TaxTMI 
TaxTMI 
2009 (11) TMI 912
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....ed "AEC") had been "merit" under the provisions of U.P. Assistant Excise Commissioners Service Rules, 1992 (hereinafter called as 'the Rules 1992'). The said rules stood amended w.e.f. 10.10.1994 and the criteria for promotion was changed from 'merit' to 'seniority subject to rejection of unfit." The Appellant Amarjeet Singh alongwith some other Excise Inspectors filed writ petition No. 1113(SB) of 1994 before the Allahabad High Court challenging the selection process for promotion under Rules 1992. The High Court vide judgment and order dated 1.2.1995 held that the vacancies which had come into existence prior to 10.10.1994 i.e. the date of amendment, be filled up as per the unamended Rules i.e. on the basis of "merit" and not on the basis of "seniority subject to rejection of unfit." 3. Being aggrieved, the State of U.P. preferred the Special Leave Petition before this Court and this Court vide Order dated 30.10.1995 passed an interim Order permitting the State Authorities to make promotions as per 1994 amendment Rules but it was subject to the result of the petition as this Court made it clear that if petition was dismissed, the respondents would be reverted to the lower post f....
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....ing the appellants below the respondents. Hence these appeals. 7. In these appeals, as most of the appellants and respondents have already availed the benefit of promotions and retired on attaining the age of superannuation, they lost interest in the litigation. Only two appellants and two to four respondents are still in service and the said appellants feel that they would be adversely affected, if the High Court judgment is given effect to. In these matters, the learned counsel appearing for the respondents sought discharge from the cases, as their clients did not respond. In spite of the service of notices to them, they did not engage any counsel. Therefore, this Court on 26.8.2009 requested Shri Gaurav Agrawal, learned Advocate to assist the court as Amicus Curiae who was served with the paper book of the cases and appeared today for the respondents. 8. Shri Rakesh Dwivedi, learned senior counsel appearing for the appellants has submitted that the action of the State Authorities has been in flagrant violation of the orders passed by this Court as promotion of the respondents to the post of AEC had been subject to the decision of the Special Leave Petition, which stood dismiss....
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....ecruitment year is defined as under: "Year of recruitment means a period of twelve months commencing from the Ist day of July of calendar year" Therefore, we have to keep in mind that the year of recruitment is to be considered for the purpose of fixing inter se seniority of the officers taking into consideration the officers promoted within a period of 12 months from Ist day of July of the year. Therefore, if the promotions have retrospectively been given to a particular set of officers in the year1995 and to another set of officers in the years 1997 and 1998, they cannot be treated at par and cannot be treated as equals merely because posting of all of them had been made on the same day. The High Court committed an error in recording the finding of fact that notional promotion had been given to both set of officers from one and the same date by virtue of notification no. 1098 dated 15.5.1999 and therefore their seniority is to be determined in accordance with the Rule 6 of the Rules 1991 irrespective of the explanation. 12. As the High Court has misdirected itself considering that both set of officers had been given notional promotion from one and the same date, which, in fact....
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....ise for making promotions was not undertaken by the State Authorities, the appellants should not suffer for no fault of theirs. It has fairly been conceded by learned counsel appearing for the respondents that had the exercise of making promotions been undertaken immediately after the order of this Court dated 19.8.1998, the appellants could have been promoted much earlier and they could have been senior to the respondents. Thus the question does arise as to whether appellants should be asked to suffer for the interim order passed by this Court in a case having no merits at all. 15. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, beco....
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.... defendant from proceeding with the action complained of in the suit. Such a procedure is necessary as a check on abuse of the process of the Court and adequately compensate the damages or injury suffered by the defendant by act of the Court at the behest of the plaintiff. 18. In South Eastern Coalfields Ltd. Vs. State of M.P. & Ors., AIR 2003 SC 4482, this Court examined this issue in detail and held that no one shall suffer by an act of the Court. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not....
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.... after several years of his selection. This Court held that in addition to the relief under the statutory provisions the appellant was entitled in equity to get the seniority over the respondents as they succeed in precluding his appointment to the post by obtaining an interim order in a case having no merits whatsoever. 20. In Committee of Management, Arya Nagar Inter College & Anr. Vs. Sree Kumar Tiwari & Anr., AIR 1997 SC 3071, the services of the respondent therein were terminated, however, he continued to be in service on the basis of interim order passed by the High Court in the writ petition filed by him. During the pendency of the writ petition, the rules for regularization of ad hoc appointees were amended and in pursuance thereof his services also stood regularized. Ultimately, the writ petition filed by the respondent was dismissed. This Court held that his continuity in service and regularization had to be understood as it was subject to the result of the writ petition. As the writ petition was dismissed the order of regularising of his services, passed during the pendency of the writ petition, became inoperative. 21. In view of the above, the appellants are entitled ....
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....t criterion and their promotions had been made with retrospective effect with different dates notionally. In the writ petition before the High Court, the promotion of the appellants had not been under challenge. The seniority which is consequential to the promotions could not be challenged without challenging the promotions. 25. Challenging the consequential order without challenging the basic order is not permissible. (vide Chithranja Menon & Ors. Vs. A. Balakrishnan & Ors., AIR 1977 SC 1720). 26. In Roshan Lal & ors. Vs. International Airport Authority of India & ors., AIR 1981 SC 597, the petitions were primarily confined to the seniority list and this Court held that challenge to appointment orders could not be entertained because of inordinate delay and in absence of the same, validity of consequential, seniority could not be examined. In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined. 27. In H.V. Pardasani etc. Vs. Union of India & ors., AIR 1985 SC 781, this Court observed that if "petitioners are not able to establish that the determination of their senio....