Subodh
Kumar Jaiswal and Ors Vs.
Union of India &
Ors [2008] INSC 383 (5 March 2008)
Dr. ARIJIT PASAYAT & S.H. KAPADIA CIVIL APPEAL NO. 1776 OF 2008 (Arising out of S.L.P. (C) No.12364/2006) W I
T H CIVIL APPEAL NO. 1777 OF 2008 (Arising out of S.L.P.(C) No.1178/2007) Dr.
ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in these appeals is to the order passed by a Division Bench of
the Bombay High Court allowing the writ petitions filed by Gulabrao Dharmu Pol,
respondent No.4 in appeal relating to SLP ( C ) No.12364/2006 and Mr. Suresh A.
Kakkar, respondent No.4 in appeal relating to SLP (C) No.1178/2007.
3. A brief reference to the factual position would suffice.
The position as obtaining in the appeal relating to S.L.P.(C) No.12364/2006
is noted as the factual scenario is common to both the appeals.
On 18.4.1979, respondent No.4 was appointed as trainee Deputy Superintendent
of Police by the Government of Maharashtra subject to completion of training,
practical training and passing of tests in certain subjects. According to the
appellants, only if these conditions are fulfilled, he was to be appointed on
regular basis to a cadre post in the cadre of Dy.SP/ACP. In other words, it is
stated that on completion of the probation satisfactorily, respondent No.4 was
appointed to the cadre post and started officiating as Dy.SP/ACP on regular
basis w.e.f. 3.8.1981 in terms of the Home Department, Government of
Maharashtra Order dated 1.2.1982. The appellants were directly recruited to the
Indian Police Service (in short 'IPS') and allocated to the State of
Maharashtra with the allotment year as 1985. By order dated 13.4.1989,
respondent No.4 was confirmed as DSP w.e.f. 31.12.1987.
According to the appellants, there was no challenge to the delay, if any, in
his confirmation. On 3.8.1989, in terms of the third proviso to Regulation 5(2)
of the applicable Regulations, i.e. Indian Police Service (Appointment by
Promotion) Regulations, 1955 (in short 'Regulation') he became eligible for
consideration for promotion to the IPS on completion of eight years of
continuous service in the post of DSP in the State cadre. On 26.2.1990, the
Selection Committee met and considered the candidates who were substantive
Dy.SPs who were eligible as on 1.1.1990 including respondent No.4. On 8.3.1991,
respondent No.4 was promoted to IPS along with seven others, including Shri
S.A. Khopde. They all became juniors to the appellants who were appointed at
least six years earlier. Respondent No.4 did not press his claim for
consideration for promotion in the year 1988 itself. On 9.2.1993, he and other
promotees of his batch were confirmed in the IPS w.e.f. 8.3.1992. They were
given 1987 as the year of allotment in the IPS. On 27.7.1994, a representation
was made by respondent No.4 to treat 1984 as the year of allotment by treating
him as having been appointed in the year 1988 iteself. Subsequently, another
representation was made in January, 1995. O.A.No.807/1996 was filed before the
Central Administrative Tribunal, Mumbai Bench (in short, the Tribunal) praying
for appropriate year of allotment in the IPS on the ground that though he was
eligible, he was not considered for the vacancies of 1988. The Union of India
and the Union Public Service Commission (in short, 'UPSC') resisted the claim
of respondent No.4. The Tribunal dismissed the O.A. inter-alia holding that the
O.A. was barred by time and suffered from delay and laches as the respondent
No.4 made a representation for the first time on 27.7.1994, much after his
alleged claim for the year of allotment being 1988. It was held that if his
claims were to be allowed, it would unsettle the settled position for about
eight years. The review petition filed by respondent No.4 was also dismissed. A
writ petition was filed by respondent No.4 challenging the judgments of the
Tribunal. The same was allowed by condoning the delay in approaching the
Tribunal and it was directed that the official respondents were to redetermine
his year of allotment as 1987 (which was later corrected to be 1988). It was
also held that if respondent No.4 was eligible for being considered for the
vacancies in 1988, his seniority shall be determined treating him as entitled
to be promoted in the year 1988 and his year of allotment should be determined
accordingly. A contempt petition (C.P.No.10/2006) was filed by respondent No.4
and the Union of India implemented the judgment of the High Court without
preparing any seniority list for the year 1988 by changing his year of
allotment from 1987 to 1984 and placing him above the appellants who were
direct recruits of the year 1985. This was done under threat of contempt. The
High Court disposed of the contempt petition as not pressed since the judgment
had been complied with. As the appellants were not parties before the High Court, after obtaining
permission to file S.L.P., the Special Leave Petitions were filed.
4. Mr. P.P. Rao, learned senior counsel for the appellants, primarily
challenged the judgment of the High Court on the ground that the appellants who
would be directly affected by the order of the High Court were not parties
before the High Court. In any event, there was not even an application for
condonation of delay in moving the Tribunal. A stale claim purportedly relating
to 1988 was raised for the first time in 1994. The High Court could not have
directed that the official respondents were to determine the seniority of
respondent No.4 treating his year of allotment as 1988 and he was entitled to
be promoted in the vacancies occurring in the year 1988. It was further
submitted that had the appellants been impleaded as parties, they could have
pointed out the fallacy in the claim of respondent No.4 and as to how he was
not entitled to be considered for promotion. Learned counsel for respondent
No.4, however, submitted that no direct relief was claimed against the
appellants and, therefore, there was no need to implead them as parties.
Additionally, it is submitted that when respondent No.4 noticed that his claim
has been bypassed without any legitimate reason, he made the representation.
From the stand of the Union of India, it appears that the proper course was to
prepare three separate lists, which is the normal procedure, for the years in
question if for any year the selection was not held. But that apparently was
not done in view of the High Court's direction. The writ petition before the
High Court related to both eligibility and promotion.
5. As has been pointed out by learned counsel for the appellants, there are
two channels for appointment to the IPS, one is by promotion from the service
candidates and the other is by direct recruitment. The direction of the High
Court is some-what confusing. The same reads as follows:
"13. Under the aforesaid facts and circumstances, especially in the
light of the above two Supreme Court Judgments, in Union of India and Others
V/s. Vipinchandra Hiralal Shah (1997) Supreme Court Cases (L & S) 41, and
Devendra Narayan Singh and Others V/s. State of Bihar and Others AIR 1997 SC
595, we set aside both the aforesaid orders of Central Administrative Tribunal
and we hold that in the case of the petitioner, the year of allotment would be
1987 and he is eligible for being considered for promotion in the vacancies
occurring in the year 1988. Our view that in the case of the petitioner, the
year of allotment would be 1987 is reiterated by the Government of India's
communication to the Petitioner dated 26th May, 1994. In the light of the
above, the Respondents shall determined the Petitioner's seniority treating his
year of allotment as 1987 and that the Petitioner was entitled to be promoted
in the vacancies occurring in the year 1988 itself. Rule is accordingly made
absolute with costs."
Subsequently, para 13 was corrected to read as follows:
"Now the corrected Paragraph 13 in our aforesaid judgment and order
will read as under: "Under the aforesaid facts and circumstances, especially in the light
of the above two supreme Judgments, in Union of India and Others V/s. Vipinchandra Hiralal Shah (1997) Supreme Court Cases (L&S) 41, and
Devendra Narayan Singh and Others V/s. State of Bihar and Others AIR 1997 SC
595, we set aside both the aforesaid orders of Central Administrative Tribunal
and we hold that in the case of the petitioner, he is eligible for being
considered for promotion in the vacancies occurring in the year 1988. In the
light of the above, the Respondents shall determine the Petitioners seniority
treating the Petitioners as entitled to be promoted in the vacancies occurring
in the year 1988 itself and his year of allotment/seniority should be
determined accordingly. Rule is accordingly made absolute with costs."
6. Somewhat inconsistent directions were given; first was to consider the
year of allotment to be 1987 and consider respondent No.4's case. Subsequent
part was the conclusion that respondent No.4 was entitled to promotion. It is
pointed out by learned counsel for the Union of India and the State of
Maharashtra that if all eligible persons are to be impleaded, that would be
impossible because it is not known how many persons all over the country would
be affected. We find that nobody else has moved this Court. Therefore, that
question may not strictly arise for consideration in the present case. Additionally, as rightly contended by learned counsel for the appellants,
there was practically no explanation for the belated approach to the Tribunal,
and the normal procedure of preparing year-wise seniority list was given a go
bye because of High Court 's direction.
7. Be that as it may, in our view, the judgment of the High Court is clearly
inconsistent and is set aside. We direct the Central Government to draw up
year-wise lists for the concerned years, determine the eligibility of
respondent No.4 and take a decision in that regard within a period of two
months from today. Needless to say that the Central Government, while
undertaking the exercise, shall not be influenced by any observations made by
the High Court or by us in the present judgment. It shall be open to the
parties, if any or all of them affected by the decision, to avail such remedies
as are available in law. We express no opinion in that regard.
8. By order dated 17.9.2007, a Bench of this Court passed the following
order: "Government would be entitled to fill in the vacancies subject to the
result of the special leave petition."
9. If any action has been taken pursuant to the said order, it shall
continue to be operative until fresh decision is taken by the Central
Government. It needs no reiteration that by giving this protection, we have not
expressed any opinion on the merits of the case.
10. The appeals are accordingly disposed of without any order as to costs.
Back
Pages: 1 2 3
