Wp 891/11 1 IN THE HICH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.891/2011 K.L.Jose Petitioner Vs. Union of India and Ors. Respondents Mr.Vinay Kumar Garg with Mr.Filji Frederick i/b FF & Associates for petitioner Mr.J.P.Cama,Sr.Counsel a/w Mr.Sandeep Marne for res.1 Mr.R.R.Shetty for Res.2 to 5 Mr.Ajay Shinde for res.6 to 10 CORAM- A.M.KHANWILKAR AND MRS.MRIDULA BHATKAR,JJ. DATE 20th April,2011 P.C. . Heard counsel for the parties. Rule. Rule made returnable forthwith by consent. Mr.Sandeep Marne, advocate for the respondents waives service for respondent no.1. Mr.R.R.Shetty waives service for Res.2 to 5 and Mr.Shinde waives service for Res. 6 to 10. As short question is involved the petition is taken up for final disposal by consent . 2 The background in which this petition has reached before this court has a chequered history. It is unnecessary to dwell upon those details. Shorn of the details, the decision of the Tribunal dated Wp 891/11 2 28/9/2010 in Original Application no.399/2009 is impugned in the present petition, whereby the Tribunal partly allowed the Original Application filed by the contesting respondents with the following order. “Keeping in view the totality of facts and circumstances and also in view of the pendency of appeal before the Hon’ble Supreme Court, we direct the respondents to keep in abeyance any action initiated or order passed pursuant to the impugned orders dated 19/4/2010 23/4/2010 for convening DPC to fill up the posts of Supdt.Grade-I pertaining to the year 1996-1999 till after the Hon’ble Supreme Court have dealt with the Appeal No.29192/09 in which leave has already been granted on 4/12/2009 .On eventual disposal of the said appeal,the respondents would be at liberty to initiate appropriate action if so required. With the above said directions, the present OA stands partly allowed. No costs. “ 3 The grievance of the petitioner before us, is that, the Punjab and Haryana High Court by decision dated 5/9/2009 in C.W.P. 6728/2007 answered the grievance made by the petitioners therein and issued directions to the department in the following terms. “Accordingly, the Writ Petitions are dismissed with the modification that the DPC from Superintendent Grade II to Superintendent Grade I shall now be done for the period 1995 to 1999, instead of upto April 2001, for re-fixation of their seniority after placement in Superintendent Grade I, keeping in mind the seniority and availability of vacancy of Grade I. “ 4 On the basis of the above directions the department issued Wp 891/11 3 order dated 19/4/2010 which reads thus - “Please find enclosed herewith a list of Jes (Appx A) whose ACRs for period 1996-1999 are urgently required for implementation of judgment dt. 05/09/2009 of Hon’ble High Court of Punjab and Haryana in WP (C) No.6666/07 in O.A.No.296/PB/05 and WP (C) No.6728/2007 in OA . Please forward the ACRs end details as required in the Note of Appx A through special courier as to reach this HQ by 23 Apr.2010.” 5 This order was followed by another order dated 23/4/2010 issued under the signatures of (M.M.Doppa SAO Offg.Director D.p.C.for Chief Engineer, which reads thus : “IMPLEMENTATION OF ORDER DT.05.09.2009 OF HON’BLE HIGH COURT OF PUNJAB & HARYANA IN WP (C) NO.6666/07 IN O.A.NO. 296/PB/05 & WP (C) NO.6728 /07 IN O.A.NO.472/PB/05. 1 A Photocopy of HQ E-in -C’s Branch letter No.B/41026/DPC/JEs/AEs / E1 (DPC-1) dt.10 Apr.2010 is enclosed herewith for your information and necessary action please. 2 The integrity certificate of JE s as listed in the Appx “A” of E-in -C’s Branch letter is urgently read for DPC. 3 Therefore, it is requested that the integrity/Vigilance clearance certificate in respect of JE s of your formation may be fwd.to this HQ by 30-4-2010. (M.M.Doppa)SAO,Offg.Director (DPC),for Chief Engineer Encl-As above Copy to - Wp 891/11 4 Internal : E1B (O) Section- for info and necessary action alongwith a copy of “E” in- C’s Branch letter quoted above.” 6 There is no manner of doubt that the above said two orders issued by the department were primarily to implement the directions issued by the Punjab and Haryana High Court. It is common ground that the decision of the Punjab and Haryana High Court was challenged by way of SLP Civil 29192/09. In the said SLP, the petitioners therein had also filed application for interim relief. However, vide order 4/12/2009, the Supreme Court merely granted leave to appeal and expedited the hearing of the appeal. Admittedly, no interim relief has been granted by the Supreme Court. In other words, the operative order passed by the Punjab and Haryana High Court referred to above, still holds the field as it has not been stayed by the Supreme Court. In this backdrop, the department has had no option but to implement the said order for which reason issued two successive orders referred to above. 7 The private respondents, however, moved the Central Tribunal,Bombay Bench by way of original application no.399/2009, interalia, contending that they were challenging the above said two orders passed by the department which according to them were Wp 891/11 5 arbitrary and passed in hurried manner. The same was inequitable action and the department intends to proceed ahead to hold so called proforma to the post of Superintendent grade-1 knowing fully well that the said judgment is in conflict with the observation in O.A.No.2105/07 with connected O.A., which in turn has been upheld by the High Court of Delhi in C.W.P.2246/2008.The Tribunal being impressed by the grievance of the private respondents proceeded to partly allow the Original Application by directing that the two orders passed by the department dated 19/4/2010 and 23/4/2010 pertaining to the years 1996-97 be kept in abeyance till the decision of the Supreme Court in SLP No.2992/2009 in which leave has been granted by the Supreme Court on 4/12/2009 . That direction has been passed for the reasons recorded in paragraph 17 onwards of the impugned decision. In substance, the Tribunal was impressed by the submissions of the private respondents that the department could not be allowed to hasten the matter by giving effect to the decision of the Punjab and Haryana High Court in view of the decision of the Principal Bench of the Tribunal dated 10/3/2006 and even earlier decisions which were assailed by way of writ petition before the Delhi High Court and has been upheld by the Delhi High Court. Wp 891/11 6 8 The reason so weighed with the Tribunal, in our opinion, cannot be sustained and it cannot stand the test of judicial scrutiny. The basic fact which has been completely glossed over by the Tribunal, is that, the decision of Punjab and Haryana High Court is subsequent in point of time i.e.dated 5/12/2009. The efficacy of the earlier decisions either of the Tribunal or of the Delhi High Court, therefore, it ought to be presumed were known to the parties and ought to have been agitated before the Punjab and Haryana High Court when the Writ Petitions were decided on 5/9/2009. The Tribunal, therefore, could not have passed any order which was in consistent with the decision of the Punjab and Haryana High Court which was last in point of time, pertaining to the issue of conducting of the DPC for consideration from Superintendent Grade- 2 to Grade-1 . In other words, the decision of the Punjab and Haryana High Court was the last word and the department was bound to implement the same unless the said decision were to be set aside by the Supreme Court or for that matter operation thereof was to be stayed in the proceedings already resorted to by the private respondents. Wp 891/11 7 9 The stand of the department before us is consistent with the factual position stated in two orders dated 19/4/2010 and 23/4/2010 referred to above. To get over this position, the argument of the private respondents before us, is that, the issues dealt with by the Punjab and Haryana High Court are quite different than the issues answered by the Principal Bench, as upheld by the Delhi High Court. In the first place, the decision of the Principal Bench as also of the Delhi High Court is anterior in point of time. The last decision with regard to holding of DPC to consider the promotion from Superintendent Grade-2 to Grade-1 for the period 1995-1999, was the subject matter before the Punjab and Haryana High Court, and has been answered vide judgment dated 5/9/2009. As is noted earlier, the operation of the said order has not been stayed by the Apex Court. For that reason, the department has had no option but to implement the said decision of the Punjab and Haryana High Court. Further, from the reading of the two orders dated 19/4/2010 and 23/4/2010, exfacie, there is nothing to suggest that the same are intended to travel beyond the scope of directions given by the Punjab and Haryana High Court vide decision dated 5/9/2009. Assuming for the sake of argument that the department in the guise of implementing the decision of Punjab and Haryana High Court were Wp 891/11 8 to act in excess of the said decision, that is a matter which can be redressed. The aggrieved party can challenge that action before the appropriate forum. That apprehension cannot be the basis to interdict the process which was initiated by the department, to implement the direction of the Punjab and Haryana High Court by issuance of orders dated 19/4/2010 and 23/4/2010 respectively. The Tribunal, in our opinion, has completely exceeded its jurisdiction in keeping the said orders in abeyance, which, in effect, amounts to Tribunal staying the operation of the judgment and order of the Punjab and Haryana High Court. 10 Notably, the private respondents did make an attempt before the Supreme Court to apply for stay of operation of the directions and order passed by the Punjab and Haryana High Court in terms of judgment dated 5/9/2009, but no interim relief has been granted by the Supreme Court. For that reason, the department was obliged to give effect and implement the decision of the Punjab and Haryana High Court. 11 The learned counsel for the private respondents relied on the decision of the Apex Court in Mohinderkumar Vs.State of Wp 891/11 9 Haryana and Anr.reported in 2001 ,(10) SCC ,605 to contend that if the decision of Punjab and Haryana High Court has been appealed before the Supreme Court and the said appeal having been admitted, it was necessary to await the decision of the Supreme Court and this Court by interfering with the impugned decision of the Tribunal would be precipitating the matter. This contention deserves to be stated to be rejected. In the present case, as has been noticed earlier, the operation of the directions given in the decision of Punjab and Haryana High Court dated 5/9/2009 have not been stayed by the Supreme Court, inspite of such prayer having been made by the private respondents, as is noticed from the copy of the Supreme Court order at page 161-162 of the paper book. In our opinion, therefore, the observation made in the order passed by the Apex Court in the case of Mohinderkumar (supra) which is pressed into service is of no avail. 12 Considering the above, we have no hesitation in setting the impugned decision of the Central administrative Tribunal dated 28/9/2010 and also make it clear that the department would be free to implement the order of Punjab and Haryana High Court dated 5/9/2009, unless it were to be stayed by the Supreme Court or Wp 891/11 10 modified or set aside, as the case may be. Indeed, if the department were to act in excess of the position stated by the Punjab and Haryana High Court in the decision dated 5/9/2009, the aggrieved party would be free to assail that act of commission and omission, by way of appropriate proceedings. That grievance can be redressed and answered in accordance with law. However, it would not be proper to proceed on the assumption that the department intends to take action which is not consistent with the decision of the Punjab and Haryana High Court or that it would be in conflict with the decision of Delhi High Court which is also binding on the department. These are matters which will have to be addressed, if and when the occasion arises. We do not intend to express any opinion with regard to that controversy. All questions in that behalf are left open . 13 Accordingly, this petition ought to succeed and is allowed on the above terms. In view of this order, it will be open to the department to proceed in accordance with law forthwith to take measures to implement the decision of the Punjab and Haryana High Court. Wp 891/11 11 14 The counsel for the private respondents submits that, in that case, the private respondents may consider of challenging this judgment before the Apex Court for which the department as well as other parties be directed not to precipitate the matter for some time. We have no difficulty in accepting this request. We, therefore, order that the department and other parties to the proceedings shall not precipitate the matter for a period of four weeks from today. Ordered accordingly. (MRS.MRIDULA BHATKAR,J.) (A.M.KHANWILKAR ,J.)