Holding

The Supreme Court allowed the appeal, directing that the appellant’s seniority be corrected to reflect his 1960 recruitment, rejecting the limitation plea and finding that the Janardhana decision does not bar his claim.

Summary

The appellant, recruited as an Assistant Executive Engineer in the Military Engineering Service in 1962, challenged his placement at 483rd position in the 1967 seniority list, arguing that his prior Central Government service should have given him a higher rank. After his suit and subsequent appeals were dismissed, he obtained special leave to appeal before the Supreme Court, which examined issues of limitation, res judicata, and the validity of seniority lists. The Court held that the limitation plea was inapplicable because the appellant’s representation against the seniority list gave rise to a cause of action, and that the earlier Janardhana decision did not bar his claim despite not being a direct party. It also clarified that temporary posts have no legal basis here and that seniority lists prior to 1969 are valid but must accommodate legitimate individual claims. Consequently, the Court ordered the appellant’s seniority to be placed below the 1960 recruits and above the 1961 recruits, directing rectification of the 1967 list and consideration of his promotion within four months, and allowed the appeal.

Issues considered

Whether the appellant’s claim for a higher seniority position is barred by limitation.
Whether the earlier Janardhana judgment operates as res judicata against the appellant’s claim.
Whether the appellant’s post can be treated as temporary and the impact on seniority.
Whether seniority lists prior to 1969 can be altered to accommodate individual claims.
Whether the appellant is entitled to promotion based on corrected seniority.

Subjects

seniority listmilitary engineering servicecivil service recruitmentlimitationres judicatatemporary postpromotionpublic interest

Judgment

~ ::

,,
DWARKA NATH SHARMA
V.·,
A
UNION OF INDIA & ORS.

AUGUST 8, 1989

_lRANGANATH MISRA.AND G.L. OZA, JJ.] B

Civil Services: Military Engineering Servic,,_Seniority-Legiti-
mate claim to higher placement-Deprivation of-Whether justified.

) Appellant joined the Military Engineering Service as Assistant
".Execuitve Engineer, upon his selection by the Union Public Service
Commission· through the combined Engineering Service Examination C
held in 1960. He represented that his previous service in Central
Government should be considered in fixing his seniority. In the senio-
rity list published, the appellant's name was shown at 483rd position.
The appellant made a representation against the lower placement.
Departmental Promotion Committee did not consider him for promo- D
lion because of the lower placement. Challenging the lower placement,
the appellant flied a suit before the Civil Court which was dismissed.
His first appeal before the District Judge as also the second appeal
before the High Court met the same fate.

This appeal, by special leave, is against the judgment of the High E
Court. The respondents resisted the appeal on grounds of limitation
and res-judicata.

Allowing the appeal,

HELD: I. I.· There bas been no dispute in the Courts below, and F
here too, that the appellant has been legally recruited to the service.
The Union of India accepted the position that recrnitment thtough the
Union Public Service Commission had been regularly made and the
post was not a temporary one but as the perfomumce of the appel-
lant bad not been of a high order, he had been placed below treat-
ing him to be temporary-a position for which there is not much of G
legal support. (7708-C, E, Fl

1.2. Strictly speaking, Janardhana's decision may not have the
effect of res-judicata for the present litigation, but in a dispute of the
present dimension where hundreds of employees are concerned, it
would not be proper for the employees to litigate over the same issne H

767
768 SUPREME COURT REPORTS [1989] 3 S.C.R.

from time to ti:ne. If it would be open to members of the service from
A
time to time to raise disputes of the same nature and introduce uncer-
tainty into the service, that would affect the efficiency of the service and
would be against public interest. Thal also would call into jeopardy the
guarantees of public service and expose the ofrtcers into an atmosphere
of insecurity. A seniority list of a cadre should not be made the suhject-
B malter of debate too often. [77 IB-D]

A. Janardhana v. Union of India & Ors., [1983] 3 SCC 601;
affirmed.
I
2. The plea of limitation raised by the respondents should not-/
have been upheld in the facts of the case. The seniority list was being
c changed from time lo lime. The appeUant had represented against the
1967 seniority list. The dispute was already pending before this Court in
Bachan Singh"s case. In fact, without waiting for the judgment of Ibis
Court in that case, the plaintiff came to Court on 22.3.1971. The appel·
Iant was entitled to make a representation againts the seniority list and
D rejection of the representation actually would have given him the cause
of action. In these circumstances, non-suiting him on the plea of limita-
tion would not al all be justified. [772E-G]

Bachan Singh v. Union of India, [1972] 3 SCR 898, referred lo.

E 3. Individual claims, could not have been barred from considera-
tion if by the lime Janardhana's case came lo be disposed of, claims
were pending adjudication before the Court. Appellaut's case was
already before the High Court by the time Janardhana's appeal was
disposed of by this Court. The stand taken by Respondent No. I that it
was open to the appellant to appear in the competitive examination in
F the succeeding year to better his position, is no justification for depriv· )-
ing him of his legitimate claim to a higher placement in the seniority in
the cadre. Appellant's position shall be shown below the recuirts of
1960 and above those of 1961 and he may be bracketed with one who
has been assigned that position and an appropriate rectification shall be
made in the seniority list of 1967 on the basis of the placement in terms
G of this judgment. His entitlement to promotion on the basis of such
position shall be considered by the respondents within four months
hence. [7720; 773A-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3224
of 1989.
H
From the Judgment and Order dated 6.9.83 of the Punjab &
D.N. SHARMA v. U.0.1. [MISRA, J.[ 769

Haryana High Court in R.S.A. No. 1092 of 1975. A
M.R. Sharma and M.C. Dhingra for the Appellant.

Anil Dev Singh, P:P. Singh and C.V.S. Rao for the Res-
..., pondents
)
.
I B
The Judgment of the Court was delivered by

RANGANATH MISRA, J. Special leave granted.

Appellant was recruited as an Assistant Executive Engineer in
\
the Military Engineering Service upon his selection by the Union C
)· Public Service Commission through the combined Central Engineering
Service Examination of 1960 and he joined as an Assistant Executive
Engineer on 24.4.1962. A provisional seniority list was prepared in
August, 1963 as claimed by him and the appellant represented that ~is
previous service under the Central Government in consideraiion of
which he .had been given three im:remerits at the time of joining should D
have been taken into account.' In January, 1967, the seniority list was
published where, as the appellant pleaded, he was shown at the 483rd
-i position. He represented ·ag3inst the lower placement and asked for
placing him at the appropriate place. The Departmental Promotion
.. .\
Committee did not consider him for promotion on the basis of his
lower placement in the seniority list and he WaS notpromoted. Appel- E
lant, therefore, filed a suit for redress of his grievance of lower place-
ment and for ,consequential reliefs. The suit was dismissed. Appel-
lant's appeal before the District Judge was also dismissed and there-
_ l upon the appellant went before the High Court in second appeal but
'-- that too was dismissed. It is against the judgment of the High Court
affirming those of the Courts below that this appeal has been brought F
before this Court.

Before we go into the merits of the matter w·e must indicate that
the case has not been appropriately placed in the. Courts below and
relevant material has not been made a part of the present record .
•
G
The claim in this litigation has to be considered in the backdrop
. of two earlier cases Bachan Singh v. Union of India, [1972) 3 SCR 898
is the judgment of this Court where a dispute relating to the same
Military Engineering Service involving inter alia of a claim of seniority
came to be disposed of by a Constitution Bench. It is not necessary to
refer at any length to the judgment in view of the fact that the result of H
770 SUPREME COURT REPORTS [ 1989) 3 S.C.R.

A the subsequent litigation in the case of A. Janardhana v. Union of
India & Ors., [1983] 3 SCC 601 would be sufficient for the present
purpose.

Notice was given in this appeal to hundreds of respondents whom
the appellant had impleaded, but no one has appeared to contest his
B claim in this Court.

There has been no dispute in the Courts below and here too that
the appellant has been legally recruited to the Service. In Janardhana's
case at p. 618 of the Report this Court held: -/

c "Keeping in view the exigencies of service and the require-
ments of the State, temporary posts would be a temporary
addition to the strength of the cadre, unless it is made clear
to the contrary that the temporary posts are for a certain
duration or the appointments to temporary posts are of an
ad hoc nature till such time as recruitment according to
D rules is made. In the absence of any such provision, persons
holding permanent posts and temporary posts would be-
come the members of the service provided the recruitment
to the temporary posts is legal and valid. Once the recruit-
ment is legal and valid, there is no difference between the
holders of permanent posts and temporary posts insofar as
E it relates to all the numbers of the service."
;
In the instant case, the Union of India accepted the position that
recruitment through the Union Public Service Commission ha.d been
regularly made and the post was not a temporary one but as the
performance of the appellant had not been of a high order, he had )~
F been placed below treating him to be temporary-a position for which
there is not much of legal support.

Some controversy was raised as to whether Janardhana's deci-
sion would operate as res judicata in view of the fact that the appellant
had been impleaded in the litigation. Janardhana's civil appeal before
G this Court arose out ofta writ petition in the High Court and as
paragraph 36 of the judgment at p. 625 of the Report indicates:

"By an order made by the High Court the names of respon-
dents 3 to 418 (in which the appellant was included) were
deleted since notices could not be served on them on
H account of the difficulty in ascertaining their present
;i

I D.N. SHARMA v. U.0.1. !MISRA, J.) 771
.)\
addresses on their transfers subsequent to the filing of
these petitions."
A

It is not the case of the respondent that the appellant had volunteered
to appear in the writ petition or before this Court in the Janardhana's
dispute.
B
Strictly speaking, Janardhana's decision may not have the effect
of res judicata for the present litigation, but we do not think in a
I dispute of the present dimension where-hundreds of employees are
""' concemed, it would be proper for the employees to litigate over the
same issues from time to time. If it would be open to members of the
service from time to time to raise disputes of the same nature and
introduce uncertainty into the Service, that would affect the efficiency c
of the service and would be against public interest. That also would
call into jeopardy the guarantees of public service and expose the
officers into an atmosphere of insecurity. A seniority list of a cadre
should not be made the subject-matter of debate too often. We have,
therefore, to consider the claim of the appeHant keeping these aspects D
in view and referring io the conclusions reached in Janardhana's case.

·-{ At p. 625 of the Report this Court came to the conclusion:

"In our opinion, there was no justification for redrawing
the seniority list affecting persons recrllited or promoted E
prior to 1969 when the rules acquired statutory character.
Therefore, the 1974 seniority list is liable to be quashed and
the two 1963 and 1967 seniority lists must hold the field."

The District Judge in appeal in paragraph 10 of his judgment came to
find that the appellant's placement was raised from serial 483 to 89. p
The High Court in its judgment has indicated:

"Shri Sharma went up in appeal but the same was dismissed
by the learned District Judge. He affirmed the findings of
the trial Judge on issues 1 and 3. He also held that the suit
of the appellant was barred by, limitation. During the G
pendency of appellant's appeal before the District Judge,
Bachan Singh's case had been decided by the Supreme
Court and as a consequence thereof, his seniority was
changed from Sr. No. 483 in 1967 seniority list to Sr. No.
89. So he got the main relief. His claim remained only for
his reconsideration for promotion on the basis of his new H
ranking on the seniority list."
772 SUPREME COURT REPORTS [1989] 3 S.C.R ..

A The High Court has again indicated:

'.'Pursuant to the judgment in Bachan Singh's case, fresh
seniority list was prepared in 1974 in which the appellant's
name figured at Sr. No. 89 instead of 483. This list was
B
challenged by A. Janardhan. His appeal was allowed and 'r
the said list was quashed. It was further held that 'there is
nothing to suggest that 1963 and 1967 seniority lists were
provisional or were likely to be re-drawn. Therefore, till
the 1949 Ruies acquired statutory character in 1969, the I
seniority lists of 1963 and 1967 in respect of Assistant_/
Executive Engineers were quite legal and valid and w_ere •
c drawn upon the basis on the principle which satisfies the J
test Article 16'. So the seniority lists of 1963 and 1967 were .
upheld. The grievance of the appellant stands disposed of
by this judgment to which he was a party."

As we have already pointed out, appellant was not a party in
D Janardhana's case inasmuch as no notice was taken to him and the case
was disposed of without affording an opportunity to him of being
heard.

The plea of limitation raised by the respondents should not have
· been upheld in the facts of the case. As already indicated, the seniority
E list was being changed from time to time. The appellant has
represented against the 1967 seniority list. The dispute was already
pending before this Court in Bachan Singh's case. In fact, without
waiting for the judgment of this Court in Bachan Singh's case, the
plaintiff came to Court on 22.3.1971. The appellant was entitled to
make a representation against the seniority list and rejection of the
F representation actually would have given him the cause of action.
)-
In these circumstances, non-suiting himon the plea of limitation
would not at all be justified. We, therefore, do not accept the
conclusion of the High Court that plaintiff's action was barred by
limitation.

G We take it that when this Court in Janardhana's case held on the
facts placed before it that 'there was no justification made out for
redrawing the seniority list affecting persons recruited or promoted
prior to 1969' it meant a total topsy-turvying of the list. Individual
claims, if any, could not have been barred from consideration if by the
time Janardhana's case came to be disposed of, claims were pending
H adjudication before the Court. Appellant's case was already before the
D.N. SHARMA v. U'O.l. [MISRA,. J.]

High Court by the time Janardhana's appeal was disposed of by this
773
-
A
Court. The appellant was certainly entitled to be treated a"s a recruit of
1960 and to be placed above the recruits of 1961. The stand taken
before this Court in the counter-affidavit filed by respondent no. l that
it was open to him to appear in the competitive examination in the
succeeding year, that is, in the year 1961 to better his position is no
B
justification for depriving him of his legitimate claim to a higher place-
ment in the seniority in the cadre.

I While we affirm the view in Janardhana's case that the seniority
'\ list should not be disturbed, the appellant:s claim has also to be accom-
modated. In these circumstances, we direct that the appellant's posi-
tion shall be shown below the recruits of 1960 and above those of 1961 c
and he may be bracketed with one who has been assigned that position
and an appropriate rectification shall be made in the seniority list of
1967 on the basis of the placement in terms of this judgment. His
entitlement to promotion on the basis of such position shall be con-
sidered by the respondents within four months hence. The appellant
shall be entitled to his costs throughout. Hearing fee is assessed at D
Rs.2,000.

G.N. Appeal allowed.

'
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