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2010 DIGILAW 432 (JK)

Director SSB v. R. M. Atul

2010-08-04

Aftab H.Saikia, Hakim Imtiyaz Hussain

body2010
Dr. Saikia, CJ. 1. Heard Mr. Tashi Rabstan, learned counsel for the appellants and Mr. Anil Khajuria, learned counsel for the respondent. 2. This letters patent appeal preferred at the behest of the official appellants, witnesses a challenge to the judgment and order dated 8.4.2002 passed by Writ Court in SWP no. 870/2000. 3. The basic grievance of the official appellants herein is that the Writ Court did not consider the contentions and submissions made in the objections filed by them as the official respondents in the instant writ proceedings, wherein it was categorically mentioned that the request of the writ petitioner, sole respondent herein, for fixation of seniority in the seniority list of Sub Inspectors (GD), was thoroughly considered and rejected vide memorandum dated 14.7.1998. 4. Learned Single Judge, while entertaining the instant writ petition as well as disposing of the same vide impugned judgment and order, basically relying on memorandum dated 9.3.1998/1.4.1998 (Annexure-F to the writ petition), observed that since the respondent’s seniority position was restored back to Serial number 12, the respondent was entitled to all consequential benefits and, accordingly, the appellants, being official respondents in writ proceedings, were directed to give all consequential benefits including promotion within a period of six months. 5. For the sake of convenience, both the memorandum dated 9.3.1998/1.4.1998 as well as dated 14.7.1998 may be reproduced as under:- "Dated the March, 1998. MEMORANDUM Sub: representation of Shri R. M. Atul, Coy. Comdr. of G. C. Delhi in the wake of decision of Hon’ble High Court of H. P. Shimla. 1. Kindly find enclosed a representation dated 22.12.1997 alongwith its enclosures (in original) submitted by Shri R. M. Atul, Coy. Comdr. of G. c. Delhi addressed to the Director, SSB with regard to fixation of his seniority in the rank of S.I. (GD) and above. 2. In this connection it is submitted that the representation of Shri R. M. Atul has been examined at Div. Hqrs. Shimla. As regards parawise comments in respect of paras 1 to 5 pertaining to this Division, it is stated that the case of Shri Atul is identical with that of Shri Vijay Partap Singh, Dy. Comdt. of G. C. Dharampur in whose case necessary reply alongiwth parawise comments has already been sent by us vide Memorandum no. B-VI/1/Bn/3877 dated 20.02.1998, which will hold good to decide the seniority of Shri Atul in the rank of S.I.(GD). Comdt. of G. C. Dharampur in whose case necessary reply alongiwth parawise comments has already been sent by us vide Memorandum no. B-VI/1/Bn/3877 dated 20.02.1998, which will hold good to decide the seniority of Shri Atul in the rank of S.I.(GD). From the perusal of the corrected seniority list of S.I.(GD) which stood as on 30.11.79 forwarded alongwith with our memo no. B-VI/1/Bn./3877 dated 20.2.1998, it may please be observed that Shri R.M. Atul has been placed at serial no. 12 and S/Shri Ishwari Dutt, Atma Ram, Mehar Chand, Durga Dutt, Amar Nath and Gian Chand at Sr. no. 15, 16, 21, 22, 23 and 24 respectively. Thus the claim of Shri Atul as per para 4 of his representation (enclosed) stands solved. 3. As regards fixation of further seniority from the rank of Inspector (GD) forward, necessary action may kindly be taken at your end. Dated 14 July 1998 MEMORANDUM SUBJECT: REPRESENTATION REGARDING SENIORITY IN RESPECT OF SHRI R.M. ATUL, COY COMMANDER. Please refer to your office letter no. ST-27/GCD/G/98-5436 dated 16.3.98 on the subject cited above. The representation of Shri R. M. Atul, Coy. Commander was sent to SSB Dtc to examine the same which has been returned by them with certain comments. In turn the representation of the officer is rejected herewith with the following remarks:- i) Shri Atul should have represented regarding his placement in the seniority list in the year 1979 when seniority list of SIs (GD) was circulated. Now, after a lapse of 19 years Shri R. M. Atul, Coy. Commander has represented. As per the judgment of Hon’ble Supreme Court in various cases, settled seniority cannot be unsettled at a belated stage and thus the representationist is cover by delay and latches and revising the seniority cannot be re-opened. ii) The Court judgment in a particular case cannot be applied to in similarly placed other cases as per the directions of DP&T instructions circulated vide Cabinet Sectt. Instruction No. 1/95 dated 19.1.95. In the wake of the above instructions of DP&T, the benefit of judgment in the case of Lal Singh v. Union of India and ors cannot be extended to Shri R. M. Atul, Coy. Commander. Hence his representation on the grounds of delay and latches and instructions contained in DP&T Circular referred is considered and rejected by the Divisional Organizer. The Officer may please be informed accordingly." 6. Commander. Hence his representation on the grounds of delay and latches and instructions contained in DP&T Circular referred is considered and rejected by the Divisional Organizer. The Officer may please be informed accordingly." 6. It is on the record that the private respondent was aware of the latest memorandum dated 14.7.1998, whereby his request for consideration of seniority was rejected and in this regard, Mr. Anil Khajuria, learned counsel for the respondent has drawn our attention to paragraph 13 of the writ petition, wherein there was clear indication about the communication in question. 7. However, on our pointed queries, Mr. Khajuria, learned counsel for the respondent has submitted that memorandum dated 14.7.1998 by which request for placement of seniority in the seniority list of S. I. (G. D) was rejected, has not been put to challenge before any appropriate forum. 8. Having carefully gone through the memorandum dated 14.7.1998, we are of the view that though initially the respondent was given benefit taking the memorandum dated 9.3.1998/1.4.1998 into account, his such request has been turned down at later stage by the memorandum dated 14.7.1998, giving rise to a new cause of action, which admittedly remained unchallenged. 9. In view of the above, we are of the firm opinion that since the petitioner’s request has been rejected by the above mentioned memorandum dated 14.7.1998 and the same has not been challenged, the impugned judgment and order warrants interference and, accordingly, the appeal stands allowed. Impugned judgment and order is set aside. Stay order so granted stands vacated.