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2012 (10) TMI 65

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..... r 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 .....

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..... to the final seniority list circulated vide the said O.M. dated 01.08.2011. In that seniority list, the petitioner had been placed at S.No.791 and his claim was that he ought to be placed below S.No.557 and above S.No.558. 4. The petitioner was initially appointed as a Junior Engineer (Civil) in the CPWD on 01.11.1979. He was promoted on an ad hoc basis to the post of Assistant Engineer (Civil) on 04.06.1993. The respondent No.3 (Shree Pal Singh) was also appointed as a Junior Engineer (Civil) on 30.10.1983. It may be pointed out that the promotions to the post of Assistant Engineer (Civil) were on the basis of 50% from amongst the Junior Engineers (Civil), who had six years regular service in the grade and the balance 50% through limited departmental competitive examination. 5. A provisional seniority list was circulated by an Office Memorandum dated 04.06.2002 which had been issued by the Directorate General of Works, CPWD. The said O.M. dated 04.06.2002 was explicit that the seniority list was provisional and was subject to the final outcome of various court cases pending in various courts. In the said provisional seniority list of Assistant Engineers (Civil), the petitioner .....

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..... is a copy of an order of the Central Information Commission dated 18.06.2008. As pointed out above, the final seniority list of Assistant Engineers (Civil) in the CPWD as on 01.01.2011, was circulated by the said O.M. dated 01.08.2011. It is that final seniority list which was challenged by the petitioner by virtue of the said O.A. No.4154 which was filed immediately thereafter, in 2011 itself. 9. The Tribunal, however, at the admission stage itself, took the view that the said O.A. was not maintainable on account of delay and laches. According to the Tribunal, the cause of action accrued to the petitioner on 01.04.2002 when the provisional seniority list of the Assistant Engineers (Civil) in the CPWD was circulated. The date of promotion of the petitioner as an Assistant Engineer (Civil) was shown in that list as being 29.11.1994 and his serial number was also indicated to be 2600 much below that of the respondent No.3 (Shreepal Singh), whose serial number was 2078. Thus, according to the Tribunal, the petitioner was well aware that persons, such as the respondent No.3 (Shreepal Singh), had been shown senior to him as early as on 01.04.2002 when the said provisional seniority .....

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..... l seniority list and was only agitating the matter after several years had elapsed. Furthermore, the learned counsel for the petitioner submitted that the petitioner was entitled in law to challenge the final seniority list even though he had not approached the Tribunal insofar as the provisional seniority list was concerned. He submitted that as the final seniority list had been circulated only on 01.08.2011, the said original application filed by the petitioner shortly thereafter cannot, by any stretch of imagination, be regarded as a stale claim. According to the learned counsel, the Tribunal committed a serious error in rejecting the petitioner s said original application on the ground of limitation. In support of this submission, the learned counsel for the petitioner placed reliance on the following decisions of the Supreme Court:- 1) G.P. Doval and Others v. Chief Secretary, Government of U.P. and Others: 1984 (4) SCC 329; 2) V.P. Shrivastava and Others v. State of M.P. and Others: 1996 (7) SCC 759; 3) M. Pachiappan and Others v. S. Markandam and Others: 2009 (16) SCC 616; 12. In response to the submissions made by the learned counsel for the petitioner on the questi .....

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..... joined all the adversely affected persons, the Tribunal was well within its right in dismissing the original application on the ground of non-joinder of necessary parties. 15. Let us now examine the decisions cited on both sides on the issue of limitation. The first decision was that of the Supreme Court in the case of G.P. Doval (supra). Paragraph 16 of the said decision had been relied upon by the learned counsel for the petitioner. It reads as under:- A grievance was made that the petitioners have moved this Court after a long unexplained delay and the Court should not grant any relief to them. It was pointed to that the provision seniority list was drawn up on March 22, 1971 and the petitions have been filed in the years 1983. The respondents therefore submitted that the Court should throw out the petitions on the ground of delay, laches and acquiescence. It was said that promotions granted on the basis of impugned seniority list were not questioned by the petitioners and they have acquiesced into it. We are not disposed to accede to this request because respondent 1 to 3 have not finalised the seniority list for a period of more than 12 years and are operating the same fo .....

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..... Without taking a decision on the same, the State Government issued another provisional list in the year 1986, but continued the mistake which was there in the 1983 list. The appellants before the Supreme Court again put forward their grievances in 1987 and, thereafter, the seniority lists prepared in 1983 and 1986 were withdrawn. Subsequently, on 19.09.1988, yet another provisional list was brought out wherein the appellants were again shown junior to the ad hoc promotees. The appellants before the Supreme Court again filed a representation and finally on 23.12.1988 the State Government brought out the final seniority list wherein the appellants were again shown junior to the said ad hoc promotees. Thereafter, the appellants approached the State Administrative Tribunal, which, inter alia, rejected their application on the ground that the promotions in favour of the respondents therein in the year 1980 could not be challenged at that length of time. 18. On behalf of the appellants before the Supreme Court, it was argued on the question of delay and laches that the appellants did not challenge the so-called ad hoc appointments of the respondents by way of promotions, but that they .....

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..... terial facts in brief are this. Both B.S. Bajwa and B.D. Gupta joined the Army and were granted Short Service Commission on 30th March, 1963 and 30th October, 1963 respectively when they were students in the final year of the Engineering Degree Course. B.S. Bajwa graduated thereafter in June, 1963 and B.D. Gupta graduated in 1964. On being released from the Army B.S. Bajwa joined the PWD (B R) on 4.5.1971 and B.D. Gupta joined the same department on 12th May, 1972. There position in the gradation list was shown throughout with reference to these dates of joining the department. It is sufficient to state that throughout their career as Assistant Engineer, Executive Engineer and Superintending Engineer both B.S. Bajwa and B.D. Gupta were shown as juniors to B.L. Bansal, Nirmal Singh, GR Chaudhary, D.P. Bajaj and Jagir Singh. It is also undisputed that B.L. Bansal, Nirmal Singh, G.R. Chaudhary, D.P. Bajaj and Jagir Singh got their promotions as Executive Engineer select grade and promotion as Superintending Engineer prior to B.S. Bajwa and B.D. Gupta. It is obvious that the grievance, if any, of B.S. Bajwa and B.D. Gupta to their placement below B.L. Bansal, Nirmal Singh, G.R. Chaudha .....

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..... This is so because the Supreme Court made the above observations with reference to a settled position with regard to seniority. However, seniority based on a provisional list cannot be regarded as a settled position unless and until the final seniority list is published. Therefore, this decision of the Supreme Court would be of no use to the respondents. The next decision on which the learned counsel for the respondents placed reliance was that in the case of Tarsem Singh (supra). The learned counsel for the respondents had specifically placed strong reliance on the observations contained in paragraph 5 thereof. The same, to the extent relevant, reads as under:- 5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong .....

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..... much as the original application in itself was not beyond time. 24. We are now left to consider the other aspect with regard to non-joinder of the 233 persons [except the respondent No.3 (Shree Pal Singh)], who would have been adversely affected by any order passed in favour of the petitioner. The submissions of the learned counsel on this aspect of the matter have already been noted above. We shall now consider the decisions which had been placed for our consideration by the learned counsel for the petitioner. The first of those decisions is of the Supreme Court in the case of Prabodh Varma (supra). Para 28 of the said decision is relevant and the same reads as under:- 28. The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh's case. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of nonjoinder of necessary parties. The only respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve po .....

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..... d to by the learned counsel for the petitioner was that of the Supreme Court in V.P. Shrivastava (supra). The Supreme Court had placed reliance on an earlier decision in the case of A. Janardhana v. Union of India: 1983 (3) SCC 601, wherein it had observed as under:- 15. In this case, appellant does not claim seniority over particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing-up the impugned seniority list are invalid and illegal and the relief is claimed against the Union government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. It also placed reliance on the decision in Prabodh Verma (supra). In this backdrop, the Supreme Court, in V.P. Shrivastava (supra) held as under:- 17. Even in Janardhana case referred to supra, this Court also rejected a simila .....

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