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PETITIONER:

DWARKA NATH SHARMA

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT08/08/1989

BENCH:

MISRA RANGNATH

BENCH:

MISRA RANGNATH

OZA, G.L. (J)

CITATION:

1990 AIR 428 1989 SCR (3) 767

1989 SCC Supl. (2) 225 JT 1989 (3) 373

1989 SCALE (2)205

ACT:

Civil Services: Military Engineering

Service--Seniority--Legitimate claim to higher

placement--Deprivation of--Whether justified.

HEADNOTE:

Appellant joined the Military Engineering Service as

Assistant Executive Engineer, upon his selection by the

Union Public Service Commission through the combined Engi-

neering Service Examination held in 1960. He represented

that his previous service in Central Government should be

considered in fixing his seniority. in the seniority list

published, the appellant's name was shown at 483rd position.

The appellant made a representation against the lower place-

ment. Departmental Promotion Committee did not consider him

for promotion because of the lower placement. Challenging

the lower placement, the appellant filed a suit before the

Civil Court which was dismissed. His first appeal before the

District Judge as also the second appeal before the High

Court met the same fate.

This appeal, by special leave, is against the judgment

of the High Court. The respondents resisted the appeal on

grounds of limitation and res-judicata.

Allowing the appeal,

HELD: 1.1. There has been no dispute in the Courts

below, and here too, that the appellant has been legally

recruited to the service. The Union of India accepted the

position that recruitment through the Union Public Service

Commission had been regularly made and the post was not a

temporary one but as the performance of the appellant had

not been of a high order, he had been placed below treating

him to be temporary--a position for which there is not much

of legal support. [770B-C, E, F]

1.2. Strictly speaking, Janardhana's decision may not

have the effect of res-judicata for the present litigation,

but in a dispute of the present dimension where hundreds of

employees are concerned, it would not be proper for the

employees to litigate over the same issue

768

from time to time. If it would be open to members of the

service from time to time to raise disputes of the same

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nature and introduce uncertainty into the service, that

would affect the efficiency of the service and would be

against public interest. That also would call into jeopardy

the guarantees of public service and expose the officers

into an atmosphere of insecurity. A seniority list of a

cadre should not be made the subject matter of debate too

often. [771B-D]

A. Janardhana v. Union of India & Ors., [1983] 3 SCC

601; affirmed.

2. The plea of limitation raised by the respondents

should not have been upheld in the facts of the case. The

seniority list was being changed from time to time. The

appellant had represented against the 1967 seniority list.

The dispute was already pending before this Court in Bachan

Singh's case. In fact, without waiting for the judgment of

this Court in that case, the plaintiff came to Court on

22.3.1971. The appellant was entitled to make a representa-

tion against the seniority list and rejection of the repre-

sentation actually would have given him the cause of action.

In these circumstances, non-suiting him on the plea of

limitation would not at all be justified. [772E-G]

Bachan Singh v. Union of India, [1972] 3 SCR 898, referred

to.

3. Individual claims, could not have been barred from

consideration if by the time Janardhana's case came to be

disposed of, claims were pending adjudication before the

Court. Appellant's case was already before the High Court by

the time Janardhana's appeal was disposed of by this Court.

The stand taken by Respondent No. 1 that it was open to the

appellant to appear in the competitive examination in the

succeeding year to better his position, is no justification

for depriving him of his legitimate claim to a higher place-

ment in the seniority in the cadre. Appellant's position

shall be shown below the recuirts of 1960 and above those of

1961 and he may be bracketed with one who has been assigned

that position and an appropriate rectification shall be made

in the seniority list of 1967 on the basis of the placement

in terms of this judgment. His entitlement to promotion on

the basis of such position shall be considered by the re-

spondents within four months hence. [772H; 773A-D]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3224 of

1989.

From the Judgment and Order dated 6.9.83 of the punjab &

769

Haryana High Court in R.S.A. No. 1092 of 1975.

M.R. Sharma and M.C. Dhingra for the Appellant.

Anil Dev Singh, P.P. Singh and C.V.S. Rao for the Re-

spondents.

The Judgment of the Court was delivered by

RANGANATH MISRA, J. Special leave granted.

Appellant was recruited as an Assistant Executive Engi-

neer in the Military Engineering Service upon his selection

by the Union Public Service Commission through the combined

Central Engineering Service Examination of 1960 and he

joined as an Assistant Executive Engineer on 24.4.1962. A

provisional seniority list was prepared in August, 1963 as

claimed by him and the appellant represented that his previ-

ous service under the Central Government in consideration of

which he had been given three increments at the time of

joining should have been taken into account. In January,

1967, the seniority list was published where, as the appel-

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lant pleaded, he was shown at the 483rd position. He repre-

sented against the lower placement and asked for placing him

at the appropriate place. The Departmental Promotion Commit-

tee did not consider him for promotion on the basis of his

lower placement in the seniority list and he was not promot-

ed. Appellant, therefore, filed a suit for redress of his

grievance of lower placement and for consequential reliefs.

The suit was dismissed. Appellant's appeal before the Dis-

trict Judge was also dismissed and thereupon the appellant

went before the High Court in second appeal but that too was

dismissed. It is against the judgment of the High Court

affirming those of the Courts below that this appeal has

been brought before this Court.

Before we go into the merits of the matter we must

indicate that the case has not been appropriately placed in

the Courts below and relevant material has not been made a

part of the present record.

The claim in this litigation has to be considered in the

backdrop of two earlier cases Bachan Singh v. Union of

India, [1972] 3 SCR 898 is the judgment of this Court where

a dispute relating to the same Military Engineering Service

involving inter alia of a claim of seniority came to be

disposed of by a Constitution Bench. It is not necessary to

refer at any length to the judgment in view of the fact that

the result of

770

the subsequent litigation in the case of A. Janardhana v.

Union of India & Ors., [1983] 3 SCC 601 would be sufficient

for the present

Notice was given in this appeal to hundreds of respond-

ents whom the appellant had impleaded, but no one has ap-

peared to contest his claim in this Court.

There has been no dispute in the Courts below and here

too that the appellant has been legally recruited to the

Service. In Janardhana's case at p. 618 of the Report this

Court held:

"Keeping in view the exigencies of service and

the requirements of the State, temporary.

posts would be a temporary addition to the

strength of the cadre, unless it is made clear

to the contrary that the temporary posts are

for a certain duration or the appointments to

temporary posts are of an ad hoc nature till

such time as recruitment according to rules is

made. In the absence of any such provision,

persons holding permanent posts and temporary

posts would become the members of the service

provided the recruitment to the temporary

posts is legal and valid. Once the recruitment

is legal and valid, there is no difference

between the holders of permanent posts and

temporary posts insofar as it relates to all

the numbers of the service."

In the instant case, the Union of India accepted the

position that recruitment through the Union Public Service

Commission had been regularly made and the post was not a

temporary one but as the performance of the appellant had

not been of a high order, he had been placed below treating

him to be temporary--a position for which there is not much

of legal support.

Some controversy was raised as to whether Janardhana's

decision would operate as res judicata in view of the fact

that the appellant had been impleaded in the litigation.

Janardhana's civil appeal before this Court arose out of a

writ petition in the High Court and as paragraph 36 of the

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judgment at p. 625 of the Report indicates:

"By an order made by the High Court the names

of respondents 3 to 4 18 (in which the appel-

lant was included) were deleted since notices

could not be served on them on account of the

difficulty in ascertaining their present

771

addresses on their transfers subsequent to the

filing of these petitions."

It is not the case of the respondent that the appellant had

volunteered to appear in the writ petition or before this

Court in the Janardhana's dispute.

Strictly speaking, Janardhana's decision may not have

the effect of res Judicata for the present litigation, but

we do not think in a dispute of the present dimension where

hundreds of employees are concerned, it would be proper for

the employees to litigate over the same issues from time to

time. If it would be open to members of the service from

time to time to raise disputes of the same nature and intro-

duce uncertainty into the Service, that would affect the

efficiency of the service and would be against public inter-

est. That also would call into jeopardy the guarantees of

public service and expose the officers into an atmosphere of

insecurity. A seniority list of a cadre should not be made

the subject-matter of debate too often. We have, therefore,

to consider the claim of the appellant keeping these aspects

in view and referring to the conclusions reached in Janard-

hana's case.

At p. 625 of the Report this Court came to the

conclusion:

"In our opinion, there was no justification

for redrawing the seniority list affecting

persons recruited or promoted prior to 1969

when the rules acquired statutory character.

Therefore, the 1974 seniority list is liable

to be quashed and the two 1963 and 1967 sen-

iority lists must hold the field."

The District Judge in appeal in paragraph 10 of his judgment

came to find that the appellant's placement was raised from

serial 483 to 89. The High Court in its judgment has indi-

cated:

"Shri Sharma went up in appeal but the same

was dismissed by the learned District Judge.

He affirmed the findings of the trial Judge on

issues 1 and 3. He also held that the suit of

the appellant was barred by limitation. During

the pendency of appellant's appeal before the

District Judge, Bachan Singh's case had been

decided by the Supreme Court and as a conse-

quence thereof, his seniority was changed from

St. No. 483 in 1967 seniority list to Sr. No.

89. So he got the main relief. His claim

remained only for his reconsideration for

promotion on the basis of his new ranking on

the seniority list."

772

The High Court has again indicated:

"Pursuant to the judgment in Bachan Singh's

case, fresh Seniority list was prepared in

1974 in which the appellant's name figured at

St. No. 89 instead of 483. This list was

challenged by A. Janardhan. His appeal was

allowed and the said list was quashed. It was

further held that 'there is nothing to suggest

that 1963 and 1967 seniority lists were provi-

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sional or were likely to be re-drawn. There-

fore, till the 1949 Rules acquired statutory

character in 1969, the seniority lists of 1963

and 1967 in respect of Assistant Executive

Engineers were quite legal and valid and were

drawn upon the basis on the principle which

satisfies the test Article 16'. So the senior-

ity lists of 1963 and 1967 were upheld. The

grievance of the appellant stands disposed of

by this judgment to which he was a party."

As we have already pointed out, appellant was not a

party in Janardhana's case inasmuch as no notice was taken

to him and the case was disposed of without affording an

opportunity to him of being heard.

The plea of limitation raised by the respondents should

not have been upheld in the facts of the case. As already

indicated, the seniority list was being changed from time to

time. The appellant has represented against the 1967 senior-

ity list. The dispute was already pending before this Court

in Bachan Singh's case. In fact, without waiting for the

judgment of this Court in Bachan Singh's case, the plaintiff

came to Court on 22.3. 1971. The appellant was entitled to

make a representation against the seniority list and rejec-

tion of the representation actually would have given him the

cause of action. In these circumstances, non-suiting himon

the plea of limitation would not at all be justified. We,

therefore, do not accept the conclusion of the High Court

that plaintiffs action was barred by limitation.

We take it that when this Court in Janardhana's case

held on the facts placed before it that 'there was no justi-

fication made out for redrawing the seniority list affecting

persons recruited or promoted prior to 1969' it meant a

total topsy-turvying of the list. Individual claims, if any,

could not have been barred from consideration if by the time

Janardhana's case came to be disposed of, claims were pend-

ing adjudication before the Court. Appellant's case was

already before the

773

High Court by the time Janardhana's appeal was disposed of

by this Court. The appellant was certainly entitled to be

treated as a recruit of 1960 and to be placed above the

recruits of 1961. The stand taken before this Court in the

counter-affidavit filed by respondent no. 1 that it was open

to him to appear in the competitive examination in the

succeeding year, that is, in the year 1961 to better his

position is no justification for depriving him of his legit-

imate claim to a higher placement in the seniority in the

cadre.

While we affirm the view in Janardhana's case that the

seniority list should not be disturbed, the appellant's

claim has also to be accommodated. In these circumstances,

we direct that the appellant's position shall be shown below

the recruits of 1960 and above those of 1961 and he may be

bracketed with one who has been assigned that position and

an appropriate rectification shall be made in the seniority

list of 1967 on the basis of the placement in terms of this

judgment. His entitlement to promotion on the basis of such

position shall be considered by the respondents within four

months hence. The appellant shall be entitled to his costs

throughout. Hearing fee is assessed at Rs.2,000.

G.N. Appeal

allowed.

774

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