The Food Corporation Of India & … vs Krishan Kumar Sodhi on 27 September, 2010

*                   THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment Reserved on: 20th September, 2010
%                            Judgment Pronounced on:27th September, 2010
+         LPA 234/2008

          THE FOOD CORPORATION OF INDIA & ANR.             ..... Appellant
                             Through:   Mr. Virender Kumar Sharma &
                                        Mr. Deepak Diwan, Advs.
                    versus

          KRISHAN KUMAR SODHI                               ..... Respondent

Through: Mr. S.R. Singh, Sr. Adv. With
Mr.M.M. Singh, Adv.

+         LPA 235/2008

          THE FOOD CORPORATION OF INDIA & ANR.             ..... Appellant
                             Through:   Mr. Virender Kumar Sharma &
                                        Mr. Deepak Diwan, Advs.
                    versus

          NIRMALA DEVI SHARMA                               ..... Respondent
                             Through:   Mr. S.R. Singh, Sr. Adv. With
                                        Mr.M.M. Singh, Adv.

           CORAM:
           HON'BLE THE CHIEF JUSTICE
           HON'BLE MR. JUSTICE MANMOHAN

1. Whether reporters of the local papers be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

DIPAK MISRA, CJ

In these two appeals, the vulnerability of the composite order dated

17th January, 2008 passed by the learned Single Judge in WP(C) 3720/2006

and WP(C) No. 14198/2004 being called in question, they were heard

analogously and are disposed of by a singular order. For the sake of clarity

and convenience, the facts in WP(C) No.14198/2004 are unfurled herein.

LPA No. 234 & 235 of 2008 Page 1 of 12
This Court shall also advert to the necessitous facts in brief in the other writ

petition.

2. The respondent-petitioner (hereinafter referred to as „the respondent‟)

was appointed as a typist on daily wage basis on 17.6.1972 at the

Headquarters, New Delhi of the Food Corporation of India, the appellant-

herein, vide letter dated 13.6.1972 and her services were regularized on

26.2.1976. From 1972 till the date of regularization, she worked

continuously as daily wage typist and thereafter was promoted to the post of

Assistant Grade-II on 14.8.1987 and to the post of Assistant Grade-I in

October, 2002. It was contended before the learned Single Judge that in the

case of similarly placed typists, namely, Shri S.K. Bassi and Shri V.

Shekhar, the period spent on daily wage basis was taken into consideration

while fixing their seniority, but similar benefits were not extended to her.

She made representations from time to time and eventually vide

communication dated 3.5.2000, she was given a reply that the Zonal Office

was not competent to decide and fix the seniority of daily wagers. She was

advised to approach the concerned appointing authority. As set forth, the

respondent made further representations but there was no response and her

seniority was not fixed as sought for. In this backdrop, a prayer was made to

issue a writ of mandamus to re-fix the seniority giving the benefit of the

period spent as a daily wager and after computing the seniority on that

foundation extend the consequential benefits of promotion, etc.

LPA No. 234 & 235 of 2008 Page 2 of 12

3. The averments made in the writ petition were disputed by the present

appellant contending, inter alia, that five typists in all were given the benefit

of the period spent on daily wage basis by the competent authority at the

headquarters in terms of Regulation 15(5) of the Food Corporation of India

(Staff) Regulation, 1971 (for short „the Regulations‟) but the petitioner

approached the zonal authority. It was also contended that the writ

petitioner was claiming seniority after expiry of 28 years and, hence, her

case did not deserve to be considered for re-fixation of seniority. Quite apart

from the above, it was urged that the appointing authority had not been

impleaded as a party.

4. The learned Single Judge took note of the fact that the Food

Corporation of India is a statutory authority; that the plea put forth by the

writ petitioner to the extent that there was no ground for discrimination has

gone undisputed; the other daily wagers had been given the benefit and the

same has been sought to be justified on the foundation that it was done by

the appointing authority or at the headquarter, but the said explanation does

not stand to reason; that the Food Corporation of India is unable to explain

how some of the employees, namely, Shri S.K. Bassi, Shri V. Shekhar and

five other typists were extended the benefit and the cases of the writ

petitioners were ignored; that the discretion exercised by the Food

Corporation of India was arbitrary and the explanation proferred was

unacceptable; that the appointing authority has no unfettered discretion to

act in such a manner and; that the doctrine of delay and laches does not get

attracted to the case at hand and, accordingly, he directed the corporation
LPA No. 234 & 235 of 2008 Page 3 of 12
and its functionaries to fix the seniority of the petitioner taking into

consideration her date of appointment, i.e., 17.6.1972.

5. Be it noted, in CWP No.3720/2006, the petitioner was appointed as a

typist on daily wage basis on 30.12.1971 and his services were regularized

on 29.8.1972. He was promoted to the post of Assistant Grade-II on

14.5.1977 and to the post of Assistant Grade-I with effect from 4.10.2000.

He has placed reliance on the decision in V. Shekhar v. Food Corporation of

India passed in CWP No. 5256/1998 wherein the Petitioner has been given

seniority with effect from 26.6.1970.

6. We have heard Mr. Virender Kumar Sharma, learned counsel for the

appellant and Mr. S.R. Singh, learned senior counsel along with Mr. M.M.

Singh for the respondents.

7. The learned counsel for the Appellant has submitted that there is no

provision for fixation of seniority of a daily wager. It is his further

submission that if the period has to be computed, it has to be on the basis of

a direction from the appointing authority, i.e., the competent authority from

headquarter and from a zonal authority. Learned counsel has further

proponed that the claim for re-fixation of seniority is hit by the doctrine of

delay and laches and also defeated by non-impleadment of necessary parties.

8. The learned counsel for the respondents, in support of the order

passed by the learned Single Judge, has contended that the doctrine of delay

and laches is not applicable to the cases at hand as the respondents were

submitting representations and the same came to be dealt with in 2000. It is
LPA No. 234 & 235 of 2008 Page 4 of 12
urged by him that the Food Corporation of India, being a statutory authority,

cannot exercise unfettered discretion as such exercise of unbridled power is

impermissible in law. It is propounded by him that there was no necessity to

implead any other party as the writ petitioners were claiming the benefit

under the Regulations which has been extended to others and it was

incumbent upon the Food Corporation of India to treat them with parity.

9. The question that emerges for consideration is whether the learned

Single Judge is justified in directing re-fixation of seniority of the writ

petitioners by treating the period spent by them on daily wage basis to be

counted towards seniority. Regulation 15 of the Regulations deals with

probation. Sub-regulation (5) on which emphasis has been laid reads as

follows:

“15. Probation:-

                    (1)     xxx
                    (2)     xxx
                    (3)     xxx
                    (4)     xxx
                    (5) Where an employee has rendered continuous

temporary service or continuous service on deputation in
any post immediately preceding his regular appointment
to such post, the period of service so rendered or no
deputation may be counted against the period of
probation if the appointing authority so directs.”

Regulation 16 deals with the mode and method of determination of

seniority.

10. As far as grant of fixation of seniority by computation of the period

spent on daily wage basis as a typist is concerned, the same, in our
LPA No. 234 & 235 of 2008 Page 5 of 12
considered opinion, need not be adverted to in the case at hand though

learned counsel for the appellants has emphatically urged that such

computation is not automatic but subject to the direction or order of the

appointing authority who has never been approached and further there has to

be recording of satisfaction by the said authority. We are disposed to think

so as on the other two grounds, namely, the delay and laches and non

impleadment of the necessary parties, the order of the learned Single Judge

can be dislodged.

11. As has been indicated earlier, the writ petitioner in CWP No.

14198/2004 was appointed on 13.6.1972 and her services were regularized

on 26.2.1976. The writ petitioner in CWP No. 3720/2006 was appointed on

30.12.1971 and his services were regularized on 29.8.1972. Both of them

were promoted to the post of Assistant Grade-II in 1987 and 1977

respectively and Assistant Grade-I in the year 2002 and 2000 respectively.

The learned Single Judge has applied the doctrine of parity and addressed

himself with regard to the discriminatory treatment meted to the writ

petitioners. As is evincible, regularization took place sometime in the years

1972 and 1976 respectively as far as both the writ petitioners are concerned.

They got promoted to the next post in the years 1977 and 1987 respectively

and they were further promoted to Assistant Grade-I in 2000 and 2002

respectively. In the course of hearing on a query being made, we have been

apprised that presently they are holding the post of Managers. Therefore,

the hub of the matter is whether at this juncture they should be extended the

benefit of computation of the period when they worked as daily wage typists
LPA No. 234 & 235 of 2008 Page 6 of 12
towards fixation of their seniority. The learned counsel for the respondents

urged that the question of seniority never arose. We are unable to appreciate

the same inasmuch as the respondents have been given more than three

promotions during this period and it is difficult to fathom that the seniority

factor never arose. Thus, it is quite clear that the respondents had really

prayed for re-fixation of seniority w.e.f. 1971 and 1972 respectively there

can be no shadow of doubt that the cause of their grievance arose at the time

of regularization or even if a liberal approach is adopted, when they were

promoted to the post of Assistant Grade-II almost more than two decades

back.

12. In P.S. Sadasivaswamy v. State of Tamil Nadu, AIR 1974 SC 2271, a

two-Judge Bench of the Apex Court has held thus:

“It is not that there is any period of limitation for the
Courts to exercise their powers under Article 226 nor is it
that there can never be a case where the Courts cannot
interfere in a matter after the passage of a certain length
of time. But it would be a sound and wise exercise of
discretion for the Courts to refuse to exercise their
extraordinary powers under Article 226 in the case of
persons who do not approach it expeditiously for relief
and who stand by and allow things to happen and then
approach the Court to put forward stale claims and try to
unsettle matters.”

13. In Karnataka Power Corporation Ltd. & Anr. v. K. Thangappan &

Anr., AIR 2006 SC 1581, their Lordships have held thus:

“6. Delay or laches is one of the factors which is to be
borne in mind by the High Court when they exercise their
discretionary powers under Article 226 of the
Constitution. In an appropriate case the High Court may
refuse to invoke its extraordinary powers if there is such

LPA No. 234 & 235 of 2008 Page 7 of 12
negligence or omission on the part of the applicant to
assert his right as taken in conjunction with the lapse of
time and other circumstances, causes prejudice to the
opposite party. Even where fundamental right is involved
the matter is still within the discretion of the Court as
pointed out in Durga Prasad v. Chief Controller of
Imports and Exports (AIR 1970 SC 769). Of course, the
discretion has to be exercised judicially and reasonably.”

14. In City Industrial Development Corporation v. Dosu Aardeshir

Bhiwandiwala & Ors., AIR 2009 SC 571, the Apex Court has opined thus:

“19. It is well settled and needs no restatement at our
hands that under Article 226 of the Constitution, the
jurisdiction of a High Court to issue appropriate writs
particularly a writ of Mandamus is highly discretionary.
The relief cannot be claimed as of right. One of the
grounds for refusing relief is that the person approaching
the High Court is guilty of unexplained delay and the
laches. Inordinate delay in moving the court for a Writ is
an adequate ground for refusing a Writ. The principle is
that courts exercising public law jurisdiction do not
encourage agitation of stale claims and exhuming matters
where the rights of third parties may have accrued in the
interregnum.

20. The appellant in its reply opposing the admission of
Writ Petition in clear and categorical terms pleaded that
the writ petitioner has kept silent for more than 35 years
and filed belated writ petition. It was asserted that on
account of inordinate delay and laches the writ petition
suffers from legal infirmities and therefore liable to be
rejected in limine. The High Court did not record any
finding whatsoever and ignored such a plea of far
reaching consequence.”

15. In Eastern Coalfields Ltd. v. Dugal Kumar, AIR 2008 SC 3000, the

Apex Court has ruled thus:

“20. Suffice it to say that in Express Publications v.
Union of India, (2004) 11 SCC 526, this Court referring
to Tilokchand Motichand, Rabindranath Bose and
Ramchandra Deodhar v. State of Maharashtra (1974) 1
SCC 317, explained the principle thus;

LPA No. 234 & 235 of 2008 Page 8 of 12

“No hard and fast principle can be laid down that
under no circumstances delay would be a relevant
consideration in judging constitutional validity of a
provision. It has to be remembered that the
constitutional remedy under Article 32 is
discretionary. In one case, this Court may decline
discretionary relief if person aggrieved has slept
over for long number of years. In another case,
depending upon the nature of violation, court may
ignore delay and pronounce upon the invalidity of
a provision. It will depend from case to case.”

16. From the aforesaid enunciation of law, it is manifest that while issuing

a writ of mandamus the court has to be guided by the concept of

applicability of doctrine of delay and laches. For a litigant who invokes the

extra-ordinary and inherent jurisdiction of this Court, it is obligatory on his

part to come to the court at the earliest and at least within a reasonable span

of time. When there is a belated approach in claiming seniority or

promotion, it is not permissible to issue any direction because with the efflux

of time the interest of third parties get ripened. Quite apart from the above,

the equity that might have gone in his favour does not deserve adjudication

as the said equity with the passage of time becomes extinct. Interference

after enormous delay is likely to create a state of anarchy or chaos. True it

is, no straight-jacket formula can be laid down for fixing any kind of

limitation but the factual matrix has to be taken into consideration for the

courts cannot be totally oblivious of the same. In the cases at hand, the

respondents knew about the rules in force. After their regularization they

were promoted to the post of Assistant Grade-II, Assistant Grade-I and

thereafter to the post of Manager. The spacious plea that they were not

aware of the fixation of seniority does not appeal to us. We are disposed to

LPA No. 234 & 235 of 2008 Page 9 of 12
think they have approached this Court for fixation of seniority almost after

20 years. Definitely, such a claim for seniority is a stale one. It would not

be out of place to say that they have actually waived the claim. It is worth

noting that their singular prayer is for re-fixation of seniority and hence,

issue of writ of a mandamus at this stage, according to us, is totally

unwarranted.

17. The next aspect which weighs against the respondents is that though

they have made the allegations that five of the employees have been

extended the benefit for the period they had worked as daily wagers, yet they

have been discriminated. From the nature of averments, there cannot be any

trace of doubt that the said persons have been treated as seniors to the

respondents. Even if we understand differently, in case the seniority of the

respondents are fixed on the basis of the claim put forth by them the

seniority of others is likely to be affected. Despite the said fact situation, the

respondents have chosen not to implead anyone of them as a party.

18. Regard being had to the fact situation, we may profitably refer to the

decision in Indu Shekhar Singh & Ors. v. State of U.P. & Ors., AIR 2006

SC 2432, wherein the Apex Court has held thus:

“55. There is another aspect of the matter. The
Appellants herein were not joined as parties in the writ
petition filed by the Respondents. In their absence, the
High Court could not have determined the question of
inter se seniority. [See Prabodh Verma and Ors. v. State
of U.P. and Ors. (AIR 1985 SC 167)]. In Ram Janam
Singh v. State of U.P. (1994 AIR SCW 1582) this Court
held:

LPA No. 234 & 235 of 2008 Page 10 of 12

“…It is now almost settled that seniority of an
officer in service is determined with reference to
the date of his entry in the service which will be
consistent with the requirement of Articles 14 and
16 of the Constitution. Of course, if the
circumstances so require a group of persons, can
be treated a class separate from the rest for any
preferential or beneficial treatment while fixing
their seniority. But, whether such group of persons
belong to a special class for any special treatment
in matters of seniority has to be decided on
objective consideration and on taking into account
relevant factors which can stand the test of Articles
14 and 16 of the Constitution. Normally, such
classification should be by statutory rule or rules
framed under Article 309 of the Constitution. The
far-reaching implication of such rules need not be
impressed because they purport to affect the
seniority of persons who are already in service.”

19. Recently, in Public Service Commission, Uttaranchal v. Mamta

Bisht & Ors., AIR 2010 SC 2613, the Apex Court was dealing with the

concept of necessary party and the effect of non-impleadment of such a

party in the matter wherein the selection process is challenged. Their

Lordships have held thus:

“7. ….in Udit Narain Singh Malpaharia v. Additional
Member, Board of Revenue, Bihar & Anr., AIR 1963 SC
786, wherein the Court has explained the distinction
between necessary party, proper party and proforma
party and further held that if a person who is likely to
suffer from the order of the Court and has not been
impleaded as a party has a right to ignore the said order
as it has been passed in violation of the principles of
natural justice. More so, proviso to Order I, Rule IX of
Code of Civil Procedure, 1908 (hereinafter called CPC)
provide that non-joinder of necessary party be fatal.
Undoubtedly, provisions of CPC are not applicable in
writ jurisdiction by virtue of the provision of Section
141, CPC but the principles enshrined therein are
applicable. (Vide Gulabchand Chhotalal Parikh v. State
of Gujarat; AIR 1965 SC 1153; Babubhai Muljibhai Patel
v. Nandlal, Khodidas Barat & Ors., AIR 1974 SC 2105;

LPA No. 234 & 235 of 2008 Page 11 of 12

and Sarguja Transport Service v. State Transport
Appellate Tribunal, Gwalior & Ors. AIR 1987 SC 88).

8. In Prabodh Verma & Ors. v. State of U.P. & Ors.
AIR 1985 SC 167; and Tridip Kumar Dingal & Ors. v.
State of West Bengal & Ors. (2009) 1 SCC 768 : (AIR
2008 SC (Supp) 824), it has been held that if a person
challenges the selection process, successful candidates or
at least some of them are necessary parties.”

20. From the aforesaid pronouncement of law, it is clear as crystal that an

affected party has to be impleaded inasmuch as that is the mandate of the

doctrine of audi alteram partem. The respondents have, in a way, claimed

advantage of seniority on the base of a rule while knowing fully well some

have been extended the benefit of the rule as has been stated earlier. The

contention of the learned counsel for the appellant is that extension of the

benefit is not automatic. Be that as it may, when the seniority of others is

likely to be affected and their rights are likely to be jeopardized, it was

imperative on the part of the writ petitioners to implead them as parties. The

same having not been done, no relief could have been granted to the

respondents by the writ court.

21. In view of our preceding analysis, we are unable to concur with the

view expressed by the learned Single Judge and resultantly the appeals are

allowed and the order impugned is set aside. In the facts and circumstances

of the case, there shall be no order as to costs.

CHIEF JUSTICE

MANMOHAN, J.

SEPTEMBER 27, 2010
dk

LPA No. 234 & 235 of 2008 Page 12 of 12