1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R Ajay Singh Vs. State of Raj. & ors. (1) D.B. Civil Writ Petition No. 3105/00. Vinod Ajmera & Anr. Vs. O.P. Saharan & ors. (2) D.B. Civil Writ Petition No. 5022/01. Date of Order : 05/02/2010. PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr G.K. Garg, for the petitioner in Writ Petition No.3105/00. Mr R.C.Joshi, for the petitioner in Writ Petition No.5022/01. Mr Ashok Gaur, for the respondents. Reportable BY THE COURT While the learned Division Bench of this Court was hearing the special appeals arising out of the order dated 09.07.2009 passed by the learned Single Judge in respect to promotion of R.A.S. Officers, it was suggested by the learned counsels for the parties that since the Division Bench is hearing the appeals against the interim orders, the writ petitions itself be heard and decided by it. As suggested and agreed by the counsels, a learned Division Bench of this Court, on 20.10.2009, directed the registry to list all such writ petitions and special appeals (SAW No.618/2009) for final disposal. Thereafter, Hon'ble the Chief Justice, vide his order dated 17.12.2009, directed that hearing of the matters be done by this Court. Hence, the present writ petitions are before us. 2 2. Both these writ petitions raises a similar controversy in respect of promotion to selection scale in Rajasthan Administrative Service, on merit basis, against the vacancies of the year 1991-92 and the issues to be adjudicated are one and the same, as such these writ petitions are being decided by this common order. Brief facts of Writ Petition of Ajay Singh : 3. The writ petition has been filed against the order dated 8.12.99 (Annex.4) passed by the Rajasthan Civil Services Appellate Tribunal, Jaipur whereby the review petition filed by Shri M.M. Joshi respondent No.3 was allowed and he was declared eligible for promotion to selection scale, on merit basis, against the vacancies of the year 1991-92. Accordingly, it was ordered that a review DPC be held and proper placement may be given to him in selection scale in accordance to seniority, with all consequential benefits. The said exercise was to be done within a period of two months. Therefore, the petitioner has prayed that the impugned order passed by the learned Tribunal be quashed and set-aside. Further, it is prayed that the respondent No. 3 be placed below the petitioner in accordance with the decision dated 23.2.1996 (Annexure-1) and the list issued on 1.4.1998 (Annexure-5). 4. The petitioner as well as the respondent No.3 were appointed on 15.10.1979 in Rajasthan Administrative Services, in Short (RAS). Both of them were promoted to senior scale on 3 the basis of their seniority and there is no dispute in respect of their inter-se seniority upto that level. Thereafter, the petitioner was promoted to selection scale on 23.2.1996 against the vacancies of the year 1991-1992 on the basis of merit -cum- seniority. The respondent was superseded as he was given selection scale for the year 1992-1993. 5. It is note worthy that an amendment was made in the relevant Rules by appending explanation to Rule 28-B (2) (C) with effect from 30.11.1991, whereby the merit criteria was changed from seven out of seven outstanding /very good in the Annual Performance Appraisal Reports, in short (APARs), to five out of seven APARs. This led to litigations before various Forums i.e. The Rajasthan State Civil Services Appellate Tribunal, in short (Tribunal), as well as the High Court and finally, the controversy was set at rest by the Hon'ble Supreme Court in the Case of Shambhoo Meena Vs. The State of Rajasthan 1995 Supp (2) SCC 431, holding that change in the law would take effect prospectively. Consequently, a Review Departmental Promotion Committee, in short (review DPC), was held which resulted in the issuance of revised promotion list for the years 1987-1988 to 1994-95. The petitioner was promoted to selection selection on the basis of merit and his name appeared at Serial No. 5 against the year 1991-92, vide order dated 23.2.96 (Annex.1). The respondent was promoted against the vacancy for the year 1992-93 on the basis of merit and his name appeared at Serial No. 13. 4 6. The respondent challenged the allotment of year 1992-93 by filing an appeal before the Rajasthan Civil Services Appellate Tribunal. His appeal was dismissed on 17.9.96. Thereafter, another appeal was filed on 4.10.98 in respect to the same subject and relief. The said appeal was withdrawn on 12.10.99 on the ground that he wants to file a review petition. Accordingly, the appeal was dismissed with liberty to file a review petition. The review petition came to be allowed, as mentioned above, on 8.12.99. The respondent was allotted the year 1991-92, on merit basis, in selection scale. In the meanwhile, a provisional seniority list was issued by the respondent State on 1.4.98 wherein the petitioner was placed at Serial No. 31 and the respondent at 65 (Annex.5). Thereafter, the respondent State had issued a provisional seniority list of RAS Officers on 26.6.2000 (Annex.6) in respect of selection scale. The said seniority list was issued in compliance of the judgment passed by the Hon'ble Apex Court in the case of Ajit Singh Juneja Vs. State of Punjab, (AIR 1999 Sc 1189) and Ram Prasad Vs. DK Vijay (AIR 1999 SC 3563). In the said list, the name of respondent No.3 appeared at Serial No. 114 and that of the petitioner at No. 115. 7. In the aforesaid circumstances, the petitioner has preferred this writ petition challenging the order dated 8.12.99 passed by the learned Civil Services Appellate Tribunal placing him below respondent No.3 in the seniority list, published in furtherance thereof. 5 Brief facts of Writ Petition of Vinod Ajmera : 8. Being aggrieved of the judgment dated 20.9.99 (Annex.10), the petitioners have preferred this writ petition. Further, it has been prayed that the order dated 9.6.2000 be declared illegal and the same be quashed and set aside. It has also been prayed that the circular dated 3.12.96 be declared illegal and set aside. 9. The petitioners Shri Vinod Ajmera and Shri K.K. Singhal and respondent No.1 Shri O.P. Saharan were initially recruited in Rajasthan Administrative Service on 4.12.80. In the order of appointment, the name of petitioner Nos. 1 and 2 were shown at Serial No. 10 and 13 respectively whereas the name of respondent No.1 was at Serial No. 1. Thereafter, the petitioners as well as the respondent No.1 were promoted to the senior scale, on the basis of seniority-cum-merit vide order dated 21.4.88 wherein the name of respondent No.1 was at Serial No.18 and that of the petitioners was at No.27 and 29 respectively. The petitioners and the respondent were promoted to selection scale on 20.8.93 (Annex.3). Thereafter, a review DPC was held in compliance of the decision of the Hon'ble Supreme Court in the case of Shambhoo Singh Meena (supra) and Tara Chand, (1994 (3) WLC 468). A revised promotion order was issued on 23.2.96 wherein the petitioners were promoted on merit against the vacancies of 1991-92 but respondent No.1 was promoted against the year 1993-94. The Department of Personnel, on the basis of 6 the said review DPC, issued a provisional seniority list on 15.5.98 showing the seniority position as on 1.4.98. The name of the petitioners was shown at 34 and 35 respectively and that of respondent No.1 at 88. 10. On account of super-session, vide order dated 23.2.96, respondent No.1 preferred an appeal before the Rajasthan Civil Services Appellate Tribunal (320/96). The said appeal was rejected on 17.9.96. Subsequently, respondent No.1 filed another appeal (1810/98) before the learned appellate Tribunal. The subsequent appeal was also dismissed on 3.5.99. Thereafter, respondent No.1 filed a petition on 31.5.99 for review of the judgment dated 17.9.96 passed in First Appeal (320/96), which was registered as Review Petition No. 24/99. The learned Tribunal allowed the review petition on 20.9.99 and also imposed a penalty of Rs. 2,000/- on the State of Rajasthan. The petitioners were not aware about the aforesaid proceedings as they were not a party to it. However, the respondents State held a review DPC, in compliance of the decision of the learned Tribunal and promoted respondent No.1 against the vacancies of 1991-92 by its order dated 9.6.2000. On 6.9.01, after receiving the information from his colleague that respondent No.1 has been promoted in selection scale against the year 1991-92 that the petitioners immediately obtained the copy of the judgment and filed the writ petition challenging the said judgment by the Tribunal as well as the consequential order dated 9.6.2000. 7 11. The respondents, in both the petitions, have contested the writ petition by way of filing replies. To start with, the respondents have raised objection with regard to the maintainability of the writ petitions on the ground that they had taken up the matter before the Tribunal in respect of their own case and without challenging the promotions of others. Therefore, the petitioner has no right to challenge the decision of the Tribunal which entirely deals with the matter of respondents on the issues raised before it. It was also stated in the reply that the respondents were senior to the petitioner in the initial scale. They were given selection scale along with the petitioner, against the vacancies of the same year. It was only on account of the fact that service record of the answering respondents was not properly considered by the DPC that they had taken up the issue before the learned Tribunal and succeeded in it. It has also been stated in the replies that the facts pertaining to the case of Shambhoo Singh Meena (supra) have been incorrectly placed in the writ petition. It was after the decision in that case and to overcome the situation, the amendment dated 30.11.91 was brought about. The respondents have also replied that the appeal preferred in the year 1998 was with regard to different facts and cause of action. The said appeal was then withdrawn with liberty to file a review petition and the same was permitted by the learned Tribunal on 12.10.99. It was also stated that in view of the decision of the Hon'ble Supreme Court in the case of R. Dayal, ((1997) 10 SCC 419) that the amendment in the rules became applicable from 8 the date of such amendment and any vacancy arising subsequent to it was to be considered as per the amended provision. Therefore, the instant case was required to be seen in accordance to it. Subsequently, the learned Tribunal had also decided the issue of applicability of the judgment of the Hon'ble Supreme Court in the case of UP Jal Nigam Ltd., (1996 (1) SLR 743) and the matter was decided in favour of certain officers like Shri OP Harsh etc., whereas the case of respondent was dealt with differently. Thus, the answering respondent had sought review of the earlier judgment and the same was decided in an appropriate manner, after issuance of the provisional seniority list on 1.4.98. The respondent State had already issued a new provisional seniority list on 26.6.2000 in compliance of the judgment of the Hon'ble Supreme Court in the case of Ajit Singh II (supra) as well as Ram Prasad (supra). The respondent had stated that the petitioner is trying to unnecessarily delay the issue in the present matter. 12. The learned counsel for the petitioners have submitted that the impugned order has been passed by the learned Tribunal on a review petition whereas there is no such provision under the relevant Rules. In the alternative, they have submitted that even if it is assumed that the review petition is maintainable, the same has been filed after a period of two and half years and as such, it is beyond the period of limitation prescribed. They have also submitted that the orders passed by 9 the learned Tribunal in the appeals filed by the respondents had attained finality and therefore, there was no question of reconsidering the same in review petitions. Further, they have submitted that even otherwise, in the instant case, none of the settled principles of review, such as, error apparent on the face of the record etc. were available before the learned tribunal so as to allow the same by the impugned order dated 8.12.1999. It has also been submitted that the circular dated 3.12.96 is not retrospective in nature, and therefore, it is not applicable in the present case. They have also assailed the ACRs on the ground that they are `above average' which should not have been considered as `very good' and that in respect of the year 1984- 85, the period covering the later part of the year would prevail for considering the ACRs for that year, which was only `average'. It has also been contended that the present case is not a one of sudden lowering down the position which is apparent from the ACRs of respondent in the year 1981-82, 1982-83 and 1984-85. Therefore, it has been submitted that the case of UP Jal Nigam (supra) is not applicable in the present case. The other contentions were with regard to the petitioners being necessary party before the Tribunal; the limitation in filing of an appeal; and that second appeal filed before the Tribunal by the respondents were withdrawn and in such a situation, the impugned orders passed by the Tribunal is illegal. 13. On the other hand, the learned counsel for the 10 respondents have submitted that the writ petitions are not maintainable as the petitioners were not a party in the appeal before the learned Tribunal. Furthermore, he has submitted that there was neither any prayer made nor any relief sought from the Tribunal which was prejudicial to the petitioner. The prayer made by respondents before the learned Tribunal was limited to the extent of their placement against the vacancies of the year 1991-92. In support of his submissions, he has heavily relied upon the case of Jaswant Singh Lamba Vs. Haryana Agricultural University & ors., (2008) 5 SCC 656. The learned counsel for the respondents has also invited the attention of this Court to the case of KC Bajaj decided by the learned Single Judge on 11.11.98. The said judgment was upheld by the Division Bench on 9th August, 2001 (2001 (3) RLW 1794). Further, an amendment was made in the Act, particularly in Section 6, on 10.3.05. The learned counsel for the respondents has also placed reliance on the case of State of West Bengal & ors. Vs. Kamal Sengupta & Anr., (2008) 8 SCC 612; and Dev Dutt Vs. Union of India & ors., (2008) 8 SCC 725. In the last, he has submitted that even taking into consideration the operative part of the review order, it is revealed that nothing has been ordered directly against the petitioners. Further, he has submitted that since passing of the impugned order by the learned Tribunal on 8.12.99, much water has flown and many subsequent developments have taken place by way of various orders issued by the State Government. 11 Therefore, he has submitted that the judgment passed by the learned Tribunal is not coming in the way of the petitioner in any manner. 14. It is significant to note that during the pendency of these writ petitions, much development by way of promotion orders; orders in compliance of the judgments passed by various courts; and provisional/ final seniority lists has come to be issued. The petitioner Ajay Singh had himself filed three writ petitions, at different times. The First Writ Petition (3355/04) was filed against the seniority list issued on 4.5.04, as on 1.4.93, and 1.4.94. Second Writ Petition (1742/08), was filed by him seeking directions to include his name in the list sent to UPSC for convening IAS Board (1996-97) to 2007-2008 as shown in the seniority list issued by the respondents on 26.6.2000. Third Writ Petition (4866/2008) was filed challenging the order dated 12.5.2001 and thereafter, by amending the writ petition also challenging the final seniority list dated 24.6.08. The learned Single Judge of this Court decided all the three writ petitions by a common order and allowed the same by his judgment dated 4.3.09, whereby the final seniority list dated 24.6.08 was quashed and set aside with certain directions to the respondent- State. 15. The State Government then preferred three separate appeals (307/09, 1063/09 and 1020/09) arising out of the aforesaid writ petitions decided by the learned Single Judge. All the appeals have been decided by us today and while allowing 12 the same, the order of the learned Single Judge dated 4.3.09 has been set aside. 16. The objections raised by the learned counsel for the respondents with regard to maintainability of the writ petition needs to be decided first. There is no dispute about the fact that the respondents herein had taken up their own cause before the learned Tribunal without challenging the order of promotion passed in favour of any other person. It is also an undisputed fact that respondents were senior to the petitioners at the time of recruitment as well as in the initial scale. They were also given selection scale along with the petitioners against the vacancies of the same year i.e. 1991-92. In these circumstances, the challenge made before the learned Tribunal was entirely in respect of the respondents and that is why neither the petitioners were party to it, nor any relief had been sought against them. Therefore, the instant case is required to be seen in this light. 17. In certain matters, the learned Tribunal had decided the issue in favour of other officers like OP Harsh etc. whereas, the case of the respondent was dealt with differently. This made the respondent to seek review of the earlier orders passed by the learned Tribunal which it had thought proper, after taking into consideration the entire facts and circumstances to do so. The present petition has been filed primarily against the impugned order passed by the learned Tribunal on the review 13 application in which no relief was sought against the petitioners. Therefore, the petitioners were not a necessary party to the review petition. According to the directions of the learned Tribunal, the placement of the respondents was to be made on the basis of merit against the vacancies of the year 1991-92. Accordingly, a fresh list was prepared in pursuance of the said order. Only because respondents were to be placed against the vacancies of 1991-92, another seniority list was to be published and that the petitioners could file representation against it, the same would not be a ground for unsettling a settled position after passing of the order by the learned Tribunal. Needless to say, the seniority, as is well known, is not a fundamental right, it is merely a civil right. In this regard, it would be relevant to note the principle laid down by the Hon'ble Apex Court in the case of Jaswant Singh Lamba (supra). 18. In view of the above, we are of the considered opinion that the preliminary objections raised by the respondents has force. The impugned order passed by the learned Tribunal was only in respect of seniority of the respondents against the vacancies of the year 1991-92. In the said proceedings, no relief had been sought against the petitioners nor they can be said to be aggrieved of the order passed by the Tribunal with regard to placement of the respondents in the seniority list against the vacancies of the year 1991-92. When the order of the learned Tribunal does not give rise to any grievance to the petitioners, then they are not entitled to file the present writ petitions 14 challenging the same much less to say that they are entitled to any relief from this Court. 19. Therefore, the present writ petitions, in view of the nature of impugned order passed by the Tribunal, are not maintainable. In such view of the matter, we do not consider it necessary to go into and adjudicate the other points raised by the petitioners. Consequently, the writ petitions deserve to be rejected and are accordingly dismissed, with no order as to costs. (Raghuvendra S. Rathore),J. (Narendra Kumar Jain), J. /bm gandhi