N. Birendra Singh vs L. Priyokumar Singh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(SC) 454

2006(5) Supreme 302
SUPREME COURT OF INDIA
(From Gauhati High Court)
S.B. Sinha and P.P. Naolekar, JJ.
N. Birendra Singh — Appellant
versus
L. Priyokumar Singh & Ors. — Respondents
Civil Appeal No. 2126-2127 of 2001
With
Civil Appeal Nos. 2133, 2132, 2128-2131 and 8510-8513 of 2001
All Decided on 5-5-2006
Counsel for the Parties :
For the Appellant : M.L. Verma, V.N. Ganpule, Jaideep Gupta, Sr. Advocates, A. Guneshwar Sharma, Satya Mitra, Ashok Kumar Sharma, David Rao, Ms. S. Janani, Sapan Biswajit, Ashok Kumar Singh Advocates.
For the Respondents : S.K. Bhattacharya, L.K. Paonam, Ms. S. Janani, Deepak Goel, Advocates.

Headnote:SERVICE LAW — Seniority — Appellant was appointed as a Section Officer, Grade-I (Elect.) — He was promoted to the post of Assistant Engineer (Elect.) on an ad-hoc basis on 5-2-1980 — By a Government order dated 30-9-1985, on recommendations of Departmental Promotion Committee, appellant was appointed as an Assistant Engineer on officiating basis w.e.f. 15-7-1985 — State, in supercession of the said order, promoted him as an officiating Assistant Engineer on a SC/ST reserved seat — A tentative seniority list was published in year 1991 wherein his name was not included, on basis that his services had not been regularised — His services were regularised w.e.f. 29-8-1992 — On challenge, Single Judge of the High Court directed the State Government to regularise his adhoc and/or officiating service w.e.f. 5-2-1980 — Compliance of directions by the State by issuing Govt. order dated 3-2-1993 — A tentative seniority list was published wherein he was shown at Serial No. 7 — Appellant filed a claim that his seniority be reckoned from the date of his regularisation — In final seniority list, his name was at Serial No. 49 — Writ petition was filed praying for quashing of the final seniority list — State promoted 15 Assistant Engineers to the post of Executive Engineer on ad-hoc basis which appointments were later on directed to be on officiating basis — Division Bench of the High Court admitting writ appeals passed an order of status quo — During pendency of writ appeals, services of 15 Executive Engineers, who were appointed on officiating basis, were regularised — Whether Division Bench of the High Court was justified in dismissing the appeal — (No).
Held : We appreciate the anxiety on the part of the State that if the entire seniority list is directed to be reopened, it may give rise to many more litigations. It must think itself therefor. But it is the State alone who is responsible for such a situation. The appellants herein have been pursuing their remedies under the law. They had been granted relief as orders were passed in their favour. The said order, admittedly, attained finality, and thus, cannot be reopened. It is, thus, too late in the day for the State now to urge that the promotions granted to some of the appellants herein in the post of Assistant Engineer (Elect.) were not in accordance with law. Such a contention is barred under the principle of res judicata. (Para 23)
We are, therefore, of the opinion that having regard to its own conduct, the State of Manipur now cannot be heard to say that this Court should uphold the impugned judgment of the Division Bench, although, in law the same is impermissible. We decline to do so. We, therefore, while setting aside the observations and directions issued by the Division Bench in paragraph 21 of the impugned judgment, place on record the concession made by the learned counsel appearing on behalf of the State that the appellant, N. Birendra Singh, would be given all monetary benefits w.e.f. 5.2.1980. We do not find any merit in the appeal preferred by the State. As the learned Single Judge has directed the State to implement its own order, the legal consequences of the said order must ensue and if by reason thereof the concerned appellants had derived certain benefits, there is no reason for us to deprive them therefrom only because the State may feel some difficulty otherwise. (Para 24)

JUDGMENT

S.B. Sinha, J. — These appeals involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.

2. The case has a chequered history. We would, however, note the factual matrix of the matter, from C.A.Nos.2126-2127 of 2001. The appellant was appointed as a Section Officer, Grade-I (Elect.). He was promoted to the post of Assistant Engineer (Elect.) on an ad-hoc basis on 5.2.1980. By a Government order dated 30th September, 1985, on recommendations of Departmental Promotion Committee (DPC), the appellant was appointed as an Assistant Engineer on officiating basis w.e.f. 15.7.1985. The State, in supercession of the said order, promoted him as an officiating Assistant Engineer (Elect.) on a SC/ST reserved seat. A tentative seniority list was published in the year 1991 wherein his name was not included, presumably on the basis that his services had not been regularised. His services were, however, regularised w.e.f. 29.8.1992, but no retrospective effect thereto was given, whereupon he filed a writ petition before the Gauhati High Court. A learned Single Judge of the said court by an order dated 27.11.1992 directed the State Government to regularise his ad-hoc and/or officiating service w.e.f. 5.2.1980. The said direction was complied with by the State by issuing Government order dated 3.2.1993, in terms whereof the services of the Appellant were regularised with retrospective effect, i.e., w.e.f. 5.2.1980. It stands admitted that the said order dated 27.11.1992 was passed following a Division Bench decision of the said court dated 23.3.1992 passed in C.R.No.586/91 in the matter of one Kh. Ningthemjao Singh, who is also an appellant before us, wherein directions were issued in the following terms:

"...Considering the submission made by the learned counsel for petitioner as well as the learned Govt. Advocate and after going through the judgment of the Division Bench of this Court passed in civil Rule No.586/91, I dispose of the petition with the direction to regularise the petitioners services with effect from the date of his initial adhoc appointment i.e. 5.2.1980. The seniority of the petitioner shall be determined in accordance with the rules and in the absence of such rules as per Govt. instructions and in the light of the judgments of the Apex Court as well as of this Court."

3. He thereafter filed a representation for determination of his seniority. As the question of seniority was pending before the High Court at the instance of some other officers, the appellant herein also filed a Writ Petition claiming similar reliefs which was marked as C.R.No.226/93.

4. A tentative Seniority List was published on 30.6.1994 wherein he was shown at Serial No.7. He filed a representation claiming that his seniority be reckoned from the date of his regularisation. A final Seniority List was published on 6.5.1995 wherein his position was shown as Serial No.49. According to the appellant, his name should have appeared at Serial No.13 of the seniority list. A writ petition was again filed by him praying for quashing of the final Seniority List and for determining his seniority from the date of regularisation, which was marked as C.R.No.308/95. Several interim orders were passed therein. The said interim orders came to be vacated by an order dated 4.10.1996, but it was made clear that any promotion to the post of Executive Engineer (Elect.) made during pendency of the said writ petition shall be only on officiating basis and subject to the results of the three writ petitions pending before the High Court thence. The State thereafter promoted 15 Assistant Engineers to the post of Executive Engineer on ad-hoc basis which appointments were later on directed to be on officiating basis.

5. By a judgment and order dated 16.5.1997, the learned Single Judge allowed four Writ Petitions being C.R. Nos. 308/95 and 916/95 filed by the appellant, N. Biirendra Singh, C.R. N

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