UNION OF INDIA Vs. S N DUBEY

JUDGEMENT

(1.) The question that falls for consideration in this appeal relates to assignment of year of allotment for the purpose of fixation of seniority in the Indian Administrative Service (hereinafter referred to as 'the Service') to Shripati Narain Dubey, the contesting respondent (hereinafter referred to as 'the respondent'). The respondent was appointed as an Assistant Professor of Civil Engineering in the Department of Industries and Technical Education, a Class II service of the Government of Bihar, in July 1968 and he joined the said post on August 13, 1968. He was confirmed on the said post vide Notification No. 5036 dated December 13, 1969. He was promoted as Associate Professor of Civil Engineering on May 21, 1975. He worked in the various posts under the Government of Bihar and vide Notification No. 37 dated May 1, 1976 he was appointed as Assistant Director in the Bureau of Public Enterprises. By order dated September 3, 1977 the post of Assistant Director was upgraded to that of a Deputy Secretary-cum-Deputy Director. Subsequently by notification dated October 30, 1978 the post of Deputy Secretary-cum-Deputy Director of the Bureau of Enterprises was redesignated as Joint Secretary-cum-Joint Director. The respondent was appointed to the Service by notification dated May 12, 1981. He was assigned 1977 as the year of allotment. In this regard, letter dated April 11, 1986 was addressed by the Under-Secretary from the Department of Personnel and Training, Government of India, to the Chief Secretary, Bihar, Patna, wherein it was stated that the matter of determination of the year of allotment of the respondent has been examined in consultation with the Union Public Service Commission in accordance with the provisions of Rule 3(3)(c) of the Indian Administrative Service (Regulation of Seniority) Rules, 1954 (hereinafter referred to as 'the Seniority Rules') and that the year of allotment of the respondent cannot be determined earlier than 1977 since, as per the information furnished by the State Government, Shri Yadu Nath Jha is the junior most officer of the State Civil Service who was appointed in the Service before and in comparison to the length of service of the respondent in the State in a Gazetted post, Shri Yadu Nath Jha had served in the State Civil Service for a longer period and hence, as per the proviso to Rule 3(3)(c) of the Seniority Rules, the year of allotment of the respondent could not be determined earlier than 1977. The representation submitted by the respondent against the said determination of 1977 as the year of allotment was rejected by the Government of India, Department of Personnel and Administrative Reforms, Ministry of Home Affairs, by letter dated July 14, 1987. Feeling aggrieved by the aforesaid decision whereby 1977 was determined as the year of allotment for the purpose of fixation of his seniority in the service, the respondent moved the Central Administrative Tribunal, Patna Bench, Patna (hereinafter referred to as 'the Tribunal'), by filing O.A. No. 424 of 1988, wherein he claimed that the year of allotment should have been determined as 1971 and not 1977. The said application of the respondent was allowed by the Tribunal by judgment dated September 17, 1990. The Tribunal quashed the orders dated April 11, 1986 as well as July 14, 1987 and directed the Union of India to fix 1971 as the year of allotment of the respondent and place him below Shri Dev Das Chhotray the junior most direct recruit of the year 1971. In the said judgment the Tribunal following its earlier judgment in K. V. Nambiar v. Union of India, decided by the Ernakulam Bench of the Tribunal, held that the proviso to Rule 3(3)(c) of the Seniority Rules was unconstitutional and void. In Special Leave Petitions Nos. 8773 of 1990 and 3127 of 1991 filed by the Union of India against the decisions of the Tribunal in the cases of K. V. Nambiar and the respondent this Court, by order dated April 8, 1991, granted special leave to appeal and passed the following order:-

(2.) Civil Appeal No. 1755 of 1991 arises out of Special Leave Petition filed against the judgment of the Tribunal dated September 17, 1990 in O.A. No. 424 of 1988 filed by the respondent. The Union of India filed a Review Petition for the review of the said order dated April 8, 1991 passed by this Court. In the said Review Petition it was pointed (out) that in the case of the respondent the seniority has been fixed in accordance with the provisions of Rule 3(3)(c) of the Seniority Rules and that the relief granted by the Tribunal could be sustained in so far as K. V. Nambiar was concerned but the said relief could not be sustained in the case of the respondent. The Review Petition filed by the Union of India was dismissed by this Court by order dated July 31, 1991. Thereafter the Central Government passed an order dated August 19, 1991 whereby the year of allotment of the respondent was revised from 1977 to 1971 and it was directed that for the purpose of inter se seniority he would be placed below Shri D. D. Chhotray (RR 71) in the gradation list of the IAS officers borne on the cadre of Bihar. The said order dated August 19, 1991 adversely affected the seniority of the officers who had been assigned years of allotment between 1971 to 1977. Mukesh Nandan Prasad and Ashok Kumar were appointed to the service by direct recruitment and had been assigned 1972 and 1974 as the years of allotment respectively. As a result of order dated August 19, 1991 whereby his year of allotment was revised from 1977 to 1971 the respondent became senior to both these officers. The said officers filed a Writ Petition [W.P. (C) No. 290 of 1992] in this Court wherein they challenged the validity of the order dated August 19, 1991 regarding the revision of the year of allotment of the respondent. It was urged that the respondent had been correctly assigned 1977 as the year of allotment on the basis of the proviso to Rule 3(3)(c) of the Seniority Rules and since the validity of the said provision has been upheld by this Court, the year of allotment of the respondent cannot be altered from 1977 to 1971. On July 21, 1998 the learned Counsel for the petitioners in the said Writ Petition submitted that the Writ Petition may be permitted to be treated as Review Petition for review of the judgment of this Court dated April 8, 1991 in Civil Appeals Nos.1755 and 1784 of 1991 for the reason that the petitioners were not parties in those proceedings but are adversely affected by the judgment of this Court dated April 8, 1991 and that the said judgment of this Court came to the knowledge of the petitioners only after the order dated August 19, 1991 was passed on the basis of the said judgment and that soon thereafter the petitioners had filed the Writ Petition in this Court. In view of the said statement of the learned Counsel, this Court, by order dated July 21, 1998, directed that the said writ petition be treated as Review Petition for review of the judgment of this Court in Civil Appeals Nos. 1755 and 1784 of 1991 and thereafter the said writ petition was registered as Review Petition Nos. 1391-1392 of 1998.

(3.) At the time of the hearing of the Review Petition on July 30, 1998 Shri Ranjit Kumar, the learned Counsel for the petitioners, stated that the petitioners have grievance only against the order passed by this Court in Civil Appeal No. 1755 of 1991 relating to the respondent and they do not have any grievance against the order passed in Civil Appeal No. 1784 of 1991 relating to K. V. Nambiar and that the Review Petition may, therefore, be treated as seeking review of the order dated April 8, 1991 passed by this Court in Civil Appeal No. 1755 of 1991. After hearing Ranjit Kumar, the learned Counsel for the petitioners in the Review Petition, and Shri H. N. Salve, the learned Senior Counsel appearing for the respondent, this Court, by order dated July 30, 1998, allowed the Review Petition and the order dated April 8, 1991 to the extent it related to Civil Appeal No. 1755 of 1991 was set aside. Civil Appeal No. 1755 of 1991 was thereafter taken up for hearing and the petitioners, Mukesh Nandan Prasad and Ashok Kumar, were ordered to be impleaded as parties in the said appeal.