P.K. Paul vs UOI

Badar Durrez Ahmed, J.—This writ petition is directed against the order dated 05.05.2009 passed by the Central Administrative Tribunal, Principal Bench, New Delhi, in O.A. No. 2196/2008. The issue involved in the present writ petition concerns the relative seniority between the promotees and direct recruits in the post of Junior Research Officer in Signals Intelligence Directorate of Ministry of Defence, Government of India. The petitioners are direct recruits and the respondent Nos. 3 and 9 are promotees. This case has a chequered history. This was the 3rd round of litigation before the Tribunal. Insofar as this petition is concerned, it would be pertinent to only mention what happened in the 2nd round before the Tribunal. The 2nd round was when the petitioner herein filed OA No. 1719/ 2006 which was disposed of by the Tribunal by an order dated 27.07.2007 after elaborately considering the decision of the Supreme Court in the case of Nani Sha and Others Vs. State of Arunachal Pradesh and Others, . The decision of the Supreme Court in Nani Sha (supra) was quoted in extenso in the said order dated 27.07.2007 wherein several other decisions of the Supreme Court were also referred to including the decision of the Supreme Court in the case of State of Uttaranchal & Anr. v. Dinesh Kumar Sharma 2007 (1) SCC 683. The Tribunal disposed of the said O.A. No. 1719/2006 by virtue of the said order dated 27.07.2007 by giving the following directions:-

Having regard to the above, we have no doubt in our mind that the aforesaid decision of the Apex Court disallows the seniority of the promotees from the date they were not even borne in the cadre. Accordingly, the aforesaid decision has to be followed. DOP&T instructions, though no doubt in absence of statutory rules govern the seniority aspect but the decision of the Apex Court would override and prevail over the instructions.

In the light of above, we partly allow this O.A. Revised seniority list is set aside. Respondents are directed to re-examine the aspect of seniority between direct recruits and promotees in the light of the decision of the Apex Court (supra) by a detailed and speaking order to be passed within two months from the date of receipt of a copy of this order, followed with publication of final seniority list. No costs.

It is clear from the above that the Tribunal had given the direction to the official respondent to re-examine the aspect of seniority between direct recruits and promotees in light of the decision of the Supreme Court decision in the case of Nani Sha (supra). The respondents were directed to pass a speaking order within two months from the date of receipt of a copy of the said order dated 27.07.2007.

The speaking order was passed by the respondent on 21.02.2008. But, from the speaking order we find that there is absolutely no discussion with regard to the Supreme Court decision in the case of Nani Sha (supra). Instead, reliance has been placed on the DOP&T advise dated 23.09.2007 which had already been considered by the Tribunal while passing the order dated 27.07.2007.

Being aggrieved by the speaking order dated 21.02.2008, the petitioner herein filed O.A. No. 2196/2008 wherein the Tribunal passed the impugned order dated 05.05.2009. In the impugned order, we find that the entire issue of consideration on the basis of the Supreme Court decision in the case of Nani Sha (supra) has been side stepped. On the other hand, the Tribunal has gone on to examine the DOP&T clarification dated 03.03.2008. It has essentially relied on the last portion of the said clarification which says that cases of seniority already decided with reference to any other interpretation of the term "available" as contained in the OM dated 03.07.1986 need not be re-opened. Consequently, the Tribunal came to the conclusion that since the speaking order had concluded the matter on 21.02.2008 and the clarification had been issued on 03.03.2008, the issue could not be re-opened.

We are afraid we do not agree with this manner of dealing with the matter. It is absolutely clear that the speaking order did not at all consider the Supreme Court decision in Nani Sha (supra). As such, the speaking order was liable to be set aside on that ground alone because the clear direction of the Tribunal in the order dated 27.07.2007 was that the respondents should re-examine the aspect of the seniority between direct recruits and the promotees in the light of the decision of the Supreme Court in the Nani Sha (supra). Since that had not been done by the respondent and the speaking order did not reflect any such consideration, the speaking order ought to have been set aside by the Tribunal. On the contrary the Tribunal side stepped the entire issue and decided against the petitioner by misinterpreting the DOP&T clarification dated 03.03.2008. We are clear that it is not a case of review inasmuch as the issue of seniority was pending and not had already been decided.

Consequently, the impugned order is liable to be set aside. It is set aside. We also set aside the speaking order dated 21.02.2008 and we direct the respondent to pass a fresh speaking order in terms of what has been observed hereinabove and particularly in terms of the Tribunal''s earlier order dated 27.07.2007 passed in O.A No. 1719/2006 where there was a specific direction given to the respondent to re-examine the aspect of seniority between the direct recruits and the promotees in the light of the Supreme Court decision in the case of Nani Sha (supra). We direct that the speaking order be passed within six weeks from today. The writ petition is allowed to the aforesaid extent. There shall be no order as to costs.