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IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, REKHA PALLI, JJ.
Ms. Veena Kothavale - Petitioner
Versus
Union of India & Ors. - Respondents
W.P. (C) 3087 & 8443 of 2016
Decided On : 22-01-2018
The inter se seniority of direct recruits and promotees fixed prior to 27.11.2012 i.e. the date of the decision of the Supreme Court in the case of N.R. Parmar (supra), cannot be reopened despite the same having attained finality by following the prescribed process. In view of the admitted fact that no challenge had been raised by the Respondent No.5 to any of the three Seniority List issued in 27.10.2010, 15.09.2011 and 07.03.2014 (which was issued after the decision of the Supreme Court in N.R. Parmar (supra), were the Respondents No.1 to 4 justified in changing the already settled inter se seniority of the parties, by merely stating that the revised Seniority List was prepared in consonance with the decision of the Supreme Court in the case of N.R. Parmar (supra).
Fact of the Case:
The Petitioner had joined the ILS on 19.11.2003 by way of direct recruitment to the post of Assistant Legislative Counsel (Grade IV) (hereinafter referred as ‘ALC’) of the ILS. Though Respondent No.5 had also been appointed as ALC in the same selection process but based on her merit in the selection process, the Petitioner had been placed above the Respondent No.5 in the Seniority List of ALCs, i.e. the Petitioner was placed at No.1 position in the selection list, while Respondent No.5 was placed at the fourth position. The Petitioner had applied for the post of DLC against the direct recruitment quota vacancies of the year 2007. In the Direct recruitment process, the Petitioner had obtained the highest marks and was thus, admittedly, found to be more meritorious than respondent No.5. Before the result thereof could finally be declared and any offer of appointment made to any candidate, the petitioner, by virtue of her performance and seniority as an ALC, had been selected for promotion to the post of DLC against the vacancy of 2009 and had joined the post as a promotee w.e.f. 25.05.2009. It is also an undisputed fact that the result of the direct recruitment process initiated in the year 2007, relating to the direct recruitment quota vacancies of the year 2007, was ultimately declared on 04.03.2010 and Respondent No.5 got selected – though ranked lower in merit than the petitioner, because the petitioner had withdrawn her candidature by then on account of her promotion to the said post of DLC on 25.05.2009. Respondent No.5 had joined the said post of DLC as a direct recruit on 07.10.2010.
Finding of the Court:
The inter se seniority of the parties was not at all under challenge right from 2010. No dispute relating to inter se seniority was pending when the decision in N.R. Parmar (supra) was rendered. As there was no pending challenge to the Seniority List, in our view the decision of the Supreme Court in the case of N.R. Parmar (supra), could not be made applicable to the present case. As we have already observed, the O.M. dated 04.03.2014, in fact, shows that the application of the decision in N.R. Parmar (supra) was made applicable prospectively by the government. We have considered the judgments relied upon by the learned counsel for the respondents laying down the concept of retrospective overruling by courts. That proposition is not disputed by any of the parties, and hence we are not making any reference to the same. In our view, in the facts and circumstances of this case, the said principle does not come to the aid of respondent No.5.
Issues: Whether the inter se seniority of direct recruits and promotees fixed prior to 27.11.2012 i.e. the date of the decision of the Supreme Court in the case of N.R. Parmar (supra), can be reopened despite the same having attained finality by following the prescribed process.
Ratio Decidendi: The settled seniority positions should not be unsettled whenever the principles for determination of seniority – be it inter se seniority between Direct Recruits and Promotees, or be it the fixation of inter se seniority between Promotees drawn from different channels, undergoes a change.
Final Decision: The writ petition of the petitioner is allowed and that of the respondent No.5 is dismissed with no order as to cost. Accordingly the Seniority List dated 27.02.2015 is set aside and respondents No. 1 to 4 are directed to restore the inter se seniority of the parties as per the Seniority Lists dated 15.09.2011 and 07.03.2014 and take all consequential steps.
Rekha Palli, J.
1. The present Writ Petitions assail the order dated 04.03.2016 passed by Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No.1194/2015, whereby the Tribunal has rejected the claim of Ms. Veena Kothavale, the Petitioner in W.P(C) No. 3087/2016 for quashing the seniority list dated 27.02.2015 of the post of Deputy Legislative Counsel (Grade III) (hereinafter referred to as ‘DLC’) of Indian Legal Services (hereinafter referred to as ‘ILS’) in which she had been shown as junior to Shri Diwakar, the Petitioner in W.P.(C) No.8443/2016. The Tribunal has however, granted liberty to Ms. Kothavale to make a representation for working out her claim for her adjustment on the said post of DLC against direct recruitment quota on the basis of the selection process in which she had been placed at the top of the panel, but had earlier given up her claim against direct recruitment quota by joining the said post of DLC against the promotee quota.
2. Mr. Diwakar Singh is also aggrieved by the same order of the Tribunal impugned by Ms. Veena Kothavale, in so far as it grants liberty to Ms.Kothavale to make a representation and directs that till her representation is decided, his promotion to the post of Additional Legislative Counsel would remain provisional. It may be noted that Shri Diwakar Singh is Respondent No.5 in W.P(C) 3087/2016 filed by Ms. Veena Kothavale. Vide this common judgment, we are deciding both the Writ Petitions and for the sake of convenience, Ms. Veena Kothavale who is the Petitioner in W.P.(C) No.3087/2016, is being hereinafter referred to as the Petitioner, while Shri Diwakar Singh is being hereinafter referred to as Respondent No.5 as per their position in W.P.(C)No.3087/2016.
3. The Petitioner had filed the aforesaid O.A. challenging the final ‘Seniority List’ dated 27.02.2015 of DLC of ILS in the Legislative Department, Government of India, wherein she had been placed as junior to Respondent No.5 even though, ever since their appointment/promotion to the post of DLC, she had always been placed as senior to him in the successive seniority lists issued in 2010, 2011 and 2014.
4. The brief facts as emerge from the record are that the Petitioner had joined the ILS on 19.11.2003 by way of direct recruitment to the post of Assistant Legislative Counsel (Grade IV) (hereinafter referred as ‘ALC’) of the ILS. Though Respondent No.5 had also been appointed as ALC in the same selection process but based on her merit in the selection process, the Petitioner had been placed above the Respondent No.5 in the Seniority List of ALCs, i.e. the Petitioner was placed at No.1 position in the selection list, while Respondent No.5 was placed at the fourth position.
5. The conditions of service of members of the ILS is governed by the Indian Legal Service Rules 1957, as amended from time to time, and as per these Rules, the next promotional post which both the Petitioner and the Respondent No.5 became eligible for, upon completion of three years of service in the grade of ALC, was that of DLC. It may be noted that though the Respondent No.5 had joined the ILS as ALC on 16.09.2003 i.e. before the joining of the Petitioner, who joined the ILS as ALC on 19.11.2003, he was placed below the Petitioner in the Seniority List, since the Seniority List was based on merit in the selection process.
6. In the year 2007, four posts of DLC fell vacant which, as per the Recruitment Rules, were to be filled in the ratio of 50% by direct recruitment and 50% by promotion. Accordingly, while two posts of DLC were earmarked for direct recruitment, the remaining two posts were to be filled by promotion of a member of the service in ALC as per the provisions of Rule 6 (2) of the ILS Rules 1957.
7. The requisition for filling up two posts by way of promotion and the other two posts by way of direct recruitment were both sent to the UPSC in July, 2007. Though the Petitioner applied for the said post against the direct recruitment
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