GWALIOR DEVELOPMENT AUTHORITY VS SUBHASH SAXENA
GWALIOR DEVELOPMENT AUTHORITY VS SUBHASH SAXENA
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1977 OF 2022
(Arising out of S.L.P.(C) No.19956 of 2014)
GWALIOR DEVELOPMENT AUTHORITY
GWALIOR … APPELLANT(S)
VERSUS
SUBHASH SAXENA & OTHERS … RESPONDENT(S)
WITH
CIVIL APPEAL NO. 1978 OF 2022
(Arising out of SLP(C) No.31203 of 2014)
CIVIL APPEAL NO. 1979 OF 2022
(Arising out of SLP(C) No.31205 of 2014)
CIVIL APPEAL NO. 1980 OF 2022
(Arising out of SLP(C) No.22137 of 2015)
CIVIL APPEAL NO. 1981 OF 2022
(Arising out of SLP(C) No.25303 of 2016)
J U D G M E N T
K.M. JOSEPH, J.
1. Delay condoned in SLP (C) No.25303 of 2016. Leave
granted.
2
2. The five Appeals in question, raise some common
issues and they are being disposed of by this common
Judgment.
3. Respondent no.1 was appointed as Sub-Engineer in
Special Area Development Authority “(SADA)”,
Malajkhand by Order dated 24.06.1982. He was promoted
as assistant Engineer by order dated 03.11.1987 by SADA
w.e.f. 07.09.1987. The State Government, by Order dated
20.12.1988, modified the earlier order dated 12.01.1988
and posted respondent no.1 in Gwalior Development
Authority (hereinafter referred to as, ‘the GDA’),
Gwalior as Assistant Engineer. He joined in GDA on the
basis of letter dated 29.12.1988.
4. It is the case of the State that during the
probation period of the first respondent, the first
respondent was transferred initially to SADA, Chirmiri,
and later on, Order of Transfer was modified to make
it a transfer to GDA, Gwalior. On 27.05.1995, State
issued instructions to all Development Authorities and
SADA that employees, who had been transferred and not
yet been absorbed in the Institution, shall be treated
3
as employees of the parent Institution. On 22.06.1995,
the State Government notified the abolition of 19 SADAs
including Malajkhand and all the assets and liabilities
of the abolished SADAs were deemed to have vested with
the Municipal Council. The first respondent had made
an application on 26.09.1995, before the CEO, GDA for
merging his services in the GDA. Advice was sought from
the State. By letter dated 09.11.1995, the State
clarified that:
“GOVERNMENT OF MADHYA PRADESH HOUSING AND
ENVIRONMENT DEPARTMENT SECRETARIAT
BHOPAL DATED 9.11.1995
S.C.No.7022/6706/32/95
The Chief Executive Officer,
Gwalior Development Authority,
Gwalior.
Subject: Regarding merger of the services
of Shri S.K.Saxena, Assistant Engineer.
Reference: Your Letter No. GDA/45/4597 dated
5.10.1995
Kindly peruse the aforementioned
letter.
Till such time when Shri S.K.Saxena does
not give option for going back to the Local
Self Government Department, no question
arises of sending him back from this
department, because of the fact that when
4
notification of abolition of Special
Development Authority was issued on
22.06.1995 at that time Shri Saxena was
posted in ·Gwalior Development Authority.
Hence his name shall be included in the
joint gradation · list of the Development
Authorities and the remaining. SAD As and
in such manner Shri Saxena shall be employee
of the Housing and Environment Department.
Sd/- Illegible
P.V.SHAMAL DEPUTY SECRETARY GOVERNMENT
OF M.P.
HOUSING AND ENVIRONMENT DEPARTMENT”
5. It is the case of the appellants that in exercise
of powers under Section 76B of the Madhya Pradesh Nagar
Tatagram Nivesh Adhiniyam, 1973 (hereinafter referred
to as ‘the Act’), on 01.07.1975, was notified as the
date for constitution of the M.P. Development Authority
Services. According to the State, the post of Assistant
Engineer fell in the State Cadre. By letter dated
31.07.1996, it was the further case of the State that
letters were written to SADAs and Development
Authorities indicating the principles for
determination of seniority in regard to the State Cadre
and Local Cadre posts. Inter alia, it was indicated as
follows, as regards determination of seniority:
5
“DETERIMINATION OF SENIORITY
1. In the new service the seniority of the
employee in the case of the different posts
in the case of direct recruitment or in the
cases of regular appointment through
promotion shall be determined on the basis
of continuous service on the lower post
whether it is permanent or temporary but if
such appointment has been made for fixed
term or for specific term then such period
shall not be included while reckoning,
seniority. In this regard final decision
shall be taken by the screening committee
constituted under Rule 66 of the Service
Recruitment Rules, 1988.
2. In the year of appointment generally
inter-se seniority shall .be determined from
the date of appointment and inter-se
seniority of the specific authority shall
not be disturbed.
3. Where service tenure of 1nore than one:
employees is the same their seniority shall
be reckoned on the basis of age.
4. If upon preparation of the combined
gradation list if it is found that the
promotion of any employee has been made on·
the basis of the combined gradation list on
such post for which he was not eligible then
his pay scale shall be continued in the
higher pay scale till such time when he does
not reach such stage in the cadre of his
promotional post.
5. While reckoning inter se seniority of the
employees recruited by direct recruitment
and. promotion the principle shall be
adopted that the promoted servants/officers
shall be kept below the direct recruits. If
action is taken in contravention of these
directions then the concerned Chief
Executive Officer shall be personally held
responsible therefor.”
(Emphasis supplied)
6
6. State Government, on 06.02.1999, published a
combined Gradation List of Assistant Engineers of
SADA/Development Authorities as on 01.07.1995, in
which, respondent no.1 was shown at Serial Number 38.
7. Thereafter, respondent no.1 filed Writ Petition
No. 1377 of 2000, claiming promotion to the post of
Executive Engineer in GDA. There were other petitions
also.
8. On 29.10.2001, in compliance with the Interim Order
dated 22.08.2000, passed in the Writ Petitions, the
State Government constituted a DPC and directed GDA
that if posts fallen vacant upto 30.06.1995, under the
State Cadre were still lying vacant and the Authority
felt it necessary to fill up the same, then, it may do
so in accordance with the Rules of 1976.
9. The Writ Petition filed by the first respondent
was disposed of. We may notice the following passages:
“3. Subsequently thereof it has come on
record that the State Govt. by their letter
dated 29th Oct. 81 as contained in Annexure
P-23 in the records of WP No. 327 /99 have
clarified that if the vacancies were
available prior to 30th of June 1995 then
the Gwalior Development Authority was
7
directed to fill up the posts on the basis
of selection to be conducted by the
Department promotion Committee and for the
said purpose a Departmental promotion
committee itself was constituted by the
State Govt.
4. In that view of the matter no further
controversy exists for adjudication an the
present petition. The Gwalior Development
Authority is now required to take action in
accordance with the directives of the State
Govt. as contained in Annexure P-23 dated
29-10-01 1 and fill up the vacancies which
existed prior to 30th June 1995 considering
the eligible candidates and pass appropriate
orders. thereof in accordance with the rules
as they existed on the date. It is therefore
directed that the Gwalior Development
Authority to take action for filling up the
post in pursuance to the directive issued
by the State Govt in its order dated 29-10-
01 Annexure P-23 and finalise the same
within a period of two months from the date
of filing of certified copy of this order.
5. Needless to emphasis that if some action
of some assistance in this regard is
warranted the State · Governn1ent shall do
the needful. within the period at posted
hereinabove. In the meanwhile status quo
existing today with regard to posting and
service condition. of the petitioner shall
be maintained till the final-decision is
taken as directed hereinabove.
6. Even though directions have been issued
Gwalior Development Authority to consider
the case of the petitioner during the course
of hearing. It is pointed out that Shri
Saxena the petitioner was initially an
employee of the Special Area Development
Authority (SADA) Malajkhand Distt. Balaghat
now Municipal Council Malajkhand and
therefore of his lien with the Special
Development Authority will also be required
to be taken into consideration while
8
consideration the case for promotion. The
Gwalior Developn1ent Authority while
examining the case of the petitioner Subhash
Saxena shall consider the questions of his
lien and in case it is found that he is
entitled to be considered in accordance with
the Rules his case shall also be. considered
along with other eligible candidates. If for
any reason the respondents Gwalior
Development Authority is of the view that
petitioner Subhash Saxena is not entitled
to be considered accordance to the unamended
rules the same shall be communicated to him
along with the rules.”
10. On 01.07.2003, a Gradation List of existing
Assistant Engineers in GDA as on 30.06.1995, was
published. Therein, respondent no.1 was shown at Serial
No.2 in the Cadre of Assistant Engineers. In fact, a
perusal of the same will indicate that it is stated by
the CEO of the GDA that by publishing provisional
Gradation List in the Cadre of existing Assistant
Engineers in GDA as on 30.06.1995, objections were
invited. After examining the objections, the enclosed
final Gradation List of Assistant Engineers as on
30.06.1995 was also published. Respondent no.1 was
shown at Serial No.2. Under the column ‘employer of
original employment’ SADA, Malajkhand was indicated.
The appointment was shown as ‘made by promotion’. The
9
date of the first appointment in government service was
indicated as 20.12.1987. Under the column ‘date of
appointment in cadre’, it is shown as 07.09.1987. The
taking over of charge is indicated as 29.12.1988. In
the ‘remarks’ column, it is indicated that ‘joined from
the earlier SADA on 20.12.1988’ by order dated
20.12.1988 of the Housing and Environment Department
Services of Assistant Engineers Absorbed. Two employees
(not any of the petitioners before this Court) but one
Mr. Bharat Bihari Mathur and Shri Dev Dutt Mishra,
approached the Government against the Gradation List
dated 01.07.2003. It is by letter dated 30.07.2003 that
the Government took the view that prior to July, 1995,
State Cadre was not in existence as every Development
Authority was empowered to take decision with regard
to the employees, officers appointed by them. The
Government further ordered that the names of first
respondent and two others could not be shown under the
establishment of the GDA in the Gradation List of
Assistant Engineer as on 30.06.1995 or prior to it. The
Government further ordered that the GDA was not
competent to take decision on service matters in
10
respect of the employees. It is this communication
which led to the first respondent filing Writ Petition
No. 8199 of 2003 claiming seniority from 07.09.1987.
Thereafter, on 31.01.2006, Seniority List, as on
01.07.1995 was published. Therein, it would appear that
Shri Shirish More, one of the petitioners before this
Court was shown at Serial No. 58 and respondent no.1
was at Serial No. 87. Respondent No.1 filed his
objection. The Screening Committee rejected the
objection on 13.10.2006. The State issued a combined
Gradation List as on 01.07.1995, based on the decision
of the Screening Committee on 29.11.2006. The
respondent no.1 was placed at Serial No. 88. Shri
Shirish More was show at serial no. 82A. Shri G.N.
Singh another petitioner, was shown at serial No. 58.
Shri Nishad Azim, yet another petitioner before us, was
shown at Serial No. 66. Shri B.B. Mathur was shown at
Serial No. 54 and Shri Devdutt Mishra was shown at
Serial No. 59. Thereupon, the respondent no.1 filed
Writ Petition No. 189 of 2007. In the said Writ
Petition, the learned Single Judge proceeded to allow
the Writ Petition filed by the first respondent by
11
Judgment dated 29.02.2008. In the said Judgment, the
complaint of the first respondent was apparently
against his being placed at Serial No. 88, and further
showing him as ‘promoted on the post of Assistant
Engineer on 20.12.1994’. The learned Single Judge found
that there was failure to comply with the principles
of natural justice. His placement at Serial No. 88 in
regard to the position of Assistant Engineers as on
31.01.2006, was quashed, and he was directed to be
placed in the Gradation List, treating him as Assistant
Engineer, on the basis of Order dated 03.11.1987. This
Judgment, however, came to be recalled by the learned
Judge, finding that first respondent had concealed the
important fact that the earlier Writ Petition No. 8199
of 2003 was pending. It is thereafter that both the
Writ Petitions came to be heard and the learned Single
Judge (a Judge who was another learned Single Judge),
proceeded to allow the two Writ Petitions, finding that
the promotion of the first respondent was made in
accordance with the Special Area Development Authority
(Chairman and Officers Servants Recruitment and
Conditions of Service) Rules, 1976 (hereinafter
12
referred to as ‘the 1976’ Rules), which was a complete
Code, which cannot be taken away in accordance with the
PWD Recruitment Rules. It was found that an Executive
Order of the Government directing that the PWD Rules
would be applicable, was untenable. The requirement
under the rules, read with the Executive Order, was
that, to be promoted as Assistant Engineer a person
must have worked for 12 years. The first respondent had
less than five years, when he was promoted in 1987.
The learned Single Judge further proceeded to place
reliance on the decision of the Division Bench in S.C.
Hiranandani & Ors. v. State of M.P. & Ors. and found
it applicable. The Single Judge found that in the said
Judgment, vacancies existing prior to 31.03.1988, were
required to be filled-up in terms of the 1976 Rules.
The transfer of the first respondent was found to be
prior to the 1991 Amendment Act. It was further found
that the transfer by the State Government was also a
mode of recruitment. The contention that it was a case
of deputation, was rejected. The respondents in the
Writ Petitions could not produce any document to show
that the lien of the first respondent was retained in
13
the earlier SADA. Accordingly, the impugned Order dated
30.07.2003 was quashed and the official respondents in
the Writ Petitions were directed to treat the first
respondent as Assistant Engineer in GDA w.e.f.
07.09.1987 with all consequential benefits.
THREE WRIT APPEALS
11. This led to three appeals. Writ Appeal No. 327 of
2013 was filed by Shri Bharat Bihari Mathur and Shri
Dev Dutt Mishra. Writ Appeal No. 48 of 2014 was filed
by the State of Madhya Pradesh. Writ Appeal No. 481 of
2013 was filed by the GDA.
FINDINGS IN THE IMPUGNED JUDGMENT IN WRIT
APPEAL NO. 327 OF 2013
12. Respondent No.1 was promoted as Assistant
Engineer considering the need and vacancy in accordance
with the Rules, initially on probation for one year.
Having been permitted to work beyond the maximum period
of 18 months of probation. He could not be treated as
a probationer.
13. The letter written by the Housing and Environment
Department is regarding applicability of the
14
Recruitment Rules in the PWD for promotion as Assistant
Engineer under which, a minimum service of 12 years was
necessary, was described as a letter sent to the
President of the Nagar Sudhar Nyas Neemach. It is found
that objection has been raised, after a long period of
twenty years. No such instruction was issued to SADA
Malajkhand. It was found that there was no provision
in the Rules for mandating a minimum period. The
respondent no.1 having been paid salary to the promoted
post throughout, it could not be found that the
promotion was not proper.
14. Initially, the Rules of 1976 were applicable.
Thereafter, Rules were framed in 1988 in exercise of
powers under Section 85 and Section 76-B (2) of the
Act. These Rules came into force on 01.04.1988. In
accordance, with the Rule (3)(ii) of the 1988 Rules and
the 1976 Rules, the State Government was authorised to
transfer an employee from one Authority to another
Authority. It was, thus, found that the transfer of
Respondent No.1 was in accordance with the Rules.
15. Subsequently, Respondent No.1 was absorbed in the
service of the Gwalior Development Authority. The Order
15
of the State to the effect that Respondent No.1 could
not be treated as employee of the GDA, is not in
accordance with law because, in the Gradation List
earlier, vide letter dated 09.11.1995, services of the
Respondent No.1 were merged in the GDA, for which,
there was provision in the Rules. Respondent No.1 was
assigned proper seniority to the post of Assistant
Engineer as his seniority could not be disturbed.
16. After a period of eighteen years, it could not be
held that Respondent No.1 was not an employee of GDA.
Reliance is placed on Parshotam Lal Dhingra v. Union
of India1 .
17. Reference is placed on the Order dated 29.04.2003,
passed in Writ Petition No. 1377 of 2000, in regard to
considering the case of Respondent No.1 for promotion
to the post of Assistant Engineer.
18. The Appellants in Writ Appeal No. 327 of 2013,
who were Respondent Nos. 3 and 4 in Writ Petition No.
8199 of 2003, viz., Shri Bharat Bihari Mathur and Shri
Dev Dutt Mishra, were found to have been appointed as
1 1958 SCR 828 / AIR 1958 SC 36
16
Assistant Engineers on ad-hoc basis in the year 1988
and made permanent in 1990 and they were placed below
Respondent No.1. It is five to six years after the GDA
initiated procedure for considering the case of
promotion of Assistant Engineers to the higher post,
that the Appellants had apprehension that their chance
of promotion would be affected. Accordingly, it was
found that Appeal was without merit and it was
dismissed. Writ Appeal No. 481 of 2013, which was filed
by the GDA, came to be dismissed on the basis of the
Judgment in Writ Appeal No. 327 of 2013. Writ Appeal
filed by the State, i.e., Writ Appeal No. 48 of 2014,
came to be dismissed, based on the Judgment in Writ
Appeal No. 327 of 2013.
EARLIER PROCEEDINGS AGAINST THE JUDGMENT
19. The Order, which was impugned in Writ Petition No.
8199 of 2003, was passed at the instance of Respondent
Nos. 3 and 4, viz., Shri Bharat Bihari Mathur and Shri
Dev Dutt Mishra, in the Writ Petition. They were the
appellants in Writ Appeal No. 327 of 2013. They filed
SLP (Civil) Nos. 12444-12445 of 2014. The same has been
17
dismissed by this Court by Order dated 19.08.2014. The
Review Petition against the said Order was dismissed
on 22.09.2015. A Curative Petition also stood rejected
on 27.10.2016.
THE PRESENT PROCEEDINGS; CONTENTIONS
20. The appellants are the State of Madhya Pradesh,
GDA and three employees. The stand of the State of
Madhya Pradesh appears to be that the first respondent
was, in fact, transferred by way of deputation. This
position is made further clear through the affidavit,
pursuant to the Order dated 29.07.2021 passed by this
Court. In the affidavit, the State has maintained the
distinction between SADA and Development Authority. It
is contended that their constitution, functions,
budget, officers are entirely separate and distinct.
SADA Malajkhand was established under Section 64 of the
Act. GDA was constituted under Section 38. Rule 3(2)
of the 1976 Rules can be applied only for transfer of
an employee from one SADA Malajkhand to another SADA.
It is pointed out that this contention was taken before
learned Single Judge and noted. The stand of the State
18
is that the respondent No.1 was transferred by the
State Government, in exercise of power under Section
72 of the Act, which is different from power under
Section 73 of the Act. Section 73 deals with Power of
State Government to give directions to all Authorities
in the matter of policy whereas Section 72 empowered
the State Government to exercise superintendence and
control over the acts and proceedings of the officers
appointed under Section 3 of the Act and Authorities
under the Act. It is further pointed out that the
first respondent is inconsistent. Initially, he took
the stand he was absorbed in the GDA by the State
Government order dated 09.11.1995. He succeeded on this
basis before the court. It is contended that in the
Order dated 09.11.1995, it is stated that SADA
Malajkhand, was abolished and Respondent No.1 became
employee of the State Government and that his name
would be published in the gradation list of the Housing
and Environment Department. Thereupon, first
respondent has made a somersault by contending that his
absorption was made by Order 20.12.1988, which the
State Government would describe as a transfer on
19
deputation. Rule 4(C) of the 1976 Rules is inapplicable
to order dated 20.12.1988 as Rule applied to
recruitment to SADA and not when an employee is
transferred on deputation, it is contended. It is
further contended that recruitment is to be made under
Rule 8 of the 1976 Rules with prior approval of the
Government. Therefore, it is contended that under the
Rules, recruitment by transfer or deputation requires
approval of the State. The order dated 20.12.1988, it
is contended is not issued by the Development Authority
with previous approval of the State Government. It is
merely described as an Order of the State Government
transferring respondent no.1 on deputation to the GDA.
21. Another question, which is raised by the
appellants, relates to the validity of the very
promotion of the first respondent. The contention
appears to be as follows:
The Government has issued an executive
direction dated 25.4.1981 to the Presidents of the
Development Authorities and SADA. In terms thereof
the first respondent, who was appointed in the year
1982 as Sub Engineer, could have secured a
20
promotion as Assistant Engineer only after the
expiry of 12 years. On this basis, apparently, it
is that though he was given promotion on the expiry
of 4 years and a few months which was illegal, he
is given seniority on the basis of expiry of period
from 1982 and thus he is given seniority correctly
from 1994, it is contended. It is common contention
that at any rate even he can get seniority only
from the said date. This is apart from contending
that there was no absorption in law in the GDA and
in fact he was employee of the State in the Housing
and Environment Department.
SECTION 72 OF THE ACT
22. Reliance is placed on Section 72 of the Act and to
contend that first respondent was sent on deputation
does not commend itself to us. Section 72 of the Act
read as follows:
“72. State Government’s power of
supervision and control- The State
Government shall have the power of
superintendence and control over the acts
and proceedings of the officers appointed
under Section 3 and the authorities under
this Act.”
21
23. The power of supervision and control goes to acts
and proceedings of the officers appointed under Section
3 and the authorities constituted under the Act. It
means that the authority relates to the decisions or
acts, which are taken by officers appointed under
Section 3, or the authorities under the Act. It may not
extend to power to control the service of the employees
of the authority or SADA. In fact, the Division Bench
of the High court in M.D. Awasthy v. State of M.P. and
Another2 dealing with the case where the petitioner
therein, who was the employee of the Development
Authority, was transferred to a Town Improvement Trust.
This was passed with the approval of the Chairman of
the Development Authority. By another order his service
was terminated, which was also approved by the
Chairman. There Orders were challenged. The Division
Bench, inter alia, held as follows:
“… Reference to sections 72 and 73 on
which reliance was placed only authorise
the State government to hive power of
superintendence and control over the acts
and proceedings of the officers appointed
2 1988 SCC OnLine MP 86
22
under section 3 and the authorities
constituted under the Act. Certainly
this will not include a power to call back
the services of any officer, jr. servants
of the Development Authority and to place
those services under the disposal of
altogether a different authority.
Reference to section 73 is also misplaced
as it only provides that the authorities
constituted under the Act shall be bound
by such directions in the matter of policy
as may be given to them by the State
Government...”
24. The counsel for the State Government has rightly
not placed reliance on Section 73 which relates to
power to issue directions in the matter of policy.
25. As far as the contention against the very promotion
made in the year 1987 of the first respondent being
flawed on the basis of the order, which was issued,
providing that the PWD rules would apply and thus the
first respondent who was appointed as Sub Engineer
required 12 years to be promoted as an Assistant
Engineer, what is clear is, the first respondent was
promoted in the year 1987. Promotion was based on
Seniority-cum-merit. There is no dispute that his
employer, viz., SADA Malajkhand, was competent to take
23
a decision otherwise. Rule 17 of the 1976 Rules read
as follows:
“17. Appointment by promotion- (1)
Appointment by promotion shall be made on
consideration of seniority-cum-merit.
(2) In selecting candidates for promotion
regard shall be had to:-
(i) tact and energy
(ii) intelligence and ability
(iii)integrity; and
(iv) previous record of service
(3) The Appointing Authority shall
consider the cases of al the eligible
candidates and may in its discretion
interview any of the candidates.
(4) xxx xxx xxx”
The High Court finds that the objection is raised
after twenty years. It is found that no instruction was
given to SADA, Malajkhand. There was no provision in
the rules. After 27 years, the promotion could not be
revisited. In fact, after the promotion it was the
Government, which transferred him as an Assistant
Engineer and posted him at GDA. The view taken in the
matter in the circumstances cannot be faulted. In the
final seniority list dated 01.07.2003 wherein the first
24
respondent was shown at Serial No.2, the final
upgradation list of Assistant Engineer indicated that
he was ‘absorbed’. This is a list which is brought out
by the GDA itself.
26. The contention of the State is that Rule 3(2) of
the 1976 Rules envisages transfer from one SADA to
another SADA only. Rule 3(2) reads as follows:
“3(2) Officers or officials borne on
these posts of these cadre are liable for
transfer from one Authority Service to
other Authority Service. Such transfer
may be made either by the mutual agreement
between the two authorities, or by the
State Government.”
27. No doubt, the tile of the Rules is as follows:
“Madhya Pradesh special Area Development
Authority (Chairman and Officers and
Servants Recruitment and Conditions of
Service) Rules, 1976. It is purported to
be made in exercise of power conferred
under Section 67(2) and Section 85 of the
Act.
Rule 2(e) defines “Authority Employees”
means a person appointed to or borne on
the cadre of the Authority staff.
25
Rule 2(f) defines “Authority service” as
meaning the service or group of post in
connection with the affairs of the
Authority.”
28. However, in the impugned judgment, it is found that
Government framed the Madhya Pradesh Development
Authority Service officers and servants Recruitment
Rules, 1988. The High court has relied upon Rule 3 of
the 1976 and 1988 Rules to find that Government was
authorised to transfer an employee from one Authority
to another Authority and that the transfer of
respondent no.1 was in accordance with the rules. We
cannot accept the argument of the State that it was a
case of deputation in the facts. We have noticed that
Section 72 does not also support the claim.
EFFECT OF EARLIER LITIGATION; AND THE STATE
AND GDA NOT CHALLENGING THE JUDGMENT IN
W.A. No. 327 of 2013. AN INSUPERABLE
OBSTACLE?
29. Special Leave Petition (Civil) No. 31203 of 2014
is filed by the State of Madhya Pradesh challenging the
Judgment in Writ Appeal No. 48 of 2014. Writ Appeal No.
26
48 of 2014 was filed by the State and it came to be
dismissed on the basis of the Judgment in Writ Appeal
No. 327 of 2013, which was filed by Respondent Nos. 3
and 4 in Writ Petition No. 8199 of 2003. It is to be
noticed that the State was the first respondent in the
Writ Petition. The Judgment in Writ Appeal No. 327 of
2013, having been dismissed, and the State being party
to the same, it was incumbent upon the State to
challenge the Judgment in Writ Appeal No. 327 of 2013.
The State in the Special Leave Petition has challenged
only the Judgment in Writ Appeal No. 48 of 2014, which
was rendered, no doubt, following the Judgment in Writ
Appeal No. 327 of 2013. The Judgment in Writ Appeal No.
327 of 2013 would remain final as regards the State of
Madhya Pradesh. Therefore, it may not be legal or
proper to further consider the challenge at the
instance of the State, when it is directed only against
the Judgment in Writ Appeal No. 48 of 2014. Similarly,
we notice that Special Leave Petition, filed by the GDA
is directed against the Judgment in Writ Appeal No. 481
of 2013. It is true that Writ Appeal No. 481 of 2013
was filed by the GDA against Order in Writ Petition No.
27
8199 of 2003, (as can be seen from Annexure-P16 at
page-101 of the paper book). In Writ Appeal No. 327 of
2013, filed by the private parties in the very same
Writ Petition, and wherein, the GDA was, admittedly, a
party, viz., Writ Appeal No. 327 of 2013, the Division
Bench has upheld the Judgment of the learned Single
Judge. The GDA, being the party therein, challenged
only the Judgment in Writ Appeal No. 481 of 2013, which
was the Appeal filed by the GDA. It cannot be permitted
to be proceeded with, as it would result in the Judgment
in Writ Appeal No. 327 of 2013, which has become final,
as far as GDA is concerned, becoming inconsistent with
any Judgment, which we may render in favour of the GDA.
30. As far as the Special Leave Petitions, filed by
the private parties are concerned, they are three in
number. They have obtained the permission of this
Court. We have noticed that initially Government had
published a final Gradation List as on 01.07.1995.
Therein the first respondent was shown at serial no. 2
in the Cadre of Assistant Engineer and he was shown as
absorbed. Only Shri B.B. Mathur and Shri Devdutt
Mishra, Assistant Engineers, working in the GDA,
28
approached the Government. Government, no doubt, issued
direction dated 30.07.2003, to delete the name of the
first respondent. This, undoubtedly, led to the Writ
Petition No. 8199 of 2003. Respondent Nos. 3 and 4
therein were Shri B.B. Mathur and Shri Devdutt Mishra.
They were the persons, who had challenged the seniority
of the first respondent. We notice that Shri Shirish
More, one amongst the petitioners before us, who had
filed Special Leave Petition, after getting permission,
came to be promoted on 10.10.1991 to the post of
Assistant Engineer. In the combined Gradation List
dated 29.11.2006, in fact, he is shown at serial no.
82A. Shri B.B. Mathur and Shri Devdutt Mishra were
shown at serial nos. 54 and 59. The other two Special
Leave Petitioners before us, viz., Shri G.N. Singh and
Shri Nishat Azim were at serial nos. 58 and 56,
respectively. What we would notice is, none of the
petitioners before us, viz., the employees, have even
challenged the final Seniority List dated 01.07.2003,
as per which, respondent no.1, was shown at serial
no.2, in the final Gradation List. Further, we may
notice that if they were relying on the fact that the
29
parties-respondents in the writ petition filed by the
first respondent and the appellants before the High
Court, were following up on their behalf also, then,
the fact that Shri Bharat Bihari Mathur and Shri Dev
Dutt Mishra have filed the Special Leave Petition
before this Court and the petition stands dismissed,
would be an obstacle for entertaining their case. The
further fact that even the Review Petition was
dismissed and what is more, a Curative Petition was
dismissed, would stand in their way, all the more.
Having regard to the passage of time, which has
also witnessed dismissal of the Special Leave Petitions
by the appellants (private respondents in the Writ
Petition filed by the first respondent), Review and
Curative Petition, at any rate, we do not think that
we should disturb the impugned judgment.
31. The fact of the matter is that first respondent
was transferred in the year 1988 as Assistant Engineer
and he joined in GDA immediately thereafter and he
continued to work there. In fact, as noticed in the
first final seniority list dated 01.07.2003, he is
30
shown as absorbed in the GDA. It may be true that in
the letter dated 09.11.1995, it is not specifically
stated that respondent was absorbed in the GDA, and it
is indicated that his name will be included in the
Joint Gradation List of the remaining SADA (i.e., the
SADA not abolished under the notification dated
22.6.1995). It is further indicated that he is the
employee of the Housing and Environment Department. As
regards, determining seniority w.e.f. 1994, when first
respondent would complete 12 years as Sub Engineer, it
is tied up with the issue of the illegality of his
promotion in 1987 without completing 12 years. More
importantly, even proceeding to discern any merit that
seniority should, at least, be governed with reference
to the requirement of 12 years, in the facts of this
case, for reasons we have indicated already, we decline
to interfere, bearing in mind also Article 136 of the
Constitution of India, which has facilitated these
appeals.
31
32. The appeals will stand dismissed. There will be no
Order as to costs.
……………………………………………J.
(K.M JOSEPH)
…………………………………………J.
(S. RAVINDRA BHAT)
NEW DELHI,
MARCH 14,2022.
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
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