http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: DWARKA NATH SHARMA

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT08/08/1989

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH OZA, G.L. (J)

CITATION:  1990 AIR  428            1989 SCR  (3) 767  1989 SCC  Supl.  (2) 225 JT 1989 (3)   373  1989 SCALE  (2)205

ACT:     Civil        Services:       Military        Engineering Service--Seniority--Legitimate      claim     to      higher placement--Deprivation of--Whether justified.

HEADNOTE:     Appellant  joined  the Military Engineering  Service  as Assistant  Executive  Engineer, upon his  selection  by  the Union  Public Service Commission through the combined  Engi- neering  Service  Examination held in 1960.  He  represented that  his previous service in Central Government  should  be considered  in fixing his seniority. in the  seniority  list published, the appellant’s name was shown at 483rd position. The appellant made a representation against the lower place- ment. Departmental Promotion Committee did not consider  him for  promotion because of the lower  placement.  Challenging the  lower placement, the appellant filed a suit before  the Civil Court which was dismissed. His first appeal before the District  Judge  as also the second appeal before  the  High Court met the same fate.     This  appeal, by special leave, is against the  judgment of  the High Court. The respondents resisted the  appeal  on grounds of limitation and res-judicata. Allowing the appeal,     HELD:  1.1.  There  has been no dispute  in  the  Courts below,  and  here too, that the appellant has  been  legally recruited  to the service. The Union of India  accepted  the position  that recruitment through the Union Public  Service Commission  had been regularly made and the post was  not  a temporary  one but as the performance of the  appellant  had not been of a high order, he had been placed below  treating him to be temporary--a position for which there is not  much of legal support. [770B-C, E, F]     1.2.  Strictly speaking, Janardhana’s decision  may  not have the effect of res-judicata for the present  litigation, but in a dispute of the present dimension where hundreds  of employees  are  concerned, it would not be  proper  for  the employees to litigate over the same issue 768 from  time  to time. If it would be open to members  of  the service  from  time to time to raise disputes  of  the  same

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

nature  and  introduce uncertainty into  the  service,  that would  affect  the efficiency of the service  and  would  be against public interest. That also would call into  jeopardy the  guarantees  of public service and expose  the  officers into  an  atmosphere of insecurity. A seniority  list  of  a cadre  should not be made the subject matter of  debate  too often. [771B-D]     A.  Janardhana  v. Union of India & Ors., [1983]  3  SCC 601; affirmed.     2.  The  plea of limitation raised  by  the  respondents should  not have been upheld in the facts of the  case.  The seniority  list  was being changed from time  to  time.  The appellant  had represented against the 1967 seniority  list. The dispute was already pending before this Court in  Bachan Singh’s  case. In fact, without waiting for the judgment  of this  Court  in that case, the plaintiff came  to  Court  on 22.3.1971. The appellant was entitled to make a  representa- tion against the seniority list and rejection of the  repre- sentation actually would have given him the cause of action. In  these  circumstances,  non-suiting him on  the  plea  of limitation would not at all be justified. [772E-G] Bachan  Singh v. Union of India, [1972] 3 SCR 898,  referred to.     3.  Individual claims, could not have been  barred  from consideration  if by the time Janardhana’s case came  to  be disposed  of,  claims were pending adjudication  before  the Court. Appellant’s case was already before the High Court by the time Janardhana’s appeal was disposed of by this  Court. The stand taken by Respondent No. 1 that it was open to  the appellant  to appear in the competitive examination  in  the succeeding year to better his position, is no  justification for depriving him of his legitimate claim to a higher place- ment  in  the seniority in the cadre.  Appellant’s  position shall be shown below the recuirts of 1960 and above those of 1961 and he may be bracketed with one who has been  assigned that position and an appropriate rectification shall be made in the seniority list of 1967 on the basis of the  placement in  terms of this judgment. His entitlement to promotion  on the  basis of such position shall be considered by  the  re- spondents within four months hence. [772H; 773A-D]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3224  of 1989. From the Judgment and Order dated 6.9.83 of the punjab & 769 Haryana High Court in R.S.A. No. 1092 of 1975. M.R. Sharma and M.C. Dhingra for the Appellant.     Anil  Dev Singh, P.P. Singh and C.V.S. Rao for  the  Re- spondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. Special leave granted.     Appellant was recruited as an Assistant Executive  Engi- neer in the Military Engineering Service upon his  selection by the Union Public Service Commission through the  combined Central  Engineering  Service  Examination of  1960  and  he joined  as an Assistant Executive Engineer on  24.4.1962.  A provisional  seniority list was prepared in August, 1963  as claimed by him and the appellant represented that his previ- ous service under the Central Government in consideration of which  he  had been given three increments at  the  time  of joining  should  have been taken into account.  In  January, 1967, the seniority list was published where, as the  appel-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

lant pleaded, he was shown at the 483rd position. He  repre- sented against the lower placement and asked for placing him at the appropriate place. The Departmental Promotion Commit- tee  did not consider him for promotion on the basis of  his lower placement in the seniority list and he was not promot- ed.  Appellant, therefore, filed a suit for redress  of  his grievance of lower placement and for consequential  reliefs. The  suit was dismissed. Appellant’s appeal before the  Dis- trict  Judge was also dismissed and thereupon the  appellant went before the High Court in second appeal but that too was dismissed.  It  is against the judgment of  the  High  Court affirming  those  of the Courts below that this  appeal  has been brought before this Court.     Before  we  go  into the merits of the  matter  we  must indicate that the case has not been appropriately placed  in the  Courts below and relevant material has not been made  a part of the present record.     The claim in this litigation has to be considered in the backdrop  of  two  earlier cases Bachan Singh  v.  Union  of India, [1972] 3 SCR 898 is the judgment of this Court  where a dispute relating to the same Military Engineering  Service involving  inter  alia of a claim of seniority  came  to  be disposed of by a Constitution Bench. It is not necessary  to refer at any length to the judgment in view of the fact that the result of 770 the  subsequent litigation in the case of A.  Janardhana  v. Union of India & Ors., [1983] 3 SCC 601 would be  sufficient for the present     Notice was given in this appeal to hundreds of  respond- ents  whom the appellant had impleaded, but no one  has  ap- peared to contest his claim in this Court.     There  has been no dispute in the Courts below and  here too  that  the appellant has been legally recruited  to  the Service.  In Janardhana’s case at p. 618 of the Report  this Court held:               "Keeping in view the exigencies of service and               the  requirements  of  the  State,  temporary.               posts  would  be a temporary addition  to  the               strength of the cadre, unless it is made clear               to  the contrary that the temporary posts  are               for a certain duration or the appointments  to               temporary  posts are of an ad hoc nature  till               such time as recruitment according to rules is               made.  In the absence of any  such  provision,               persons holding permanent posts and  temporary               posts would become the members of the  service               provided  the  recruitment  to  the  temporary               posts is legal and valid. Once the recruitment               is  legal  and valid, there is  no  difference               between  the  holders of permanent  posts  and               temporary  posts insofar as it relates to  all               the numbers of the service."     In  the  instant case, the Union of India  accepted  the position  that recruitment through the Union Public  Service Commission  had been regularly made and the post was  not  a temporary  one but as the performance of the  appellant  had not been of a high order, he had been placed below  treating him to be temporary--a position for which there is not  much of legal support.     Some  controversy was raised as to whether  Janardhana’s decision  would operate as res judicata in view of the  fact that  the  appellant had been impleaded in  the  litigation. Janardhana’s  civil appeal before this Court arose out of  a writ  petition in the High Court and as paragraph 36 of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

judgment at p. 625 of the Report indicates:               "By an order made by the High Court the  names               of respondents 3 to 4 18 (in which the  appel-               lant was included) were deleted since  notices               could not be served on them on account of  the               difficulty in ascertaining their present               771               addresses on their transfers subsequent to the               filing of these petitions." It is not the case of the respondent that the appellant  had volunteered  to appear in the writ petition or  before  this Court in the Janardhana’s dispute.     Strictly  speaking, Janardhana’s decision may  not  have the  effect of res Judicata for the present litigation,  but we do not think in a dispute of the present dimension  where hundreds of employees are concerned, it would be proper  for the employees to litigate over the same issues from time  to time.  If  it would be open to members of the  service  from time to time to raise disputes of the same nature and intro- duce  uncertainty  into the Service, that would  affect  the efficiency of the service and would be against public inter- est.  That also would call into jeopardy the  guarantees  of public service and expose the officers into an atmosphere of insecurity.  A seniority list of a cadre should not be  made the subject-matter of debate too often. We have,  therefore, to consider the claim of the appellant keeping these aspects in view and referring to the conclusions reached in  Janard- hana’s case.               At p. 625 of the Report this Court came to the               conclusion:               "In  our opinion, there was  no  justification               for  redrawing  the seniority  list  affecting               persons  recruited or promoted prior  to  1969               when  the rules acquired statutory  character.               Therefore,  the 1974 seniority list is  liable               to  be quashed and the two 1963 and 1967  sen-               iority lists must hold the field." The District Judge in appeal in paragraph 10 of his judgment came to find that the appellant’s placement was raised  from serial  483 to 89. The High Court in its judgment has  indi- cated:               "Shri  Sharma went up in appeal but  the  same               was  dismissed by the learned District  Judge.               He affirmed the findings of the trial Judge on               issues 1 and 3. He also held that the suit  of               the appellant was barred by limitation. During               the pendency of appellant’s appeal before  the               District  Judge, Bachan Singh’s case had  been               decided  by the Supreme Court and as a  conse-               quence thereof, his seniority was changed from               St. No. 483 in 1967 seniority list to Sr.  No.               89.  So  he  got the main  relief.  His  claim               remained  only  for  his  reconsideration  for               promotion  on the basis of his new ranking  on               the seniority list." 772 The High Court has again indicated:               "Pursuant  to the judgment in  Bachan  Singh’s               case,  fresh  Seniority list was  prepared  in               1974 in which the appellant’s name figured  at               St.  No.  89  instead of 483.  This  list  was               challenged  by  A. Janardhan. His  appeal  was               allowed and the said list was quashed. It  was               further held that ’there is nothing to suggest               that 1963 and 1967 seniority lists were provi-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

             sional  or were likely to be re-drawn.  There-               fore,  till the 1949 Rules acquired  statutory               character in 1969, the seniority lists of 1963               and  1967  in respect of  Assistant  Executive               Engineers were quite legal and valid and  were               drawn  upon the basis on the  principle  which               satisfies the test Article 16’. So the senior-               ity  lists of 1963 and 1967 were  upheld.  The               grievance of the appellant stands disposed  of               by this judgment to which he was a party."     As  we  have already pointed out, appellant  was  not  a party  in Janardhana’s case inasmuch as no notice was  taken to  him  and the case was disposed of without  affording  an opportunity to him of being heard.     The plea of limitation raised by the respondents  should not  have been upheld in the facts of the case.  As  already indicated, the seniority list was being changed from time to time. The appellant has represented against the 1967 senior- ity list. The dispute was already pending before this  Court in  Bachan  Singh’s case. In fact, without waiting  for  the judgment of this Court in Bachan Singh’s case, the plaintiff came  to Court on 22.3. 1971. The appellant was entitled  to make a representation against the seniority list and  rejec- tion of the representation actually would have given him the cause  of action. In these circumstances, non-suiting  himon the  plea of limitation would not at all be  justified.  We, therefore,  do not accept the conclusion of the  High  Court that plaintiffs action was barred by limitation.     We  take  it that when this Court in  Janardhana’s  case held on the facts placed before it that ’there was no justi- fication made out for redrawing the seniority list affecting persons  recruited  or promoted prior to 1969’  it  meant  a total topsy-turvying of the list. Individual claims, if any, could not have been barred from consideration if by the time Janardhana’s case came to be disposed of, claims were  pend- ing  adjudication  before the Court.  Appellant’s  case  was already before the 773 High  Court by the time Janardhana’s appeal was disposed  of by  this Court. The appellant was certainly entitled  to  be treated  as  a recruit of 1960 and to be  placed  above  the recruits  of 1961. The stand taken before this Court in  the counter-affidavit filed by respondent no. 1 that it was open to  him  to  appear in the competitive  examination  in  the succeeding  year,  that is, in the year 1961 to  better  his position is no justification for depriving him of his legit- imate  claim to a higher placement in the seniority  in  the cadre.     While  we affirm the view in Janardhana’s case that  the seniority  list  should not be  disturbed,  the  appellant’s claim  has also to be accommodated. In these  circumstances, we direct that the appellant’s position shall be shown below the  recruits of 1960 and above those of 1961 and he may  be bracketed  with one who has been assigned that position  and an appropriate rectification shall be made in the  seniority list of 1967 on the basis of the placement in terms of  this judgment. His entitlement to promotion on the basis of  such position shall be considered by the respondents within  four months  hence. The appellant shall be entitled to his  costs throughout. Hearing fee is assessed at Rs.2,000. G.N.                                                  Appeal allowed. 774

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6