Sh. Chandransh Pandey v. Union of India & Ors.

1. Whether reporters of Local papers may be allowed to see the judgment? YES

2. To be referred to the reporter or not? NO

3. Whether the judgment should be reported in the Digest?

NO ANIL KUMAR, J. * CM No. 3844/2010 This is an application by the review applicants seeking condonation of delay of 53 days in filing the application for review of order dated 21st December, 2009 allowing the writ petition of the petitioner and setting aside the order of the Central Administrative Tribunal. 2010:DHC:5590-DB The applicants have contended that they were parties before the Central Administrative Tribunal, which had passed the order dated 2nd July, 2008 in OA No. 284/2008 in favour of the applicants. According to the applicants, they were not impleaded as parties to the present writ petition which was filed by the petitioner against the order dated 2nd July, 2008 and consequently, the applicants were not heard and the writ petition was allowed and the order dated 2nd July, 2008 passed by the Tribunal was set aside. The applicants have asserted that the other respondents, in compliance of the order dated 21st December, 2009, issued a letter dated 22nd February, 2010, which was displayed on the notice board. The applicants came to know about the order dated 21st December, 2009 on 8th March, 2010 from the notice board and consequent thereto the application for review has been filed on 16th March, 2010. In the circumstances, the applicants have contended that neither they were the parties to the present writ petition, although they are the necessary parties, nor the order dated 21st December, 2009 was passed in their presence nor was it communicated to them in any manner till they came to know about the order passed by this Court in WP(C) NO. 5341/2008 titled Sh. Chandransh Pandey Vs. Union of India and Ors. on 8th March, 2010. In the circumstances, the applicants have pleaded that there is sufficient cause for condoning the delay of 53 days in filing the application for review of order dated 21st December, 2009. Reply to the application has not been filed on behalf of the petitioner/non-applicants. In any case, it has not been disputed by the petitioner/non-applicants that the applicants were parties before the Central Administrative Tribunal, however, the applicants were not impleaded as parties to the above noted writ petition. If the applicants were not impleaded as parties to the above noted writ petition, the applicants could not have the knowledge about the filing of the writ petition and its disposal by order dated 21st December,

2009. The application for condonation of delay of 53 days is supported by the affidavit of the applicant Sh. A.K. Sharma, who had stated that he came to know about the order on 8th March, 2010, when the letter dated 22nd February, 2010 was put on the notice board. There is no reason to disbelieve the applicants. In the circumstances, the applicants have been able to make out sufficient cause for condonation of delay of 53 days in filing the review application. The application for condonation of delay, is therefore, allowed and delay of 53 days in filing the review application is condoned. RA No. 123/2010 & CM No. 3843/2010 This is an application seeking review of order dated 21st December, 2009 passed by this Court in WP(C) No. 5341/2008 allowing the writ petition and holding that the respondents, UOI and Ors. could not have recalled its order/conscious decision dated 12th February,

2007. The writ petitioner had filed a petition before the Central Administrative Tribunal challenging the order dated 28th January, 2008 whereby his representation regarding his seniority and transfer to Delhi Division had been rejected. The Tribunal by order dated 2nd July, 2008 in OA 284/2008 titled as Chandransh Pandey Vs. Union of India had dismissed the petition against which order the Writ Petition NO. 5341/2008 titled as Sh. Chandransh Pandey Vs. Union of India & Ors. was filed, which was allowed by this Court by order dated 21st December, 2009. The grievance of the applicants is that they were impleaded as parties in the original application No. 284/2008 by order dated 29th April, 2008 and the applicants, namely, A.K. Sharma; Sh. Ravinder Singh and Sh. Tilak Raj Sachdeva were impleaded as the respondents. They further contended that though they were impleaded as parties, however, the petitioner had failed to file amended memo of parties before the Tribunal and to even implead them as party respondents before this Court. However, the lapse on the part of the petitioner could not deprive them of their right to be heard and oppose the prayer of the petitioner in the writ petition. The original application No. 284/2008, where the applicants were impleaded as a party, was dismissed by the Tribunal by order dated 2nd July, 2008 against which the above noted writ petition was filed. However, the petitioner failed to implead the applicants as parties to the present writ petition. The assertion of the applicants is that they are necessary parties and in their absence, the order dated 21st December, 2009 is not binding on them as it has not been passed against them and consequently, the order of the Tribunal dated 2nd July, 2008 which was passed in their favour has not been set aside as far as the applicants are concerned. It is also contended that in the facts and circumstances, the order dated 21st December, 2009, could not have been passed without impleading the applicants as parties to the writ petition and without hearing them and in the circumstances, the order dated 21st December, 2009 suffers from an error apparent on the face of the record and is liable to be set aside. It is also contended by the applicants that the order dated 21st December, 2010 has been passed against the principal of natural justice as no reasonable opportunity was given to applicants before reversing the order dated 2nd July, 2008, which was passed in OA No. 284/2008 in their favor dismissing the Original Petition of the petitioner. The applicants have also contended on merit that the petitioner had mentioned about the option form and the option was exercised by him for the first time in the High Court in the writ petition, though, the option letter dated 26th November, 2002 explicitly had indicated that it was with reference to Railway Board’s letter dated 19th July, 2002. The applicants have also contended that the petitioner failed to appraise the High Court about the list of the staff transferred to Delhi Division, which was issued by the Northern Central Railway. The petitioner, who was on deputation, had no authority to report to Delhi Division. The applicants have also sought review of the order dated 21st December, 2009 on the ground that the applicants being the necessary parties, should have been impleaded as parties to the present writ petition and should have been heard before setting aside the order of the Tribunal, which was in their favour. In the circumstances, it is contended that there is an error apparent on the face of the record and the order dated 21st December, 2009 is liable to be set aside. A reply has been filed on behalf of the petitioner/non-applicant contending, inter alia, that the applicants should not be aggrieved by the order dated 21st December, 2009 as the applicants were the members of Northern Railway, Men’s Union and for extraneous consideration did not want the petitioner to come to Delhi Division and gain seniority over them. It is further asserted by the writ petitioner that although the Railway had granted seniority to the petitioner, the applicants were instrumental in writing false and frivolous letters to the department and getting his seniority cancelled. According to him, the order which was challenged by the petitioner before the Tribunal, was regarding action of the Railway in sending him back to Jhansi Division from Delhi and cancelling his seniority illegally and thus, the cause of action before the Tribunal was purely between the writ petitioner and the department and consequently only the Railways and its officials in official capacity were made parties as respondents. The plea of the petitioner is that Senior DPO, Delhi had issued a notice to conduct selection examination for 80% quota from Junior Engineers to Senior Engineers and petitioner despite being the senior most was not called for examination and pursuant to an interim order, he was allowed to appear provisionally. According to the petitioner, the applicants, after the interim order was passed in favor of the petitioner to appear provisionally in the examination, had filed an application to intervene in the matter and the application was filed for the limited purpose to oppose the interim order passed in favor of the petitioner. The Railway had, however, postponed the examination and the examination was held after the judgment and the petitioner was not allowed to appear. The writ petitioner has also pointed out that the application for impleadment by the applicants was also filed by the advocate of the Railway and therefore, the impleadment was for limited purpose. In the circumstances, it is contended that there are no errors in the order dated 21st December, 2009 even though the applicants were not impleaded as parties to the writ petition and were not heard. The writ petitioner has also asserted various other facts on merit in reply to various other allegations made by the applicants. This Court has heard the learned counsel for the parties. The order dated 29th April, 2008 in MA No. 583/2008 rather reveals that the application to implead the applicants as parties to the original petition before the Tribunal was not objected to and the application was allowed. It had not been contended before the Tribunal that the applicants be impleaded as parties for the limited purpose of opposing the interim application of the petitioner. Even the plea that the application for impleadment was filed on behalf of the applicants by the counsel for the Railway, it cannot be inferred that the applicants were impleaded as parties only in the interim application which was filed by the petitioner before the Tribunal or that the applicants were not impleaded in the Original application before the Tribunal. From the order dated 29th April, 2008 in MA 583/2008 also, it cannot be inferred in any manner that the impleadment of the applicants before the Tribunal was for a limited purpose and they were not impleaded as respondents. If the applicants were impleaded as respondents and consequent to order dated 29th April, 2008 in MA 583/2008 if the memo of parties was not filed by the writ petitioner, it will not affect the right of the respondents in any manner. If the respondents were parties before the Tribunal while dismissing the original application of the writ petitioner being OA 284/2008 by order dated 2nd July, 2008, in the writ petition filed by the writ petitioner against the said order, the applicants should have been impleaded as the respondents as they were the necessary parties before the High Court. This cannot be disputed that the order dated 2nd July, 2008 was passed by the Tribunal in OA 284/2008 in favor of the applicants, which could not be set aside by this Court without hearing the applicants. The pleas and contentions by the applicants raised in the review application in support of sustaining the order dated 2nd July, 2008 are not to be considered at this stage and what is to be considered is whether the applicants were necessary parties and whether the order dated 21st December, 2009 could be passed without hearing their pleas and contentions. Considering the totality of the facts and circumstances, it is inevitable to infer that the applicants are a necessary party in the writ petition and the writ petitioner ought to have impleaded them as the parties to the writ petition and the order dated 2nd July, 2008 in OA 248/2008 could be set aside only after hearing them. In the circumstances, the order dated 21st December, 2009 has an error apparent on it and is liable to be set aside. Consequently, the order dated 21st December, 2009 allowing the writ petition No. 534/2008 is set aside and in the facts and circumstances, the writ petition is restored to its original number with the direction to the writ petitioner to implead the applicants as parties to the present writ petition. Consequently, the application for review being RA 123/2010 is allowed. Since the order dated 21st December, 2009 has been set aside, consequently, the CM No. 3843/2010 seeking stay of order dated 22nd February, 2010, which was passed pursuant to order dated 21st December, 2009, is also allowed and the order dated 22nd February, 2010 is stayed during the pendency of the present petition. By order dated 25th July, 2008 in CM No. 10191/2008, operation of order dated 2nd July, 2008 passed by the Central Administrative Tribunal was stayed. In the circumstances, the said application is also restored and the interim order is also revived till the next date of hearing. WP(C) No. 5341/2008 The order dated 21st December, 2009 has been set aside pursuant to review application filed by the applicants and the writ petition and the interim application have been revived. In the circumstances, list the writ petition and the interim application on behalf of the petitioner before the Regular Bench on 3rd December, 2010, subject to orders of Hon’ble the Chief Justice. ANIL KUMAR, J. NOVEMBER 19,2010 VIPIN SANGHI, J. ‘rs’