Gwalior Development Authority Gwalior vs Subhash Saxena

CIVIL APPEAL NO. 1977 OF 2022 (Arising out of S.L.P.(C) No.19956 of 2014)

GWALIOR DEVELOPMENT AUTHORITY GWALIOR … APPELLANT(S)

VERSUS

SUBHASH SAXENA & OTHERS … RESPONDENT(S)

WITH CIVIL APPEAL NO. 1978 OF 2022 (Arising out of SLP(C) No.31203 of 2014)

CIVIL APPEAL NO. 1979 OF 2022 (Arising out of SLP(C) No.31205 of 2014)

CIVIL APPEAL NO. 1980 OF 2022 (Arising out of SLP(C) No.22137 of 2015)

CIVIL APPEAL NO. 1981 OF 2022 (Arising out of SLP(C) No.25303 of 2016)

JUDGMENT

K.M. JOSEPH, J.

1. Signature Not Verified Digitally signed by Delay condoned in SLP (C) No.25303 of 2016. Leave Nidhi Ahuja Date: 2022.03.14 18:11:36 IST Reason: granted.

1

2. The five Appeals in question, raise some common

issues and they are being disposed of by this common

Judgment.

3. Respondent no.1 was appointed as Sub-Engineer in

Special Area Development Authority “(SADA)”,

Malajkhand by Order dated 24.06.1982. He was promoted

as assistant Engineer by order dated 03.11.1987 by SADA

w.e.f. 07.09.1987. The State Government, by Order dated

20.12.1988, modified the earlier order dated 12.01.1988

and posted respondent no.1 in Gwalior Development

Authority (hereinafter referred to as, ‘the GDA’),

Gwalior as Assistant Engineer. He joined in GDA on the

basis of letter dated 29.12.1988.

4. It is the case of the State that during the

probation period of the first respondent, the first

respondent was transferred initially to SADA, Chirmiri,

and later on, Order of Transfer was modified to make

it a transfer to GDA, Gwalior. On 27.05.1995, State

issued instructions to all Development Authorities and

SADA that employees, who had been transferred and not

yet been absorbed in the Institution, shall be treated

2 as employees of the parent Institution. On 22.06.1995,

the State Government notified the abolition of 19 SADAs

including Malajkhand and all the assets and liabilities

of the abolished SADAs were deemed to have vested with

the Municipal Council. The first respondent had made

an application on 26.09.1995, before the CEO, GDA for

merging his services in the GDA. Advice was sought from

the State. By letter dated 09.11.1995, the State

clarified that:

“GOVERNMENT OF MADHYA PRADESH HOUSING AND ENVIRONMENT DEPARTMENT SECRETARIAT

BHOPAL DATED 9.11.1995

S.C.No.7022/6706/32/95

The Chief Executive Officer, Gwalior Development Authority, Gwalior.

Subject: Regarding merger of the services of Shri S.K.Saxena, Assistant Engineer.

Reference: Your Letter No. GDA/45/4597 dated

5.10.1995

Kindly peruse the aforementioned letter.

Till such time when Shri S.K.Saxena does not give option for going back to the Local Self Government Department, no question arises of sending him back from this department, because of the fact that when

3 notification of abolition of Special Development Authority was issued on 22.06.1995 at that time Shri Saxena was posted in ·Gwalior Development Authority. Hence his name shall be included in the joint gradation · list of the Development Authorities and the remaining. SAD As and in such manner Shri Saxena shall be employee of the Housing and Environment Department.

Sd/- Illegible P.V.SHAMAL DEPUTY SECRETARY GOVERNMENT OF M.P. HOUSING AND ENVIRONMENT DEPARTMENT”

5. It is the case of the appellants that in exercise

of powers under Section 76B of the Madhya Pradesh Nagar

Tatagram Nivesh Adhiniyam, 1973 (hereinafter referred

to as ‘the Act’), on 01.07.1975, was notified as the

date for constitution of the M.P. Development Authority

Services. According to the State, the post of Assistant

Engineer fell in the State Cadre. By letter dated

31.07.1996, it was the further case of the State that

letters were written to SADAs and Development

Authorities indicating the principles for

determination of seniority in regard to the State Cadre

and Local Cadre posts. Inter alia, it was indicated as

follows, as regards determination of seniority:

4

“DETERIMINATION OF SENIORITY

1. In the new service the seniority of the employee in the case of the different posts in the case of direct recruitment or in the cases of regular appointment through promotion shall be determined on the basis of continuous service on the lower post whether it is permanent or temporary but if such appointment has been made for fixed term or for specific term then such period shall not be included while reckoning, seniority. In this regard final decision shall be taken by the screening committee constituted under Rule 66 of the Service Recruitment Rules, 1988.

2. In the year of appointment generally inter-se seniority shall .be determined from the date of appointment and inter-se seniority of the specific authority shall not be disturbed.

3. Where service tenure of 1nore than one:

employees is the same their seniority shall be reckoned on the basis of age.

4. If upon preparation of the combined gradation list if it is found that the promotion of any employee has been made on· the basis of the combined gradation list on such post for which he was not eligible then his pay scale shall be continued in the higher pay scale till such time when he does not reach such stage in the cadre of his promotional post.

5. While reckoning inter se seniority of the employees recruited by direct recruitment and. promotion the principle shall be adopted that the promoted servants/officers shall be kept below the direct recruits. If action is taken in contravention of these directions then the concerned Chief Executive Officer shall be personally held responsible therefor.” (Emphasis supplied)

5

6. State Government, on 06.02.1999, published a

combined Gradation List of Assistant Engineers of

SADA/Development Authorities as on 01.07.1995, in

which, respondent no.1 was shown at Serial Number 38.

7. Thereafter, respondent no.1 filed Writ Petition

No. 1377 of 2000, claiming promotion to the post of

Executive Engineer in GDA. There were other petitions

also.

8. On 29.10.2001, in compliance with the Interim Order

dated 22.08.2000, passed in the Writ Petitions, the

State Government constituted a DPC and directed GDA

that if posts fallen vacant upto 30.06.1995, under the

State Cadre were still lying vacant and the Authority

felt it necessary to fill up the same, then, it may do

so in accordance with the Rules of 1976.

9. The Writ Petition filed by the first respondent

was disposed of. We may notice the following passages:

“3. Subsequently thereof it has come on record that the State Govt. by their letter dated 29th Oct. 81 as contained in Annexure P-23 in the records of WP No. 327 /99 have clarified that if the vacancies were available prior to 30th of June 1995 then the Gwalior Development Authority was

6 directed to fill up the posts on the basis of selection to be conducted by the Department promotion Committee and for the said purpose a Departmental promotion committee itself was constituted by the State Govt.

4. In that view of the matter no further controversy exists for adjudication an the present petition. The Gwalior Development Authority is now required to take action in accordance with the directives of the State Govt. as contained in Annexure P-23 dated 29-10-01 1 and fill up the vacancies which existed prior to 30th June 1995 considering the eligible candidates and pass appropriate orders. thereof in accordance with the rules as they existed on the date. It is therefore directed that the Gwalior Development Authority to take action for filling up the post in pursuance to the directive issued by the State Govt in its order dated 29-10- 01 Annexure P-23 and finalise the same within a period of two months from the date of filing of certified copy of this order.

5. Needless to emphasis that if some action of some assistance in this regard is warranted the State · Governn1ent shall do the needful. within the period at posted hereinabove. In the meanwhile status quo existing today with regard to posting and service condition. of the petitioner shall be maintained till the final-decision is taken as directed hereinabove.

6. Even though directions have been issued Gwalior Development Authority to consider the case of the petitioner during the course of hearing. It is pointed out that Shri Saxena the petitioner was initially an employee of the Special Area Development Authority (SADA) Malajkhand Distt. Balaghat now Municipal Council Malajkhand and therefore of his lien with the Special Development Authority will also be required to be taken into consideration while 7 consideration the case for promotion. The Gwalior Developn1ent Authority while examining the case of the petitioner Subhash Saxena shall consider the questions of his lien and in case it is found that he is entitled to be considered in accordance with the Rules his case shall also be. considered along with other eligible candidates. If for any reason the respondents Gwalior Development Authority is of the view that petitioner Subhash Saxena is not entitled to be considered accordance to the unamended rules the same shall be communicated to him along with the rules.”

10. On 01.07.2003, a Gradation List of existing

Assistant Engineers in GDA as on 30.06.1995, was

published. Therein, respondent no.1 was shown at Serial

No.2 in the Cadre of Assistant Engineers. In fact, a

perusal of the same will indicate that it is stated by

the CEO of the GDA that by publishing provisional

Gradation List in the Cadre of existing Assistant

Engineers in GDA as on 30.06.1995, objections were

invited. After examining the objections, the enclosed

final Gradation List of Assistant Engineers as on

30.06.1995 was also published. Respondent no.1 was

shown at Serial No.2. Under the column ‘employer of

original employment’ SADA, Malajkhand was indicated.

The appointment was shown as ‘made by promotion’. The

8 date of the first appointment in government service was

indicated as 20.12.1987. Under the column ‘date of

appointment in cadre’, it is shown as 07.09.1987. The

taking over of charge is indicated as 29.12.1988. In

the ‘remarks’ column, it is indicated that ‘joined from

the earlier SADA on 20.12.1988’ by order dated

20.12.1988 of the Housing and Environment Department

Services of Assistant Engineers Absorbed. Two employees

(not any of the petitioners before this Court) but one

Mr. Bharat Bihari Mathur and Shri Dev Dutt Mishra,

approached the Government against the Gradation List

dated 01.07.2003. It is by letter dated 30.07.2003 that

the Government took the view that prior to July, 1995,

State Cadre was not in existence as every Development

Authority was empowered to take decision with regard

to the employees, officers appointed by them. The

Government further ordered that the names of first

respondent and two others could not be shown under the

establishment of the GDA in the Gradation List of

Assistant Engineer as on 30.06.1995 or prior to it. The

Government further ordered that the GDA was not

competent to take decision on service matters in

9 respect of the employees. It is this communication

which led to the first respondent filing Writ Petition

No. 8199 of 2003 claiming seniority from 07.09.1987.

Thereafter, on 31.01.2006, Seniority List, as on

01.07.1995 was published. Therein, it would appear that

Shri Shirish More, one of the petitioners before this

Court was shown at Serial No. 58 and respondent no.1

was at Serial No. 87. Respondent No.1 filed his

objection. The Screening Committee rejected the

objection on 13.10.2006. The State issued a combined

Gradation List as on 01.07.1995, based on the decision

of the Screening Committee on 29.11.2006. The

respondent no.1 was placed at Serial No. 88. Shri

Shirish More was show at serial no. 82A. Shri G.N.

Singh another petitioner, was shown at serial No. 58.

Shri Nishad Azim, yet another petitioner before us, was

shown at Serial No. 66. Shri B.B. Mathur was shown at

Serial No. 54 and Shri Devdutt Mishra was shown at

Serial No. 59. Thereupon, the respondent no.1 filed

Writ Petition No. 189 of 2007. In the said Writ

Petition, the learned Single Judge proceeded to allow

the Writ Petition filed by the first respondent by

10 Judgment dated 29.02.2008. In the said Judgment, the

complaint of the first respondent was apparently

against his being placed at Serial No. 88, and further

showing him as ‘promoted on the post of Assistant

Engineer on 20.12.1994’. The learned Single Judge found

that there was failure to comply with the principles

of natural justice. His placement at Serial No. 88 in

regard to the position of Assistant Engineers as on

31.01.2006, was quashed, and he was directed to be

placed in the Gradation List, treating him as Assistant

Engineer, on the basis of Order dated 03.11.1987. This

Judgment, however, came to be recalled by the learned

Judge, finding that first respondent had concealed the

important fact that the earlier Writ Petition No. 8199

of 2003 was pending. It is thereafter that both the

Writ Petitions came to be heard and the learned Single

Judge (a Judge who was another learned Single Judge),

proceeded to allow the two Writ Petitions, finding that

the promotion of the first respondent was made in

accordance with the Special Area Development Authority

(Chairman and Officers Servants Recruitment and

Conditions of Service) Rules, 1976 (hereinafter

11 referred to as ‘the 1976’ Rules), which was a complete

Code, which cannot be taken away in accordance with the

PWD Recruitment Rules. It was found that an Executive

Order of the Government directing that the PWD Rules

would be applicable, was untenable. The requirement

under the rules, read with the Executive Order, was

that, to be promoted as Assistant Engineer a person

must have worked for 12 years. The first respondent had

less than five years, when he was promoted in 1987.

The learned Single Judge further proceeded to place

reliance on the decision of the Division Bench in S.C.

Hiranandani & Ors. v. State of M.P. & Ors. and found

it applicable. The Single Judge found that in the said

Judgment, vacancies existing prior to 31.03.1988, were

required to be filled-up in terms of the 1976 Rules.

The transfer of the first respondent was found to be

prior to the 1991 Amendment Act. It was further found

that the transfer by the State Government was also a

mode of recruitment. The contention that it was a case

of deputation, was rejected. The respondents in the

Writ Petitions could not produce any document to show

that the lien of the first respondent was retained in

12 the earlier SADA. Accordingly, the impugned Order dated

30.07.2003 was quashed and the official respondents in

the Writ Petitions were directed to treat the first

respondent as Assistant Engineer in GDA w.e.f.

07.09.1987 with all consequential benefits.

THREE WRIT APPEALS

11. This led to three appeals. Writ Appeal No. 327 of 2013 was filed by Shri Bharat Bihari Mathur and Shri

Dev Dutt Mishra. Writ Appeal No. 48 of 2014 was filed

by the State of Madhya Pradesh. Writ Appeal No. 481 of

2013 was filed by the GDA.

FINDINGS IN THE IMPUGNED JUDGMENT IN WRIT APPEAL NO. 327 OF 2013

12. Respondent No.1 was promoted as Assistant

Engineer considering the need and vacancy in accordance

with the Rules, initially on probation for one year.

Having been permitted to work beyond the maximum period

of 18 months of probation. He could not be treated as

a probationer.

13. The letter written by the Housing and Environment Department is regarding applicability of the 13 Recruitment Rules in the PWD for promotion as Assistant

Engineer under which, a minimum service of 12 years was

necessary, was described as a letter sent to the

President of the Nagar Sudhar Nyas Neemach. It is found

that objection has been raised, after a long period of

twenty years. No such instruction was issued to SADA

Malajkhand. It was found that there was no provision

in the Rules for mandating a minimum period. The

respondent no.1 having been paid salary to the promoted

post throughout, it could not be found that the

promotion was not proper.

14. Initially, the Rules of 1976 were applicable. Thereafter, Rules were framed in 1988 in exercise of

powers under Section 85 and Section 76-B (2) of the

Act. These Rules came into force on 01.04.1988. In

accordance, with the Rule (3)(ii) of the 1988 Rules and

the 1976 Rules, the State Government was authorised to

transfer an employee from one Authority to another

Authority. It was, thus, found that the transfer of

Respondent No.1 was in accordance with the Rules.

15. Subsequently, Respondent No.1 was absorbed in the service of the Gwalior Development Authority. The Order 14 of the State to the effect that Respondent No.1 could

not be treated as employee of the GDA, is not in

accordance with law because, in the Gradation List

earlier, vide letter dated 09.11.1995, services of the

Respondent No.1 were merged in the GDA, for which,

there was provision in the Rules. Respondent No.1 was

assigned proper seniority to the post of Assistant

Engineer as his seniority could not be disturbed.

16. After a period of eighteen years, it could not be held that Respondent No.1 was not an employee of GDA.

Reliance is placed on Parshotam Lal Dhingra v. Union

of India1 .

17. Reference is placed on the Order dated 29.04.2003, passed in Writ Petition No. 1377 of 2000, in regard to

considering the case of Respondent No.1 for promotion

to the post of Assistant Engineer.

18. The Appellants in Writ Appeal No. 327 of 2013,

who were Respondent Nos. 3 and 4 in Writ Petition No.

8199 of 2003, viz., Shri Bharat Bihari Mathur and Shri

Dev Dutt Mishra, were found to have been appointed as

1 1958 SCR 828 / AIR 1958 SC 36 15 Assistant Engineers on ad-hoc basis in the year 1988

and made permanent in 1990 and they were placed below

Respondent No.1. It is five to six years after the GDA

initiated procedure for considering the case of

promotion of Assistant Engineers to the higher post,

that the Appellants had apprehension that their chance

of promotion would be affected. Accordingly, it was

found that Appeal was without merit and it was

dismissed. Writ Appeal No. 481 of 2013, which was filed

by the GDA, came to be dismissed on the basis of the

Judgment in Writ Appeal No. 327 of 2013. Writ Appeal

filed by the State, i.e., Writ Appeal No. 48 of 2014,

came to be dismissed, based on the Judgment in Writ

Appeal No. 327 of 2013.

EARLIER PROCEEDINGS AGAINST THE JUDGMENT

19. The Order, which was impugned in Writ Petition No. 8199 of 2003, was passed at the instance of Respondent

Nos. 3 and 4, viz., Shri Bharat Bihari Mathur and Shri

Dev Dutt Mishra, in the Writ Petition. They were the

appellants in Writ Appeal No. 327 of 2013. They filed

SLP (Civil) Nos. 12444-12445 of 2014. The same has been

16 dismissed by this Court by Order dated 19.08.2014. The

Review Petition against the said Order was dismissed

on 22.09.2015. A Curative Petition also stood rejected

on 27.10.2016.

THE PRESENT PROCEEDINGS; CONTENTIONS

20. The appellants are the State of Madhya Pradesh,

GDA and three employees. The stand of the State of

Madhya Pradesh appears to be that the first respondent

was, in fact, transferred by way of deputation. This

position is made further clear through the affidavit,

pursuant to the Order dated 29.07.2021 passed by this

Court. In the affidavit, the State has maintained the

distinction between SADA and Development Authority. It

is contended that their constitution, functions,

budget, officers are entirely separate and distinct.

SADA Malajkhand was established under Section 64 of the

Act. GDA was constituted under Section 38. Rule 3(2)

of the 1976 Rules can be applied only for transfer of

an employee from one SADA Malajkhand to another SADA.

It is pointed out that this contention was taken before

learned Single Judge and noted. The stand of the State

17 is that the respondent No.1 was transferred by the

State Government, in exercise of power under Section

72 of the Act, which is different from power under

Section 73 of the Act. Section 73 deals with Power of

State Government to give directions to all Authorities

in the matter of policy whereas Section 72 empowered

the State Government to exercise superintendence and

control over the acts and proceedings of the officers

appointed under Section 3 of the Act and Authorities

under the Act. It is further pointed out that the

first respondent is inconsistent. Initially, he took

the stand he was absorbed in the GDA by the State

Government order dated 09.11.1995. He succeeded on this

basis before the court. It is contended that in the

Order dated 09.11.1995, it is stated that SADA

Malajkhand, was abolished and Respondent No.1 became

employee of the State Government and that his name

would be published in the gradation list of the Housing

and Environment Department. Thereupon, first

respondent has made a somersault by contending that his

absorption was made by Order 20.12.1988, which the

State Government would describe as a transfer on

18 deputation. Rule 4(C) of the 1976 Rules is inapplicable

to order dated 20.12.1988 as Rule applied to

recruitment to SADA and not when an employee is

transferred on deputation, it is contended. It is

further contended that recruitment is to be made under

Rule 8 of the 1976 Rules with prior approval of the

Government. Therefore, it is contended that under the

Rules, recruitment by transfer or deputation requires

approval of the State. The order dated 20.12.1988, it

is contended is not issued by the Development Authority

with previous approval of the State Government. It is

merely described as an Order of the State Government

transferring respondent no.1 on deputation to the GDA.

21. Another question, which is raised by the

appellants, relates to the validity of the very

promotion of the first respondent. The contention

appears to be as follows:

The Government has issued an executive

direction dated 25.4.1981 to the Presidents of the

Development Authorities and SADA. In terms thereof

the first respondent, who was appointed in the year

1982 as Sub Engineer, could have secured a

19 promotion as Assistant Engineer only after the

expiry of 12 years. On this basis, apparently, it

is that though he was given promotion on the expiry

of 4 years and a few months which was illegal, he

is given seniority on the basis of expiry of period

from 1982 and thus he is given seniority correctly

from 1994, it is contended. It is common contention

that at any rate even he can get seniority only

from the said date. This is apart from contending

that there was no absorption in law in the GDA and

in fact he was employee of the State in the Housing

and Environment Department.

SECTION 72 OF THE ACT

22. Reliance is placed on Section 72 of the Act and to contend that first respondent was sent on deputation

does not commend itself to us. Section 72 of the Act

read as follows:

“72. State Government’s power of supervision and control- The State Government shall have the power of

superintendence and control over the acts and proceedings of the officers appointed under Section 3 and the authorities under this Act.”

20

23. The power of supervision and control goes to acts and proceedings of the officers appointed under Section

3 and the authorities constituted under the Act. It

means that the authority relates to the decisions or

acts, which are taken by officers appointed under

Section 3, or the authorities under the Act. It may not

extend to power to control the service of the employees

of the authority or SADA. In fact, the Division Bench

of the High court in M.D. Awasthy v. State of M.P. and

Another2 dealing with the case where the petitioner

therein, who was the employee of the Development

Authority, was transferred to a Town Improvement Trust.

This was passed with the approval of the Chairman of

the Development Authority. By another order his service

was terminated, which was also approved by the

Chairman. There Orders were challenged. The Division

Bench, inter alia, held as follows:

“… Reference to sections 72 and 73 on which reliance was placed only authorise the State government to hive power of superintendence and control over the acts and proceedings of the officers appointed

2 1988 SCC OnLine MP 86 21 under section 3 and the authorities constituted under the Act. Certainly this will not include a power to call back the services of any officer, jr. servants of the Development Authority and to place those services under the disposal of altogether a different authority.

Reference to section 73 is also misplaced as it only provides that the authorities constituted under the Act shall be bound by such directions in the matter of policy as may be given to them by the State Government...”

24. The counsel for the State Government has rightly

not placed reliance on Section 73 which relates to

power to issue directions in the matter of policy.

25. As far as the contention against the very promotion made in the year 1987 of the first respondent being

flawed on the basis of the order, which was issued,

providing that the PWD rules would apply and thus the

first respondent who was appointed as Sub Engineer

required 12 years to be promoted as an Assistant

Engineer, what is clear is, the first respondent was

promoted in the year 1987. Promotion was based on

Seniority-cum-merit. There is no dispute that his

employer, viz., SADA Malajkhand, was competent to take

22 a decision otherwise. Rule 17 of the 1976 Rules read

as follows:

“17. Appointment by promotion- (1) Appointment by promotion shall be made on consideration of seniority-cum-merit. (2) In selecting candidates for promotion regard shall be had to:-

(i) tact and energy

(ii) intelligence and ability

(iii)integrity; and

(iv) previous record of service

(3) The Appointing Authority shall consider the cases of al the eligible candidates and may in its discretion interview any of the candidates.

(4) xxx xxx xxx”

The High Court finds that the objection is raised

after twenty years. It is found that no instruction was

given to SADA, Malajkhand. There was no provision in

the rules. After 27 years, the promotion could not be

revisited. In fact, after the promotion it was the

Government, which transferred him as an Assistant

Engineer and posted him at GDA. The view taken in the

matter in the circumstances cannot be faulted. In the

final seniority list dated 01.07.2003 wherein the first

23 respondent was shown at Serial No.2, the final

upgradation list of Assistant Engineer indicated that

he was ‘absorbed’. This is a list which is brought out

by the GDA itself.

26. The contention of the State is that Rule 3(2) of the 1976 Rules envisages transfer from one SADA to

another SADA only. Rule 3(2) reads as follows:

“3(2) Officers or officials borne on these posts of these cadre are liable for transfer from one Authority Service to other Authority Service. Such transfer may be made either by the mutual agreement between the two authorities, or by the State Government.”

27. No doubt, the tile of the Rules is as follows:

“Madhya Pradesh special Area Development Authority (Chairman and Officers and Servants Recruitment and Conditions of Service) Rules, 1976. It is purported to be made in exercise of power conferred under Section 67(2) and Section 85 of the Act.

Rule 2(e) defines “Authority Employees” means a person appointed to or borne on the cadre of the Authority staff.

24 Rule 2(f) defines “Authority service” as meaning the service or group of post in connection with the affairs of the Authority.”

28. However, in the impugned judgment, it is found that Government framed the Madhya Pradesh Development

Authority Service officers and servants Recruitment

Rules, 1988. The High court has relied upon Rule 3 of

the 1976 and 1988 Rules to find that Government was

authorised to transfer an employee from one Authority

to another Authority and that the transfer of

respondent no.1 was in accordance with the rules. We

cannot accept the argument of the State that it was a

case of deputation in the facts. We have noticed that

Section 72 does not also support the claim.

EFFECT OF EARLIER LITIGATION; AND THE STATE AND GDA NOT CHALLENGING THE JUDGMENT IN W.A. No. 327 of 2013. AN INSUPERABLE OBSTACLE?

29. Special Leave Petition (Civil) No. 31203 of 2014

is filed by the State of Madhya Pradesh challenging the

Judgment in Writ Appeal No. 48 of 2014. Writ Appeal No.

25 48 of 2014 was filed by the State and it came to be

dismissed on the basis of the Judgment in Writ Appeal

No. 327 of 2013, which was filed by Respondent Nos. 3

and 4 in Writ Petition No. 8199 of 2003. It is to be

noticed that the State was the first respondent in the

Writ Petition. The Judgment in Writ Appeal No. 327 of

2013, having been dismissed, and the State being party

to the same, it was incumbent upon the State to

challenge the Judgment in Writ Appeal No. 327 of 2013.

The State in the Special Leave Petition has challenged

only the Judgment in Writ Appeal No. 48 of 2014, which

was rendered, no doubt, following the Judgment in Writ

Appeal No. 327 of 2013. The Judgment in Writ Appeal No.

327 of 2013 would remain final as regards the State of

Madhya Pradesh. Therefore, it may not be legal or

proper to further consider the challenge at the

instance of the State, when it is directed only against

the Judgment in Writ Appeal No. 48 of 2014. Similarly,

we notice that Special Leave Petition, filed by the GDA

is directed against the Judgment in Writ Appeal No. 481

of 2013. It is true that Writ Appeal No. 481 of 2013

was filed by the GDA against Order in Writ Petition No.

26 8199 of 2003, (as can be seen from Annexure-P16 at

page-101 of the paper book). In Writ Appeal No. 327 of

2013, filed by the private parties in the very same

Writ Petition, and wherein, the GDA was, admittedly, a

party, viz., Writ Appeal No. 327 of 2013, the Division

Bench has upheld the Judgment of the learned Single

Judge. The GDA, being the party therein, challenged

only the Judgment in Writ Appeal No. 481 of 2013, which

was the Appeal filed by the GDA. It cannot be permitted

to be proceeded with, as it would result in the Judgment

in Writ Appeal No. 327 of 2013, which has become final,

as far as GDA is concerned, becoming inconsistent with

any Judgment, which we may render in favour of the GDA.

30. As far as the Special Leave Petitions, filed by the private parties are concerned, they are three in

number. They have obtained the permission of this

Court. We have noticed that initially Government had

published a final Gradation List as on 01.07.1995.

Therein the first respondent was shown at serial no. 2

in the Cadre of Assistant Engineer and he was shown as

absorbed. Only Shri B.B. Mathur and Shri Devdutt

Mishra, Assistant Engineers, working in the GDA,

27 approached the Government. Government, no doubt, issued

direction dated 30.07.2003, to delete the name of the

first respondent. This, undoubtedly, led to the Writ

Petition No. 8199 of 2003. Respondent Nos. 3 and 4

therein were Shri B.B. Mathur and Shri Devdutt Mishra.

They were the persons, who had challenged the seniority

of the first respondent. We notice that Shri Shirish

More, one amongst the petitioners before us, who had

filed Special Leave Petition, after getting permission,

came to be promoted on 10.10.1991 to the post of

Assistant Engineer. In the combined Gradation List

dated 29.11.2006, in fact, he is shown at serial no.

82A. Shri B.B. Mathur and Shri Devdutt Mishra were

shown at serial nos. 54 and 59. The other two Special

Leave Petitioners before us, viz., Shri G.N. Singh and

Shri Nishat Azim were at serial nos. 58 and 56,

respectively. What we would notice is, none of the

petitioners before us, viz., the employees, have even

challenged the final Seniority List dated 01.07.2003,

as per which, respondent no.1, was shown at serial

no.2, in the final Gradation List. Further, we may

notice that if they were relying on the fact that the

28 parties-respondents in the writ petition filed by the

first respondent and the appellants before the High

Court, were following up on their behalf also, then,

the fact that Shri Bharat Bihari Mathur and Shri Dev

Dutt Mishra have filed the Special Leave Petition

before this Court and the petition stands dismissed,

would be an obstacle for entertaining their case. The

further fact that even the Review Petition was

dismissed and what is more, a Curative Petition was

dismissed, would stand in their way, all the more.

Having regard to the passage of time, which has

also witnessed dismissal of the Special Leave Petitions

by the appellants (private respondents in the Writ

Petition filed by the first respondent), Review and

Curative Petition, at any rate, we do not think that

we should disturb the impugned judgment.

31. The fact of the matter is that first respondent was transferred in the year 1988 as Assistant Engineer

and he joined in GDA immediately thereafter and he

continued to work there. In fact, as noticed in the

first final seniority list dated 01.07.2003, he is

29 shown as absorbed in the GDA. It may be true that in

the letter dated 09.11.1995, it is not specifically

stated that respondent was absorbed in the GDA, and it

is indicated that his name will be included in the

Joint Gradation List of the remaining SADA (i.e., the

SADA not abolished under the notification dated

22.6.1995). It is further indicated that he is the

employee of the Housing and Environment Department. As

regards, determining seniority w.e.f. 1994, when first

respondent would complete 12 years as Sub Engineer, it

is tied up with the issue of the illegality of his

promotion in 1987 without completing 12 years. More

importantly, even proceeding to discern any merit that

seniority should, at least, be governed with reference

to the requirement of 12 years, in the facts of this

case, for reasons we have indicated already, we decline

to interfere, bearing in mind also Article 136 of the

Constitution of India, which has facilitated these

appeals.

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32. The appeals will stand dismissed. There will be no Order as to costs.

……………………………………………J. (K.M JOSEPH)

…………………………………………J. (S. RAVINDRA BHAT)

NEW DELHI, MARCH 14,2022.

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