighted with the Court was that the petitioners therein belonged to lower echelons of service and would have found it extremely difficult to rush to the Court. The Supreme Court in the said case found justifiable explanation for approaching the Court belatedly by means of a writ petition. There is no period of limitation provided for filing a writ petition, whereas the Administrative Tribunal Act provides one year limitation period for approaching the Tribunal and the Supreme Court has specifically held in catena of judgments that making of repeated representations, which are not of statutory nature, would not extend the period of limitation. On the other hand, in the present case, the final seniority list was issued in the year 1988. Even when he came to know of the seniority position in the year 1997-98 as per his own averments, he approached the Tribunal for the first time in the year 2004.

The OA was, therefore, rightly dismissed on the ground of delay and laches. As the order of the Tribunal can be affirmed on this ground, it is not even necessary to decide the issue of constructive res judicata though we may observe that the petitioner has raised arguable point there. We, therefore, dismiss this writ petition as without any merit leaving the parties to bear their own costs.