1 I N THE HI GH COURT OF JUDI CATURE FOR RAJASTHAN AT JAI PUR BENCH, JAI PUR. JUDGMENT ( 1 ) D.B. SPECI AL APPEAL ( W ) No. 2 0 6 / 2 0 0 3 Vinod Ajmera vs. Shri Dharmendra Bhatnagar & Ors. ( 2 ) D.B. SPECI AL APPEAL ( W ) No. 2 0 7 / 2 0 0 3 . Smt. Rajesh Yadav vs. Shri Dharmendra Bhatnagar & Ors. Date of Order: 5 th February, 2010 PRESENT HON'BLE MR. JUSTI CE NARENDRA KUMAR JAI N HON'BLE MR. JUSTI CE RAGHUVENDRA S. RATHORE Reportable Mr. R.C. Joshi ] Ms. Namita Parihar ] , for the appellants. Mr. Virendra Lodha , for respondent No.1. Mr. S.N. Kumawat, AAG for the State. By t h e Cou r t : ( Per Rat h or e, J.) Both the special appeals 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 herein are one and the same, as such these appeals are being decided by this common order. Br ief fact s of t he Special Appeal of Vin od Aj m er a : 2. Appeal has been filed against the judgments dated 29.11.1999 passed by the learned Rajasthan Service Appellate Tribunal and dated 11.12.2002 passed by the learned Single 2 Judge of this Court. Therefore, it has been prayed that the orders impugned be quashed and set aside and the special appeal be allowed with cost. 3. The respondent Dharmendra Bhatnagar had initially filed an appeal before the learned Service Appellate Tribunal against the order dated 23.02.1996 passed by the respondent State whereby he was promoted to the selection scale of Rajasthan Administrative Service, on merit basis, against the vacancies of the year 1992-93. His grievance was that persons junior to him have been promoted to selection scale against the vacancies of the year 1991-92. 4. The respondent No.1 was appointed in Rajasthan Administrative Service in the year 1979. Thereafter, he was promoted to senior scale against the vacancies of the year 1985- 86. By an order dated 10.02.1982, he was then promoted to selection scale against the vacancies of the year 1991-92 (subject to review and revision) and his name figured at serial No.1, whereas the name of Hanuman Singh Bhati, respondent No.5 appeared at serial No.2. Thereafter, another order came to be passed on 21.08.1992, whereby the promotion of respondent to selection scale against the vacancies of the year 1992-93 was maintained. The name of respondent No.1 appeared at serial No.5 while that of Hanuman Singh Bhati, respondent No.5 was at serial No.6. The seniority list of substantive officers of R.A.S. was published on 22.04.1995 wherein the name of respondent No.1 3 appeared at serial No.102 and that of respondent No.5 Hanuman Singh Bhati was at serial No.103. Therefore, since the beginning, Dharmendra Bhatnagar remained senior to Hanuman Singh Bhati. 5. It would not be out of place to mention here that during the intervening period, respondent No.1 appeared in All India Services Examination in the year 1984 and was selected in IPS. He was allocated West Bengal cadre. Dharmendra Bhatnagar served as an IPS Officer for three years i.e. during the years 1984-85, 1985-86 and 1986-87. However, he resigned from Indian Police Service on account of his family circumstances. Since the lien of the respondent No.1 was retained in Rajasthan Administrative Service, he repatriated to it. Therefore, he was again restored to his original seniority in the R.A.S. cadre. 6. After passing of the order dated 23.02.1996, where his position was relegated from the vacancies of the year 1991- 92 to 1992-93 and person junior to him, namely Shri Hanuman Singh Bhati, respondent No.5 was assigned the year 1991-92, despite of the earlier orders dated 10.02.1992 and 02.08.1992 that Dharmendra Bhatnagar filed an appeal against it before the learned Service Appellate Tribunal. It is noteworthy that respondent No.1 had a meritorious service record, inasmuch as, on the one hand he was selected for IPS through Union Public Service Commission in the 4 year 1984 where he remained for three years, on the other hand, he was awarded the merit certificate by the State of Rajasthan in the year 1997 for writing a book on law and order. In such circumstances, he could not have been superseded in the matter of promotion to R.A.S. selection scale against the vacancies of the year 1991-92 vis-a-vis persons junior to him. 7. The appeal filed before the Service Appellate Tribunal was contested by the other respondents through objections raised in the reply filed before it. The learned Service Appellate Tribunal allowed the appeal by its order dated 29.11.1999 and declared that Dharmendra Bhatnagar be promoted in selection scale of the Rajasthan Administrative Service, on merit basis, against the vacancies of the year 1991-92. The State Government was directed by the learned Tribunal to hold a review DPC, in the light of the conclusion arrived by it and respondent No.1 was to be given all such benefits of promotion as were given to his juniors. Compliance of the order was to be made within three months. 8. Thereafter, Hanuman Singh Bhati, respondent No.5 herein, filed a writ petition (3337/ 2000) challenging the judgment dated 29.11.1999 passed by the learned Rajasthan Service Appellate Tribunal and seeking to quash and set aside the same. Further, it was prayed that any order passed in pursuance of the impugned judgment may also be quashed and set aside. Respondent Dharmendra Bhatnagar then filed a detail 5 reply to the writ petition raising various objections to the claim of the petitioner, including preliminary objections. The learned Single Judge, by his order dated 11.12.2002, dismissed the writ petitions filed by Hanuman Singh Bhati (No.3337/ 2000) as well as Smt. Rajesh Yadav (No.3336/ 2000), by a common order holding that the Service Appellate Tribunal had not committed any error apparent on the face of record which can be said to have resulted in manifest injustice. The writ petitions were therefore held to be devoid of merit and accordingly, the same were dismissed. Hence, the present appeal has been filed by the appellant Vinod Ajmera. Br ief fact s of t he Special Appeal of Sm t . Raj esh Yadav : 9. Respondent Dharmendra Bhatnagar had filed an appeal before the learned Service Appellate Tribunal challenging the order dated 23.02.1996. In the said appeal, he had impleaded Shri Hanuman Singh Bhati and one Shri S.D. Sharma as party respondents. When the appellant Smt. Rajesh Yadav came to know about the filing of the said appeal, she moved an application on 16.11.1999 for being impleaded as a party in it. The said application filed by the appellant was rejected by the learned Service Appellate Tribunal on 16.11.1999 itself, on the ground that some persons are already party respondent and therefore, it was not necessary to implead her as a party in the appeal (Annexure-4 to the writ petition). Thereafter, the learned Tribunal allowed the appeal filed by Dharmendra Bhatnagar, on 6 29.11.1999. Aggrieved of the said order, the appellant preferred a writ petition (No.3336/ 2000). Respondent No.1 contested the writ petition by way of filing a reply, raising various objections including the preliminary objections with regard to maintainability of the writ petition. The State Government had also filed a detail reply opposing the writ petition filed by appellant and prayed that the same may be dismissed. The learned Single Judge dismissed the writ petition, filed by the appellant, on 11.12.2002 alongwith the writ petition filed by Hanuman Singh Bhati (No.3337/ 2000). Hence, the present appeal has been preferred by Smt. Rajesh Yadav against the judgments passed by learned Service Appellate Tribunal as well as the learned Single Judge of this Court. 10. The case of the appellants is that the appeal filed by Dharmendra Bhatnagar, before the learned Tribunal was barred by limitation. Further, it is submitted that no application for condoning the delay was moved under Section 9 of the Rajasthan Civil Services Appellate Tribunals Act. Therefore, the appeal filed by the respondent No.1 before the Tribunal ought to have been rejected on this count alone. It has also been submitted that the finding recorded by both the courts below with regard to A.P.A.R. is contrary to the settled principle of law, as laid down by this Court as well as the Hon'ble Apex Court. Lastly, it has been submitted that the finding recorded by learned Tribunal as well as the learned Single Judge that the persons senior to respondent No.1 were not necessary parties, 7 suffer from serious legal infirmity and therefore the impugned judgments deserves to be quashed and set aside. 11. On the other hand, the learned counsels for the respondent No.1 and the State of Rajasthan have strongly opposed the appeal, so much so that according to them the very writ petitions filed by the appellants, against the order of the learned Tribunal, were not maintainable. The learned counsels for the respondents have submitted that it is crystal clear that the appellants have assailed the initial judgment dated 29.11.1999 passed by the learned Service Tribunal whereby the appeal filed by respondent was allowed directing the respondent State to convene a Department Promotion Committee in matter of promotion of R.A.S. selection scale against the vacancies of the year 1991-92, on merit basis, and in case the respondent is found suitable then promotion orders be issued accordingly. As per the counsel for the respondents, after the judgment of Sh am bu Sin gh Meena, ( 1 9 9 5 ) Supp. 2 SCC 4 3 1 , it was decided to constitute a committee, known as Dr. Adarsh Kishore's Committee comprising of the Secretaries of various departments to suggest the action to be taken for resolving the legal difficulties in holding the meeting of selection committee for promotion within the R.A.S. and to further work out the modalities for implementing the judgment of the Hon'ble Apex Court in the case of Ajit Singh Juneja. Consequent to the recommendations of the committee and to implement the decision of the Courts and Tribunals simultaneously, it was 8 resolved that the orders passed by the learned Tribunal be implemented and no writ petition be filed against them. Thereafter, a review DPC was convened and on the recommendation of the same, an order came to be passed on 09.06.2000 by which the petitioners came to be promoted to the R.A.S. selection scale against the vacancies of the years 1991-92 and as a consequence thereof, it has been mentioned in the order that respondent No.1 shall be placed over and above Shri Hanuman Singh Bhati. The order dated 09.06.2000 had not been assailed by the petitioners/ appellants in the writ petition and therefore the writ petition itself deserves to be dismissed. Further, it has been submitted that the petitioners have concealed certain facts from the Court that right from the day of entering in service, they had remained junior to respondent No.1, as would be borne out from the order dated 26.06.2000. A perusal of the order dated 26.07.1982 reveals that the name of respondent No.1 had appeared at serial No.1, whereas the name of Hanuman Singh Bhati appeared at serial No.3 and while so far as Vinod Ajmera is concerned, he was inducted in R.A.S. much after the year 1980 and was confirmed subsequently. After the judgment of Ajit Singh Juneja-II, (AIR 1999 SC 1189), a tentative seniority list was published on 26.06.2000 and objections were invited from all concern. The said seniority list shows that the name of Hanuman Singh Bhati appeared at serial No.33 and that of Vinod Ajmera at serial No.35. It has also been submitted that the petitioner/ appellants were required to submit their objections against the said tentative seniority list by 9 10.07.2000. In case, the appellants had filed any objection then they should have waited for the final result. Further, it is submitted by the counsel for the respondents that the appellants had remained junior from the very inception in service and by no stretch of imagination, they have any lis against the respondents. 12. It has also been submitted by the counsels for the respondents that at the time of passing the order dated 23.02.1996, the three ACRs of respondent No.1, pertaining to the period of his posting in West Bengal as an IPS officer, were considered by the DPC by treating them to be average. But subsequently when the said APARs were made available in the service record and nothing was done on the representation of the respondent submitted to DOP that he preferred the appeal before the learned Tribunal. The learned Service Appellate Tribunal, after perusing the service record of the respondent found that the APARs were outstanding, consistently from the beginning, and gave directions to the State Government to convene a review DPC in the matter. In consequence thereof, the State Government took a conscious decision, after examining the matter at the highest level, not to prefer any writ petition against the order of the Tribunal. A review DPC came to be convened on 9.6.2000 and the respondent was found suitable for promotion to the selection scale against the vacancies of the year 1991-92. According to the counsel for respondent, substantial 10 justice has been done by the learned Tribunal in favour of the respondent and in case it is now to be set aside then he alone would be the sufferer and not the appellants. The lis is precisely between the respondent and the State Government and the appellants are total strangers to it. Therefore, they cannot challenge the judgment passed by the learned Tribunal. It has also been submitted that in the light of the judgments of Ajit Singh Juneja II (supra) and Ram Prasad (AIR 1999 SC 3563), the respondent State had proceeded to implement the seniority list of 26.06.2000 and objections were invited. Therefore, the present appeals are only academic in nature, as in view of the judgments of the Hon'ble Apex Court, the respondent has already been placed over and above the appellants. 13. On consideration of facts and circumstances, material on record and the submissions made by the counsels for the rival parties, we are of the considered opinion that these special appeals have no force and the judgments passed by the learned Service Appellate Tribunal as well as by the learned Single Judge of this Court does not suffer from any illegality or infirmity so as to call for any interference by this Court in its extra ordinary appellate jurisdiction. 14. Coming to the contention raised by the appellants, it has been submitted that both the courts below have erred in passing the orders impugned because the appeal filed by respondent suffered from non-joinder of necessary party. The 11 finding recorded by both the courts that person senior to respondent No.1 were not necessary party, suffers from serious legal infirmity and therefore the impugned judgments deserves to be set aside. It is to be noted that affected parties were impleaded before the learned Tribunal in representative capacity. Moreover, whoever had appeared before the learned Tribunal to present his case, was given opportunity of hearing. A reference in this regard has been made by the learned Tribunal in the order-sheets dated 14.10.1999 and 16.11.1999. It is revealed from the order of the learned Tribunal that the counsel representing Vinod Ajmera before us, was also the counsel before it. It has also been observed by the learned Tribunal that respondent No.1 Dharmendra Bhatnagar was entitled for selection scale, on merit basis, from the senior scale and other persons who were all junior to him in senior scale could not have a better claim than him. 15. In cases of seniority and where there are large number of persons who may be effected, a Larger Bench of the Hon'ble Supreme Court, in the case of Pr abodh Ver m a & Or s. vs. St at e of Ut t ar Pr adesh & Or s., ( 1 9 8 4 ) 4 SCC 2 5 1 , in para 50, had held as under: - “A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondent or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties.” 12 Earlier in the case of Gener al Manager , Sout h Cen t r al Railw ay , Secu n der abad & An r . vs. A.V.R. Siddh an t t i & Or s., ( 1 9 7 4 ) 4 SCC 33 5 , the Hon'ble Apex Court held as under: - “....In the present case, the relief is claimed only against the Railway which has been impleaded through its representative. No list or order fixiing seniority of the petitioners vis- a-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of re-adjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision of October 16, 1952, were, at the most, proper parties and not necessary parties, and their non-joinder could not be fatal to the writ petition....” In the case of A. Janar dhan a v s. Un ion of I n dia & Or s., ( 1 9 8 3 ) 3 SCC 6 0 1 , a similar contention was rejected by the Hon'ble Supreme Court, in para 36, which reads as under: - “....In this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government is drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unncessary to have all direct recruits to be impleaded as respondents....” Further, the Hon'ble Supreme Court also rejected a similar objection on the ground that nine of the direct recruits 13 having been impleaded as party, the case of direct recruits has not gone unrepresnted and therefore non-inclusion of all 400 and odd direct recruits is not fatal to the proceedings. In the case of V.P. Shr ivast ava & Or s. vs. St at e of M.P. & Or s., ( 1 9 9 6 ) 7 SCC 7 5 9 , it has been reiterated by the Hon'ble Supreme Court, in para 18, as follows: - “In the aforesaid circumstances we have no hesitation to come to the conclusion that the Tribunal was wholly in error in coming to the conclusion that the appellants' application becomes unsustainable in the absence of all the promotees being impleaded as party.” Likewise in the case of Ar u n Tew ar i & Or s. vs. Zila Mansav i Sh ik sh ak San gh 7 Or s., AI R 1 9 98 SC 33 1 , it was observed that the Court ought not to have decided writ petition without impleading the affected persons as respondents or at least some of them. In a later judgment passed by the Hon'ble Supreme Court in the case of Tr idip Ku m ar Din gal & Or s. vs. St at e of W est Ben gal & Or s., ( 2 0 0 9 ) 1 SCC 7 6 8 , in para 41, it has been held that: - “Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the employment exchange and they were selected and appointed in 1998-1999. The candidates who were unable to get themselves selected and who raised a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (selected candidates) as respondents in the original application, which was not done. In any case, some of them ought to have been arrayed as respondents in a “representative capacity.” 16. Therefore, in view of the aforesaid principles laid 14 down by the Hon'ble Apex Court and the fact that the appellant Vinod Ajmera was already a party before the learned Tribunal and the interest of other persons was also looked after by Hanuman Singh Bhati and Shri S.D. Sharma, in representative capacity, the contention raised on behalf of appellant that the impugned orders should fail on account of absence of necessary parties, deserves to be rejected. 17. In so far as the finding arrived at by both the courts below in respect of APARs of the respondent Dharmendra Bhatnagar is concerned, the same is based on appreciation of material on record which is apparent from the order passed by the learned Tribunal, particularly para 6 and 7, that it was on perusal of the record that it arrived to the conclusion that the APARs of the respondent during the period of 1984-85 to 1986- 87 were above average or very good. Besides, the learned Tribunal also held that the APARs of the respondents of the period prior to it i.e. the year 1981-82 to 1983-84 had been very good and outstanding and on that count also, he fulfilled the eligibility, on merit basis, and was entitled for promotion to selection scale. 18. The last contention raised by the learned counsel for the appellants regarding limitation, is also not sustainable. After filing of the appeal, the learned Tribunal had considered the question of limitation and only thereafter, the appeal had been admitted. It was after considering the office report on the 15 question of delay and hearing the matter on merits that the appeal was admitted. Taking into consideration the facts and circumstances of the case, the learned Tribunal had thought it proper to condone the delay as being non-deliberate. While considering this aspect of the matter, the learned Single Judge had taken into consideration the judgment of the Hon'ble Supreme Court in the case of Collect or , Lan d Acqu isit ion , An an t n ag & An r . vs. Mst . Kat ij i & Or s., AI R 1 9 8 7 SC 1 3 5 3 . After following the principle that when substantial justice and technical consideration are pitted against each other, cause of justice deserves to be preferred as the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay. Both the courts below have condoned the delay in filing the appeal by the respondent and the same is not to be interfered by this Court. 19. Moreover, while considering the writ petition under Article 227 of the Constitution of India, the learned Single Judge had taken into consideration the principles laid down by the Hon'ble Apex Court governing the writ of certiorari. It had considered the basic judgments on the point, in the case of Veer appa Pillai vs. Ram an and Ram an Lt d., AI R 1 9 5 2 SC 1 9 2 and that of Sh r i Am bica Mills Co. Lt d. vs. S.B. Bh at t & An r ., AI R 1 9 6 1 SC 9 7 0 . As the learned Single Judge while considering the principles of law in respect of writ of certiorari had declined to exercise its