Union of India &
Ors. Vs. Chitra Lekha Chakraborty [2008] INSC 1802 (21 October 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6213 OF 2008 (@SPECIAL
LEAVE PETITION (CIVIL)NO.7686 OF 2004) UNION OF INDIA & ORS. Appellant(s)
VERSUS CHITRA LEKHA CHAKRABORTY Respondent(s) WITH
C.A.NO.6214/2008 @
SLP(C)NOS.180603/2005 AND WITH
C.A.NOS.6215-6216/2008
@ SLP(C)NOS.21902-21903/2004 ORDER Leave granted.
Delay condoned.
We will first deal
with Civil Appeals @ SLP) Nos.21902-03/04 and Civil Appeal @ SLP) no.18603/05.
These appeals, by
special leave, are being filed in connection with the selection of
Non-Technical Popular Clerical Category of the Railways.
The selection was
held in the year 1984 and a written test was held on 26.5.1985 followed by an
interview on 25.9.1985. Several candidates were selected. There was allegation
that some of the candidates, who participated in the selection, indulged in
malpractices in the examination and it appears that the selection Board has
published a list which contains about 1000 candidates. Some of these candidates
who were aggrieved by their non- selection filed various representations before
the Railway Recruitment Board.
2 While these
representations were pending, they filed 3 Original Applications before the
Central Administrative Tribunal (for short `C.A.T.')at Calcutta. The C.A.T. has
directed that their cases be considered and fresh interviews be held and
selection be done and the candidates be included. Thereafter several candidates
were appointed, pursuant to the direction of the C.A.T.. Prior to this, on
17.2.1986 the Addl. Executive Director Estt.(T&MPP) wrote a letter to the
Chairman, Railway Recruitment Board indicating the number of candidates to whom
the fresh notices have been issued and it was found that some candidates have
secured more marks than the 1000 candidates, who were suspected to have
indulged in malpractices, and he was of the view that these candidates should
be given careful consideration and on consideration of the same, their rights
should be restored and the names of those candidates which were in the list
should be included in the appropriate places in the panel. Appropriate
direction to appoint the respondents in Civil Appeal @ SLP)Nos.21902-21903/04
and in the appeal @ SLP(C)No.18603/05 were issued, on the basis of the letter
dated 17.2.1986 and the said respondents were appointed in the year 1994. These
respondents had claimed seniority over the candidates who had already been
appointed in the year 1985 based on the statement made in the letter dated
17.2.1986 that their appointments should be made after including them at the
appropriate places in the panel. The C.A.T. has directed the railway
authorities to fix the specific position of the respondents in the panel for
the purpose of determination in the inter se seniority against those appointed
from the said panel 4 and the relative position of the applicants in such
panel shall be ascribed keeping in view the aggregate marks obtained by the
applicants and the relative aggregate marks of the applicants who have already
been appointed from the said panel.
This order of the
C.A.T. was challenged before the High Court contending that these respondents
were appointed only in the year 1994 and that they cannot claim seniority over
the candidates who had already been appointed in the year 1985. But this plea
of the respondents was not accepted by the High Court and the order of the
C.A.T. was confirmed by the High Court. The judgment of the High Court in these
two proceedings are challenged in the present appeals.
We will now deal with
Civil Appeal @ SLP) 7686/04. The brief facts are :
The respondent herein
had participated in the selection in the year 1984 and her name was not found
in the selection list and she filed a representation to the Railway authorities
in the year 1991 and her representation was not replied by the railway
authorities where after she filed an Original Application before the C.A.T.,
Calcutta. The C.A.T. has allowed the O.A. During the pendency of the O.A.
before the Tribunal, the Chairman of the Railway Recruitment Board issued a
direction to appoint the respondent and she was consequently appointed.
Thereafter the O.A. filed by the respondent was disposed of on 8.1.1996 with
the direction that the Chairman of the Railway Recruitment Board shall, within
two months from the date of communication of the order, convey to the
petitioner 5 therein to specify the specific position of the petitioner in the
panel selected for the purpose of determination of her inter se seniority
amongst those appointed from the said panel and it was also directed that the
relative position of the petitioner of such panel shall be ascribed keeping in
view her aggregate marks and the relative aggregate marks of other candidates
who had already been appointed from the panel. Thereafter the appellant Union
of India (Ministry of Railways) has filed a review petition before the C.A.T.
and the same was rejected on the ground that it was filed beyond 30 days as
prescribed under Rule 17 of the Central Administrative Tribunal (Procedure)
Rules, 1987 (for short `the 1987 Rules). The appellant has challenged the same
before the High Court and the High Court confirmed the order passed by the
C.A.T. Aggrieved by the same, the present appeal has been filed by the Union of
India.
Learned
Addl.Sol.General for the Union of India contended that the review petition
filed by the appellant should have been allowed as there was sufficient cause
for extending the period of limitation prescribed under Rule 17 of the 1987
Rules. Learned Addl.Sol.General has placed reliance on a Secretary, Irrigation
Dept. & Ors., reported in 2008(7) SCC p.169, wherein it was held that
Section 14(2) of the Limitation Act, 1963 was applicable to an application
submitted under Section 34(1) of the Arbitration and Conciliation Act, 1996. It
was further held that as per Section 6 43 of the Arbitration Act, the
Limitation Act, 1963 was applicable to the application filed under Section 34
of the Arbitration and Conciliation Act for setting aside the award. In other
words, a specific provision was made in the Arbitration and Conciliation Act
for application of Limitation Act. In the instant case a specific provision in
Rule 17 of 1987 Rules has been made for filing a review application before the
C.A.T. and therefore, Section 5 of the Limitation Act was not applicable to a
petition filed under Rule 17. The High Court was justified in concluding that
the Tribunal has rightly dismissed the application filed beyond 30 days.
On coming to the
question of seniority of the respondent the direction of the C.A.T. was that
the respondent herein shall be given specific position in the panel for the
purpose of determination of her inter se seniority against those appointed from
the said panel and the relative position of the respondent in such panel shall
be ascribed keeping in view the aggregate marks obtained by the applicants who
have already been appointed from the said panel. It was contended on behalf of
the Railways that the selection was held in the year 1984 and the records
relating to the selection are not available with them as there was an
accidental fire and the records have been destroyed. Moreover the respondent
herein also is not successful in producing any document to show as to what is
the aggregate marks obtained by her vis a vis the aggregate marks obtained by
other candidates who had already been appointed. There is also no common panel
prepared conjoining the selection 7 made in the year 1984 and the persons
appointed subsequently so that the seniority could be determined by the
appellant. Even though the direction issued by the Tribunal has become final in
view of the peculiar position the Railways is directed to give seniority to the
respondent from the date on which she joined the service.
The appeal @
SLP(C)No.7686 of 2004 is disposed of accordingly.
No costs.
In the other two
appeals i.e. Civil Appeals @ SLP) Nos.21902- 03/04 and Civil Appeal @ SLP)
no.18603/05, the respondents were appointed pursuant to the direction passed by
the C.A.T. and it was also directed that their seniority shall be given based
on their aggregate marks over the relative aggregate marks obtained by other
candidates who had already been appointed. Neither the respondents nor the
Railways are in a position to give the aggregate marks obtained by the
respondents nor the marks obtained by the candidates who had already been
appointed. There was no common panel vis a vis the candidates from the year
1985 and the candidates who had been subsequently appointed. Only if there was
a common panel, the seniority could be determined on the basis of Rule 303
which regulates the seniority of the non-gazetted railway employees. There was
no common seniority list nor any merit list prepared by including all the
candidates. Moreover, the respondents herein were not included in the original
list and the C.A.T. has directed that there should be a fresh interview for
these candidates and the interview was held subsequently. It must have been
certainly by a different Board which had conducted the interview.
Under these
circumstances, it is difficult to hold that all these candidates, who had been
appointed, were from the same panel. There are no criteria available to
determine the inter se merit of the candidates. These respondents were
appointed several years after the appointments were made in the year 1985.
None of the
candidates who had been selected in the year 1985 were made parties to the O.A.
before the C.A.T. or before the High Court in the writ petition. In the
circumstances, the seniority of the candidates who had been appointed in the
year 1985 cannot be disturbed without hearing those candidates. Learned counsel
appearing for the respondents strongly relied on the letter dated 17.2.1986
written by the Addl. Executive Director to the Chairman, Railway Recruitment
Board wherein he expressed the opinion that in case the representations filed
by these candidates are allowed their places in the seniority is to be given by
interpolating in the seniority list which has already been made. Learned
counsel for the respondents contended that this was not the stand of the
Railway Board and once the stand was expressly made clear, the appellant was
bound by this statement. Reliance was also Chief Election Commissioner, New
Delhi & Ors., reported (1978) 1 SCC p.405, wherein this Court has stated
that when a statutory functionary makes an order based on certain grounds, its
validity must be judged by the reasons so mentioned and cannot be supplemented
by fresh reasons in the shape of 9 affidavit or otherwise. Otherwise, an order
bad in the beginning may, by the time it comes to Court on account of a
challenge, get validated by additional grounds later brought out and it was
contended that these observations of this Court were further followed in State
Govt. Houseless Employees' Ors., 2005(7) SCC p.627 paras 24 to 27. But in the
instant case there was no order passed by any responsible officer or by the
Railway Recruitment Board to the effect that if any candidate, who had
subsequently been appointed, his/her seniority would be determined on the basis
of his/her aggregate marks or the rank secured in the interview. The letter
dated 17.2.1986 cannot be considered as an order passed on behalf of the
railways. Moreover, the seniority of persons appointed in a service should be
decided after hearing the relevant parties and applying the rules regulating
the seniority principle.
In these cases there
was no common seniority list and marks secured by these candidates and the
candidates who had been appointed in the year 1985 are not available and placed
before C.A.T. or High Court. The relative merit of the candidates cannot be
considered as no marks are placed even before us. It may also be noticed that
these respondents were appointed after a period of six years, not due to any
fault committed by the Railway Recruitment Board. As per the 10 allegations
and counter allegations, it would appear that some of the candidates had
indulged in malpractices and they were disqualified and later on the basis of
the representations and the orders passed by the C.A.T. the respondents were
appointed subsequently. There was no negligence or latches on the part of the
appellant in making the appointments of the respondents belatedly. Having
regard to the peculiar facts, the respondents are entitled to seniority only
from the date when they joined their service.
Accordingly, Civil
appeals @ SLP) Nos.21902-03/04 and SLP)No.18603/05 are allowed to the extent
indicated above and the order passed by the High Court is set aside. No costs.
...............CJI.
(K.G. BALAKRISHNAN)
.................J.
(P. SATHASIVAM)
.................J.
(J.M. PANCHAL)
NEW
DELHI;
21ST
OCTOBER, 2008.
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