W.P.(C)/8955/2011 of BALJIT SINGH BAHMANIA Vs UOI AND ORS

THE HIGH COURT OF DELHI AT NEW DELHI

%Judgment delivered on: 03.09.2012

+W.P. (C) 8955/2011

BALJIT SINGH BAHMANIA

… Petitioner

Versus

UNION OF INDIA & OTHERS

… Respondents

Advocates who appeared in this case:For the PetitionerFor the Respondents

: Mr Vinay Kumar with Ms Namrata Singh: Mr B.V. Niren with Mr Prasouk Jain

CORAM:-HON’BLE MR JUSTICE BADAR DURREZ AHMEDHON’BLE MR JUSTICE SIDDHARTH MRIDUL

JUDGMENT

BADAR DURREZ AHMED, J

1.The petitioner is aggrieved by the order dated 24.11.2011passed by the Central Administrative Tribunal, Principal Bench, NewDelhi, whereby his original application being O.A. No.4154/2011 hasbeen rejected on the ground of limitation as well as on the ground of non-joinder of all the affected persons.

2.The petitioner had approached the Tribunal seeking thefollowing reliefs:-

“a)quash seniority list circulated vide O.M. dated01.08.2011 to the extent applicant has been placedat sl. No.791 therein; and01.08.2011 to the extent applicant has been placedat sl. No.791 therein; and

b)direct the respondents to accord the applicant hisdue seniority and place him below Sl. No.557 andabove Sl. No.558 in the seniority list circulatedvide O.M. dated 01.08.2011; anddue seniority and place him below Sl. No.557 andabove Sl. No.558 in the seniority list circulatedvide O.M. dated 01.08.2011; and

c)directtherespondentstoaccordalltheconsequential benefits to the applicant w.e.f. thedate when his juniors in the cadre of AE (Civil)have been accorded such benefits; andconsequential benefits to the applicant w.e.f. thedate 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 bedeemed fit, proper and necessary.”deemed fit, proper and necessary.”

From the above, it is apparent that the petitioner sought the

quashing of the final seniority list of Assistant Engineers (Civil) inCPWD as on 01.01.2011.The said final seniority list was circulatedthrough the Office Memorandum dated 01.08.2011 issued by theDirectorate General of Works, CPWD, Government of India.Thepetitioner had also sought direction from the Tribunal to place himbelow S.No.557 and above S.No.558 in the said final seniority list. Thepetitioner had, as consequence thereof, also prayed that he be given allthe benefits with effect from the date his juniors in the cadre of AssistantEngineers (Civil) had been accorded such benefits. It is, therefore, clearthat the primary challenge of the petitioner was to the final seniority listcirculated 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 tobe placed below S.No.557 and above S.No.558.

4.The petitioner was initially appointed as Junior Engineer(Civil) in the CPWD on 01.11.1979.He was promoted on an ad hocbasis to the post of Assistant Engineer (Civil) on 04.06.1993.Therespondent No.3 (Shree Pal Singh) was also appointed as JuniorEngineer (Civil) on 30.10.1983.It may be pointed out that thepromotions to the post of Assistant Engineer (Civil) were on the basis of50% from amongst the Junior Engineers (Civil), who had six yearsregular service in the grade and the balance 50% through limiteddepartmental competitive examination.

5.A provisional seniority list was circulated by an OfficeMemorandum dated 04.06.2002 which had been issued by the DirectorateGeneral of Works, CPWD. The said O.M. dated 04.06.2002 was explicitthat the seniority list was provisional and was subject to the final outcomeof various court cases pending in various courts. In the said provisionalseniority list of Assistant Engineers (Civil), the petitioner was shown atS.No.2600 and it had been indicated that he had been promoted to thepost of Assistant Engineer (Civil) with effect from 29.11.1994. It was the

case of the petitioner that his date of promotion as Assistant Engineer(Civil) should have been indicated as 04.06.1993 and not as 29.11.1994.According to the petitioner, this was mistake. Because of this mistake,a person, such as the respondent No.3 (Shree Pal Singh) who was,according to the petitioner, junior to him, was shown at S.No.2078inasmuch as the said respondent No.3 (Shree Pal Singh) had beenindicated to have been promoted as Assistant Engineer (Civil) with effectfrom 17.09.1993.It was the grievance of the petitioner that therespondent No.3 (Shree Pal Singh), who was the next immediate junior asalso the other junior officers, were shown to be higher in the seniority listthan the petitioner.

6.Thereafter, promotions to the post of Executive Engineer(Civil) were ordered on 12.05.2006.These promotions were fromamongst the Assistant Engineers of both categories, namely diplomaholders and degree holders. Since the petitioner was not amongst the listof persons who were promoted to the post of Executive Engineer (Civil)and, according to him, officers junior to him had been promoted to thatpost, the petitioner submitted representation to the Directorate General(Works), CPWD, through proper channel on 22.05.2006.In thatrepresentation, the petitioner made categorical grievance with regard to

him being wrongly placed in the seniority list on account of the fact thathis date of joining as Assistant Engineer (Civil) was shown as29.11.1994, when, according to him, it should have been 04.06.1993. Hetook the plea that his position in the seniority list was not correct.

7.Thiswasfollowedbyanotherrepresentationdated22.06.2006, which was in the nature of reminder.Both theserepresentations went unheeded.As such, the petitioner filed anapplication under the Right to Information Act, 2005 on 05.01.2007seeking information with regard to his position in the seniority list.

8.Even this information was not forthcoming, as result ofwhich,thepetitionerhadtoapproachtheCentralInformationCommission and it is only thereafter that the information sought by thepetitioner had been furnished to him as would be apparent from Annxure-J to the writ petition which is copy of an order of the CentralInformation Commission dated 18.06.2008.As pointed out above, thefinal seniority list of Assistant Engineers (Civil) in the CPWD as on01.01.2011, was circulated by the said O.M. dated 01.08.2011. It is thatfinal seniority list which was challenged by the petitioner by virtue of thesaid O.A. No.4154 which was filed immediately thereafter, in 2011 itself.

9.The Tribunal, however, at the admission stage itself, took theview that the said O.A. was not maintainable on account of delay andlaches.According to the Tribunal, the cause of action accrued to thepetitioner on 01.04.2002 when the provisional seniority list of theAssistant Engineers (Civil) in the CPWD was circulated.The date ofpromotion of the petitioner as an Assistant Engineer (Civil) was shown inthat list as being 29.11.1994 and his serial number was also indicated tobe 2600 much below that of the respondent No.3 (Shreepal Singh), whoseserial number was 2078. Thus, according to the Tribunal, the petitionerwas well aware that persons, such as the respondent No.3 (ShreepalSingh), had been shown senior to him as early as on 01.04.2002 when thesaid provisional seniority list was circulated. The Tribunal also felt thatthe cause of action again accrued to the petitioner in the year 2006 whenpromotions were made to the next higher post of Executive Engineer(Civil) based on the seniority position indicated in the said provisionalseniority list. According to the Tribunal, the claim of the petitioner in thesaid O.A. No.4154/2011 was stale because the petitioner did not agitatethe matter in 2002 nor did he agitate the matter in 2006 and the validity ofthe promotion order dated 12.05.2006 had not been challenged.TheTribunal further held that the issuance of the final seniority list on

01.08.2011 would not result in an automatic condonation of the delay /laches in respect of the original cause of action, which, according to theTribunal, had accrued on 01.04.2002. Since the petitioner had not filedany application for condonation of delay, the Tribunal felt that it couldnot even examine the case from the standpoint of the petitioner having asufficient cause for approaching the court after the said alleged delay.

10.TheTribunalalsorejectedthepetitioner’ssaidO.A.No.4154/2011 on the ground that 233 persons would be adverselyaffected if the prayers sought by the petitioner were to be allowed. Someof those 233 persons, according to the Tribunal, might have even beenpromoted to the posts of Executive Engineers (Civil) in 2006 itself. TheTribunal felt that since the petitioner had not impleaded these 233persons, except the respondent No.3 (Shreepal Singh), the said O.A. wasliable 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 ofnecessary parties, the Tribunal rejected the petitioner’s said O.A.

11.The learned counsel for the petitioner submitted that theTribunal had erred on both counts. He submitted that the petitioner hadbeen agitating his alleged wrong placement in the seniority list and that

this would be evident from the representations made by him from time totime as also from the fact that the petitioner was driven to seek recourseunder the Right to Information Act and ultimately to the CentralInformation Commission to obtain information with regard to hisseniority. Therefore, according to the learned counsel for the petitioner,this was not case where the petitioner had accepted his position in theprovisional seniority list and was only agitating the matter after severalyears had elapsed.Furthermore, the learned counsel for the petitionersubmitted that the petitioner was entitled in law to challenge the finalseniority list even though he had not approached the Tribunal insofar asthe provisional seniority list was concerned.He submitted that as thefinal seniority list had been circulated only on 01.08.2011, the saidoriginal application filed by the petitioner shortly thereafter cannot, byany stretch of imagination, be regarded as stale claim. According to thelearned counsel, the Tribunal committed serious error in rejecting thepetitioner’s said original application on the ground of limitation.Insupport of this submission, the learned counsel for the petitioner placedreliance on the following decisions of the Supreme Court:-

1)G.P. Doval and Others v. Chief Secretary, Governmentof U.P. and Others: 1984 (4) SCC 329;

2)V.P. Shrivastava and Others v. State of M.P. andOthers: 1996 (7) SCC 759;Others: 1996 (7) SCC 759;

3)M. Pachiappan and Others v. S. Markandam andOthers: 2009 (16) SCC 616;Others: 2009 (16) SCC 616;

12.In response to the submissions made by the learned counselfor the petitioner on the question of limitation, the learned counsel for therespondent reiterated the stand and approach reflected in the impugnedorder passed by the Tribunal. In support of the plea of the respondentsthat the Tribunal was right in rejecting the original application on theground of limitation, the learned counsel for the respondents placedreliance on the following decisions of the Supreme Court:-

1)B.S. Bajwa and Another v. State of Punjab and Others:1998 (2) SCC 523;1998 (2) SCC 523;

2)Union of India and Others v. Tarsem Singh: 2008 (2)SCC (L&S) 765;SCC (L&S) 765;

3)S. Sumnyan and Others v. Limi Niri and Others: 2010(6) SCC 791.(6) SCC 791.

13.On the second aspect of non-joinder of necessary parties, the

learned counsel for the petitioner submitted that, although the petitionerhad not impleaded all the 233 persons, who might have been adverselyaffected if an order was passed in favour of the petitioner, the petitionerhad, in fact, impleaded the respondent No.3 (Shree Pal Singh), who was,

according to the petitioner, the next junior person to the petitioner. Thelearned counsel submitted that having done so, it was not necessary forthe petitioner to implead all the persons who might be adversely affected,particularly when the number of such persons was as large as 233. Hefurther submitted that, in any event, if the Tribunal felt that it wasnecessary for the petitioner to implead all the 233 persons, it ought tohave given an opportunity to the petitioner to implead them.If theopportunity to implead all the 233 persons had been given by the Tribunaland the petitioner did not still implead such persons, then, perhaps, theTribunal would have been right in dismissing the original application onthe ground of non-joinder, but not otherwise.In support of thesesubmissions, the learned counsel for the petitioner placed reliance on thefollowing decisions:-

1)Prabodh Verma and Others v. State of U.P. and Others:1984 (4) SCC 251;1984 (4) SCC 251;

2)V.P. Shrivastava (supra);

3)Shadi Ram Yadav v. Director General, CISF andOthers: 59 (1995) DLT 579 (DB);Others: 59 (1995) DLT 579 (DB);

4)S.K. Jain v. P.S. Gupta and Others: 2002 IV A.D.(Delhi) 596.(Delhi) 596.

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.Hesupported the decision of the Tribunal that because the petitioner had notjoined all the adversely affected persons, the Tribunal was well within itsright in dismissing the original application on the ground of non-joinderof necessary parties.

15.Let us now examine the decisions cited on both sides on theissue of limitation. The first decision was that of the Supreme Court inthe case of G.P. Doval (supra). Paragraph 16 of the said decision hadbeen relied upon by the learned counsel for the petitioner. It reads asunder:-

“A grievance was made that the petitioners have movedthis Court after long unexplained delay and the Courtshould not grant any relief to them. It was pointed tothat the provision seniority list was drawn up on March22, 1971 and the petitions have been filed in the years1983. The respondents therefore submitted that theCourt should throw out the petitions on the ground ofdelay, laches and acquiescence. It was said thatpromotions granted on the basis of impugned senioritylist were not questioned by the petitioners and they haveacquiesced into it. We are not disposed to accede to thisrequest because respondent 1 to 3 have not finalised theseniority list for period of more than 12 years and areoperating the same for further promotion to the utterdisadvantage of the petitioners. Petitioners went onmaking representations after representations which didnot yield any response, reply or relief. …”

(underlining added)

16.It would be seen that in G.P. Doval (supra), the provisionalseniority list had been taken out on 22.03.1971, whereas the writ petitionshad been filed in the year 1983. The plea on behalf of the respondentswas that the petitions should be thrown out on the ground of delay, lachesand acquiescence. The Supreme Court, however, did not agree with therespondents therein on the ground that the respondents had not finalizedthe seniority list for period of more than 12 years and were operatingthe same for further promotions to the utter disadvantage of thepetitioners therein. Of course, in that case, the petitioners had gone onmaking representations after representations which had not yielded anyresponse, reply or relief.In the present case also, we find that theprovisional list had been circulated on 01.04.2002 and even promotionshad taken place on the basis of that list, to the detriment of the petitioner.It is not as if, in the present case, the petitioner was silent sufferer. Hehad, as pointed out above, made representations and was even driven toapproach the Central Information Commission in order to obtaininformation with regard to his seniority.Of course, in G.P. Doval(supra), the final seniority list had not been published at all by the timethe petitions came to be filed, but that would not make the petitioner’scase 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 andimmediately thereafter, the petitioner approached the Tribunal by way ofthe said O.A. 4154/2011. Therefore, the decision in G.P. Doval (supra)clearly supports the petitioner’s plea that he had approached the Tribunalwithin time.

17.The next decision referred to by the learned counsel for thepetitioner is that of the Supreme Court in the case of V.P. Shrivastava(supra).In that case, in the year 1983, provisional seniority list ofAdditional Directors was drawn up by the State Government, wherein adhoc promotees were shown senior to the regular appointees like theappellants before the Supreme Court.The appellants therein filedobjections to the said provisional list. Without taking decision on thesame, the State Government issued another provisional list in the year1986, but continued the mistake which was there in the 1983 list. Theappellants before the Supreme Court again put forward their grievances in1987 and, thereafter, the seniority lists prepared in 1983 and 1986 werewithdrawn. Subsequently, on 19.09.1988, yet another provisional list wasbrought out wherein the appellants were again shown junior to the ad hocpromotees.The appellants before the Supreme Court again filed arepresentation and finally on 23.12.1988 the State Government brought

out the final seniority list wherein the appellants were again shown juniorto the said ad hoc promotees. Thereafter, the appellants approached theState Administrative Tribunal, which, inter alia, rejected their applicationon the ground that the promotions in favour of the respondents therein inthe year 1980 could not be challenged at that length of time.

18.On behalf of the appellants before the Supreme Court, it wasargued on the question of delay and laches that the appellants did notchallenge the so-called ad hoc appointments of the respondents by way ofpromotions, but that they merely challenged the position assigned to themin the seniority list which was finalized only in the year 1988 and,thereafter, their applications before the Tribunal in 1989 could, by nostretch of imagination, be held to be barred on the principle of delay andlaches. The Supreme Court agreed with the submission made on behalfof the appellants therein by holding that as the final gradation list wasprepared on 23.12.1988 and the appellants had approached the Tribunalin 1989, the question of delay did not arise. The exact words used by theSupreme Court in this connection were as under:-

“19.So far as question of delay and laches isconcerned,aswehavenoticedearlierthefinalgradation list was prepared only on 23.12.1988 and theappellants had approached the Tribunal in 1989 andtherefore the question of delay does not arise. In the

aforesaid premises the impugned order of the Tribunalis set aside and this appeal is allowed. ...”

19.So, it is seen that in the case of V.P. Shrivastava (supra) also,the Supreme Court took into account the starting point to be the issuanceof the final gradation list. In the present case, as we have already pointedout above, the final seniority list came to be circulated on 01.08.2011 andshortly thereafter in 2011 itself the petitioner had approached the Tribunalby way of the said O.A. No.4154/2011. Thus, in view of this decisionalso, we do not see as to how the petitioner’s said O.A. could have beendismissed on the ground of delay and laches. This is all the more clearfrom the observations of the Supreme Court in M. Pachiappan (supra),wherein it has observed as under:-

“After the publication of the final seniority list, theprovisional seniority list gets substituted by the final list”.

Thus, the provisional seniority list of 01.04.2002 got substituted by thefinal seniority list of 01.08.2011.In these circumstances, it would beincongruous to hold that the petitioner could not challenge the finalseniority list.If it was open to the petitioner to challenge the finalseniority list, then, it is clear that he did so well within time.

20.We must also deal with the decisions which were cited by thelearned 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 ofthe Supreme Court itself, are as under:-

“3.The material facts in brief are this. BothB.S. Bajwa and B.D. Gupta joined the Army and weregranted Short Service Commission on 30th March,1963 and 30th October, 1963 respectively when theywere students in the final year of the EngineeringDegree Course. B.S. Bajwa graduated thereafter inJune, 1963 and B.D. Gupta graduated in 1964. Onbeing released from the Army B.S. Bajwa joined thePWD (B&R) on 4.5.1971 and B.D. Gupta joined thesame department on 12th May, 1972. There positionin the gradation list was shown throughout withreference to these dates of joining the department. It issufficient to state that throughout their career asAssistantEngineer,ExecutiveEngineerandSuperintending Engineer both B.S. Bajwa and B.D.Gupta were shown as juniors to B.L. Bansal, NirmalSingh, GR Chaudhary, D.P. Bajaj and Jagir Singh. Itis also undisputed that B.L. Bansal, Nirmal Singh,G.R. Chaudhary, D.P. Bajaj and Jagir Singh got theirpromotions as Executive Engineer select grade andpromotion as Superintending Engineer prior to B.S.Bajwa and B.D. Gupta. It is obvious that thegrievance, if any, of B.S. Bajwa and B.D. Gupta totheir placement below B.L. Bansal, Nirmal Singh,G.R. Chaudhary, D.P. Bajaj and Jagir Singh shouldhave been from the very inception of their career inthe department, i.e. from 1971-72. However, it wasonly in the year 1984 that B.S. Bajwa and B.D. Guptafiled the aforesaid writ petition in the High Courtclaiming much earlier date of appointment in thedepartment. The learned Single Judge allowed the writpetition which led to Letters Patent Appeal No.424/86 being filed by B.L. Bansal, Nirmal Singh, G.R.Chaudhary, D.P. Bajaj and Jagir Singh before aDivision Bench of the High Court.”

In the backdrop of the aforesaid facts, the Supreme Court observed asunder:-

“7.Having heard both sides we are satisfied thatthe writ petition was wrongly entertained and allowedby the Single Judge and, therefore, the judgments of theSingle Judge and the Division Bench have both to beset aside. The undisputed facts appearing from therecord are alone sufficient to dismiss the writ petitionon the ground of latches because the grievance made byB.S. Bajwa and B.D. Gupta only in 1984 which waslong after they had entered the department in 1971-72.During this entire period of more than decade theywere all along treated as junior to the other aforesaidpersons and the rights inter se had crystalised whichought not to have been re-opened after the lapse of sucha long period. At every stage the others were promotedbefore B.S Bajwa and B.D. Gupta and this position wasknown to B.S. Bajwa and B.D. Gupta right from thebeginning as found by the Division Bench itself. It iswell settled that in service matters the question ofseniority should not be re-opened in such situationsafter the lapse of reasonable period because thatresults in disturbing the settled position which is notjustifiable. There was inordinate delay in the presentcase for making such grievance. This alone wassufficient to decline interference under Article 226 andto reject the writ petition.”21.The learned counsel for the petitioner had placed strongreliance on the observations of the Supreme Court to the effect that it iswell-settled that in service matters, the question of seniority should not bereopened in such situations after the lapse of reasonable period becausethat results in disturbing the settled position which is not justifiable.

However, in our view, this decision does not, in any way, hurt the case ofthe petitioner.This is so because the Supreme Court made the aboveobservations with reference to ‘settled position’ with regard to seniority.However, seniority based on provisional list cannot be regarded as asettled position unless and until the final seniority list is published.Therefore, this decision of the Supreme Court would be of no use to therespondents.The next decision on which the learned counsel for therespondents placed reliance was that in the case of Tarsem Singh (supra).The learned counsel for the respondents had specifically placed strongreliance on the observations contained in paragraph 5 thereof. The same,to the extent relevant, reads as under:-

“5.To summarise, normally, belated servicerelated claim will be rejected on the ground of delayand laches (where remedy is sought by filing writpetition) or limitation (where remedy is sought by anapplication to the Administrative Tribunal). One of theexceptions to the said rule is cases relating to acontinuing wrong. Where service related claim isbased on continuing wrong, relief can be granted evenif there is long delay in seeking remedy, withreference to the date on which the continuing wrongcommenced,ifsuchcontinuingwrongcreatesacontinuing source of injury. But there is an exception tothe exception. If the grievance is in respect of any orderor administrative decision which related to or affectedseveral others also, and if the re-opening of the issuewould affect the settled rights of third parties, then theclaim will not be entertained. For example, if the issuerelates to payment or re-fixation of pay or pension,

relief may be granted in spite of delay as it does notaffect the rights of third parties. But if the claiminvolved issues relating to seniority or promotion etc.,affecting others, delay would render the claim stale anddoctrine of laches / limitation will be applied. …”

22.Here again, we find that the Supreme Court’s observations arein the context and backdrop of ‘settled rights of third parties”.In thepresent case, the seniority and promotions were on the basis of aprovisional seniority list which only came to be settled by the finalseniority list circulated on 01.08.2011.Therefore, this decision of theSupreme Court in the case of Tarsem Singh (supra) also does not cometo the aid of the respondents. Similar is the case with the Supreme Courtdecision in the case of S. Sumnyan (supra). The provisional senioritylists in question in S. Sumnyan (supra), as would be evident fromparagraph 29, were never challenged. But, in the present case, we findthat, although the petitioner did not approach the Tribunal until thepublication of the final seniority list, it is not as if, he was merespectator inasmuch as we have already noticed the fact that he hadsubmitted several representations and was even driven to approach theCentral Information Commission to obtain information with regard to hisseniority position. Therefore, on facts, the Supreme Court decision in S.

Sumnyan (supra) is clearly distinguishable and would not run counter tothe submissions made on behalf of the petitioner.

23.As result of the foregoing discussion, we find that theTribunal ought not to have dismissed the petitioner’s said originalapplication at the threshold on the ground of delay and / or laches. Thequestion of the Tribunal considering the issue of sufficiency of the causefor such ‘delay’ would obviously not arise and there would obviously beno reason for the petitioner to have filed condonation of delayapplication inasmuch as the original application in itself was not beyondtime.

24.We are now left to consider the other aspect with regard tonon-joinder of the 233 persons [except the respondent No.3 (Shree PalSingh)], who would have been adversely affected by any order passed infavour of the petitioner. The submissions of the learned counsel on thisaspect of the matter have already been noted above.We shall nowconsider the decisions which had been placed for our consideration by thelearned counsel for the petitioner. The first of those decisions is of theSupreme Court in the case of Prabodh Varma (supra). Para 28 of thesaid decision is relevant and the same reads as under:-

“28.The real question before us, therefore, is thecorrectness of the decision of the High Court in theSangh's case.Before we address ourselves to thisquestion, we would like to point out that the writpetition filed by the Sangh suffered from two serious,though not incurable, defects. The first defect was thatofnonjoinderofnecessaryparties.Theonlyrespondents to the Sangh's petition were the State ofUttar Pradesh and its concerned officers. Those whowere vitally concerned, namely, the reserve poolteachers, were not made parties-not even by joiningsome of them in representative capacity, consideringthat their number was too large for all of them to bejoinedindividuallyasrespondents.Thematter,therefore, came to be decided in their absence. HighCourt ought not to decide writ petition under Article226 of the Constitution without the persons who wouldbe vitally affected by its judgment being before it asrespondents or at least by some of them being before itas respondents in representative capacity if theirnumber is too large, and, therefore, the Allahabad HighCourt ought not to have proceeded to hear and disposeof the Sangh's writ petition without insisting upon thereserve pool teachers being made respondents to thatwrit petition, or at least some of them being maderespondents in representative capacity, and had thepetitioners refused to do so, ought to have dismissedthat petition for non-joinder of necessary parties.”

25.From the above extract, two things are clear. First of all, all

the affected persons need not be added as respondents as some of themcould be impleaded in representative capacity if the number of suchpersons is too large.Secondly, when such situation arises before acourt and, for that matter before the Tribunal, an opportunity should begiven to the petitioner to implead the necessary parties or at least some of

them in representative capacity. If the petitioner still refuses to do so,then the petition could be dismissed for non-joinder of necessary partiesand not otherwise. In the present case, no such opportunity was offeredby the Tribunal to the petitioner and, therefore, we are of the view that theTribunal erred in dismissing the original application at the admissionstage itself. Another important aspect which we must not lose sight of isthe 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 originalapplication that the respondent No.3 was impleaded in representativecapacity, but it is also clear that the respondent No.3 would, whiledefending his case, also be espousing the case of all the 233 persons, whowere similarly situated to him.26.The next decision referred to by the learned counsel for thepetitioner was that of the Supreme Court in V.P. Shrivastava (supra).The Supreme Court had placed reliance on an earlier decision in the caseofA. Janardhana v. Union of India: 1983 (3) SCC 601, wherein it hadobserved as under:-

“15.…In this case, appellant does not claimseniority over particular individual in the background ofany particular fact controverted by that person againstwhom the claim is made. The contention is that criteriaadopted by the Union Government in drawing-up theimpugned seniority list are invalid and illegal and thereliefisclaimedagainsttheUniongovernmentrestraining it from upsetting or quashing the alreadydrawn up valid list and for quashing the impugnedseniority list. Thus the relief is claimed against theUnion Government and not against any particularindividual.Inthisbackground,weconsideritunnecessary to have all direct recruits to be impleadedas respondents.”

It also placed reliance on the decision in Prabodh Verma (supra). In this

backdrop, the Supreme Court, in V.P. Shrivastava (supra) held as under:-

“17.Even in Janardhana case referred to supra,this Court also rejected similar objection on theground that 9 of the direct recruits having beenimpleaded as party, therefore the case of direct recruitshas not gone unrepresented and therefore the non-inclusion of all the 400 and odd direct recruits is notfatal to the proceedings.

18.In the aforesaid circumstances we have nohesitation to come to the conclusion that the Tribunalwas wholly in error in coming to the conclusion that theappellants application becomes unsustainable in theabsence of all the promotees being impleaded as party.”

27.This decision also, which is in the same line as that of

Prabodh Verma (supra), does support the plea advanced by the learnedcounsel for the petitioner.

28.In Shadi Ram Yadav (supra), Division Bench of this court,following the decision of the Supreme Court in A. Janardhana (supra),observed as under:-

“12.The law laid down in A. Janardhan’s case(supra) applies on all the fours to the case at hand. Thepetitioner need not join all the persons in the senioritylist as parties to the petition.He has joined S.C.Wadhwa the person next below the petitioner in theseniority list of the year 1985 as party to the petitionand by way of illustration. That is sufficient.”

29.In S.K. Jain (supra) also, Division Bench of this courtfollowed, inter alia, the Supreme Court decision in A. Janardhana(supra) and observed as under:-

“13.TosupporttheircontentionsMr.P.H.Parekh as well as Mr. G.D. Gupta placed reliance onvarious decisions. After going through those decisionand the arguments of the learned counsel, we are of theview that when there is challenge to the principle ofdetermination of seniority the persons who are likely tobe adversely affected are not necessary parties. Theyare at the most proper party. Their absence is not fatalto the maintainability of the writ petition. In this regardwe are supported by the decisions of Supreme Court inthe case of (i) A. Janardhana v. Union of India, AIR1983 SC 769; (ii) State of U.P. and Anr. v. Ram GopalShukla 1981 (2) SLR page 3 and (iii) The GeneralManager, South Central Railway, Secundrabad andAnr. v. A.V.R. Siddhanti and Ors. 1974 (1) SLR 597.In view of the law laid down by the Supreme Court wefind that non impleading of each and every Assistant orSenior Assistants was not necessary nor fatal to the writpetition.”

30.It is clear from the above mentioned decisions that theTribunal was in error in dismissing the petitioner’s original application onthe ground of non-joinder of necessary parties without first giving anopportunity to the petitioner to implead all the so-called persons whowould be adversely affected. The Tribunal also did not take note of thefact that one such person, namely, the respondent No.3 (Shree Pal Singh)had, in any event, been impleaded by the petitioner. This in itself wassufficient in the view taken by this Court in Shadi Ram Yadav (supra).

31.For all these reasons, we are of the view that the Tribunal haserred on both counts, that is, on the point of limitation as well as on thepoint of non-joinder of parties. The impugned order is set aside and thesaid O.A. No.4154/2011 is restored. The Tribunal shall dispose of thesame on merits. The writ petition is allowed accordingly. There shall beno order as to costs.

BADAR DURREZ AHMED, J

September 03, 2012dutt

SIDDHARTH MRIDUL, J