Sharma, Advs v. UNION OF INDIA & ORS

3. The learned senior counsel for the review petitioners submits that, in the present case, as the review petitioners were appointed against the vacancy years prior to the pronouncement of the judgment of K. Meghachandra (supra) on 19.11.2019, in terms of the paragraph no.40 of the said judgment and paragraph 7(iii) of the above O.M., the seniority is to be determined in terms of the O.Ms. dated 07.02.1986 /03.07.1986 read with O.M. dated 04.03.2014, as explained by the Supreme Court in Union of India & Ors. v. N.R. Parmar & Ors.,

4. The learned senior counsel for the review petitioners further submits that, the above submissions could not be brought to the notice of this Court as the review petitioners were not made parties to the present Writ petition.

5. He further submits that this Court, while passing the subject judgment, failed to take into account the mandate of the judgment of the Supreme Court in Union Territory of Ladakh & Ors. v. Jammu and Kashmir National Conference & Anr., 2023 SCC OnLine SC 1140, wherein it has been held that, where conflicting judgments are pronounced by Benches of equal strength of the Supreme Court, it would be the earlier judgment of the Supreme Court which would prevail.

6. The learned counsel for the Union of India supports the submissions made by the learned senior counsel appearing for the review petitioners.

7. On the other hand, the learned counsel for the petitioners submits that insofar as the reliance placed on the paragraph no.7 (iii) and (iv) of the O.M. dated 13.08.2021 is concerned, a Coordinate Bench of this Court in Ms Anju Chawla & Ors. v. Govt of NCT of Delhi & Ors., 2024:DHC:8036-DB, has already found the same to be contrary to the judgment of the Supreme Court in K. Meghachandra (supra).

8. The learned counsel for the petitioners further submits that, in terms of the Recruitment Rules, the seniority is not to be determined in terms of the vacancy year, but from the date of the actual appointment and, therefore, is to be governed by the judgment of K. Meghachandra (supra).

9. On the submission of the learned senior counsel for the review petitioners that the review petitioners were not made parties in the present Writ Petition, he submits that as the petitioners were challenging the order dated 19.10.2023 passed by the learned Tribunal, and the challenge to the Seniority List was on a principle and not against a particular individual, therefore, it was not necessary for all affected persons to be made parties to the Writ Petition. The petitioners had impleaded some of them in the representative capacity. In support, he places reliance on the judgement of the Supreme Court in Ajay Kumar Shukla & Ors. v. Arvind Rai & Ors., 2021 SCC OnLine SC 1195.

10. As regards the reliance of the learned senior counsel for the review petitioners on the Supreme Court in Union Territory of Ladakh & Ors. (supra), he submits that the same has been duly considered by this Court in its subject judgment.

11. We have considered the submissions made by the learned counsels for the parties.

12. It is not denied that the review petitioners joined the service post the promotion of the petitioners through the Limited Departmental Competitive Examination (LDCE). As it has not been shown to us that the relevant Seniority Rules prescribe seniority to be determined based on the year of vacancy, the effect of the same, in terms of K. Meghachandra (supra), would be that the petitioners would be senior to the review petitioners and the seniority is to be determined by the date of joining service at a particular post.

13. As far as the reliance of the review petitioners on the O.M. dated 13.08.2021 is concerned, a Coordinate Bench of this Court has already considered the said O.M. and found the same to not be in accord with the judgment of K. Meghachandra (supra). We would do no better than to reproduce the relevant findings of the Coordinate Bench of this Court in Anju Chawla (supra) as under:

13. Para 7(iii) of the aforesaid OM does not accord with our understanding of Meghachandra, as explained in detail in Yugal Kishore Sah. It is clearly an executive instruction, and is not a rule within the meaning of para 39 of the judgment in Meghachandra. Meghachandra expressly overrules Parmar, declaring it to be bad law. In our view, having done so, Meghachandra cannot be understood to have permitted seniority to be fixed on the basis of the overruled judgment in Parmar. Fixation of seniority, post Meghachandra, has, in our view, to abide by Meghachandra, and cannot be effected on the basis of Parmar. The fact that the DRs and promotees, in respect of whom the seniority was being fixed, may have been recruited prior to Meghachandra, cannot alter this position, and allow fixation of their seniority on the basis of the overruled Parmar. We cannot understand para 39 of Meghachandra to hold that, despite Parmar having been specifically held to be incorrectly rendered, and expressly overruled, the Supreme Court nonetheless permits seniority, in respect of DRs, or promotees, recruited prior to Meghachandra, to be fixed on the basis of Parmar. What para 39 of Meghachandra protects, in our view, is only inter se seniority which stands fixed, on the basis of Parmar, before Meghachandra was rendered. That, in our view, is the correct interpretation to be placed on the expression “inter se seniority already based”, as employed in para 39 of Meghachandra. Where there has been no Parmar-based determination of inter se seniority between DRs and promotees prior to the rendition of the judgment in Meghachandra, this saving caveat would have no application. Simply put, post-Meghachandra, inter se seniority would have to abide by the law declared in Meghachandra, and resort to the overruled Parmar decision would be completely ruled out.

14. Para 7(iii) of the DOPT OM dated 13 August 2021, which observes otherwise, is, in our view, clearly erroneous in law. It cannot be followed, in preference to the judgment of this Court in Yugal Kishore Sah.”

14. Coming to the submission of the learned senior counsel for the review petitioners, that the review petitioners were not made parties to the present Writ Petition and, therefore, the petition was decided without hearing them, we may only observe that the challenge of the petitioners was not against a particular individual, but on a principle and being aggrieved of the official respondents not determining the seniority in terms of the extant law as explained by the Supreme Court in K. Meghachandra (supra). In such a challenge, it was not necessary for the petitioners to implead each and every individual who may be affected. The petitioners, in terms of the judgment of the Supreme Court in Ajay Kumar Shukla (supra) had impleaded a few of the officers, who would also be equally affected by the judgment sought, as party respondent in the Writ Petition in a representative capacity.

15. Be that as it may, the review petitioners have now been heard and we find no error in our judgment, requiring a review.

16. For the reasons stated hereinabove, we find no merit in the present review petition. The same along with the pending application is, accordingly, dismissed.

NAVIN CHAWLA, J RENU BHATNAGAR, J FEBRUARY 20, 2026/ns/pb