W.P.(C) No. 3642-57 of 2005, etc. Page 1 Reportable * IN THE HIGH COURT OF DELHI AT NEW DELHI 1) W.P.(C) No. 3642-57 of 2005 Reserved on: January 14, 2009. Pronounced on: April 02, 2009. Shri Yogender Singh & Others . . . Petitioners through : Mr. M.S. Ganesh, Sr. Advocate with Mr. Devendra Singh, Advocate. VERSUS Govt. of NCT of Delhi & Others . . . Respondent through Ms. Jyoti Singh, Advocate with Mr. Amandeep Joshi, Advocate. 2) W.P.(C) No. 14933-48 /2004 Shri Karam Vir & Other . . . Petitioners through : Mr. M.S. Ganesh, Sr. Advocate with Mr. Devendra Singh, Advocate. VERSUS Govt. of NCT of Delhi & Others . . . Respondent through Ms. Jyoti Singh, Advocate with Mr. Amandeep Joshi, Advocate. 3) W.P.(C) No. 14914-29/2004 Shri Karam Vir & Other . . . Petitioners through Mr. M.S. Ganesh, Sr. Advocate with Mr. Devendra Singh, Advocate. VERSUS Govt. of NCT of Delhi & Others . . . Respondent through Ms. Jyoti Singh, Advocate with Mr. Amandeep Joshi, Advocate. W.P.(C) No. 3642-57 of 2005, etc. Page 2 CORAM :- THE HON’BLE MR. JUSTICE A.K. SIKRI THE HON’BLE MR. JUSTICE SURESH KAIT 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI, J. 1. Identical issue arises in all these three writ petitions and for this reason, these petitions were heard together and can be disposed of by this common judgment. For the sake of clarity and to avoid confusion, we may start with the narration of facts appearing in Writ Petition (Civil) No. 3642-57/2005. 2. The petitioners herein belong to Delhi Administration Subordinate Service (DASS). This service was constituted in the year 1967 vide Notification dated 10.02.1967. In the year1968-69, amendment to these Rules was made by inserting Clause (bb) whereby Stenographers in Grade of Rs.210-530/- were also included as a feeder grade for the purpose of promotion to Grade-I Ministerial Service. Another amendment in these Rules was introduced vide Notification dated 22.05.1972, as per which, certain ex-cadre posts of the Horticulture Assistant, Plant Protection Assistant, Extension Officers, SDA, Demonstrators, etc. were also included in feeder line for promotion to Grade-I of DASS cadre. These Rules were amended again on 04.12.1980. Effect of this amendment was to merge two W.P.(C) No. 3642-57 of 2005, etc. Page 3 services known as Ministerial and Executive Services of DASS into single service known as Subordinate Service of Delhi Administration. 3. The petitioners herein joined different posts in the Development Department between 1983 to 1987. At that time, cadre had not been unified by merging into single service. For promotion to the post of Grade-I, five years service in Grade-II is required. On that reckoning, the petitioners claim that they became entitled to be considered for promotion in the year 1989, 1990 and 1991 respectively. The petitioners, however, were not considered for promotion. It appears that a move was initiated in the department proposing to review the continuation of posts occupied by the petitioners in DASS service. A letter dated 09.10.1992 was written in this behalf stating that the then Chief Secretary had observed that a large number of specialized/technical posts to which the petitioners also belong had been included in the feeder channel of DASS cadre, which was affecting the promotional prospects of the regular incumbents in the said cadre, viz., Ministerial Cadre. Suggestions were, therefore, made to take these technical posts out of DASS cadre. This led to the modifications and amendment in the DASS Rules once again vide Notification dated 02.11.1992. As per this, no posts of Specialized/Technical nature in any department were to be included in the feeder channel for promotion to organized cadre, i.e., W.P.(C) No. 3642-57 of 2005, etc. Page 4 DASS/DANICS. In this behalf, amendment to Rule 6 was carried out in the following manner: “Amendment of rules 6 – In the Delhi Administration Subordinate Service Rules, 1967, in rule 6 under item no. 1 (Recruitment to Grade-I) for existing Clause (b), the following shall be substituted as under:- “Notwithstanding anything contained in sub-rules (a)/Stenographers in the scale of pay of Rs.1440-2300 who have been appointed in a regular manner in accordance with the recruitment rules & have 5 years regular service in the grade shall also be eligible to be considered for promotion to Grade-I of the services on the basis of method of selection prescribed in the Notification F. 3 (75)/79-S-II dated the 4th December, 1980. As a result of it, technical posts of Development Department were deleted from the feeder channel of Grade-I. As a result of this amendment now, only two categories in the feeder channel for promotion of Grade-I DASS are Grade II (DASS) and Stenographers. As a consequence of exclusion of technical cadre from the feeder channel for the Grade-I (DASS), the technical officials in the Development Department were granted promotion in their own department to the higher technical post available in the scale of Rs.5500-9000/-.” 4. The persons like the petitioner objected to their exclusion from DASS service and certain representations in this behalf were made for inclusion of these technical posts once again as a feeder channel for promotion to the post of Grade-I. One of the grievances of these persons was that because of their exclusion, they were not given any promotion ever since their appointment and in the process they were stagnating in the same post for 13 to 17 years. These representations bore fruits as, on 02.06.2000, an order was issued in respect of 19 persons i.e. these petitioners, who belong to ex-cadre posts, were to be included in the feeder line, Grade-I (DASS) cadre. This was W.P.(C) No. 3642-57 of 2005, etc. Page 5 followed by the Notification dated 21.01.2002 in exercise of powers inserted a proviso to Clause (bb) to Sub-rule (1) of Rule 6 giving statutory flavour to the earlier orders to 02.06.2000. As a result, Rule 6 was again amended specifically including the 19 petitioners herein only who were working on ex-cadre posts for making them eligible for promotion to Grade-I, DASS and promoting them to the said post from the date they became eligible for such promotion. 5. Since it is this amendment, which was challenged by the private respondents by filing OA before the Tribunal, it would be necessary to reproduce the text of this Notification dated 21.01.2002 in its entirety: “No. F.55/52/2001/S.I – In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, read with the Govt. of India, Ministry of Home Affairs Notification No. F.27/59-Him (i) dated the 13th July, 1959 and all other powers enabling him in this behalf, the Lt. Governor of the National Capital Territory of Delhi is pleased to make the following rules further to amend the Delhi Administration Subordinate Services Rules, 1967 framed vide notification No. F.3(16)/66-Services dated the 10th February, 1967 as mentioned from time to time, namely:- Short title: 1. These rules may be called the Delhi Administration Subordinate Service (Amendment) Rules, 2002. Amendment of Rule 6: In the Delhi Administration Subordinate Services Rules, 1967, in rule 6, in sub- rule (1), to clause (bb), the following proviso shall be inserted namely:- “Provided that the 19 officials working on certain ex-cadre posts of Development Department who were included in the feeder line for promotion to the post of Grade-I (DASS) vide this Government’s Notification No. W.P.(C) No. 3642-57 of 2005, etc. Page 6 F.10(25)/67-Services-II dated the 19/22 May, 1972 and excluded F.2(34)/88-S.II dated the 2nd November, 1992, but were otherwise eligible for promotion to Grade-I (DASS) as on 2nd November, 1992 and have been brought back in the feeder channel for promotion vide this Govt.’s order No. F.2(34)/88-S.II/Vol. II/1735-58 dated the 2nd June 2000 shall be promoted to the posts of Grade-I DASS from the date they become eligible for such promotion.” 6. Delhi Administration Employees Federation (Regd.) and others filed two OAs, i.e., OA No. 2937/2001 & OA No. 1286/2002. They challenged the aforesaid orders dated 02.06.2000 and Notification dated 21.01.2002. These OAs were allowed by the Tribunal inter alia on the following grounds: “14. Even the first part of the notification provides that the private respondents who are described as 19 officials working in certain ex-cadre posts in the development Department and were excluded vide the notification of 02.11.1992 should be eligible to Grade-I DASS. We have already referred to above that the Government order of 02.06.2000 was not a notification issued and should not have much legal force. We do not dispute that the Administrator will have power to exclude or include certain cadre posts from the zone of consideration. The posts on which the private respondents were working were excluded to be considered for promotion in Grade I DASS. If the private respondents were excluded, it was in pursuance of the amendment to Rule 6 of the Delhi Administration Subordinate Service Rules, 1967. The notification was issued on 02.06.1992. Certain posts, cadres etc. were excluded. Induction of only private respondent, therefore, would not stand scrutiny. Either a cadre or post should have been included in terms of Rule 6 or the same should not be in the zone of consideration. Picking of 19 persons who are private respondents does not appear to be logical conclusion. The decision in the case of L.N. Mishra Institute of Economic Development and Social Change (supra) will have little impact in the present case. The reason given that they were otherwise eligible for promotion to Grade I DASS cannot be justified because eligibility is one thing not c0-related (sic. co-related) with a particular cadre, post or service to be considered for inclusion in the feeder cadre for Grade I DASS. - W.P.(C) No. 3642-57 of 2005, etc. Page 7 29Therefore, we have not hesitation in holding that the impugned order deserves to be quashed. 15. For these reason, we allow the present applications and quash the impugned order dated 02.06.2000 and 21.02.2002. No costs.” 7. The petitioners have filed Writ Petition Nos. 14914-29/2004 & 14933- 48/2004 challenging the aforesaid orders. 8. In the meantime, after the decision of the Tribunal dated 19.09.2003, the Government issued orders dated 06.09.2004 directing the reversion of the petitioners to the Office of Development Commissioner. Against this move, the petitioners filed OA No. 2973/2004 before the Tribunal. In this OA, they have challenged earlier notification date 02.11.1992 on the ground that before issuing this notification, UPSC has not been consulted which is mandatory requirement. That OA has been dismissed by the Tribunal vide orders dated 18.02.2005 holding that the same is barred by the principles of res judicata and assailing this order Writ Petition (C) No. 3642-57/2005 has been filed by the petitioners. Thus all these three writ petitions by the same petitioners virtually raise the same grievance. 9. The aforesaid factual narration would bring out the following zig-zag decision making on the part of the official respondents insofar as amendment in DASS Rules is concerned. When the service was constituted in the year 1967, posts which are being held by the petitioners and ascribed as technical posts were not included as W.P.(C) No. 3642-57 of 2005, etc. Page 8 feeder grade for promotion to Grade-I DASS in Ministerial service. However, in 1972 their posts were included in the feeder line for promotion to Grade-I of DASS cadre. By amendment dated 09.10.1992, such technical posts were again excluded from DASS cadre. When these 19 petitioners raised grievance against the same, by amendment vide notification dated 21.01.2002, only these 19 persons specifically by name were again included in the DASS cadre and given promotion to Grade-I. 10. It is also clear from the above that whereas the persons belonging to Ministerial service were agitated by the move of the official respondents in issuing orders dated 02.06.2000 formalizing the same vide notification dated 21.01.2002 relating to the notification of the petitioners in which DASS service, the petitioners were agitated by their exclusion from DASS service in the year 1992 when Rules were amended vide notification dated 02.11.1992. We may also state, at this stage, itself that insofar as official respondents are concerned, before us the stand was that they accepted the judgment of the Tribunal and according to them, the amendment vide notification dated 21.01.2002 was bad in law and these 19 persons holding technical posts should not be included in the DASS service. 11. Before adverting to the issues at hand, we may take note of some more events which were highlighted by the learned counsel for the petitioners. The petitioners herein were appointed between W.P.(C) No. 3642-57 of 2005, etc. Page 9 1983-1987, as mentioned above, on ad hoc basis initially. They had led their claim for regularization and the matter in this respect had gone up to the Supreme Court. Appeal filed by these petitioners was allowed by the Supreme Court vide orders dated 08.10.1996, directing that the petitioners were entitled to regularization subject to the official orders that may be filed in the Writ Petition (Civil) No. 1128/1989 which was filed by the Government of Delhi. This writ petition was filed by the Government against the decision of the Tribunal. The High Court vide its judgment dated 06.12.1996 dismissed the writ petition. Hence, in accordance with the orders of the Supreme Court, the petitioners were appointed on regular basis to the posts of Horticulture Assistant, Plant Protection Assistant, Extension Officers, SDA, Demonstrators, etc. w.e.f. 01.08.1984, 10.08.1984 and 01.09.1984. Orders dated 17.01.1997 were issued to this effect. The effect of these orders was that from their initial appointment, the petitioners were treated as appointed on regular basis. It is because of this reason that they claim that they were entitled to be considered for promotion to Grade-I DASS after five years of service from their appointment, i.e., after 1989. Though in the year 1989, they were included in the DASS cadre by virtue of amendment of 1972 which still held the ground, at that time they were not considered for promotion as they were treated as ad hoc employees. They got the status of regular employees, from the date W.P.(C) No. 3642-57 of 2005, etc. Page 10 of their initial appointment but only after the orders dated 17.01.1997 were passed by the Government on the basis of the aforesaid judicial pronouncements. However, by that time DASS rules had again been amended on 02.11.1992 and the petitioners were excluded from DASS cadre. The petitioners had thus made representation dated 13.06.1997 against the amendment made in Rule 6 by DASS Amendment Rules, 1992 on 02.11.1992. This representation was forwarded for fresh consideration pointing out that prejudice has been caused to the petitioners by earlier notification dated 02.11.1992. Therefore, to remove the said prejudice and give benefit to the petitioners who were stagnating in their positions ever since from their appointment from the year 1984 to 1987, orders date 02.06.2000 were issued giving benefit to only these 19 petitioners which was followed by amendment in the DASS Rules vide notification dated 21.01.2002 as mentioned above. Pursuant thereto the petitioners with other eligible employees were considered for promotion to Grade-I post for a duly constituted DPC and orders dated 08.08.2002 were passed giving promotions to these persons in the scale of Rs.6500- 10500/-. 12. Mr. Ganesh, learned Senior counsel appearing for the petitioners made a fervent plea that good governance demands issuing of mandamus giving promotions to the petitioners who were earlier even promoted when the Department realized that injustice was W.P.(C) No. 3642-57 of 2005, etc. Page 11 being done to them. He relied upon the judgment of the Supreme Court in the case of Raghava Rajgopalachari Vs. State of Assam 1972 S.L.R. (SC) 915 where he particularly referred the following passage from there: “17. The writ was brought to challenge this order. No such petition, even if it be competent, was filed by the State itself. The respondent to a writ petition filed cannot be allowed to attack its own order as a respondent.” 13. He also submitted that official respondents were taking extreme positions under the pressure put up by the Federation of the Employees belonging to the Ministerial cadre and even when they understood that the petitioners were entitled to promotion and for this purpose orders dated 02.06.2000 and notification dated 21.01.2002 were passed, after the judgment of the Tribunal striking down those orders, they had taken somersault in their attitude. He pointed out that initially after receiving the judgment of the Tribunal dated 19.09.2003, view was taken by the Lieutenant Governor to challenge that order. Since the notification was struck down only on technical grounds, it was also decided to remove the said anomalies. However later on, under the pressure of the Federation of Employees, the official respondents decided to go back on those decisions which act was totally unfair and arbitrary on the part of the respondent. The learned counsel, in these circumstances, argued that proper relief can be given by the Court having regard to the judgment of Bombay High Court in State of Bombay Vs. Laxmidas, W.P.(C) No. 3642-57 of 2005, etc. Page 12 AIR 1952 Bombay 468 which has been affirmed by the Supreme Court in a recent judgment in the case of Dhampur Sugar (Kashipur) Ltd. Vs. State of Uttaranchal & Others., 2007 (8) SCC 418. 14. Learned counsel for the respondents on the other hand pointed out that such persons in the category of the petitioners were not only the petitioners (19 in number), but there were 40 such ex-cadre employees. Therefore, it was realized that the notification dated 21.01.2002 giving benefit only to those 19 persons was discriminatory. It was further submitted that initially there was no notification to include these technical posts in the cadre after these were excluded vide amendment dated 02.11.1992. At the same time, it was also felt that the petitioners were stagnating. Therefore, only to give benefit to these petitioners, the notification dated 21.01.2002 was passed. However, when it was realized that if portion of the notification specifically giving benefit to the petitioners is deleted, then all technical posts would again be included in the cadre, which was never intended. Therefore, consenscious decision was taken to accept the judgment of the Tribunal and not to take any further steps in this behalf. 15. We have given our due considerations to the respective submissions and have also minutely perused the records including the original record which we had summoned. Before dealing with the core issue we deem it proper to first address ourselves to the question of W.P.(C) No. 3642-57 of 2005, etc. Page 13 constructive res judicata as on this principle the Tribunal has passed orders dated 18.02.2005 dismissing OA No. 2973/2004. Re: Constructive Res Judicata: 16. Necessary facts have already been taken note of by us. To recapitulate them briefly, technical posts which were included in the feeder cadre for promotion to Grade-I of DASS cadre by amendment dated 22.05.1972 were excluded subsequently vide amendment dated 02.11.1992. Thereafter orders dated 02.06.2000 were passed followed by notification dated 21.01.2002 amending the Rules once again, but limiting the benefit to only 19 persons, i.e., the petitioners herein. This was challenged by the Employees of Ministerial Cadre by means of two OAs. Those OAs were allowed by the Tribunal vide judgment dated 19.03.2003. Acting on this judgment, the Government passed orders dated 06.09.2004 reverting the petitioners to the Office of the Development Commissioner. At this stage, these petitioners filed OA No. 2973/2004 challenging amendment dated 02.11.1992 by which they were excluded from the DASS cadre. The Tribunal has held that such a challenge is not permissible at this stage as the petitioners did not take any steps to challenge those amendments on an earlier occasion and therefore, principles of constructive res judicata shall apply. To arrive at such a conclusion, the Tribunal has been swayed away by the consideration that the petitioners did not challenge the validity of notification dated 02.11.1992 in the earlier two OAs, which W.P.(C) No. 3642-57 of 2005, etc. Page 14 were filed by the Ministerial Federation/Staff. It is clear from the following discussion in the judgment dated 18.02.2005: “20. At this stage, it would be appropriate, therefore, to sum up the above said conclusions. Where the constructive res judicata is a special and artificial form of res judicata, it is a technical aspect but basis on which said rule rests is founded on consideration of public policy. It is not possible to have any hard and fast rule on the question but it depends on the facts and circumstances of the case. However, one important aspect is that if a matter could have been set up as a ground of defence in the former suit and it its introduction into that suit was necessary for a complete and final decision, it will be deemed in the subsequent suit to have been decided and principle of constructive res judicata would apply. There is no distinction made between a claim or defence actually made or which might and ought to have been made. By fiction of law the latter also is deemed to have been directly and substantially in issue in the former suit. 21. Reverting back to the facts of the present case, we have already noticed above that this question should have been raised in the earlier litigation but was not raised. At that time, the applicants did not deem it appropriate to challenge the Notification of the year 1992. In fact they supported it. It could have been raised in the previous litigation and once it is not raised, the principle of constructive res judicata squarely applies to the facts of the case. Therefore, it is too late in the day for the applications to rake up this plea. 17. We may also point out that in the process, the Tribunal has taken note of various judgments of the Apex Court and High Courts explaining the doctrine of principles of constructive res judicata. On that basis, legal position is rightly summed up in Para No. 20 extracted above. However, it is the application of this principle on the facts of present case where we find ourselves in disagreement with the view taken by the Tribunal. The question is as to whether the petitioners had the occasion to challenge the notification of 1992 in the earlier proceedings but they omitted to do so. It is because of W.P.(C) No. 3642-57 of 2005, etc. Page 15 the provisions contained in Explanation IV of Section 11 of Code of Civil Procedure, which has been relied upon by the Tribunal and the same reads as under: “Explanation IV – Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” The Tribunal has held that challenge to the Notification of 1992 could have been raised in previous litigation and once it is not raised, the principles of res judicata squarely applies. However, it has missed certain important facts on the basis of which one can safely conclude that there was no such occasion to challenge notification of the year 1992 in the previous litigation. We are making these comments in view of following pertinent aspects: a) Earlier two OAs were filed by the private respondents herein, viz., Federation/Employees of Ministerial Staff. The subject matter of challenge was the orders dated 02.06.2000 and Notification dated 21.01.2002. By these orders and notification, the petitioners herein were granted the relief by the department itself, administratively. Therefore, the scope of controversy was the validity of those notifications which were to the benefit of the petitioners. The petitioners in a matter like this who were earlier respondents in those OAs were only supposed to defend those orders/notification. W.P.(C) No. 3642-57 of 2005, etc. Page 16 b) With the issuance of