UNION OF INDIA Vs. ASHIM KUMAR ACHARYA CHOWDHURY

JUDGEMENT

(1.) This appeal is directed against a judgment and order dated 1st October, 1985 passed by a learned Single Judge of this Court in Civil Rule No. 15137[W) of 1981, whereby and whereunder the said learned Judge allowed a writ petition filed by the respondents.

(2.) Admittedly, a seniority list was published in the year 1980. According to the writ petitioners, they were seniors to the respondents No. 7 to 57 on the basis of their date of entry in the service as also on the basis of the date of entry in the grade. They filed a representation but the same was not allowed, inter alia, on the ground that they should make individual representation. Their further representation was also rejected. The appellants, being respondents in the Civil Rule, inter alia, in their affidavit-in-opposition filed therein, contended that the circular letter dated 9.4.70 upon which the writ petitioners had put strong reliance had no application in the facts and circumstances of the case inasmuch as all concerned officers passed the Appendix II examination prior thereto. It was further contended that the seniority list has been prepared in terms of the existing rules. The learned Trial Judge, inter alia, held that a seniority would not depend on the fortuitous circumstances of confirmation and if confirmation is not made in time, it was fault of the respondents for which the petitioners should not suffer. It was stated thus who have passed earlier should have confirmed first.

(3.) Mr. Chaudhuri, learned counsel appearing on behalf of the appellants, has principally raised two contentions in support of this appeal. The learned Counsel submitted that a writ petition by fifteen petitioners was not maintainable inasmuch as they stand on different factual background. The learned Counsel contends that the writ petitioner No. 15 was treated to be senior most and as such the question of challenging the gradation list at first instance does not arise. The learned Counsel has given similar instances to show that some of the petitioners have been shown to be senior to same of the private respondents. It has further been pointed out that from a perusal of annexure 'F' to the affidavit-in-opposition, it would appear that the representation made on the part of the writ petitioners-respondent was not rejected on merit but joint representation by them was discouraged. The learned counsel further submitted that the circular letter dated 1.4.70 will have no application in the instant case inasmuch as the writ petitioners as also the private respondents passed their examination prior thereto.