CASE NO.: Appeal (civil) 3323 of 2008 PETITIONER: Jaswant Singh Lamba RESPONDENT: Haryana Agricultural University & Ors DATE OF JUDGMENT: 06/05/2008 BENCH: S.B. Sinha & Mukundakam Sharma JUDGMENT:
JUDGMENT
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
JUDGMENT
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.
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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
3services 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.
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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
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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
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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.
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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
8promotion 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
9issued 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.
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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.
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[S.B. Sinha]
…………………………..J.
[Mukundakam Sharma]
New Delhi;
May 6, 2008