TaxTMI 
TaxTMI 
2012 (10) TMI 65
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....he date when his juniors in the cadre of AE (Civil) have been accorded such benefits; and d) pass any such further order or direction as may be deemed fit, proper and necessary." 3. From the above, it is apparent that the petitioner sought the quashing of the final seniority list of Assistant Engineers (Civil) in CPWD as on 01.01.2011. The said final seniority list was circulated through the Office Memorandum dated 01.08.2011 issued by the Directorate General of Works, CPWD, Government of India. The petitioner had also sought a direction from the Tribunal to place him below S.No.557 and above S.No.558 in the said final seniority list. The petitioner had, as a consequence thereof, also prayed that he be given all the benefits with effect from the date his juniors in the cadre of Assistant Engineers (Civil) had been accorded such benefits. It is, therefore, clear that the primary challenge of the petitioner was to the final seniority list circulated vide the said O.M. dated 01.08.2011. In that seniority list, the petitioner had been placed at S.No.791 and his claim was that he ought to be placed below S.No.557 and above S.No.558. 4. The petitioner was initially appointed as a Juni....
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....grievance with regard to him being wrongly placed in the seniority list on account of the fact that his date of joining as Assistant Engineer (Civil) was shown as 29.11.1994, when, according to him, it should have been 04.06.1993. He took the plea that his position in the seniority list was not correct. 7. This was followed by another representation dated 22.06.2006, which was in the nature of a reminder. Both these representations went unheeded. As such, the petitioner filed an application under the Right to Information Act, 2005 on 05.01.2007 seeking information with regard to his position in the seniority list. 8. Even this information was not forthcoming, as a result of which, the petitioner had to approach the Central Information Commission and it is only thereafter that the information sought by the petitioner had been furnished to him as would be apparent from Annxure- J to the writ petition which is a copy of an order of the Central Information Commission dated 18.06.2008. As pointed out above, the final seniority list of Assistant Engineers (Civil) in the CPWD as on 01.01.2011, was circulated by the said O.M. dated 01.08.2011. It is that final seniority list which was ch....
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....sons, except the respondent No.3 (Shreepal Singh), the said O.A. was liable to be rejected on account of non-joinder of necessary parties. Thus, both on the ground of delay and on the ground of non-joinder of necessary parties, the Tribunal rejected the petitioner's said O.A. 11. The learned counsel for the petitioner submitted that the Tribunal had erred on both counts. He submitted that the petitioner had been agitating his alleged wrong placement in the seniority list and that this would be evident from the representations made by him from time to time as also from the fact that the petitioner was driven to seek recourse under the Right to Information Act and ultimately to the Central Information Commission to obtain information with regard to his seniority. Therefore, according to the learned counsel for the petitioner, this was not a case where the petitioner had accepted his position in the provisional seniority list and was only agitating the matter after several years had elapsed. Furthermore, the learned counsel for the petitioner submitted that the petitioner was entitled in law to challenge the final seniority list even though he had not approached the Tribunal insofar ....
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....implead all the 233 persons had been given by the Tribunal and the petitioner did not still implead such persons, then, perhaps, the Tribunal would have been right in dismissing the original application on the ground of non-joinder, but not otherwise. In support of these submissions, the learned counsel for the petitioner placed reliance on the following decisions:- 1) Prabodh Verma and Others v. State of U.P. and Others: 1984 (4) SCC 251; 2) V.P. Shrivastava (supra); 3) Shadi Ram Yadav v. Director General, CISF and Others: 59 (1995) DLT 579 (DB); 4) S.K. Jain v. P.S. Gupta and Others: 2002 IV A.D. (Delhi) 596. 14. On the other hand, the learned counsel for the respondents, as in the case of limitation, relied upon the observations and findings of the Tribunal on the aspect of non-joinder of the said 233 persons. He supported the decision of the Tribunal that because the petitioner had not joined all the adversely affected persons, the Tribunal was well within its right in dismissing the original application on the ground of non-joinder of necessary parties. 15. Let us now examine the decisions cited on both sides on the issue of limitation. The first decision was that of the....
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.... the time the petitions came to be filed, but that would not make the petitioner's case any worse. On the contrary, the petitioner's case is better inasmuch as the final seniority list came to be published on 01.08.2011 and immediately thereafter, the petitioner approached the Tribunal by way of the said O.A. 4154/2011. Therefore, the decision in G.P. Doval (supra) clearly supports the petitioner's plea that he had approached the Tribunal within time. 17. The next decision referred to by the learned counsel for the petitioner is that of the Supreme Court in the case of V.P. Shrivastava (supra). In that case, in the year 1983, a provisional seniority list of Additional Directors was drawn up by the State Government, wherein ad hoc promotees were shown senior to the regular appointees like the appellants before the Supreme Court. The appellants therein filed objections to the said provisional list. Without taking a decision on the same, the State Government issued another provisional list in the year 1986, but continued the mistake which was there in the 1983 list. The appellants before the Supreme Court again put forward their grievances in 1987 and, thereafter, the seniority lists....
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....ground of delay and laches. This is all the more clear from the observations of the Supreme Court in M. Pachiappan (supra), wherein it has observed as under:- "After the publication of the final seniority list, the provisional seniority list gets substituted by the final list". Thus, the provisional seniority list of 01.04.2002 got substituted by the final seniority list of 01.08.2011. In these circumstances, it would be incongruous to hold that the petitioner could not challenge the final seniority list. If it was open to the petitioner to challenge the final seniority list, then, it is clear that he did so well within time. 20. We must also deal with the decisions which were cited by the learned counsel for the respondents. The first of them being the case of B.S. Bajwa (supra). The facts of that case, as indicated in the decision of the Supreme Court itself, are as under:- "3. The material facts in brief are this. Both B.S. Bajwa and B.D. Gupta joined the Army and were granted Short Service Commission on 30th March, 1963 and 30th October, 1963 respectively when they were students in the final year of the Engineering Degree Course. B.S. Bajwa graduated thereafter in June, 196....
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....ound by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition." 21. The learned counsel for the petitioner had placed strong reliance on the observations of the Supreme Court to the effect that it is well-settled that in service matters, the question of seniority should not be reopened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. However, in our view, this decision does not, in any way, hurt the case of the petitioner. This is so because the Supreme Court made the above observations with reference to a 'settled position' with regard to seniority. However, seniority based on a provisional list cannot be regarded as a settled position unless and until the final seniority list is published. Therefore, this....
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....cation of the final seniority list, it is not as if, he was a mere spectator inasmuch as we have already noticed the fact that he had submitted several representations and was even driven to approach the Central Information Commission to obtain information with regard to his seniority position. Therefore, on facts, the Supreme Court decision in S. Sumnyan (supra) is clearly distinguishable and would not run counter to the submissions made on behalf of the petitioner. 23. As a result of the foregoing discussion, we find that the Tribunal ought not to have dismissed the petitioner's said original application at the threshold on the ground of delay and / or laches. The question of the Tribunal considering the issue of sufficiency of the cause for such 'delay' would obviously not arise and there would obviously be no reason for the petitioner to have filed a condonation of delay application inasmuch as the original application in itself was not beyond time. 24. We are now left to consider the other aspect with regard to non-joinder of the 233 persons [except the respondent No.3 (Shree Pal Singh)], who would have been adversely affected by any order passed in favour of the petitioner.....
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....ion could be dismissed for non-joinder of necessary parties and not otherwise. In the present case, no such opportunity was offered by the Tribunal to the petitioner and, therefore, we are of the view that the Tribunal erred in dismissing the original application at the admission stage itself. Another important aspect which we must not lose sight of is the fact that the petitioner had, in fact, impleaded one such person, namely, the respondent No.3 (Shree Pal Singh), who was the person, according to the petitioner, immediately below him in seniority. Although, it is true that the petitioner has not stated in the original application that the respondent No.3 was impleaded in a representative capacity, but it is also clear that the respondent No.3 would, while defending his case, also be espousing the case of all the 233 persons, who were similarly situated to him. 26. The next decision referred to by the learned counsel for the petitioner was that of the Supreme Court in V.P. Shrivastava (supra). The Supreme Court had placed reliance on an earlier decision in the case of A. Janardhana v. Union of India: 1983 (3) SCC 601, wherein it had observed as under:- "15. ... In this c....