State of U.P. & ANR Vs. V. Ram
Gopal Shukla [1981] INSC 89 (10 April 1981)
MISRA, R.B. (J) MISRA, R.B. (J) KOSHAL, A.D.
CITATION: 1981 AIR 1041 1981 SCR (3) 460 1981
SCC (3) 1 1981 SCALE (1)687
CITATOR INFO :
R 1981 SC1575 (1,2)
ACT:
Uttar Pradesh Promotion by Selection in
Consultation with Public Service Commission (Procedure) Rules, 1970, Rules 7A
and 7B-Whether the rules are discriminatory and violative of Articles 14 and 16
of the Constitution.
New plea-New plea cannot he allowed at the
time of hearing of the appeal in the Supreme Court.
HEADNOTE:
The selection for the posts of Tehsildars in
the State of U.P. was to be made by promotion from amongst various sources such
as Naib Tehsildars, Peshkars of the Kumaon Division, Kanungos, Kanungo Inspectors
or Instructors and Sadar Kanungos as per the procedure laid down in rules known
as Uttar Pradesh Adheenasth Rajaswa Karyakari (Tehsildar) Sewa Niyamavali,
1966. The procedure for selection is regulated by Rule 9 and under sub-section
(6) of this Rule a select list will be drawn in order of merit separately for
substantive vacancies and temporary vacancies and officials will be offered
officiating or temporary vacancies in the order in which their names have been
arranged in the "select list" as and when the vacancies occur during
the course of the year. This "select list" will hold good only for
one year or until such time a review is made at the following selections.
Subsequently, the State Government made the
Uttar Pradesh Promotion by Selection in Consultation with Public Service
Commission (Procedure) Rules, 1970, which governed various services, to be more
specific 29 Uttar Pradesh services including the services of Tehsildars. The
purpose of these rules was to standardise the procedure for promotion and make
it uniform in respect of such services.
The procedure laid down in the 1970 Rules for
promotion as Tehsildars was not substantially different from that laid down in
the Tehsildars Rules, 1966. By a Notification No. 4214/196.-Appointment, 3 dated
4th July, 1972 two new rules were introduced, namely, Rules 7A and 7B, in the
1970 Rules.
As per these newly added rules candidates in
the Select List made under the 1966 Rules were to be appointed against
substantive vacancies in preference to any candidates selected in accordance
with the provisions of the 1970 Rules and unless the candidates in the list
were exhausted, other eligible candidates were not to be considered for
promotion so that their chances of promotion would be deferred to an undated
future.
461 The respondent who started his service as
Kanungo in 1949, was promoted as Naib Tehsildar and in 1962 he was confirmed as
such. In 1963, he was appointed as Tehsildar in an officiating capacity. In
accordance with the ]966 Rules the Uttar Pradesh, Public Service Commission
selected 148 persons for substantive appointment as Tehsildars and their names
were shown in a list known as List-A. The Commission also selected 300 other
persons for temporary or officiating appointment as Tehsildars during the
coming years and their names figured in what was called List-B. The respondent
was, however, not selected and his name could not be included in either of the
aforesaid two lists because he had an adverse entry forming part of the remarks
recorded on his work and conduct and had also been shown down below at serial
557 in the seniority list of Naib Tehsildars in the year 1966.
Though the adverse entry was expunged in the
year 1969 and his seniority was also re-fixed at serial number 216 on 6th
October, 1970, since there was no selection after 1966, his name could not be
included in either of the two lists even thereafter.
The respondent challenged the vires of Rules
7A and 7B by filing a petition under Article 226 of the Constitution in the
High Court of Allahabad. That petition was allowed in part and Rules 7A and 7B
were declared ultra vires Articles 14 and 1 6 of the Constitution, in the
impugned judgment.
Hence the appeal by special leave by the
State.
Dismissing the appeal, the Court, ^
HELD: 1:1. Rules 7A and 7B of the Uttar
Pradesh Promotion by Selection in Consultation with Public Service Commission
(Procedure) Rules, 1970, are ultra vires Articles 14 and 16 of the
Constitution. [466 E, 473 A-B] 1:2. The grievance of the respondent, namely, that
he had a fundamental right of being considered for promotion when others
similarly situated were so and that if he was not considered in a situation
like that, he was discriminated against and was denied equality of opportunity
is not only factually correct but well founded. [467 B-C] 2:1. It is true that
the rules regulating the conditions of service are within the executive power
of the State or its legislative power under the proviso to Articles 309 of the
Constitution, but even so, such rules have to be reasonable, fair and not
grossly unjust if they are to survive the test of Articles 14 and 16 of the
Constitution.
A rule, which contemplates that unless the
list of 300 persons is exhausted no other person can be selected obviously, is
unjust and it deprives other persons in the same situation of the opportunity
of being considered for promotion. [470 F-H] 2:2. The classification in this
case cannot be said to be a reasonable classification based on the intelligible
differentia having a nexus to the object sought to be achieved. The only basis
of grouping the 300 persons in one category is that they were included in the
select list of 1966 and that they were officiating. The respondent, in the
instant case, could not be selected in the selection of 1966 on account of an
adverse entry which was subsequently expunged. His position in the seniority
list was also corrected but because no selection took place after 1966.
The respondent could not be included in the
list for no fault of his. If there held 462 been a section and the list had
been revised every year, as is the requirement of the rules, the respondent,
and like him many others, would have been included in the list. For example,
some candidates who had not completed seven years could not be eligible for
promotion and could not be included in the Select List of 1966 but after a
lapse of time they became eligible and they might have been selected if
selection had taken place. But, the door for promotion had been foreclosed for
the respondent and many others like him by Rules 7A and 7B for no fault of
theirs. The objection taken by the Public Service Commission and the letter of
the Secretary or the Board of Revenue addressed to the Government indicating
that it would take about 24 years to absorb 300 persons included in List-B and,
therefore, recommending that the list may not be enforced would point out
unmistakably that the selection was unnecessarily postponed only to accommodate
the 300 persons included in the Select List of 1966. There is no rational basis
for such a departure from the ordinary operation of the 1970 Rules which
envisaged the preparation of a new list every year and for singing out one
particular list for according preferential treatment to others in the similar
situations [469 B-F, 470 A-C] State of Jammu and Kashmir v. Triloki Nath Khosa
and others [1974] 1 S.C.R. 771; Ramesh Prasad Singh v. State of Bihar and
others, [1978] 1 S.C.R. 787 and Ganga Ram and others v. Union of India and
others, [1973] 3 S.C.R. 481, applied.
Reserve Bank of India v. C.S. Rajappan Nair
and others, I.L.R. 1977 Kerala 398, approved.
3. In a case where the vires of certain rules
were challenged as being violative of the Articles 14 and 16 of the
Constitution, only State is a necessary party. The other persons likely to be
affected by the declaration of the rules as ultra vires are only proper
parties. [471 E-F]
4. A party cannot be permitted to take up a
new plea in the appeal for the first time before this Court which was not taken
before the High Court in writ petition. [472 E-F] General Manager, South
Central Railway, Secundrabad an Anr. v. A.V.R. Siddhanti and Ors., [1974] 3
S.C.R. 207, followed.
B. Gopalaiah v. Government of Andhra Pradesh,
A.I.R.
1969 A.P. 204 and J.S. Sachdev and Ors. v.
Reserve Bank of India and Anr., I.L.R. (1973) II Delhi 392, approved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 282 of 1980.
Appeal by special leave from the judgment and
order dated the 29th March, 1980 of the Allahabad High Court (Lucknow Bench)
know in Writ Petition No. 524 of 1979.
AND CIVIL MISCELLANEOUS PETITION Nos. 4905
and 11949 of 1980.
463 G.N. Dixit, Mrs. Shobha Dikshit and H.R.
Bhardwaj for the Appellants.
S.N. Kackar, K.K Mohan, Rajiv Datta and A.S.
Pandit for the Respondent.
A.N. Pareek and S.K Jain for the Intervener.
The Judgment of the Court was delivered by
MISRA, J. The present appeal by special leave is directed against the judgment
dated 29th March 1979 of the Allahabad High Court allowing a petition under
Article 226 of the Constitution.
In the State of Uttar Pradesh, there is a
Service commonly known as Naib Tehsildars. They have always formed the backbone
of the revenue administration in that State.
Sixty per cent of the posts of Naib
Tehsildars are filled through a competitive examination held by the State
Public Service Commission. The remaining posts are filled by promotion. There
is another Service in that State known as the Service of Tehsildars. Cent
percent of the posts of Tehsildars are filled by promotion from amongst various
sources such as Naib Tehsildars, Peshkars of the Kumaon Division, Kanungos,
Kanungo Inspectors or Instructors and Sadar Kanungos.
Ram Gopal Shukla, the respondent, started his
service as Kanungo in 1949. In due course, he was promoted as Naib Tehsildar.
In 1962, he was confirmed as such, and in 1963 he was appointed as Tehsildar in
an officiating capacity.
It appears that a regular selection for the
posts of Tehsildars was held in 1966 in accordance with the Uttar Pradesh
Adheenasth Rajaswa Karyakari (Tehsildar) Sewa Niyamavali, 1966 (hereinafter
referred to as 'the Tehsildar Rules 1966'). Rule 5 of these Rules provides the
sources of recruitment to the post of Tehsildar. Rule 6 thereof lays down
conditions for eligibility and provides,- "For the purposes of recruitment
to the Service a selection strictly on merit shall be made from amongst all the
permanent Naib Tehsildars, Tehsildars, Peshkars of the Kumaon Division, Kanungo
Inspectors or Instructors and Sadar Kanungos, who have put in not less than
seven years' service in the aggregate as such or in an equivalent or higher 464
post in a substantive or officiating capacity on the first day of January of
the year in which the selection is made." Rule 7 enjoins upon the Parishad
to report by list of March every year to the Government the number of vacancies
in the Service expected during the following calendar year, and then provides
that the Governor shall fix the number of appointments to be made. Rule 8 lays
down the criterion for selection. Rule 9 prescribes the procedure for
selection. As this rule is important for the purpose of the present case, it is
reproduced in so far as it is relevant,- "9. The procedure for selection
shall be as follows:
(1) The Parishad shall draw up, in order of
merit, a list of most suitable candidates from amongst those who are eligible
for promotion to the posts of Tehsildars.
The names in the list shall ordinarily be
double the number of substantive vacancies to be filled during the course of
the year.
(2) The Parishad shall also draw up, in order
of merit, a supplementary list containing names of officials considered
suitable for officiating or temporary vacancies expected to occur during the
course of the year.
(3) The two lists drawn up under clauses (1)
& (2) above together with a gradation list prepared under clause (b) of
Rule 10, indicating therein the reasons for passing over the seniors, if any
and the character rolls of all the eligible officials shall be forwarded by the
Parishad to the Commission ........ ... ... " (4) The Parishad shall
thereafter, in consultation with the Commission, fix date, on which a Selection
Committee consisting of- ... ... ... ...
shall consider the cases of the eligible
candidates whose names are contained in the final lists drawn up by the
Commission and interview such of them as are indicated by the Commission under
clause (3) above.
(5) The lists of the names selected by the
Committee shall be taken with him by the representative of the Commission 465
for placing them before the Commission, and the Commission, shall thereafter
send their final recommendations to the Parishad.
(6) The Parishad shall draw from the first
list received from the Commission under clause (5) above, as many candidates as
there are permanent vacancies and will thereafter re-arrange their names in
accordance with their seniority in the present service and they will be
appointed against the substantive vacancies.
The remaining names of the first list and
those of the second list will be regarded as forming the 'Select List' to be
drawn up in order of merit. The officials will be offered officiating or
temporary vacancies in the order in which their names have been arranged in the
aforesaid 'Select List' as and when the vacancies occur during the course of
the year. This 'Select List' will hold good only for one year or until such
time review is made at the following selection. (Emphasis supplied) (7) In case
permanent vacancies do not occur for two consecutive years and it becomes
necessary to make a selection for temporary or officiating vacancies only, then
also the procedure prescribed above will be followed." In accordance with
the aforesaid rules, the Uttar Pradesh Public Service Commission selected 148
persons for substantive appointment as Tehsildars and their names were shown in
a list known as List A. The Commission also selected 300 other persons for
temporary and officiating appointment as Tehsildars during the coming years and
their names figured in what was called List B. The respondent was, however, not
selected and consequently his name could not be included in either of the
aforesaid two lists, presumably because he had an adverse entry forming part of
the remarks recorded on his work and conduct and had also been shown down below
at serial No. 557 in the seniority list of Naib Tehsildars in the year 1956
Though the adverse entry was expunged in the year 1969 and his seniority was
also re- fixed at serial No. 216 on 6th of October 1970, as there was no
selection after 1966, his name could not be included in either of the two
lists. He has, however, no grievance on that account.
Subsequently, the State Government made the
Uttar Pradesh Promotion by Selection in Consultation with Public Service
Commission (Procedure) Rules, 1970 (hereinafter referred to as 'the 466 1970
Rules'). These rules govern various Services, to be more specific 29 U.P.
Services including the Service of Tehsildars. The purpose of these rules
obviously was to standardise the procedure for promotion and make it uniform in
respect of all such Services. The procedure laid down in the 1970 Rules for
promotion as Tehsildar was not substantially different from that laid down in
the Tehsildar Rules 1966. The respondent, therefore, did not feel aggrieved
even by the introduction of the 1970 Rules. His grievance started only with the
introduction of rules 7-A and 7-B to the 1970 Rules by notification
No.42/4/1966- Apptt. 3 dated 4th of July 1972. As the question to be decided in
this case is about the vires of rules 7-A and 7- B, it will be appropriate to
read them at this stage,- "7-A. Notwithstanding anything contained in
these rules, but subject to the proviso to rule 18, the names of candidates on
the Select List appointed in temporary or officiating vacancies prior to the
date of issue of this notification, shall be rearranged in order of
seniority." "7-B. The candidates of the Select List as rearranged in
accordance with rule 7-A shall be appointed against substantive vacancies in
preference to any candidate selected in accordance with the provisions of these
rules." The complaint of the respondent was that the aforesaid new rules
7-A and 7-B were discriminatory and violative of Article 14 and 16 of the
Constitution, in as much as the candidate in the Select List of 1966 were to be
appointed against substantive vacancies in preference to any candidate selected
in accordance with the provisions of the 1970 Rules and unless the candidates
in the list were exhausted, other eligible candidates were not to be considered
for promotion so that their chances of promotion would be deferred to an
undated future. The further grievance of the respondent was to the following
effect. The Select List was to hold good only for one year or until such time a
review was in made at the following selection. Thus, the life of the Select
List of 1966 was for one year only on the expiry of which it died its natural
death. In this view of the legal position, the appointment of Tehsildars from
the Select List of 1966 after the expiry of a year from the date of its
operation was illegal on the face of it. On the strength of Rule 7-A and rule
7B, no selection was to be held unless 300 persons included in List were
absorbed.
The respondent challenged the vires of rules
7-A and 7- B by filing a petition under Article 226 of the Constitution in the
High 467 Court of Allahabad. That petition was allowed in part and rules 7-A
and 7-B were declared ultra vires Articles 14 and 16 of the Constitution in the
impugned judgment.
Shri Dixit, appearing for the State has
contended that a mere chance of promotion is not a condition of service giving
rise to a fundamental right. We are afraid this contention is irrelevant to the
decision of this case. The precise grievance of the respondent has been that he
had a fundamental right of being considered for promotion when others similarly
situated were so considered and that if he was not considered in a situation
like that, he was discriminated against and was denied equality of opportunity.
This grievance, if factually correct, must be held to be well-founded.
It was next contended by Shri Dixit that the
candidates covered by rule 7-A are a class by themselves, that the
classification is a reasonable classification and that as the respondent does
not satisfy the requirements of rule 7- A, he cannot claim that any infraction
of Article 14 or 16 bas taken place.
According to Shri Dixit, two conditions are
necessary to bring a person within the fold of that rule: (1) the candidate's
name must have been included in the Select List;
and (2) he must have been appointed in a
temporary or officiating vacancy prior to the date of issue of the notification
of 4th July 1972. The respondent did not satisfy these requirements and
therefore did not fall within the purview of rule 7-A. Rule 7-B gives
preference to the candidates in the Select List as rearranged in accordance
with rule 7-A, which, according to Shri Dixit, was based on a reasonable
classification and therefore the respondent can have no grievance. In support
of this contention, reliance has been placed on Reserve Bank of India v. C.S.
Rajappan Nair and others, State of Jammu & Kashmir v. Triloki Nath Khosa
and others, Ramesh Prasad Singh v. State of Bihar and others, and Ganga Ram and
others v. Union of India and others. In C.S. Rajappan Nair (supra), the
classification of a group of employees who had officiated in a particular
capacity as a different class, treating them differently from others who had
not the opportunity to function as such, was held to be an intelligible
differentia which can stand the test of equality provided by Article 16 of the
468 Constitution. In Triloki Nath Khosa (supra), persons appointed directly and
by promotion had integrated into a common class of Assistant Engineers. The
question arose whether for the purpose of promotion to the cadre of Executive
Engineers, they could be classified on the basis of educational qualification.
It was held by this Court that the rule providing that graduates shall be
eligible for such promotion to the exclusion of diploma holders did not violate
Articles 14 and 16 of the Constitution. In Ramesh Prasad Singh (supra), this
Court, dealing with principle of equality under Articles 14 and 16, observed,-
"The doctrine of equality before law and equal protection of laws and equality
of opportunity in the matter of employment and promotion enshrined in Articles
14 and 16 of the Constitution which is intended to advance justice by avoiding
discrimination is attracted only when equals are treated as unequals or where
unequals are treated as equals. The guarantee of equality does not imply that
the same rules should be made applicable in spite of differences in their
circumstances and conditions. Although Articles 14 and 16 of the Constitution
forbid hostile discrimination, they do not forbid reasonable classification and
equality of opportunity in matters of promotion means equality as between
members of the same class of employees and not equality between members of
separate independent classes.
... ... ...
Equality is for equals, that is, who are
similarly circumstanced are entitled to an equal treatment but the guarantee
enshrined in Articles 14 and 16 of the Constitution cannot be carried beyond
the point which is well-settled by a catena of decisions of this Court "
In Ganga Ram (supra), dealing with Articles 14 and 16 of the Constitution, this
Court again held,- "Mere production of inequality is not enough to attract
the constitutional inhibition because every classification is likely in some
degree to produce some inequality. The classification need not be
scientifically perfect or logically complete. The matter has to be considered
in a practical way without whittling down the equality clause. The
classification must however be founded on intelligible differentia 469 which on
rational grounds distinguishes persons grouped together from those left out,
and it must bear a just and reasonable relation to the object sought to be
achieved." There is no dispute with the principles of law laid down in the
aforesaid cases. By now, the principles of classification are well-settled and
need not be repeated.
The question is of application of those
principles to the facts of the present ease. The only basis for grouping the
300 persons in one category is that they were included in the Select List of
1966 and that they were officiating. The respondent in the instant case could
not be selected in the selection of 1966 on account of an adverse entry which,
as stated earlier, was subsequently expunged. His position in the seniority
list was also corrected but because no selection took place after 1966 the
respondent could not be included in the list for no fault of his. If there had
been a selection and the list had been revised every year as is the requirement
of the rules, the respondent, and like him many others, would have been
included in the list. For example, some candidates who had not completed seven
years could not be eligible for promotion and could not be included in the
Select List of 1966 but after a lapse of time they became eligible and they
might have been selected if selection had taken place. But, the door for
promotion had been of reclosed for the respondent and many others like him by
rules 7-A and 7-B for no fault of theirs. In this connection reference may be
made to the objection of the Public Service Commission and the letter of the
Secretary of the Board of revenue, to show that it would take. about 24 years
to absorb 300 persons included in List B. The Secretary, Board of Revenue, vide
his letter No. 14708/T.N.T.-59-A/70 dated 30th of January 1973, to the
Secretary, Government Revenue Department (filed as Annexure II to the
counter-affidavit), recommended that the List may not be enforced. In so far as
it is pertinent for the present purpose, it reads,- "On the basis of the selection
in the year 1966, the List 'B' was prepared for 300 names. During this period
all the candidates of list 'B' are working. So long as all these candidates are
not absorbed in the regular vacancies, the question of second selection does
not arise till then. Only 56 vacancies have occurred after the selection of
1966. According to this the average vacancies in a year are at 10, with the
result, it will take 24 years to exhaust the above list. Till then no selection
is Possible." 470 In the circumstances, the Secretary requested the
Government to take steps to recommend to the Public Service Commission to make
the next selection of Tehsildars without any further delay. The objections of
the Secretary, Board of Revenue, were similar to the objections raised by the
Public Service Commission. These letters and objections point out unmistakably
that the selection was unnecessarily postponed only to accommodate the 300
persons included in the Select List of 1966. There appears to be no rational
basis for such a departure from the ordinary operation of the 1970 Rules which
envisaged the preparation of a new list every year and for singling out one
particular list for according preferential treatment to the persons whose names
were contained therein. The classification in this case therefore cannot be
said to be a reasonable classification based on intelligible differentia having
a nexus to the object sought to be achieved.
It is, however, contended for the State that
the selection could not take place for all these long years because of a stay
order passed by the High Court in petitions filed by some candidates
challenging the Tehsildar Rules 1966. This has been refuted by Shri S.N. Kacker
and a finding recorded by the High Court makes out that there was no order
staying the holding of selection. All that was stayed was the confirmation of
the officers promoted to the posts of Tehsildars. It is therefore not correct
that selection could not take place because of a stay order from the High
Court.
As a second limb of this argument, it was
contended on behalf of the State that the Government was the sole judge of the
administrative necessities and there being no rule to the contrary, the
Government could hold selection according to the need and no exception can be taken
to the power of the State.
There is no denying the fact that the rules
regulating the conditions of service are within the executive power of the
State or its legislative power under the proviso to Article 309 but even so,
such rules have to be reasonable, fair and not grossly unjust, if they are to
survive the test of Articles 14 and 16 of the Constitution. A rule which
contemplates that unless the list of 300 persons is exhausted no other person
can be selected, obviously is unjust and it deprives other persons in the same
situation of the opportunity of being considered for promotion.
471 It was next contended for the State that
the declaration of rules 7-A and 7-B as ultra vires the Constitution would
affect not only the incumbents of one Service but of 29 Services and a fairly
large number of persons would be affected in that situation, that the
respondent did not implead any of those persons likely to be affected in the
various Services, that in any case, at least the Naib Tehsildars or other persons
who have been promoted as Tehsildars and who are likely to be affected by the
declaration of rules 7-A and 7-B as ultra vires should have been impleaded as
parties and that in the absence of those parties, the writ petition was not
maintainable and should have been dismissed by High Court on that score.
Shri S.N. Kacker appearing for the
respondent, on the other hand, has contended that no such plea was taken on
behalf of the State before the High Court and that, therefore, it cannot be
permitted to take up a new plea for the first time before this Court.
Elaborating the point, Shri Kacker urged that if such a plea had been taken
before the High Court, the respondent would have impleaded all those persons as
parties and filled up the lacuna, if any, and that if the State is permitted to
take up such a plea for the first time before this Court, it would seriously
prejudice the case of the respondent. Alternatively, it was contended that the
respondent is aggrieved by the amendment of the 1970 Rules by the 1972
notification which introduced rules 7-A and 7-B, that the respondent has
challenged the vires of rules 7-A and 7-B and only the State is a necessary
party who has already been impleaded, and that at the most, those persons who
are likely to be affected in case the said rules are declared ultra vires, may
be proper parties but are not necessary parties. He sought to take support for
his contention from B. Gopalaiah v. Government of Andhra Pradesh, J.S. Sachdev
& Ors. v. Reserve Bank of India & Anr., and General Manager, South
Central Railway, Secundrabad & Anr. v. A . V. R. Siddhahi and Ors In
Gopalaiah's case dealing with a situation as in the present case, the Andhra
Pradesh High Court held,- "This is not a case of discrimination of individual
against individual. This is a case where a whole class of citizens have been
discriminated against and the court cannot refuse to give relief to them on the
ground that the 472 class of persons who will be benefited as a result of the
discrimination are not before the Court. The person who complains of
discrimination cannot be expected to search the country for all persons who are
likely to be benefited by its discriminatory policy. Of course, if the
discrimination is in favour of an individual against an individual different
considerations might arise. But this is not such a case. In my opinion, where a
scheme formulated by the Government is attacked on the ground of its being
discriminatory the position is precisely the same as if a statute is attacked
as being discriminatory and it can never be an answer to such an attack that
persons likely to be benefited by a discriminatory statute should be brought
before the Court before the statute is struck down." In J.S. Sachdev's
case (supra), a Division Bench of the Delhi High Court endorsed the view taken
in Goplaiah's case (supra). In South Central Railway's case (supra), a similar
objection taken before the Supreme Court was repelled on two grounds, firstly,
because this point was not canvassed in the lower courts, and secondly, because
the employees who were likely to be affected as a result of the re-adjustment
of the petitioner's seniority were at the most proper parties and not necessary
parties and their non-joinder could not be fatal to the writ petition.
In view of the law laid down in South Central
Railway's case (supra), the State cannot be permitted to take up a new plea
which was not taken before the High Court.
Shri B.P. Sharma had moved an application
(C.M.P. No.49051.80) for permission to intervene in the appeal on the ground
that he was vitally interested in the outcome of the instant appeal which would
have a great bearing upon the claim petition pending before the Service
Tribunal, Lucknow.
This application was ordered to be listed at
the time of the hearing of this appeal. He also moved an application (C.M.P.No.
11949/80 for modification of the stay order dated 23rd of April 1980 in the
appeal filed by the State, so as to govern other cases affected by rules 7-A
and 7-B of the 1970 Rules, as amended by the 1972 notification. Later on, he
realised that such an application could not be moved on behalf of an
intervener, and therefore, instead of pursuing this application, he 473 filed
Writ Petition No. 3806 of 1980, which has been dealt with separately. Both
these applications are, therefore, dismissed.
For the reasons given above, we find no error
in the impugned judgment. We accordingly dismiss the appeal.
Parties shall, however, bear their own costs.
S.R. Appeal dismissed.
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