Jaswant
Singh Lamba Vs. Haryana Agricultural University & Ors [2008] INSC 812 (6 May 2008)
S.B. Sinha & Mukundakam Sharma
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDCITION CIVIL
APPEAL NO. 3323 OF 2008 (Arising out of SLP (C) No.11134 of 2006) Jaswant Singh
Lamba ... Appellant Versus Haryana Agricultural University & Ors. ...
Respondents
S.B. Sinha, J.
1. Leave granted.
2. Appellant herein is aggrieved by a judgment and order dated 19.7.2005
passed by the High Court of Punjab and Haryana, dismissing a review petition
seeking review of the judgment dated on 23.11.1992.
2 The review of the said judgment was sought for by the appellant, inter
alia, on the premise that the decision of the High Court, allowing a writ
petition filed by respondent Nos.4 and 5 resulted in loss of his seniority.
Respondent Nos.4 and 5 were appointed as Sectional Officers on an ad hoc
basis on or about 11.11.1982. Respondent No.4 was appointed on a temporary post
on 27.9.1984, whereas the appellant was appointed on 5.10.1984. Respondent No.5
is said to have been appointed on a temporary post by an order dated 7.6.1985.
In a seniority list published on 23.12.1987, their seniority was shown from the
date of their regular appointment. The said respondents, however, contended
that as they were appointed in terms of the recruitment rules against permanent
vacancies, they had wrongly been appointed on an ad hoc basis on and from
11.11.1982.
Their representation that they were entitled to be appointed with effect
from 11.11.1982 on a regular basis was rejected. They filed a writ petition
before the High Court of Punjab and Haryana on 2.6.1990, praying, inter alia,
for the following reliefs :
"(a) a writ in the nature of certiorari may kindly be issued in favour
of the petitioners and against the respondents, quashing the impugned Annexure
P/9.
(b) a writ in the nature of mandamus may kindly be issued in favour of the
petitioners and respondents to grant benefit of ad hoc 3 services towards
fixation of the seniority of the petitioners and to refix their seniority after
counting their ad hoc service.
(c) a writ in the nature of mandamus may kindly be issued in favour of the
petitioners and against the respondents, directing the respondents to fix pay
of the petitioners after taking into consideration their ad hoc service towards
grant of increments etc. and to release their arrears along with interest @
Rs.180 per annum."
3. The said writ petition was allowed by the High Court by an order dated
23.11.1992 directing that the said respondents shall be deemed to be in the
service of the respondent on a regular basis from the date of their initial
appointment, holding :
"After considering the entire matter, the contention of the learned
counsel for the respondents deserves to be rejected.
Undisputedly, the petitioners were initially appointed after they had been
selected by a Committee with effect from November 11, 1982 and they had been
continuously working as such without any break till they were appointed on
regular basis. Though the services of the petitioner No.1 stood terminated by
serving him a notice dated November 11, 1983, yet he has not relieved and was
allowed to continue on the post after he gave an undertaking that in case
extension is not granted, he will not claim any salary etc.
Later on, he was granted extension of another six months by order dated
December 2, 1983.
4 Therefore, there is no break in his service even till his regular
appointment."
4. Allegedly, a seniority list was published on 18.4.1992 wherein the
appellant was shown as senior to the respondent No.5 being at serial No.16 and
respondent No.5 was shown as junior to him being placed at serial No.18.
However, another seniority list was published on 20.5.2004 wherein they were
shown as senior to the appellant. Appellant filed representations thereagainst,
inter alia, on 29.5.2004 and 24.8.2004. The said representations were rejected
by an order dated 1.1.2005, stating :
"It is intimated that your representation for fixing of seniority as
Junior Engineer above Shri A.K.
Agarwal, J.E. has been considered and rejected in the light of the decision
of the Hon'ble Pb. &
Haryana High Court in Civil Writ Petition No.9879 of 1990 dated 23.11.1992
on the basis of which Sh. A.K. Aggarwal has been treated to be joined on
regular basis from the date of his joining on ad hoc basis.
This also disposes of your all representations on the above subject."
The review application was filed thereafter in January 2005.
Respondent No.4 was appointed on temporary post before appellant and was
also shown senior to appellant in seniority lists dated 23.12.1987 5 and
18.4.1992. Thus, the appellant could have grievance only against Respondent
No.5, if any, who was appointed on temporary post later to the appellant and was
also shown junior in the abovementioned list.
5. Mr. Manu Mridul, learned counsel appearing on behalf of the appellant,
would submit that the High Court committed a serious error in passing the
impugned judgment insofar as it failed to take into consideration that the
appellant being not aware of the result of the petition filed by respondent
Nos.4 and 5 could not have moved the application for review and in that view of
the matter the same should have been entertained. There having been no time
prescribed for filing a review application, it was permissible in law for the
appellant to file the same immediately after coming to know of the order, which
has civil consequences.
6. Mr. Malhotra, learned counsel appearing on behalf of respondent No.4 and
Mr. Das, learned counsel appearing on behalf of respondent No.5, on the other
hand, took us through various documents to contend that the appellant had the
knowledge about the judgment and order dated 23.11.1992.
7. The principal question which arises for consideration herein is as to
whether in the peculiar facts and circumstances of this case, the appellant 6
can be said to have any locus standi to file the application for review of the
said judgment dated 23.11.1992.
8. Respondent Nos.4 and 5 were appointed in 1982. Their services, however,
were regularized on a later date. The question which arose for consideration
before the High Court in the said writ application was as to whether the
respondent-University was right in appointing them on an ad hoc basis although
they were selected by a Select Committee constituted in terms of the rules.
No relief therein was claimed as against the appellant. The legality of the
seniority list dated 18.4.1992 was not in question therein. Appellant was,
thus, not a necessary party; no relief having been claimed against him.
Respondent-University was directed to consider their regular appointment
with effect from 11.11.1982. The seniority list was required to be revised
keeping in view the aforementioned directions of the High Court. A fresh
seniority list was prepared pursuant to the said order. Publication of the
seniority list was merely consequential to the order of the High Court.
9. Even otherwise, the order of the High Court appears to be known to the
appellant herein.
7 By an order dated 13.5.1993, an office order was issued informing all
concerned including the Chief Engineer that the respondent No 5 would be
treated to have been appointed on a regular basis w.e.f. 11.11.1982. It is
difficult to believe that the departments where only 18 Sectional Officers were
working including Civil and Electrical Engineering Department, the appellant
would not have the knowledge thereabout.
In the seniority list published on 14.5.1993, N.S. Yadav, respondent No.4,
was shown at serial number 12; A.K. Aggarwal, respondent No.5, was shown at
serial number 13 and the appellant was shown at serial number 17.
Therein the date of joining etc. had categorically been stated, from a
perusal whereof it would be evident that whereas 12.11.1982 was shown to be the
date of joining of the respondent Nos.4 and 5, so far as the appellant is
concerned, his date of joining was shown as 3.10.1984.
10. Appellant and others filed a representation on 24.5.1993; paragraphs 2
and 3 whereof reads as under :
"It is further learnt that seniority list of Jr.
Engineers is being disturbed through various manipulations under the
promotion quota. The Selection Committee has already met and submitted its
recommendations. Under the garb of these recommendations, the administration is
trying to accommodate out of turn Sh. N.S. Yadav, who is an AMIE holder and is
junior to at least 11 Jr. Engineers. He is being considered for the above 8
promotion on the plea that a degree holder is required. Such an out of turn promotion
is violative, as per statutory provision.
It will not be out of place to mention here that the Haryana Govt. does not
consider AMIE equivalent to degree (BE) holder for design purpose as has been
clarified in another case of the employee of the university. Moreover for
promotion seniority is the only criteria and even for direct recruitment a
person with AMIE is not eligible. Hence in view of the existing rules, for the
promotion of Sh. N.S. Yadav would amount to violation of rules and open to legal
litigation."
11. The subject matter of the grievances was as to why respondent No.4 who
was placed at serial No.12 should be considered for the promotional scale
despite he being junior to eleven persons. Evidently, the seniority list was
known to them. Only grievance raised therein as to whether degree of AMIE, held
by him should be considered to be equivalent to the BE degree.
Respondent No. 4, in his counter affidavit, categorically stated that the
order of the High Court dated 23.11.1992 was brought to the knowledge of
everybody including the appellants stating :
"The said fact of the respondent Nos.4 and 5 having been accorded
seniority over and above the petitioner was again brought to the knowledge of
the petitioner and other officers when the said respondents were granted
promotional scales vide order dated 27.01.1996 issued by the respondent No.1
herein. The said order dated 27.01.1996 9 issued by the respondent No.1 is also
placed on record by the respondent No.5 as Annexure R- 5/13."
12. It is also not in dispute that respondent No.4 was granted the
promotional scale.
Thus, only because a seniority list was again published in the year 2004 and
the appellant filed representations thereagainst, the same by itself could not
be a ground for unsettling a settled position.
13. Even otherwise, the application for review at the instance of the
appellant was not maintainable. The order dated 23.11.1992 became final and
binding as against the University. The University accepted the said judgment.
No appeal was preferred thereagainst. Appellant and others who claimed
themselves to be seniors to respondent Nos. 4 and 5 could have preferred a
Letters Patent Appeal before the Division Bench of the High Court, but they
chose not to do so for a long time.
14. Appellant could not be permitted to contend in the review application
that respondent Nos.4 and 5, in fact, had rightly been appointed on an ad hoc
basis, as he was not a necessary party in the writ petition filed by the said
respondents.
10
15. Mr. Mridul has relied upon a decision of this Court in J. Jose Dhanapaul
v. S. Thomas & Ors. [(1996) 3 SCC 587]. We fail to understand as to how the
said decision is applicable. In that case, without impleading Thomas as a
party, his appointment was annulled. It was in that context, the court opined
that he was a necessary party.
R. Sulochana Devi v. D.M. Sujatha & Ors. [(2005) 9 SCC 335] whereupon
again reliance has been placed was a case where inter se seniority was in
question. The seniority list was prepared without giving an opportunity of
hearing to the affected employees. There was no dispute that the appellant
therein was senior to the first respondent and was entitled to hold the pot of
Principal of the college. The power of RJD to review was in question. Such a
question does not arise herein.
16. Appellant was also not a proper party in the writ petition filed by
respondent Nos.4 and 5. Seniority, as is well known, is not a fundamental
right. It is merely a civil right.
17. For the reasons aforementioned, the High Court, in our opinion, was
right in concluding that the review application was not maintainable. The
appeal, therefore, is dismissed. There shall be no order as to costs.
...............................J.
11 [S.B. Sinha] ................................J.
[Mukundakam Sharma] New Delhi;
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