2012 (10) TMI 65 - HC - Indian Laws

Alleged wrong placement in the seniority list - Challenge the final seniority list of Assistant Engineers (Civil) in CPWD as on 01.01.2011 - accord the applicant his due seniority and place him below Sl. No.557 and above Sl. No.558 in the seniority list circulated vide O.M. dated 01.08.2011 - ITAT rejected the appeal on delay and / or laches - Held that - The petitioner was a silent sufferer. He had made representations and was even driven to approach the Central Information Commission in order to obtain information with regard to his seniority. The petitioner s case is better inasmuch as the final seniority list came to be published on 01.08.2011 and immediately thereafter, the petitioner approached the Tribunal by way of the said O.A. 4154/2011. Therefore the petitioner s plea that he had approached the Tribunal within time is acceptable. Thus, the provisional seniority list of 01.04.2002 got substituted by the final seniority list of 01.08.2011. In these circumstances, it would be incongruous to hold that the petitioner could not challenge the final seniority list. Non-joinder of the 233 persons who would have been adversely affected by any order passed in favour of the petitioner - Held that - As all the affected persons need not be added as respondents as some of them could be impleaded in a representative capacity if the number of such persons is too large. Secondly, when such a situation arises before a court and, for that matter before the Tribunal, an opportunity should be given to the petitioner to implead the necessary parties or at least some of them in a representative capacity. If the petitioner still refuses to do so, then the petition could be dismissed for non-joinder of necessary parties and not otherwise. In the present case, no such opportunity was offered by the Tribunal to the petitioner and, therefore the Tribunal erred in dismissing the original application at the admission stage itself. As the petitioner had, in fact, impleaded one such person, namely, the respondent No.3 Shree Pal Singh, who was the person, according to the petitioner, immediately below him in seniority. Although, it is true that the petitioner has not stated in the original application that the respondent No.3 was impleaded in a representative capacity, but it is also clear that the respondent No.3 would, while defending his case, also be espousing the case of all the 233 persons, who were similarly situated to him - as the Tribunal has erred on both counts on the point of limitation as well as on the point of non-joinder of parties the impugned order is set aside and is restored back to Tribunal to dispose of the same on merits - in favour of petitioner.

Summary

Issues Involved:
1. Limitation and laches.
2. Non-joinder of necessary parties.

Issue-wise Detailed Analysis:

1. Limitation and Laches:

The petitioner challenged the final seniority list of Assistant Engineers (Civil) in CPWD, circulated on 01.08.2011, asserting that his placement at S.No.791 was incorrect and should be below S.No.557 and above S.No.558. The petitioner argued that his date of promotion as Assistant Engineer (Civil) should be 04.06.1993 instead of 29.11.1994. The Tribunal dismissed the petition on the grounds of delay and laches, stating that the cause of action arose on 01.04.2002 when the provisional seniority list was circulated, and again in 2006 when promotions were made based on that list. The Tribunal held that the petitioner's claim was stale as he did not challenge the seniority list or the 2006 promotion order in a timely manner.

The petitioner contended that he had been agitating his placement through representations and an RTI application, and that the final seniority list issued on 01.08.2011 provided a fresh cause of action. The petitioner cited Supreme Court decisions in G.P. Doval, V.P. Shrivastava, and M. Pachiappan to support his claim that his application was timely as it challenged the final seniority list.

The respondents, supporting the Tribunal's decision, cited Supreme Court cases B.S. Bajwa, Tarsem Singh, and S. Sumnyan, arguing that the petitioner's claim was barred by delay and laches as it disturbed settled rights of third parties.

The court found that the petitioner had been actively contesting his seniority and that the final seniority list issued on 01.08.2011 provided a valid cause of action. The court held that the Tribunal erred in dismissing the petition on the grounds of delay and laches, noting that the petitioner approached the Tribunal in 2011, immediately after the final seniority list was published.

2. Non-joinder of Necessary Parties:

The Tribunal also dismissed the petition on the grounds of non-joinder of 233 affected persons, except respondent No.3 (Shree Pal Singh). The petitioner argued that he had impleaded the immediate junior (respondent No.3) and that it was impractical to implead all 233 persons. He cited Supreme Court decisions in Prabodh Verma, V.P. Shrivastava, and A. Janardhana, which held that not all affected persons need to be joined if some are impleaded in a representative capacity, and that an opportunity should be given to the petitioner to implead necessary parties.

The respondents supported the Tribunal's decision, maintaining that the non-joinder of all affected persons justified the dismissal.

The court concluded that the Tribunal should have given the petitioner an opportunity to implead the necessary parties or some in a representative capacity. The court noted that the petitioner had impleaded respondent No.3, who would represent the interests of similarly situated persons. The court held that the Tribunal erred in dismissing the petition on the grounds of non-joinder of necessary parties.

Conclusion:

The court set aside the Tribunal's order, restored the petitioner's original application, and directed the Tribunal to dispose of the case on merits. The writ petition was allowed with no order as to costs.