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Himachal Pradesh High Court · body

2019 DIGILAW 220 (HP)

Suresh Kumar v. Union of India

2019-03-05

VIVEK SINGH THAKUR

body2019
JUDGMENT : VIVEK SINGH THAKUR, J. 1. This application has been filed by petitioner seeking certain amendments in the writ petition with the addition of prayer, whereby challenge to order dated 26.5.1999 (Annexure P-12A) passed by respondent No. 3 is proposed to be incorporated in the writ petition on the ground that the said order was passed behind the back of petitioner without notice and without affording opportunity of being heard to him and despite having larger length of service of petitioner, vide aforesaid order, respondent No. 6 has been declared senior to him and this order has been brought on record by respondent No. 6 with his reply as Annexure R-14. Though order dated 30.4.2010 (Annexure P16) impugned in the writ petition contains a reference of order dated 26.5.1999, however specific challenge has not been laid against the said order, therefore on account of issue raised during hearing of petition, specific challenge to order dated 26.5.1999 has necessitated. 2. The amendment sought by the petitioner has been vehemently opposed by respondent No. 6 by fling a detailed reply mainly on the ground that at this belated stage, petitioner is estopped from challenging the order dated 26.5.1999 as it was not only placed on record by respondent as Annexure R-14, but the same has been specifically mentioned in order dated 30.4.2010 (Annexure P16), assailed by the petitioner in the writ petition. It is further submitted that plea of petitioner, that this order was passed without notice to the petitioner and without hearing him, is not sustainable at this stage as the reference of this order was made in order dated 30.4.2010 and also in reply filed to the petition in March, 2011 and thereafter pleadings were completed and case was listed for hearing so many times, but the petitioner has not bothered to assail the said order, despite having knowledge about the same. It is further submitted that amendments sought are device to avail new grounds to challenge against an order which is altogether different from order assailed in the main petition. 3. The Apex Court, in its pronouncement in case Chakreshwari Construction Private Ltd. vs. Manohar Lal reported in (2017)5 SCC 212 has summarized principles for considering amendment of pleadings which are:- "13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. 3. The Apex Court, in its pronouncement in case Chakreshwari Construction Private Ltd. vs. Manohar Lal reported in (2017)5 SCC 212 has summarized principles for considering amendment of pleadings which are:- "13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In Revajeetu Builders and Developers vs. Narayanaswamy and Sons (2009)10 SCC 84 , this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under: (SCC p. 102) "63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or malafide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. There are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive." 4. There are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive." 4. The basic grievance of the petitioner is that he has joined as TGT on 3.6.1994, whereas respondent No. 6 has joined as Shastri and was promoted to the post of TGT on 23.10.1997 and despite that, respondent No. 6 has been assigned the seniority from 2.6.1994 on which date the post of TGT had fallen vacant, which has resulted placement of respondent No. 6, who is junior to the petitioner, above the petitioner and the said action of respondent authority was assailed by the petitioner by fling CWP No. 172 of 2003 and the said petition was disposed of vide order 16.5.2007 with a direction to the respondent to decide the appeal of petitioner filed against the impugned action of the respondent authority, within a period of six weeks from the date of passing of order and thereafter, vide resolution No. 13 dated 29.8.2008 (Annexure P14) petitioner was directed to be placed senior to respondent No. 6 and in pursuant thereto, seniority list Annexure P15 was issued. 5. Meanwhile, Northern Command vide letter dated 26.5.1999, in an appeal preferred by respondent No. 6, has placed him senior most amongst the recruits appointed on the basis of letter dated 25.4.1994, despite the fact that petitioner was appointed on 3.6.1994 and respondent No. 6 was promoted on 23.10.1997. 6. In the light of aforesaid decision of Northern Command, President Cantonment Board had reconsidered the representation of petitioner dated 25.2.2002 decided vide resolution No. 13 dated 29.8.2008 in the light of judgment dated 16.5.2007 passed in CWP No. 172 of 2003 and by referring the decision of Northern Command as a decision passed by the Higher Competent Authority, had rejected the same vide impugned order dated 30.4.2010 (Annexure P-16) and had re-fixed the seniority as Manohar Lal above the petitioner vide impugned seniority list dated 30.4.2010 (Annexure P-17), which resulted into fling of present petition in August, 2010. 7. Petitioner has approached the counsel and filed the present petition on the basis of advise and drafting by the counsel, wherein order dated 30.4.2010 (Annexure P16) rejecting the representation of petitioner has been assailed wherein seniority of respondent No. 6 has been re-fixed above the petitioner. 7. Petitioner has approached the counsel and filed the present petition on the basis of advise and drafting by the counsel, wherein order dated 30.4.2010 (Annexure P16) rejecting the representation of petitioner has been assailed wherein seniority of respondent No. 6 has been re-fixed above the petitioner. Impugned rejection dated 30.4.2010 is based upon order dated 26.5.1999 and has been referred therein. Therefore, the challenge laid to rejection dated 30.4.2010 (Annexure P-16) impliedly means that petitioner is aggrieved by the said order which contains the reference of order dated 26.5.1999 and thus for determining the validity of rejection of representation dated 30.4.2010, the legality of order dated 26.5.1999 is necessarily to be looked into. Therefore, from the omission and commission on the part of petitioner, it cannot be said that he has acquiescence to order dated 26.5.1999. 8. Vide order dated 30.4.2010, respondent No. 6 has been declared senior to the petitioner and resolution of order dated 26.5.1999 is also the same as it directs to assign the seniority to respondent No. 6 above all including the petitioner. Therefore, specific challenge proposed to be laid to order dated 26.5.1999 cannot be termed as an amendment changing the nature of writ petition and making out a new ground altogether assailing a different order. 9. So far as the issue of delay and latches, seeking the amendment or laying challenge to order dated 26.5.1999, is concerned, it cannot be attributed to the petitioner as he had approached the counsel immediately after rejection of his representation and filed petition assailing the placement of respondent No. 6 above him in August, 2010. What are those orders which are required to be assailed for redressal of grievances of the petitioner, has been decided by the counsel and accordingly, writ petition was filed against order dated 30.4.2010. As order 30.4.2010 contains a reference of order dated 26.5.1999, there is possibility of considering it by the Advocate that order dated 26.5.1999 had merged in order dated 30.4.2010 and no specific challenge was required to be laid to order dated 26.5.1999. This possibility is also substantiated from the reason assigned by the counsel in application for fling it at this stage wherein it is stated that during hearing, the issue of challenging the order dated 26.5.1999 had cropped up and therefore, it necessitates to file the application for amendment for specifically challenging the order dated 26.5.1999. 10. This possibility is also substantiated from the reason assigned by the counsel in application for fling it at this stage wherein it is stated that during hearing, the issue of challenging the order dated 26.5.1999 had cropped up and therefore, it necessitates to file the application for amendment for specifically challenging the order dated 26.5.1999. 10. The petitioner has to suffer for delay and latches on his part but not for advise or action of Advocate imparted/taken on the basis of his expertise after applying his mind. In the present case, petitioner cannot be held liable for delay and latches. As noticed supra, he had approached the counsel within four weeks of disturbing his seniority. I find no deliberate, intentional or willful reason for not assailing the order dated 26.5.1999 at the first instance and mistake by Advocate appears to be bonafide one in the facts and circumstances of the case. It is not a case where petitioner has failed to act with due diligence and care. Therefore, petitioner should not be made to suffer for any lapse on the part of Advocate, wherein he has no role to play. 11. Even otherwise, the basic dispute in the main petition is with respect to placement of respondent No. 6 above the petitioner in the seniority list for which at the time of adjudicating the legality and validity of order dated 30.4.2010, validity of order dated 26.5.1999 has also to be assessed and it would require returning of findings with respect to the said order also. Therefore, it cannot be said that the new case is being made out or respondents were not aware about the dispute. 12. It is true that there is reference of order dated 26.5.1999 in order dated 30.4.2010 and copy of this order was placed on record as Annexure R-14 by respondent No. 6. But in this application, it is not the stand of petitioner that he came to know about the order at the time of fling of reply by respondent or fling of present application. But in this application, it is not the stand of petitioner that he came to know about the order at the time of fling of reply by respondent or fling of present application. But the stand of petitioner in para 3 of application is that this order was brought on record by respondent No. 6 (Annexure R-14) and in para 4 also, it is not claimed that passing of order was not in the knowledge of petitioner, but it has been averred that appeal filed by respondent No. 6 was decided vide order dated 26.5.1999 without giving him the notice and without hearing him. Therefore, it would be wrong to suggest that petitioner has tried to claim that he was not having the knowledge of passing of order at the time of fling of petition. 13. In the aforesaid facts and circumstances, I find that application for amendment is bonafide and amendment sought is imperative for proper and effective adjudication of dispute and it is neither causing prejudice to respondents nor constitutionally or fundamentally changing the nature and character of the case. In my opinion, for the ends of justice and to arrive at the just and fair conclusion, the amendment sought deserves to be allowed. 14. Accordingly, the petitioner is permitted to carry out the proposed amendments in the writ petition. The petitioner has filed the amended petition along with this application. The same is directed to be taken on record and placed at the appropriate place. Application stands allowed in aforesaid terms.