Monday, 22 August 2016

Who are necessary parties while deciding question of seniority of employee?

Another aspect needs to be highlighted. Neither before the
tribunal nor before the High Court, Parveen Singh and others
were arrayed as parties. There is no dispute over the factum that
they are senior to the appellants and have been conferred the
benefit of promotion to the higher posts. In their absence, if any
direction is issued for fixation of seniority, that is likely to
jeopardise their interest. When they have not been impleaded as
parties such a relief is difficult to grant. In this context we may
refer with profit to the decision in Indu Shekhar Singh & Ors.
v. State of U.P. & Ors.AIR 2006 SC 2432 wherein it has been held thus: -
“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.”
29. In Public Service Commission, Uttaranchal v. Mamta
Bisht & Ors.AIR 2010 SC 2613
this Court while dealing with the concept of
necessary parties and the effect of non-impleadment of such a
party in the matter when the selection process is assailed
observed 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 nonjoinder
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; 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.”

30. From the aforesaid enunciation of law there cannot be any
trace of doubt that an affected party has to be impleaded so that
the doctrine of audi alteram partem is not put into any hazard.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL No. 4986-4989 OF 2007
Vijay Kumar Kaul and others ….. Appellants
Versus
Union of India and others … Respondents
Dated:May 25, 2012
 Dipak Misra, J.

The appellants, four in number, participated in a selection
process conducted by the Second Field Ordnance Depot (2 FOD)
in the year 1984 for the post of Lower Division Clerks (LDCs).
Despite their selection for the post in question they were not
issued appointment letters on the pretext that there was a ban
on appointments. In December 1993, pursuant to the order
passed in OA No. 29/jk/92 dated 24.8.1993 by the Chandigarh
Bench of the Central Administrative tribunal (for short ‘the
Tribunal’), respondent No. 4 was issued an appointment letter.
The appellant Nos. 1 to 3 were given appointment in May, 1996
on the basis of the directions issued on 24.7.1995 by the High
Court of Jammu and Kashmir in SWP No. 1052 of 1991.
2. It is worth noting that Parveen Singh and others, whose
names, had figured in the select list, being aggrieved due to non
appointment, had preferred OA No. 539-HP of 1986 before the
Chandigarh Bench of the tribunal which allowed the OA vide
order dated 25.8.1987 directing the respondent herein to issue
appointment letters to them. The respondents instead of
appointing the said Parveen Singh and others against the
vacancies in 9 FOD, where there were ten vacancies of LDCs,
appointed them against the vacancies falling in 2 FOD where
there were 27 vacancies for LDCs with effect from 1.1.1990.
3. As set forth, said Parveen Singh and others filed second OA
No. 1476-pb-1991 before the Chandigarh Bench of the tribunal
with a prayer to issue a direction to the respondents to appoint
them as LDCs with effect from 1.5.1985 with all consequential
benefits including seniority, pay and allowances, etc. on the
foundation that similarly situated persons who were selected
along with them had been appointed with effect from 1985. The
tribunal allowed the application vide order dated 13.10.2000
directing that their appointment shall be treated with effect from
1.5.1985 and they shall be extended the benefit of fifty per cent
of back wages and other consequential reliefs.
4. The aforesaid order was called in question by the
respondents before the High Court of Punjab and Haryana in
CWP No. 1158 of 2001 and a Division Bench of the High Court,
as per order dated 12.7.2001, set aside the order of the tribunal
to the extent of grant of back wages but did not interfere with the
direction ante-dating their date of appointment and other
consequential reliefs granted by the tribunal.
5. As has been stated earlier that the appellants had
approached the tribunal and were appointed on two different
dates sometime in December, 1993 and May, 1996. After the
High Court of Punjab and Haryana passed the order, the
respondents conferred the benefit on said Parveen Singh and
others. Thereafter, the present appellants submitted a series of
representations to extend to them the similar benefits on the
foundation of parity. The said prayer was negatived by the
respondents by order dated 21.7.2004.
6. Being dissatisfied with the said action of the respondents
the appellants knocked at the doors of the Principal Bench of the
tribunal in OA No. 2082 of 2004. It was contended before the
tribunal that grave injustice had been done to them by the
respondents inasmuch as they were not given the equal
treatment that was given to similarly placed employees; and that
their seniority position and prospects for promotion had been
immensely affected. The stance and stand put forth by the
appellants was resisted by the respondents contending, inter
alia, that as the appellants were not parties to the application
before the Chandigarh tribunal and were not covered by the
judgment of Punjab and Haryana High Court, they were not
extended the benefit; that only those general category candidates
who were placed higher in merit list were appointed prior to them
excepting one Kalu Ram who belonged to the Scheduled Caste
category; that the appellants could not have been appointed as
there was a ban and thereafter they were appointed as per the
direction of the High Court of Jammu and Kashmir; and that the
tribunal in OA No. 29/jk/92 preferred on the question of
appointment of the appellant No. 4 had clearly stated that the
appointment shall have prospective effect and he would not be
entitled to any back wages or seniority and the said order has
gone unassailed; and hence, the claim put forth in the petition
did not merit consideration.
7. The tribunal adverted to various orders passed by the
tribunal at various junctures and the orders passed by the
Punjab and Haryana High Court and came to hold that as far as
the appellant No. 4 is concerned his case had attained finality;
that the decision rendered in the case of Parveen Singh and
others could not be treated as judgment in rem but a judgment in
personam; and that the appellants had been given appointment
as per their placement in the merit list regard being had to
availability of vacancies and hence, it could not relate to an
earlier date, especially when they failed to show that any person
junior to them had been given appointment from a retrospective
date or extended benefit. Being of this view the tribunal
dismissed the Original Application.
8. Aggrieved by the aforesaid order the appellants invoked the
jurisdiction of the High Court of Delhi under Articles 226 and
227 of the Constitution of India seeking a writ of certiorari for
quashment of the order dated 10.3.2005 passed by the tribunal
and also for quashing of the orders by which their
representations had been rejected and further pressed for issue
of a writ of mandamus commanding the respondents to extend
the similar benefits as had been extended to Parveen Singh and
others in view of the judgment rendered by Punjab and Haryana
High Court.
9. The High Court, upon perusal of the order passed by the
tribunal, the decision rendered by the Punjab and Haryana High
Court, and on considering the factum of the delay and laches on
the part of the appellants, and that they had not been
superseded as the select list was prepared in order of merit, and
appreciating the fact that the appointments had been made
strictly in accordance with the merit declined to interfere with the
order.
10. We have heard Mr. Ashok Bhan, learned senior counsel for
the appellants and Mr. R.P. Bhatt, learned senior counsel for the
respondents. Page 7
7
11. It is submitted by the learned senior counsel for the
appellants that the tribunal as well as the High Court have fallen
into serious error by expressing the view that the appointments
were based on the merit list and, therefore, there was no
supersession of the appellants. It is urged by him that neither
the original application nor the writ petition could have been
dismissed on the ground of delay and laches, in view of the fact
that the appellants immediately approached the tribunal after the
High Court rendered its judgment on 12.7.2001. It is his further
submission that a serious anomalous situation has cropped up
inasmuch as the candidates whose names featured in one select
list have been appointed at various times, as a consequence of
which their pay-scale, seniority and prospects for promotion,
have been put to jeopardy. The last limb of submission of the
learned senior counsel for the appellants is that both the forums
have failed to appreciate that injustice meted out to the
appellants deserved to be remedied applying the doctrine since
the doctrine of parity and the orders are vulnerable and deserved
to be axed and appropriate direction are to be issued considering
similar benefits. The learned senior counsel to bolster his
submission has placed reliance on the decisions in K.C. Sharma
and others v. Union of India and others1
, Collector of
Central Excise, Calcutta v. M/s. Alnoori Tobacco Products
and anr.2
, State of Karnataka and others v. C. Lalitha3 and
Maharaj Krishan Bhatt and another v. State of Jammu and
Kashmir and others4
.
12. Mr. Bhatt, learned senior counsel for the respondents
supported the order passed by the tribunal as well as by the High
Court on the ground that the decisions which have been
rendered by the tribunal and the High Court are absolutely
impregnable since the appellants had never approached the
tribunal at the earliest and only put forth their claims after
success of Parveen Singh and others. It is propounded by him
that the appellants while filing the various original applications
seeking appointment had never claimed the relief of appointment
with retrospective effect and, in fact, in the case of the appellant
No. 4 the tribunal has categorically stated that his appointment
could have prospective effect which has gone unassailed and,
therefore, relying on the decision of Parveen Singh and others is
of no assistance to the appellants.
1
(1997) 6 SCC 721
2 2004 (6) SCALE 232
3
(2006) 2 SCC 747
4
(2008) 9 SCC 24Page 9
9
13. To appreciate the rival submissions raised at the Bar it is
appropriate to refer to the various orders passed at various times.
Parveen Singh and others approached the tribunal of Chandigarh
at Chandigarh Bench in the year 1986. The tribunal, by order
dated 25.8.1987, directed to issue appointment letters to the
applicants against the vacancies which had not been filled up,
regard being had to the merit position in the examination.
Thereafter, the said Parveen Singh and others were intimated
vide letter dated 15.1.1991 to report at the office for collection of
their appointment letters on character verification and eventually
they got appointments. Later on Parveen Singh and others had
approached the tribunal to extend the monetary benefits from the
date of their appointment. The tribunal had directed to extend
50% of the actual monetary benefits from the date of
appointment along with other consequential benefits. The Union
of India and its authorities preferred writ petition before the High
Court of Punjab and Haryana, which passed the following order: -
“For the reasons recorded above, the writ petition
is partly allowed and the order of the tribunal is
quashed to the extent it grants 50% back wages.
However, we do not find any infirmity in keeping
intact the other reliefs granted by the tribunal,
namely, ante-dating of appointment of
respondent Nos. 1 to 7 and fixation of their pay
with all consequential benefits of increments etc.
with effect from the date, all other candidates
placed on the panel of selected candidates were
appointed. No order as to costs.”
14. While Parveen Singh and others were proceeding in this
manner, appellant No. 4, Ujwal Kachroo, approached the tribunal
at Jammu. The tribunal allowed OA and directed to issue
appointment letter to the applicant for the post for which he was
duly selected in 1984 within a period of six weeks. It proceeded
to clarify that the appointment shall have prospective effect and
he would not be entitled to any back wages or seniority for the
simple reason that it was neither his case nor anything had been
brought on record to show that any person junior to him in the
panel had already been appointed. At this juncture, three of the
appellants approached the High Court of Jammu and Kashmir
and the learned single Judge of the High Court of Jammu and
Kashmir, by order dated 24.7.1995, had passed the following
order: -
“I have heard learned counsel for the parties.
The respondents have no objection in appointing
the petitioners as and when the posts of LDCs
become available and also subject to their merit
positions in the select list. Since the
respondents have not objected in making
appointments of the petitioner, I allow this writ
petition and direct the respondents that thePage 11
11
petitioners shall be appointed as LDCs as and
when the posts become available, on their own
turn, as per their merit position in the select
list.”
On the basis of the aforesaid order, the said appellants were
given appointment.
15. After the decision of the Punjab and Haryana High Court
was delivered the present appellants approached the Principal
Bench of the tribunal and the tribunal did not accept the prayer
which has been given the stamp of approval by the High Court.
16. In the course of hearing, learned senior counsel for the
parties fairly stated that the decision rendered by the High Court
of Punjab and Haryana has not been challenged before this Court
and, therefore, we refrain from commenting about the legal
defensibility of the said decision. However, it is clear as noon day
that the appellants, neither in their initial rounds before the
tribunal nor before the High Court, ever claimed any
appointment with retrospective effect. In fact, the direction of the
in respect of appellant No. 4 in the OA preferred by the appellant
No. 4 was absolutely crystal clear that it would be prospective.
The said order was accepted by the said appellant. However, as
is manifest, after the decision was rendered by the Punjab and
Haryana High Court wisdom dawned or at least they perceived
so, and approached the Principal Bench for grant of similar
reliefs. In the petition before the tribunal, they had stated in
their factual portion which are to the following effect: -
“(n) That since at the time of filing writ by
applicant/petitioner Nos. 1,2 and 3 and an O.A.
by applicant/petitioner No. 4, the issue of
entitlement to anti-dating appointment and back
wages was under adjudication before the Hon’ble
High Court of Punjab and Haryana in the case of
Parveen Singh & Ors., the applicants/petitioners
in the present O.A. did not seek such relief in
their respective writ and O.A.
(o) That when the High Court upheld the orders
of the tribunal in case of Parveen Singh & Ors.,
that they are entitled to the benefit of anti-dating
appointment and the consequential benefits, the
applicants/petitioners made individual
representations to the respondents seeking the
benefit of High Court’s judgment dated 12.7.2001
delivered in C.W.P. No. 1156 of 2001. A true
photocopy of this judgment is already available
as Annexure A-5 at page 22-32 of the O.A.”
17. Thus, it is demonstrable that they did not approach the
legal forum but awaited for the verdict of the Punjab and
Haryana High Court. As far as appellant No. 4 is concerned, we
really see no justifiable reason on his part to join the other
appellants when he had acceded to the first judgment passed in
his favour to a limited extent by the tribunal. This was an
ambitious effort but it is to be borne in mind that all ambitions
are neither praiseworthy nor have the sanction of law. Be that as
it may, they approached the tribunal some time only in 2004.
The only justification given for the delay was that they had been
making representations and when the said benefit was declined
by communication dated 31.7.2004, they moved the tribunal.
The learned senior counsel for the appellants fairly stated that as
the doctrine of parity gets attracted, they may only be conferred
the benefit of seniority so that their promotions are not affected.
18. It is necessary to keep in mind that claim for the seniority is
to be put forth within a reasonable period of time. In this
context, we may refer to the decision of this Court in P.S.
Sadasivaswamy v. State of Tamil Nadu5
, wherein a two-Judge
Bench 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 courts to put forward
stale claims and try to unsettle matters.”
5 AIR 1974 SC 2271Page 14
14
19. In Karnataka Power Corporation Ltd. & Anr. v. K.
Thangappan & Anr.6
this Court had held thus that 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 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.
20. In City Industrial Development Corporation v. Dosu
Aardeshir Bhiwandiwala & Ors.7
this Court has opined that
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
6 AIR 2006 SC 1581
7 AIR 2009 SC 571Page 15
15
stale claims and exhuming matters where the rights of third
parties may have accrued in the interregnum.
21. From the aforesaid pronouncement of law, it is manifest
that a litigant who invokes the jurisdiction of a court for claiming
seniority, it is obligatory on his part to come to the court at the
earliest or at least within a reasonable span of time. The belated
approach is impermissible as in the meantime interest of third
parties gets ripened and further interference after enormous
delay is likely to usher in a state of anarchy.
22. The acts done during the interregnum are to be kept in
mind and should not be lightly brushed aside. It becomes an
obligation to take into consideration the balance of justice or
injustice in entertaining the petition or declining it on the ground
of delay and laches. It is a matter of great significance that at
one point of time equity that existed in favour of one melts into
total insignificance and paves the path of extinction with the
passage of time.
23. In the case at hand, as the factual matrix reveals, the
appellants knew about the approach by Parveen Singh and
others before the tribunal and the directions given by thePage 16
16
tribunal but they chose to wait and to reap the benefit only after
the verdict. This kind of waiting is totally unwarranted.
24. Presently we shall refer to the authorities commended by
the learned senior counsel for the appellants. In K.C. Sharma
(supra) the factual scenario was absolutely different and thus,
distinguishable. In C. Lalitha (supra) it has been held that
justice demands that a person should not be allowed to derive
any undue advantage over other employees. The concept of
justice is that one should get what is due to him or her in law.
The concept of justice cannot be stretched so as to cause heartburning
to more meritorious candidates. In our considered
opinion, the said decision does not buttress the case of the
appellants.
25. In Maharaj Krishan Bhat (supra), the appellants had
made a representation on 8.1.1987. A similar representation was
sent by one Abdul Rashid on that date to the Hon’ble Chief
Minister of State of Jammu and Kashmir with a request to
consider the case for appointment to the post of PSI by granting
necessary relaxation in rules against 50% direct recruitment
quota. The Director General of Police vide his letter datedPage 17
17
23.1.1987 recommended the name of Hamidullah Dar, one of the
applicants, for appointment and he was appointed as PSI vide
order dated 1.4.1987. The other appellants were not extended
the benefit of appointment. Under those circumstances the High
Court of Jammu and Kashmir in SWP No. 351 of 1987 directed
the Director General of Police to consider the case of the
appellants. Thereafter Abdul Rashid filed a similar petition
which was admitted. Pursuant to the direction of the High Court
the Director General of Police considered the applications of
Mohd. Abbas and Mohd. Amim but rejected the prayer on
13.12.1991. When the matter of Abdul Rashid, the appellant,
came up the learned single Judge allowed the writ petition relying
on the earlier judgment. The Government of Jammu and
Kashmir filed Letters Patent Appeal which was dismissed. In the
context, this Court opined that the Division Bench should not
have refused to follow the judgment by another Division Bench.
Attention was raised that initial violation was committed by the
State Government and which was violative of Articles of 14 and
16 of the Constitution and the said mistake could not be
perpetuated. In that context it was held as follows: -Page 18
18
“21. It was no doubt contended by the learned
counsel for the respondent State that Article 14
or 16 of the Constitution cannot be invoked and
pressed into service to perpetuate illegality. It
was submitted that if one illegal action is taken, a
person whose case is similar, cannot invoke
Article 14 or 16 and demand similar relief
illegally or against a statute.”
Thereafter the Bench proceeded to state as follows: -
“23. In fairness and in view of the fact that the
decision in Abdul Rashid Rather had attained
finality, the State authorities ought to have
gracefully accepted the decision by granting
similar benefits to the present writ petitioners. It,
however, challenged the order passed by the
Single Judge. The Division Bench of the High
Court ought to have dismissed the letters patent
appeal by affirming the order of the Single Judge.
The letters patent appeal, however, was allowed
by the Division Bench and the judgment and
order of the learned Single Judge was set aside.
In our considered view, the order passed by the
learned Single Judge was legal, proper and in
furtherance of justice, equity and fairness in
action. The said order, therefore, deserves to be
restored.”
26. We respectfully concur with the said observations but we
cannot be oblivious of the fact that the fact situation in that case
was totally different. Hence, the said decision is not applicable to
the case at hand.Page 19
19
27. In the case at hand it is evident that the appellants had
slept over their rights as they perceived waiting for the judgment
of the Punjab and Haryana High Court would arrest time and
thereafter further consumed time submitting representations and
eventually approached the tribunal after quite a span of time. In
the meantime, the beneficiaries of Punjab and Haryana High
Court, as we have been apprised, have been promoted to the
higher posts. To put the clock back at this stage and disturb the
seniority position would be extremely inequitable and hence, the
tribunal and the High Court have correctly declined to exercise
their jurisdiction.
28. Another aspect needs to be highlighted. Neither before the
tribunal nor before the High Court, Parveen Singh and others
were arrayed as parties. There is no dispute over the factum that
they are senior to the appellants and have been conferred the
benefit of promotion to the higher posts. In their absence, if any
direction is issued for fixation of seniority, that is likely to
jeopardise their interest. When they have not been impleaded as
parties such a relief is difficult to grant. In this context we may
refer with profit to the decision in Indu Shekhar Singh & Ors.
v. State of U.P. & Ors.8 wherein it has been held thus: -
“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.”
29. In Public Service Commission, Uttaranchal v. Mamta
Bisht & Ors.9
this Court while dealing with the concept of
necessary parties and the effect of non-impleadment of such a
party in the matter when the selection process is assailed
observed 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 nonjoinder
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
8 AIR 2006 SC 2432
9 AIR 2010 SC 2613Page 21
21
Barat & Ors., AIR 1974 SC 2105; 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.”
30. From the aforesaid enunciation of law there cannot be any
trace of doubt that an affected party has to be impleaded so that
the doctrine of audi alteram partem is not put into any hazard.
31. Analysed on the aforesaid premised reasons, we do not see
any merit in these appeals and, accordingly, they are dismissed
with no order as to costs.
............................................J.
 [Dr. B. S.
Chauhan]
............................................J.
 [Dipak Misra]
New Delhi;
May 25, 2012

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