Raj Kumar v. Vetsus

1. At the outsel wc rccord our displeasure in the manncr in which WP(C) 74921201 I is bcing prosccutcd.

2. Listcd for prcliminary hcaring on October 17, 2011 along with CM No.l698312011 scckins intcrim directions as also CM No.1698412011 w.P rc.) 7492/201 I & 2632/201: PLtge I d 5 2013:DHC:7262-DB t. Lp seeking 23 days dclay to bc condoned in re-filing thc writ petition thc matter was got adjourncd to November 03, 20lI and thcrcafter to January 05, 2012 and thercafter to l.'ebruary 15, 2012 and thereaftcr to July 1 6, 2012 and thereafter August 08, 2012 and thereafter Octobcr 01, 2012 and thereafter Decembcr 1),2012 on which date, fortunatcly for the writ petitioners two applications numbered as CM No' 1966312012 and CM No.1966412012 were listed, the former seeking permission to implead five persons named in paragr aph 2 of the application as respondents and the later praying that dclay of 54 days in re-filing CM No.1966312012 be condoned. Since nobody appcared for the petitioner said applications were dismissed and it appcars that the typist who noted the ordcr did not record that even the writ pctition and thc previous two applications were pending.

3. Thereforc, thc writ pctition got saved and the Registry has listed the same before us for todaY.

4. WP(C) No. 263212012 is also listed today and we find that in said writ petition notice has bccn issued to the unserved rcspondents being respondents No.4 to 8 rcturnablc for November 27,2013 '

5. In vicw of thc lact that matter needs to be remandcd to the 'fribunal we note that rcspondcnts No.4 to 8, who were the respondents before the Tribunal had not appcarcd bcfore the T'ribunal and only rcspondents No.1 to 3 had appeared bcforc thc 'l'ribunal, thus we preponc hearing of said petition.

6. Ilearing of WI'}(C) No.263212012 is preponed for today.

7. Both writ pctitions are hcard.

8. Order dated April 27,201 I challenged in WP(C) No. 749212011 has dismissed OA No.276712010 filed by petitioner Raj Kumar. It pertained to w P rc) 7$2/201 I 3, 26.J[2], 20 |: Page 2 qf 5 t) the seniority list of I'(i't-. g. Order datcd January 06, 2012 challenged by writ petitioner Sunil Kumar in WP(C) No.263212012 has dismissed OA No.108412011. It also pertains to the seniority list of PGT.

10. Order dated January 06, 2012 has simply followcd an order dated September 28,2011 dismissing OA No.24612011, which order in turn had followed thc ordcr clatcd April 27, 20ll challcngcd in WP(C) No.749212011. 1 i. order datcd April 27, 2011 has been perused by us. Two distinct reasons arc to bc found to dismiss OA No.276712010. Firstly that persons likely to be affected by thc challenge to the seniority list are not impleaded. Ihe second is that a wrong cannot be treated as a precedent.

12. To understand thc sccond reasoning, we note that as per the case pleaded by Raj Kumar thc past practice till the year 1996 was to reckon seniority of promotccs not with rcference to the date of rcgular promotion but from the datc of initial ad-hoc promotion if it was followed by regular promotion. 'l'hc 'l'ribunal has brushed the arguments asidc by holding that a past wrong cannot bc a prccedent and in this manncr has refused to recognized the claimants claim for seniority to be reckoncd with effect from the date of ad-hoc promotion.

13. The 'I'ribunal has ovcrlooked the fact that granting scniority from thc date of ad-hoc promotion if followed by regular promotion is not an illegality. It is recognized upon certain conditions being satisfied as per law declared by thc Supremc Court in the decision reported as 1990 (2) SCC 715 Direct Recruit Class IIJi ion vs. State o-f Maharashtra & Ory. w.P.rc) 7492/2011 & 2632/2012 Page 3 oJ 5 )>/'

14. If officers whose seniority was in issue had not been joined as respondents by Raj Kumar, an opportunity could be granted to him to implead them as respondcnts'

15. The decision clated April 27,2011, with respect to its reasoning of non-impleadment o1- ncccssary parties could not be a precedent in the Original Application filed by Sunil Kumar for the reason he had impleaded the persons likcly to bc adversely affected as respondents before the Tribunal. 'l'hus, in any casc, clairn of Sunil Kumar had to be considered on merits and whilc so doing thc 't'ribunal was obliged to consider the law declared by thc Suprcmc Court in the decision in Direcl Recruit Class II Engineering O-fficers Association 's case (supra).

16. Under the circumstanccs the only course available to us is to remit the matter to the l'ribunal for frcsh adjudication and simultancously permit Raj Kumar to implcad thc pcrsons over whom he claims seniority.

17. The two writ petitions stands disposed of quashing order dated April 27,2011 dismissing OA No.276712010 as also the order dated January 06, 2012 dismissing OA No.l084/2011. lg. OA No.276712010 and OA No.1084l20ll are rcstored for fresh adjudication on mcrits with a direction that two be heard together and that Raj Kurnar bc pcnnittcd to implcad thc persons whose scniority is likely to be adversely affectcd lbr which Raj Kumar shall file an application. We may it clear that if Itaj Kumar does not seek impleadmcnt of said persons the Original Application lilcct by him may be dismissed by the Tribunal' bu[1] on account of implcadmcnt not the Original Application filed by Sunil Kumar, since hc has implcadcd pcrsons likely to be affcctcd by a decision, as respondents in thc Original Application filed by him' L\,/ Y w P.c) 7192/201 1 & 2632,2012 \) lg. All pending applications stand disposed of as infructuous in the two writ petitions.