TaxTMI 
TaxTMI 
2014 (6) TMI 1069
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....of law by lancinating both the orders of the tribunal and further issuing directions to recast the seniority list of Head Constables on the foundation of seniority rules and not to revert any Head Constable or the Assistant Sub-Inspector with the rider that they shall avail further promotion solely on the basis of their revised seniority warranting no interference by this Court or has acted beyond the ambit of jurisdiction in its appreciation and application of well settled principles that would make the order pregnable inviting its extinction. 3. The factual score needs to be depicted with necessitous chronology. The appellants and respondent Nos. 1 to 34 were recruited as Constables in Chandigarh Police by the Union Territory, Chandigarh and they are governed by the Rules as applicable to the Union Territory of Chandigarh. Rule 13.7 of the Rules which dealt with the promotions to the posts of Head Constables from the Constables prior to amendment of the Rule on 4.3.1982, provided that the names of Police Constables for admission to Lower School Course were required to be entered in List 'B' in order of merit determined by the Departmental Promotion Committee on the basis of te....
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....ppointed in accordance with the amended Rule 13.7 could arise only thereafter. The tribunal placed reliance on the decision in Y.V. Rangaiah and others v. J. Sreenivasa Rao & ors. AIR 1983 SC 852 and P. Ganeshwar Rao and others v. State of Andhra Pradesh and others 1988 (Supp) SCC 740 and the decision of the Principal Bench of the tribunal in Om Parkash v. Delhi Administration and others 1988 (2) AISJ 133 and, accordingly quashed the order dated 27.6.1988 and directed the authorities to drop the proposed examination and prepare a fresh list for sending Constables to the Lower School Course at Police Training College, Phillaur in accordance with the preamended Rue 13.7 i.e. the rule as it existed prior to 17.6.1988 so far as the vacancies of Head Constables which had come into existence prior to the date of amended notification. The tribunal further directed that the criterion to be adopted by them would be senioritycum-merit as laid down therein, however, it would be open to the administration to act in accordance with the amended Rule in respect of the vacancies/posts of Head Constables which may have occurred subsequent to the coming into force of the amended Rule or which may fa....
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....nstables (7 Constable in pursuance of unamended rule and first 13 Constables out of 41 Constables in pursuance of amended Rule) were deputed for Lower School Course vide order dated 21.4.1989 as only 20 seats were allotted to the PPA Phillaur for the session commencing April, 1989. Thereafter, the eligible and qualified Constables were granted List 'C' and regular promotion to the rank of Head Constables as per the provisions of Rule 13.8(2) of the Rules. The rest 28 Constables were deputed for Lower School Course vide order 4.10.1989. 9. The tribunal took note of the earlier amendment dated 4.2.1982 and the amended Rule on 17.6.1988 which was under assail and came to hold that the administrator of Union Territory of Chandigarh was competent to issue the impugned notification dated 17.6.1988 incorporating the amendment in the Rule as applicable to Union Territory of Chandigarh and, accordingly, opined that the Rule did not suffer from any kind of infirmity. After so holding the tribunal proceeded to deal with the Rule position as engrafted in Rule 13 in entirety and came to hold that the process of election for promotion of a Constable to the rank of Head Constable started at th....
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....in the pre-amended Rule as contained in the notification dated 4.3.1982 and, accordingly, it so directed. It was also clarified that those Constables who had already successfully undergone the Lower School Course training even on the basis of the amended Rule 13.7, would not be required to undergo the same training again. 12. Pursuant to the aforesaid order, as is evincible, 28 constables were brought on List 'B' in accordance with the amended Rule and deputed for Lower School Course in October, 1989 having qualified were promoted as officiating Head Constables on 8.6.1990. 13. At this juncture, it is seemly to state that OA No. 1401/CH of 1990 was filed by the appellants herein before the tribunal for quashing of the order dated 28.12.1989 seeking direction to the respondents to place the private respondents in List 'C' in the context of their seniority. 14. In course of adjudication, the tribunal referred to the initial rule position, the amended rules, the decision rendered in OA No. 510/CH/ 88-89 on 28.9.1988, the interim order passed on 31.3.1989 in O.A. No. 137/CH/89 and other connected OAs, the order dated 19.4.1989 sending the candidates therein for training which ....
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....6 and the challenge to the order dated 18.12.1989 whereby the Constables were sent for training on the basis of written test, irrespective of seniority and order dated 28.12.1989 by which they were promoted as Head Constables which was set aside by the tribunal in view of order dated 23.9.1998 placing reliance on the decision dated 8.1.1990 in OA No. 137/CH/89 (Mewa Singh and others v. Chandigarh Administration) wherein it was held that the pre-amended Rule would be applicable to all the Constables before the amendment of 1988, took note of the contention that only the vacancies which came into existence from 1.3.1982 to 17.6.1988 were required to be filed up on the basis of seniority rule irrespective of the date of appointment of the Constables and appreciated the stance that the tribunal had erred in appreciating the earlier order passed in Acchhar Chand's case inasmuch as vide order passed on 23.9.1988 a categorical finding had been recorded that the vacancies which arose after the amendment of the Rule on 4.3.1982 were required to be filled up on the basis of amendment carried out in the year 1982 and, therefore, the vacancies arising between the interregnum period, i.e. 4.3.1....
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....B' and Lower School Course, cannot be sustained in law. No employee can claim right to promotion as per Rule existed on the date of appointment or confirmation. As per principle laid down in Y.V. Rangaiah's case (supra), right has been recognized for consideration for promotion as per Rule applicable on the date of availability of vacancies/posts. Therefore, the finding recorded that all the Constables before the amendment on 17.06.1988 would be sent for course in accordance with the seniority criterion is wholly illegal, unjustified and untenable. The said finding, in fact, runs counter to the judgment in Y.V. Rangaiah's case (supra) as well as to the order passed by the Tribunal on 28.09.1988. The order of the Tribunal passed on 23.09.1998 take same view as in Mewa Singh's case (supra). The same suffers from same infirmity. It is only the vacancies which arose between 4.3.1982 to 16.06.1988 i.e. 71 vacancies which will govern the Seniority Rule. For all other posts/vacancies, it is the Test Rule alone on the basis of which the candidates can be sent for the course." 17. On the aforesaid basis the High Court quashed the orders dated 23.9.1998 and 8.1.1990 and after so stating t....
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.... benefits following from the said training were subject to the final decision of the original application. 20. Mr. Gupta, learned senior counsel appearing for the affected respondents, in oppugnation, has canvassed as follows: - (a) It is the settled legal position that the vacancies occurring during the period 4.3.1982 till 17.6.1988 are to be governed by the amended rule that came into force on 4.3.1982 and the vacancies occurring after 17.6.1988 amendment, are to be governed by the Rule as amended by the notification dated 17.6.1988. The said proposition of law is well established as per the decisions in Y.V. Rangaiah (supra), P. Ganeshwar Rao (supra), State of Rajasthan v. R. Dayal and others (1997) 10 SCC 419 , B.L. Gupta and Anr. v. MCD (1998) 9 SCC 223 and Arjun Singh Rathore and Ors. v. B.N. Chaturvedi and Ors.(2007) 11 SCC 605 (b) The initial decision of the tribunal rendered on 17.6.1988 is in accord with the principles laid down by this Court, for it has been held therein that insofar as vacancies of Head Constables which had come into existences prior to the notification dated 17.6.1988 were concerned, the same would be governed by the Rule as it ex....
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.... (d) By the time the judgment dated 8.1.1990 was pronounced, all the respondents were sent for Lower School Course and because of that position they ought to have been treated as affected parties and should have been arrayed as contesting respondents. The principle of "ultimately affected party" is squarely applicable to such a situation and the said principle gets support from State of Himachal Pradesh & Anr. v. Kailash Chand Mahajan & Ors. 1992 Supp (2) SCC 351 (e) The tribunal was approached by the present appellants in OA No. 1401/CH/1990 as the answering respondents were brought on List 'C' after clearing the test contemplated under Rule 13.8(2) of the Rules for implementation of the judgment dated 8.1.1990 which suffered from series of legal infirmities and hence, the said decision could not have been applied to those who were not parties to it and, more so, when this Court, while dealing with the special leave petition, had left the question of law open; and as the same has arisen at present, this Court should exercise the power under Articles 136 and 142 of the Constitution to deal with the same. For the aforesaid purpose, inspiration is drawn from the authoritie....
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....ecial leave petition. 22. Before we advert to the rivalized submissions raised at the Bar it is requisite to advert to the rule position. Indisputably the matters relating to promotion of Constables to the rank of Head Constables are governed under Punjab Police Rules, 1934, when the Union Territory of Chandigarh came into existence on 1.11.1966. Rule 13.7 which deals with the bringing of Constables on List 'B' and their further deputation to the Lower School Course initially read as follows: - "13.7. List 'B'. Selection for admission to promotion Course for Constables at the Police Training College. - (1) List 'B' in From 13.7 shall be maintained by each Superintendent of Police. It will include the names of all Constables selected for admission to the Promotion Course for Constables at the Police Training College. Selection will be made in the month of January, each year and will be limited to the number of seats allotted to districts for the year with a twenty per cent reserve. Names will be entered in the list in order of merit determined by the Departmental Promotion Committee constituted by the Inspector-General of Police on the basis of tests in parade, general l....
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....endent and shall be scrutinized and approved by the Deputy Inspector-General of Police at his annual inspection. (2) Promotion to Head Constable shall be made in accordance with the principle described in sub-rules 13.1(1) and (2). The date of admission to List C shall not be material, but the order of merit in which examinations have been passed shall be taken into consideration in comprising qualifications. In cases where other qualifications are equal, seniority in the police force shall be the deciding factor. Selection grade constables who have not passed the Lower School Course at the Police Training School but are otherwise considered suitable may, with the approval of the Deputy InspectorGeneral, be promoted to Head Constable up to a maximum of ten per cent of vacancies." 24. On 4.3.1982 Rule 13.7 was amended and the amended Rule provided that there shall be no test for constables and their admission to the promotional course, i.e., Lower School Course would be done on the basis of seniority-cum-merit. The notification amending the Rule reads as follows:- "No. 16628-HII(I)-82/5105 dated 4th March, 1982; In exercise of the powers conferred by sub-section (2) of S....
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....at Constables would be selected for admission to the promotional course, i.e., Lower School Course on the basis of the test, i.e., merit-cum-seniority and their names would be entered in the list prepared for admission to such course in order of merit determined by the Departmental Promotion Committee. The notification incorporating the amendment reads as follows: - "No. 1/13/2/88-HII (1) 13676 dated 17.6.1988 (.) in exercise of the powers conferred by subsection (1) and (2) of section 46 of the Police Act, 1861, the Administrator (UT) Chandigarh, is pleased to make the following rules further to amend the Punjab Police Rules 1934, as applicable to the Union Territory of Chandigarh namely: - In the Punjab Police Rules 1934 Volume-II, for Rule 13.7, the following shall be substituted, namely: - 1. These rules may be called the Punjab Police (Chandigarh Amendment) Rules, 1988. 2. These shall come into the force on the date of their publication in the Chandigarh Administration Gazette. 3. In the Punjab Police Rules 1934 (hereinafter referred to as the said Rules) for rule 13.7 the following shall be substituted, namely: - 13.7 (1) List B. Sele....
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....bles in the Police Training College and it was called List 'B'. It prescribed that the names should be entered in the list in order of merit determined by the Departmental Promotion Committee on the basis of certain tests. All the Constables, subject to certain eligibility, were entitled to have their names entered in the List 'B'. This can be appropriately called "The test rule". Rule 13.8, as it seems to us, provides promotion to Head Constables. It is called List 'C'. To acquire the eligibility for consideration for promotion to Head Constable, a Constable is required to pass the Lower School Course at Phillaur. The procedure for promotion has to be made in accordance with the principle prescribed in sub-rules (1) and (2) of Rule 13.1 with the stipulation that date of admission to List 'C' would not be material but the order of merit in which examination had been passed would be taken into consideration in comprising qualifications. It further prescribes that in cases where other qualifications are equal, seniority in the police force would be the deciding factor. 27. After the amendment on 4.3.1982, the test was done away with and it was provided that List 'B' would be maint....
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....and not by the new rules. 29. Thus, the decision of the tribunal, on the first round, related to the vacancies of Head Constables that had come into existence prior to the date of notification, i.e., 17.6.1988. Learned counsel for the Union Territory of Chandigarh in his written note of submissions has stated that 50 vacancies were found to have occurred before amendment and, accordingly, a list was prepared in order of seniority as per the provisions of unamended rules. At this point of time, it is necessary to clear the maze that as far as this exercise is concerned there was no cavil. The dispute arose when the authorities on 28.10.1988 prepared a list of eligible Constables/ad hoc Head Constables who fulfilled the prescribed conditions to sit in the competitive examination to be held in January, 1989. The said action of the authorities compelled the present applicants to file three Original Applications challenging the validity of the Rule and quashment of the order dated 28.10.1988 whereby the list was drawn up of the eligible candidates. As has been stated hereinbefore, the tribunal on 31.3.1989 modified its original interim order and directed that selection of the Head Co....
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....n irrespective of seniority under the interim order of the tribunal dated 31.3.1989. Thereafter, the tribunal opined that the Constables in service prior to 1988 had a vested right to be sent for training for promotion to Head Constables on the basis of unamended Rules. Be it noted, to these original applications the respondents were not made parties though their seniority position was determined. At that time the earlier order dated 8.1.1990 was challenged. Be it ingeminated, in the earlier order the tribunal, while referring to the first order in Achhar Chand's case, had opined that the selection of the Constables for promotional posts who were already in service before the amendment of 1988, would be in accordance with the criterion laid down in the pre-amended Rule prior to 4.3.1982. 32. The principal assail of Mr. Patwalia is that the judgment and order passed in the year 1988 was the foundation of the decision dated 8.1.1990 and that decision could not have been the subject-matter of challenge before the High Court as per L. Chandra Kumar (supra). In L. Chandra Kumar (supra) the larger Bench, while opining that the question on which the tribunals have jurisdiction to decid....
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....arisen after the amendment would be governed by the amended Rule and the vacancies that had arisen prior to the amendment would be governed by the unamended Rule. 35. In R. Dayal (supra) the Court was considering the effect of Rule 24-A of the Rajasthan Service of Engineers (Building and Roads Branch) Rules, 1954 (as amended). It pertained to the vacancies those were filled up prior to the amended Rule. Question arose whether the vacancies were prepared to be filled up under the amended rule or unamended rule. On behalf of the respondents therein reliance was placed on Y.V. Rangaiah (supra). The Court, appreciating the factual scenario and the rule position, came to hold as follows: - "But the question is whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore. This Court has considered the similar question in para 9 of the judgment above-cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original ....
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....respondents on 23.9.1998 and on that ground the High Court repelled the submission of delay and laches. Mr. Patwalia, learned senior counsel for the appellants, has harped on the ground that the writ petition was not maintainable against such an order in view of L. Chandra Kumar (supra). First, we will look at the facet of non-impleadment which has been highlighted by Mr. Gupta. The said submission has two limbs. First, the mere awareness of pendency of litigation because it is mentioned "subject to decision in Original Application" does not make the order binding upon them and the second, by the time the judgment dated 8.1.1990 was pronounced all the respondent were sent for Lower School Course and promoted and, therefore, they were clearly identified as the ultimately affected parties and hence, were necessary parties for the purpose of adjudication of the lis. 40. At this stage, we shall notice certain authorities which have been commended to us for adjudging the effect of such non-impleadment. In Khetrabasi Biswal's case Orissa Public Service Commission had issued an advertisement inviting applications in the prescribed form for twenty five posts of Temporary Munsif (Emergen....
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....y obtaining special leave of the court, held that though it would have been open for such party to file an appeal with the leave of the court, there is no duty or obligation cast on it so to do on pain of distress when in law he could also legitimately ignore the said judgment as it is a judgment of no value. 42. In Kailash Chand Mahajan's case the Court ruled that if a decision is rendered which affects a party, it would amount to clear violation of the principles of natural justice and an order passed in violation of the salutary provision of natural justice would be a nullity. 43. In Mamta Bisht's case, a two-Judge Bench, reiterating the principles stated in Udit Narain Singh Malpaharia v. Board of Revenue 2 AIR 1963 SC 786, opined that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. Reliance was placed on Prabodh Verma & Ors. v. State of U.P. & Ors. (1984) 4 SCC 251 and Tridip Kumar Dingal & Ors. v. State of W.B. & Ors. (2009) 1 SCC 768 to express the view that if a person challenges the selection process, succ....
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.... but while dealing with the lis that travelled to the High Court from the order dated 23.9.1998 it was within its domain to declare that the order dated 8.1.1990 is not binding on the writ petitioners therein. There was no bar and, therefore, the High Court's order does not suffer from any legal infirmity on that score. 45. The next question that emerges for consideration is whether the order dated 8.1.1990 is legally justified. There is no shadow of doubt that it is based entirely on the earlier order dated 28.9.1988 which was rendered by the tribunal being approached by the real aggrieved parties and the tribunal relying on binding precedents, had held that the applicants therein were entitled to be considered under the amended Rule that came into force on 4.3.1982 in respect of the vacancies accrued during the period, i.e., 4.3.1982 to 17.6.1988. The latter decision dated 8.1.1990 has completely misread the said decision and erroneously observed that every confirmed employee had a vested right. It did not properly appreciate that the right was restricted to the accrued vacancies and assumedly remained oblivious to the categorical findings of the earlier decision that it was o....
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....e sake of upholding technicalities." 47. We respectfully concur with the above observation and conclude that our interference with the decision of the High Court would perpetuate grave injustice and the redemption shall remain forever a mirage. 48. That apart, the obtaining fact situation commands that this Court should invoke the jurisdiction under Article 142 of the Constitution for doing complete justice. There is no scintilla of doubt that Article 142 of the Constitution confers immense powers on this Court to do complete justice in a case, for the powers vested in the Court are meant for doing complete justice in an appropriate manner. It is of wide amplitude, and it has its own restrictions. The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to the powers which are specifically conferred on the Court. This inherent power is required to be exercised to prevent injustice and to do complete justice between the parties. It cannot allow any injustice to be carried on if the injustice is founded on certain technical principles. The Court is not to build a new structure to do the complete justice by ignoring t....