Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1355 (GAU)

N. Pahlira v. N. C. Khaihmo

2015-10-16

B.K.SHARMA, M.R.PATHAK

body2015
JUDGMENT : B.K. Sharma, J. This appeal is against the judgment & order dated 7th June, 2013 of the learned Single Judge passed in WP(C) No.21/2012. In the writ petition, the appellants who were the respondent Nos.5, 6 and 7 and on the other hand, the respondent Nos.1, 2 and 3 were the writ petitioners. By the impugned judgment, the learned Single Judge, without expressing any opinion on merit on the issue involved, has issued direction to the official respondent No.3, i.e. the Director of Health Services, to hear the writ petitioners, the present appellants and any other person, who might be affected by the decision to be arrived at and thereafter, pass a fresh order relating to the issue involved. The required exercise in this regard was directed to be carried out within a period of 4(four) months from the date of receipt of the certified copy of the judgment & order. 2. The matter relates to fixation of seniority and consequential promotion. There is claim and counter claim between the writ petitioners and the private respondents (appellants herein) in respect of their positions in the seniority list and consequential promotion. In the present proceeding, we are concerned with the inter-se seniority list of Health Workers (M). The respondent No.3 had published the inter-se seniority list on 5th December, 2006 and in the said list while the writ petitioners were placed at serial Nos.55, 58 and 57, respectively, the 3(three) respondents, i.e. the present appellants, were placed at serial Nos.41, 52 and 48, respectively. 3. The writ petitioners made representations against their positions in the said seniority list. In the meantime, Annual Confidential Reports (ACRs) were requisitioned by the respondent No.3 for consideration of promotion to the next higher post of Health Supervisor. The writ petitioners having been assigned seniority positions below the appellants, they felt aggrieved apprehending their supersession in the matter of promotion and accordingly, made further representations. However, without disposing of the representations, the respondent No.3 issued the order dated 23rd September, 2011 promoting 41 (forty- one) Health Workers including the appellants to the post of Health Supervisor. The promotion so affected was on the basis of the recommendation of the DPC in its meeting held on 1st September, 2011. Aggrieved, the petitioners made a joint representation on 28th September, 2011. The promotion so affected was on the basis of the recommendation of the DPC in its meeting held on 1st September, 2011. Aggrieved, the petitioners made a joint representation on 28th September, 2011. Be it stated here that as recorded in the impugned judgment while the petitioners joined their initial services on 18th March, 1980 and 23rd March,1980, the appellants joined on 1st September, 1980; 13th February, 1982 and 9th May, 1980, respectively. It was in such circumstances, the plea of the petitioners was that they could not have been made junior to the appellants in the impugned seniority list published on 5th December, 2006. 4. When the matter rested thus and the representations made by the petitioners did not evoke any response, they approached this Court by filing a writ petition being WP(C) No.89/2011. During the pendency of the writ petition, a meeting was held in the Office of the Joint Director of Health Services on 19th October, 2011 with the decision to redraw the seniority list placing the petitioners at serial Nos.52, 54 and 55 and the respondents, i.e. the appellants, at serial Nos.113, 71 and 132. In such a situation, the petitioners were requested to withdraw the writ petition as their grievance relating to seniority was met with. Accordingly, the writ petition was disposed of on withdrawal on 27th October, 2011, however, liberty was granted to the petitioners to approach again, if required. 5. After the aforesaid development, the official respondents decided to cancel the promotion of the appellants and consequently, their promotions were cancelled vide order dated 28th October, 2011, which was put to challenge by them in WP(C) No.102/2011. The writ petition was allowed by setting aside the cancellation order dated 28th October, 2011, not on merit, but on the ground of violation of the principles of natural justice, inasmuch as, before the cancellation order was passed, the appellants were not issued with any show cause notice. 6. The petitioners filed the writ petition being WP(C) No.21/2012 in respect of which the present appeal has arisen challenging the seniority list dated 5th December, 2006 and the order of promotion of the appellants dated 23rd September, 2011. They also prayed for a direction to implement the undertaking furnished by the respondent No.3 to assign higher seniority to the petitioners because of which the earlier writ petition being WP(C) No.89/2011 filed by them was withdrawn. They also prayed for a direction to implement the undertaking furnished by the respondent No.3 to assign higher seniority to the petitioners because of which the earlier writ petition being WP(C) No.89/2011 filed by them was withdrawn. In the writ petition, the petitioners specifically contended in paragraph 8 that they were not aware of the impugned seniority list as it was not furnished to them. It was also contended that they had no occasion to make representation being not apprised of the impugned seniority list. It was further contended that, immediately after coming to know about the impugned seniority list dated 5th December, 2006, they made representation against the same. For a ready reference, paragraph 8 of the writ petition is quoted below:- "8. That the writ petitioners were not aware of the aforesaid seniority list as a copy of the same was never given to them. Moreover, they were posted in interior places when the list was made. They were neither given a chance to represent if any on the seniority list before it was made nor they were given any information. That upon coming to know the existence of such seniority list and the position in which they were placed, they immediately submitted their representation before the respondent No. 3 i.e. the Director of Health Services. The writ petitioner No.1 filed his representation on 19.11.10 indicating the true and correct position of their respective initial date of joining the service with a request to make necessary and appropriate corrections. The respective position of the writ petitioners as given in the representation was in accordance with the date of joining the service as recorded in their respective Service Books." 7. In the Counter affidavit filed by the official respondents, the aforesaid plea of the petitioners was not specifically denied and was contended that it was doubtful that the petitioners did not receive the copy of the impugned seniority list. For a ready reference, paragraph 9 of the counter affidavit dealing with the aforesaid plea of the petitioners is reproduced below:- "9. That with regard to the statements made in Paragraph No. 8 of the writ petition, I say that the DHS prepared Inter-Se- Seniority of HW(M) in the year 1989 collecting all the necessary documents from its subordinate offices and issued Provisional inter-se-Seniority of HW(M) on 14.9.1989. That with regard to the statements made in Paragraph No. 8 of the writ petition, I say that the DHS prepared Inter-Se- Seniority of HW(M) in the year 1989 collecting all the necessary documents from its subordinate offices and issued Provisional inter-se-Seniority of HW(M) on 14.9.1989. Besides, Inter-Se- seniority of HW(M) were issued in 1991, 1996, 2003 and 2006. Before issuing each final inter-se-seniority of HW(M), provisional inter-se-seniority of HW(M) was issued giving 30 days time for submission to anyone who had any grievances to the concerned Department during the stipulated time given. It is, therefore, doubtful that the petitioners had not received a single one of Inter-Se-Seniority which was issued four times as mentioned above." 8. In the counter affidavit filed by the appellants also, the aforesaid plea of the petitioners was not specifically denied and they contended that the plea of the petitioners is not trustworthy nor does it inspire confidence. For a ready reference, paragraph 10 of the counter affidavit filed by the appellants is reproduced below:- "10. That with regard to the statements made in para No. 8 of the writ petition, I beg to state that the same is not trustworthy nor does it inspire confidence keeping in mind the fact that a copy of the Order Memo No. A.23018/2/1/90-DHS/MPWM dated 5/12/06 was given to all the concerned persons. In fact the State Respondents had fixed the provisional inter-se-seniority of Health Worker (M) vide the Circular memo No, A.23018/2/1/89-DHS/MPW(M) dated 14/9/89 issued by the Respondent No. 3. Thereafter, the State Respondents had fixed the final inter-se- seniority of Health Worker (M) vide Corrigendum Memo No. A.23018/2/1/90-DHS/MPW(M)/166 dated 13/9/91, Circular Memo No. A.23018/2/1/94-HDA/MPWM/211 dated 27/8/96, Order Memo No. A.23018/2/1/90-DHS/MPWM/109 dated 5/3/03 and order Memo No. A.23018/2/1/90-DHS/MPWM/109 dated 5/121/06 all issued by the Respondent No. 3 but no representations were filed by the Petitioners against the aforesaid final inter-se-seniority list of Health Worker (M) except for the belated Representation dated 19/11/10 filed by the Petitioner No. 1. In fact before issuance of the aforesaid final inter-se-seniority list of Health Worker (M), the State Respondents had issued provisional inter-se-seniority list giving time for submission of objections, if any. But the petitioners had failed to submit any objections." 9. In fact before issuance of the aforesaid final inter-se-seniority list of Health Worker (M), the State Respondents had issued provisional inter-se-seniority list giving time for submission of objections, if any. But the petitioners had failed to submit any objections." 9. The learned Single Judge considering the aforesaid facts passed the impugned order directing the respondent No.3 to pass a fresh order in the matter of fixation of seniority upon hearing all the parties likely to be affected by the decision to be arrived at. It is this direction with which the appellants are aggrieved. 10. We have heard Mr. A.R. Malhotra, learned counsel for the appellants and Mr. N. Sailo, learned senior counsel assisted by Ms. Vanhmingliani, learned counsel representing the private respondents. We have also heard Mr. Aldrin Lallawmzuala, learned Additional Advocate General, Mizoram representing the official respondents. We have also considered the entire materials on record. 11. Mr. Malhotra, learned counsel for the appellants during his forceful submission urged the following points:- a) The seniority list having been finalised on 05/12/2006 and the writ petition having been filed in March, 2012, there was delay and laches on the part of the petitioners. The settled position of seniority ought not to have been disturbed by the impugned judgment. b) The writ petition was also bad for non-joinder of necessary parties, inasmuch as, in the event of acceding to the prayers of the petitioners, senior persons would be affected. c) There being no challenge to the orders on the basis of which the impugned seniority list was published, the writ petition was not maintainable. 12. To buttress the above points and submission, Mr. Malhotra placed reliance on the decisions in Amarjeet Singh & others v. DEVI RATTAN and others reported in (2010) 1 SCC 417 ; Edukanti Kistamma (Dead) Through Lrs & Ors. v. S. Venkatareddy (Dead) Through Lrs & Ors.) Reported in (2010) 1 SCC 756 ; Shiba Shankar Mohapatra v. State of Orissa Reported in (2010) 12 SCC 471 ; State of Rajasthan v. Ucchab Lal Chhanwal Reported in (2014) 1 SCC 144 And Pallab Dutta Roy & Anr. v. State of Tripura & ORS. reported in 2009 (2) GLT 315. 13. Mr. Aldrin, learned AAG, submitted that in the given facts and circumstances, the impugned judgment & order do not require any interference. Mr. v. State of Tripura & ORS. reported in 2009 (2) GLT 315. 13. Mr. Aldrin, learned AAG, submitted that in the given facts and circumstances, the impugned judgment & order do not require any interference. Mr. Sailo, learned senior counsel representing the writ petitioners/private respondents, in his persuasive pursuits submitted that the writ appeal is misconceived, inasmuch as, all the parties will get a fair opportunity to have their say in the matter. He submitted that in view of the facts and circumstances involved in the case, the pleas relating to delay and laches and non-joinder of parties are not sustainable in law. As regards the orders find mentioned in the impugned order by which the seniority list was published, he submitted that the same being not furnished to the petitioners, coupled with the fact that when the said order itself along with its contents was challenged in the writ petition, the aforesaid submission of the learned counsel for the appellants is without any basis. He has also placed reliance on certain decisions, which are Sarva Shramik Santhatana (KV), Mumbai v. State of Maharashtra & ORS. reported in (2008) 1 SCC 494 ; Bharat Petroleum Corpn. Ltd. & another v. N.R. Vairamani & ANR. reported in (2004) 8 SCC 579 and Bhuwalka Steel Industries Ltd. v. Bombay Iron And Steel Labour Board and another reported in (2010) 2 SCC 273 . 14. As per the direction contained in the impugned judgment everybody likely to be affected by the fresh decision to be arrived at towards determining the seniority positions will get an opportunity to have his/her say in the matter. This exercise now required to be carried out by the respondent No.3 is sought to be thwarted on the aforesaid pleas of non-joinder of necessary parties; delay and laches and on the ground of there being no challenge to the orders find mentioned in the impugned order dated 5th December, 2006. The writ petitioners were aggrieved by assignment of higher seniority positions to the appellants above them. They were also aggrieved by their promotions on the basis of such seniority. They made representations urging for redressal of their grievance. When nothing was done, they filed the writ petition being WP(C) No.89/2011. During the pendency of the same, the Directorate of the Health Services conveyed its decision to redraw the seniority list and also to cancel the promotion order. They made representations urging for redressal of their grievance. When nothing was done, they filed the writ petition being WP(C) No.89/2011. During the pendency of the same, the Directorate of the Health Services conveyed its decision to redraw the seniority list and also to cancel the promotion order. It was in such circumstances, the writ petition was withdrawn with liberty to approach again, if required. 15. The decision to redraw the seniority list assigning higher seniority positions to the writ petitioners above the appellants was conveyed as per the minutes of the meeting held on 19th October, 2011 in the chamber of the Joint Director of Health Services. Consequential action was also taken vide order dated 28th October, 2011 cancelling the promotion of the appellants which was affected on the basis of the impugned seniority list dated 5th December, 2006. In such circumstances, the writ petition having been filed in March, 2012, it cannot be said that there was delay and laches on the part of the writ petitioners. That apart, the specific plea of the petitioners that they were not apprised of the impugned seniority list dated 5th December, 2006 till the time of making the representation against the same, was also not specifically denied by the respondents, both official and private. Seniority in service being a valuable right, any determination thereof without affording an opportunity of being heard even to the extent of not allowing the aggrieved person to make representation against such determination is against the sound principle of natural justice. 16. In the impugned order dated 5th December, 2006 by which the impugned seniority list was published, there is mention of order dated 19/09/2005 of this Court and also the letter dated 27th January, 2006 of the Government of Mizoram in the Health and Family Welfare Department. According to the appellants, these two orders having not been challenged, the consequential order dated 5th December, 2006 is not assailable. Such a plea of the appellants is not sustainable. Firstly, the respondents never divulged or pleaded that there was any direction of this Court to draw the seniority list assigning the particular positions to the incumbents. According to the appellants, these two orders having not been challenged, the consequential order dated 5th December, 2006 is not assailable. Such a plea of the appellants is not sustainable. Firstly, the respondents never divulged or pleaded that there was any direction of this Court to draw the seniority list assigning the particular positions to the incumbents. Secondly, the letter dated 27th January, 2006 of the Government of Mizoram in the Health & Family Welfare Department was also not brought on record and it was never the plea of the respondents, both official and private that the impugned seniority list dated 5th December, 2006 was on the basis of any seniority position assigned by the said letter. Even otherwise also, the basic order dated 5th December, 2006 having been challenged, there was no requirement to make independent challenge to the letter dated 27th January, 2006. Further, the official respondents could not have finalised the seniority list without first issuing a provisional seniority list enabling the aggrieved persons to make representation against the same. Coupled with this, the specific plea of the petitioners that they were not apprised of the order dated 5th December, 2006 has also not been denied by the respondents. 17. As regards the plea of non-joinder of necessary parties, the same will have to be considered in the light of the direction contained in the impugned judgment in terms of which everybody likely to be affected by the fresh decision will get an opportunity of being heard. That apart, it is the specific case of the writ petitioners that they are aggrieved by assignment of higher seniority positions to the appellants above them. Mr. Sailo, learned counsel for the private respondents has drawn our attention to the fact of making the respondent No. 8 also a party respondent, who is also likely to be affected by the decision in the writ petition. This aspect of the matter will also have to be considered in the light of the decision of the authority to assign higher seniority position to the writ petitioners above the private respondents that was conveyed earlier. However, now the issue will have to be resolved upon hearing all the parties who are likely to be affected by the fresh decision. In such circumstances, we are not inclined to accept the plea that the writ petition was bad for non-joinder of necessary parties. 18. However, now the issue will have to be resolved upon hearing all the parties who are likely to be affected by the fresh decision. In such circumstances, we are not inclined to accept the plea that the writ petition was bad for non-joinder of necessary parties. 18. The Apex Court in Ambica Quarry Works v. State of Gujarat reported in (1987) 1 SCC 213 held that the ratio of any decision must be understood in the backdrop of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. 19. We now consider the decisions on which the learned counsel for the appellants has placed reliance. In Devi Rattan (supra), it was held that without challenging the order of promotion, the consequential seniority could not have been challenged. This decision has been relied upon so as to contend that the impugned seniority list having been issued on the basis of the Government's decision and the said decision being not challenged, the consequential seniority list could not have been challenged. This aspect of the matter has been discussed above. There is nothing to indicate that the seniority list in question was drawn as per any particular direction of the Government. Moreover, before publication of the final list the persons likely to be affected ought to have been provided with an opportunity of being heard. 20. In S. Venkatareddy (supra) also, the aforesaid proposition regarding confining the challenge only to the consequential order without challenging the parent order was laid down. Same is not the case in hand. 21. In Shiba Shankar Mohapatra (supra), it was held that if a seniority list had remain in existence for a reasonable period, the challenge to the same, unless made within a reasonable period of 3/4 years, should not be entertained. In the instant case, the petitioners were not apprised of the seniority list of 2006 till 2010 and thereafter, they filed the first writ petition in 2011. During the pendency of the said writ petition, they were also apprised of the decision to restore their seniority. In such circumstances, it cannot be said that the writ petition in question was hit by the principles of delay and laches. 22. During the pendency of the said writ petition, they were also apprised of the decision to restore their seniority. In such circumstances, it cannot be said that the writ petition in question was hit by the principles of delay and laches. 22. In Ucchab Lal Chhanwal (supra), it was held that no adverse order could be passed against those who were likely to be affected. In the instant case, the grievance of the writ petitioners was against the appellants. That apart, as per the impugned direction, all the incumbents likely to be affected are required to be heard. Thus, this case is also of no help to the case of the petitioner. 23. In Pallab Dutta (supra), it was held that the writ petition was hit by inordinate delay. The writ petition was filed after 6(six) years of assignment of seniority. Coupled with this, the order of regularisation of service was also not under challenge. It was in such circumstances, it was held that there was inordinate delay. It was also held that the writ petition was bad for non-joinder of necessary parties. In the instant case, the position has been explained above. Thus, this case is also of no help to the case of the petitioner. 24. N.R. Vairamani (supra) has been pressed into service so as to buttress the argument that observations of Courts in a decision must be read in the context in which they appeared to have been stated. In paragraphs 9 and 11 of the said judgment, it was observed thus:- "9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (AC at p. 761) Lord Mac Dermott observed: (All ER p. 14 C-D) "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge," 11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper." 25. In Sarva Shramik Santhatana (KV), (supra) and Bhuwalka Steel Industries Ltd. (supra), referring to the above mentioned decision in Ambica Quarry Works (supra), the principle laid down therein was emphasized. 26. All the above decisions have been pressed into service by Mr. Sailo, learned senior counsel appearing for the private respondents to tune his argument that the decisions on which Mr. Malhotra, learned counsel for the appellants have placed reliance are misplaced in the given facts and circumstances involved in the case. 27. In the factual background of the case, as discussed above, the learned Single Judge having passed the impugned judgment & order in terms of which the issue is required to be determined upon hearing all the parties, we see no reason to interfere with the same and accordingly this writ appeal is dismissed directing the official respondents to implement the direction contained in the impugned judgment and order, as expeditiously as possible, preferably within a period of 3(three) months.