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CASE NO.: Appeal (civil)  3323 of 2008

PETITIONER: Jaswant Singh Lamba

RESPONDENT: Haryana Agricultural University & Ors

DATE OF JUDGMENT: 06/05/2008

BENCH: S.B. Sinha & Mukundakam Sharma

JUDGMENT: JUDGMENT

                                                        REPORTABLE

                IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDCITION

                CIVIL APPEAL NO. 3323           OF 2008                  (Arising out of SLP (C) No.11134 of 2006)

Jaswant Singh Lamba                                    ... Appellant

                                 Versus

Haryana Agricultural University & Ors.                 ... Respondents

                           JUDGMENT

S.B. Sinha, J.

1.    Leave granted.

2.    Appellant herein is aggrieved by a judgment and order dated

19.7.2005 passed by the High Court of Punjab and Haryana, dismissing a

review petition seeking review of the judgment dated on 23.11.1992.

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      The review of the said judgment was sought for by the appellant, inter

alia, on the premise that the decision of the High Court, allowing a writ

petition filed by respondent Nos.4 and 5 resulted in loss of his seniority.

Respondent Nos.4 and 5 were appointed as Sectional Officers on an ad hoc

basis on or about 11.11.1982.             Respondent No.4 was appointed on a

temporary post on 27.9.1984, whereas the appellant was appointed on

5.10.1984. Respondent No.5 is said to have been appointed on a temporary

post by an order dated 7.6.1985. In a seniority list published on 23.12.1987,

their seniority was shown from the date of their regular appointment. The

said respondents, however, contended that as they were appointed in terms

of the recruitment rules against permanent vacancies, they had wrongly been

appointed on an ad hoc basis on and from 11.11.1982.

      Their representation that they were entitled to be appointed with

effect from 11.11.1982 on a regular basis was rejected. They filed a writ

petition before the High Court of Punjab and Haryana on 2.6.1990, praying,

inter alia, for the following reliefs :

             "(a)   a writ in the nature of certiorari may kindly                      be issued in favour of the petitioners and                      against the respondents, quashing the                      impugned Annexure P/9.               (b)    a writ in the nature of mandamus may                      kindly be issued in favour of the petitioners                      and respondents to grant benefit of ad hoc

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                  services towards fixation of the seniority of                    the petitioners and to refix their seniority                    after counting their ad hoc service.              (c)   a writ in the nature of mandamus may                    kindly be issued in favour of the petitioners                    and against the respondents, directing the                    respondents to fix pay of the petitioners                    after taking into consideration their ad hoc                    service towards grant of increments etc. and                    to release their arrears along with interest @                    Rs.180 per annum."

3.    The said writ petition was allowed by the High Court by an order

dated 23.11.1992 directing that the said respondents shall be deemed to be

in the service of the respondent on a regular basis from the date of their

initial appointment, holding :

            "After considering the entire matter, the              contention of the learned counsel for the              respondents     deserves     to     be     rejected.              Undisputedly, the petitioners were initially              appointed after they had been selected by a              Committee with effect from November 11, 1982              and they had been continuously working as such              without any break till they were appointed on              regular basis.     Though the services of the              petitioner No.1 stood terminated by serving him a              notice dated November 11, 1983, yet he has not              relieved and was allowed to continue on the post              after he gave an undertaking that in case extension              is not granted, he will not claim any salary etc.              Later on, he was granted extension of another six              months by order dated December 2, 1983.

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            Therefore, there is no break in his service even till              his regular appointment."

4.    Allegedly, a seniority list was published on 18.4.1992 wherein the

appellant was shown as senior to the respondent No.5 being at serial No.16

and respondent No.5 was shown as junior to him being placed at serial

No.18. However, another seniority list was published on 20.5.2004 wherein

they were shown as senior to the appellant. Appellant filed representations

thereagainst, inter alia, on 29.5.2004 and 24.8.2004.                 The said

representations were rejected by an order dated 1.1.2005, stating :

            "It is intimated that your representation for fixing              of seniority as Junior Engineer above Shri A.K.              Agarwal, J.E. has been considered and rejected in              the light of the decision of the Hon’ble Pb. &              Haryana High Court in Civil Writ Petition              No.9879 of 1990 dated 23.11.1992 on the basis of              which Sh. A.K. Aggarwal has been treated to be              joined on regular basis from the date of his joining              on ad hoc basis.              This also disposes of your all representations on              the above subject."

     The review application was filed thereafter in January 2005.

     Respondent No.4 was appointed on temporary post before appellant

and was also shown senior to appellant in seniority lists dated 23.12.1987

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and 18.4.1992.    Thus, the appellant could have grievance only against

Respondent No.5, if any, who was appointed on temporary post later to the

appellant and was also shown junior in the abovementioned list.

5.    Mr. Manu Mridul, learned counsel appearing on behalf of the

appellant, would submit that the High Court committed a serious error in

passing the impugned judgment insofar as it failed to take into consideration

that the appellant being not aware of the result of the petition filed by

respondent Nos.4 and 5 could not have moved the application for review

and in that view of the matter the same should have been entertained. There

having been no time prescribed for filing a review application, it was

permissible in law for the appellant to file the same immediately after

coming to know of the order, which has civil consequences.

6.    Mr. Malhotra, learned counsel appearing on behalf of respondent

No.4 and Mr. Das, learned counsel appearing on behalf of respondent No.5,

on the other hand, took us through various documents to contend that the

appellant had the knowledge about the judgment and order dated

23.11.1992.

7.    The principal question which arises for consideration herein is as to

whether in the peculiar facts and circumstances of this case, the appellant

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can be said to have any locus standi to file the application for review of the

said judgment dated 23.11.1992.

8.    Respondent Nos.4 and 5 were appointed in 1982. Their services,

however, were regularized on a later date. The question which arose for

consideration before the High Court in the said writ application was as to

whether the respondent-University was right in appointing them on an ad

hoc basis although they were selected by a Select Committee constituted in

terms of the rules.

     No relief therein was claimed as against the appellant. The legality of

the seniority list dated 18.4.1992 was not in question therein. Appellant

was, thus, not a necessary party; no relief having been claimed against him.

Respondent-University was directed to consider their regular appointment

with effect from 11.11.1982. The seniority list was required to be revised

keeping in view the aforementioned directions of the High Court. A fresh

seniority list was prepared pursuant to the said order. Publication of the

seniority list was merely consequential to the order of the High Court.

9.    Even otherwise, the order of the High Court appears to be known to

the appellant herein.

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     By an order dated 13.5.1993, an office order was issued informing all

concerned including the Chief Engineer that the respondent No 5 would be

treated to have been appointed on a regular basis w.e.f. 11.11.1982. It is

difficult to believe that the departments where only 18 Sectional Officers

were working including Civil and Electrical Engineering Department, the

appellant would not have the knowledge thereabout.

     In the seniority list published on 14.5.1993, N.S. Yadav, respondent

No.4, was shown at serial number 12; A.K. Aggarwal, respondent No.5, was

shown at serial number 13 and the appellant was shown at serial number 17.

Therein the date of joining etc. had categorically been stated, from a perusal

whereof it would be evident that whereas 12.11.1982 was shown to be the

date of joining of the respondent Nos.4 and 5, so far as the appellant is

concerned, his date of joining was shown as 3.10.1984.

10.   Appellant and others filed a representation on 24.5.1993; paragraphs

2 and 3 whereof reads as under :

                   "It is further learnt that seniority list of Jr.              Engineers is being disturbed through various              manipulations under the promotion quota. The              Selection Committee has already met and              submitted its recommendations. Under the garb of              these recommendations, the administration is              trying to accommodate out of turn Sh. N.S. Yadav,              who is an AMIE holder and is junior to at least 11              Jr. Engineers. He is being considered for the above

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            promotion on the plea that a degree holder is              required. Such an out of turn promotion is              violative, as per statutory provision.                     It will not be out of place to mention here              that the Haryana Govt. does not consider AMIE              equivalent to degree (BE) holder for design              purpose as has been clarified in another case of the              employee of the university.           Moreover for              promotion seniority is the only criteria and even              for direct recruitment a person with AMIE is not              eligible. Hence in view of the existing rules, for              the promotion of Sh. N.S. Yadav would amount to              violation of rules and open to legal litigation."

11.   The subject matter of the grievances was as to why respondent No.4

who was placed at serial No.12 should be considered for the promotional

scale despite he being junior to eleven persons. Evidently, the seniority list

was known to them. Only grievance raised therein as to whether degree of

AMIE, held by him should be considered to be equivalent to the BE degree.

Respondent No. 4, in his counter affidavit, categorically stated that the order

of the High Court dated 23.11.1992 was brought to the knowledge of

everybody including the appellants stating :

            "The said fact of the respondent Nos.4 and 5              having been accorded seniority over and above the              petitioner was again brought to the knowledge of              the petitioner and other officers when the said              respondents were granted promotional scales vide              order dated 27.01.1996 issued by the respondent              No.1 herein. The said order dated 27.01.1996

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            issued by the respondent No.1 is also placed on              record by the respondent No.5 as Annexure R-              5/13."

12.   It is also not in dispute that respondent No.4 was granted the

promotional scale.

     Thus, only because a seniority list was again published in the year

2004 and the appellant filed representations thereagainst, the same by itself

could not be a ground for unsettling a settled position.

13.   Even otherwise, the application for review at the instance of the

appellant was not maintainable. The order dated 23.11.1992 became final

and binding as against the University. The University accepted the said

judgment. No appeal was preferred thereagainst. Appellant and others who

claimed themselves to be seniors to respondent Nos. 4 and 5 could have

preferred a Letters Patent Appeal before the Division Bench of the High

Court, but they chose not to do so for a long time.

14.   Appellant could not be permitted to contend in the review application

that respondent Nos.4 and 5, in fact, had rightly been appointed on an ad

hoc basis, as he was not a necessary party in the writ petition filed by the

said respondents.

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15.    Mr. Mridul has relied upon a decision of this Court in J. Jose

Dhanapaul v. S. Thomas & Ors. [(1996) 3 SCC 587]. We fail to understand

as to how the said decision is applicable. In that case, without impleading

Thomas as a party, his appointment was annulled. It was in that context, the

court opined that he was a necessary party.

      R. Sulochana Devi v. D.M. Sujatha & Ors. [(2005) 9 SCC 335]

whereupon again reliance has been placed was a case where inter se

seniority was in question. The seniority list was prepared without giving an

opportunity of hearing to the affected employees. There was no dispute that

the appellant therein was senior to the first respondent and was entitled to

hold the pot of Principal of the college. The power of RJD to review was in

question. Such a question does not arise herein.

16.    Appellant was also not a proper party in the writ petition filed by

respondent Nos.4 and 5. Seniority, as is well known, is not a fundamental

right. It is merely a civil right.

17.    For the reasons aforementioned, the High Court, in our opinion, was

right in concluding that the review application was not maintainable. The

appeal, therefore, is dismissed. There shall be no order as to costs.

                                             ...............................J.

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                  [S.B. Sinha]

                  ................................J.                    [Mukundakam Sharma] New Delhi;

May 6, 2008