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2006 Supreme(Cal) 731
High Court Of Calcutta
Before: Ashim Kumar Banerjee And Tapan Mukherjee, JJ.
UNION OF INDIA - Appellant
Versus
BHUPATI MOHAN ALIAS B.MOHAN - Respondent
F. M. A. 138 Of 2004
Decided On : 11/24/2006
ACHIN MAJUMDER, Amit Kumar Pan, BIDISHA BANERJI, DINESH CHANDRA ROY, Koshi Kemta Moitra, SADHAN KUMAR HALDAR, Shaktinath Mukherji
A subsequent irregularity and/or infirmity in a promotional process that gives rise to a fresh cause of action can be brought in by way of an independent writ petition.
Headnote:
RAILWAY PROTECTION FORCE - SENIORITY - INTERIM LIST - FINAL LIST - REVIEW - MAINTAINABILITY - RES JUDICATA - The guidelines prescribed by the Apex Court in Grewal's case were not followed, and nine promotees were assigned seniority without following the appropriate rules prescribed therefor.
Fact of the Case:
A dispute arose between two groups of officers in the Railway Protection Force regarding seniority and promotion. The Apex Court resolved the dispute by prescribing a guideline inter alia asking the Central government to consider both the groups for promotion by holding DPC on a yearly basis. The Central Government complied with the directions of the Apex Court and prepared a provisional seniority list. The provisional list was challenged by one of the aggrieved groups by filing a writ petition. During the pendency of the writ petition, the provisional list was made final.
Finding of the Court:
The learned single Judge allowed the writ petition and quashed the provisional list. Both the parties applied for review. The respondent/writ petitioner applied for review on the ground that since the provisional list was made final during the pendency of the writ petition that should also be quashed. The other review application was filed by the Union of India on the ground that the case made out in writ petition that Union considered the officers serving and in position as on April 1, 1993 only and not in consideration of the officers in position serving at the material point of time and falling within the zone of consideration during the period 1981 to 1985 and retired subsequently was rejected by the Apex Court. Such submission of Union was not considered by Their Lordship. The second ground was that against purported publication of provisional list representation had been made by the affected class pointing out anomalies and irregularities which was rejected outrightly by the Apex court and as such could not have been considered by His Lordship.
Issues: 1. Whether the writ petitioners were hit by the principle of res judicata as the Apex Court had already considered and rejected their grievances in Grewal's case? 2. Whether the learned Judge could have quashed the final list without the writ petition being amended? 3. Whether the writ petition was maintainable as the provisional list was prepared in terms of the direction of the Apex Court? 4. Whether the learned Judge could examine the provisional list sitting on appeal over it? 5. Whether the writ Court should have interfered with the ultimate decision of the authority when there was substantial compliance?
Ratio Decidendi: 1. The writ petitioners were not hit by the principle of res judicata as the Apex Court had not considered the subsequent irregularities and/or infirmity in the promotional process that gave rise to a fresh cause of action. 2. The learned Judge could have quashed the final list without the writ petition being amended as the provisional list attained finality during the pendency of the writ petition. 3. The writ petition was maintainable as the provisional list was not prepared in terms of the direction of the Apex Court and the respondent/writ petitioners had a grievance that the guideline in Grewal's case was not followed. 4. The learned Judge could examine the provisional list sitting on appeal over it as the writ Court was entitled to examine the decision making process and not the decision. 5. The writ Court should not have interfered with the ultimate decision of the authority when there was substantial compliance.
Final Decision: The appeals filed by the Union and the private respondents in the writ petition were dismissed.
( 1 ) THE subject matter of these two appeals would depend upon proper interpretation of the Apex Court Judgment in the case of H. S. Grewal v. Union of India and Ors. , reported in 1997 (11) supreme Court Cases, page 758.
( 2 ) THE subject matter of dispute before the Apex Court related to seniority of officers in the rank of Commandant/security Officer/ assistant Inspector General/deputy Director/divisional Security. Officer in Railway Protection Force. Under 1974 Rules initially, the recruitment was to the post of Assistant Commandant/assistant security Officer in Class II, Group-B. The next promotional post was commandant/assistant Inspector General/security Officer in Class i, Group-A. The promotion was by way of selection through the departmental Promotion Committee. Under the rules, a person putting eight years regular service in the post of Assistant Commandant was entitled to come within the zone of consideration for promotion to the next promotional post. In Class-II, Group-B, 30% were direct recruits, 60% by way of promotion from a lower post and 10% by way of transfer. Under 1981 Rules, direct recruitment to the post of Assistant commandant (Class-II, Group-B) was completely stopped and such post was being filled up by promotees from the lower post and intermediate post was created Class-I where the promotees' from the lower post were placed giving a junior scale in Class-I, Group-A. The recruitment to the intermediate post was 40% by promotion of Assistant commandants putting three year regular service, 60% by direct recruit through UPSC. The next promotion was in Group A Class-I giving senior pay scale.
( 3 ) DISPUTE before the Apex Court was between two groups of officers. The first group were recruited prior to the introduction of 1981 Rules to the post of Assistant Commandant Class II, Group B who by the time 1981 Rules came into force had completed several years of service as assistant Commandant Class II, Group B and were awaiting further promotion as Commandant' Class 1, Group A. Regular promotions were not had since 1981. The incumbents were stagnating in the said post for several years. Even the officers who had been promoted ad hoc basis completed five years of ad hoc service in the cadre and were expecting the next promotional post. There had been complication with regard to fixation of their seniority after introduction of 1981 rules. In 1990, notification was issued that they would be given promotion to the intermediate post being Group A, Class I junior scale and then promoting them to the post of Commandant in Class I, Group A senior scale on ad hoc basis. This created a dispute between this group with the other group who were direct recruits in the post of Class 1, Group a after 1981 Rules came into force.
( 4 ) THIS controversy resulted in protacted litigation before many High courts including this Court. The Apex Court ultimately resolved the dispute by prescribing a guideline inter alia asking the Central government to consider both the groups for promotion by holding DPC on yearly basis meaning thereby the Central Government was obliged to reckon the vacancy which arose in the promotional post year to year and consider the eligible candidates as per the guidelines given by the apex Court year wise and filling them up through a promotional process.
( 5 ) THE Apex Court elaborately discussed the controversy and ultimately came to the conclusion and gave a solution to the problem. While doing so, the Apex Court relied on two circulars of the Union public Service Commission dated December 10, 1991 and August 3, 1992.
( 6 ) THE Central Government complied with the directions of this apex Court. While doing so they took into account the yearwise vacancies and held DPC and ultimately gave promotion and filled up the promotional post which became vacant year to year after considering all the eligible candidates at a time which gave rise to a further dispute. One of the aggrieve
