TMI Blog2009 (11) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... before the High Court, the promotion of the appellants had not been under challenge. The seniority which is consequential to the promotions could not be challenged without challenging the promotions. In Roshan Lal ors. Vs. International Airport Authority of India ors.[ 1980 (11) TMI 166 - SUPREME COURT] , the petitions were primarily confined to the seniority list and this Court held that challenge to appointment orders could not be entertained because of inordinate delay and in absence of the same, validity of consequential, seniority could not be examined. In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined. A similar view had been reiterated by this Court in Government of Maharashtra ors. Vs. Deokar s Distillery, [ 2003 (3) TMI 727 - SUPREME COURT] . These appeals are squarely covered by the aforesaid judgments. We are of the considered opinion that in absence of challenge to the promotion of the appellants, relief of quashing the consequential seniority list could not have been granted. Admittedly, the respondents were over and above the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the feeding cadre would be relevant for determining the seniority of AECs. More so, had the interim order not been passed by this Court, the appellants could have been promoted under the unamended rules much earlier. Thus, they are entitled for equitable relief, as the effect of the interim order of this Court was required to be neutralised. The appellants had been promoted with an earlier date, thus, are bound to be senior than respondents who had been promoted with respect from a later date. No employee can claim seniority prior to the date of his birth in the cadre. In view of the above, appeals succeed and are allowed. The impugned judgment and order dated 11.4.2002 is set aside. The Seniority List dated 12.7.2000 is directed to prevail and fresh Seniority List of 26.7.2002 is hereby quashed. No orders as to cost. This petition could not be dismissed by the High Court at the threshold without examining the case on merit. However, no order is required in this case in view of the order of this date passed in the connected appeal nos.5790-5792/2002. It is accordingly disposed of. - HARJIT SINGH BEDI Dr. B.S. CHAUHAN JJ O R D E R 1. These appeals have arisen fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o hold the higher posts. The Departmental Promotional Committee (hereinafter called the DPC) meant for filling up the 42 vacancies, which came into existance prior to 10.10.1994, met on 19.12.1998. After scanning the service records and determining the inter se merit of the candidates, the Committee came to the conclusion that only 30 candidates were suitable for promotion to the posts of AEC and they were to be promoted as per the availability of yearwise vacancies. The respondents, herein, were found unsuitable for promotion in the said selection process. 5. After completing the aforesaid exercise, 12 vacancies for the post of AEC remained unfilled. Therefore, the 12 vacancies were carried forward to enable the State Authorities to fill up the same under the amended Rules on a different criteria i.e. Seniority subject to rejection of unfit . Thus twelve officers/respondents were promoted under the amended rules by the another DPC held on 22.1.1999. The State Government issued the Order dated 15.5.1999 reverting all Excise Inspectors promoted on 6.12.1995 under the interim order of this Court and gave notional promotions with retrospective effect to appellants as well as all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended Rules on the basis of Seniority subject to rejection of unfit held at a later stage. The High Court erred in considering both the promotions to have been made notionally from one and the same date. In such a fact situation, the question of interpreting the statutory rules was an unwarranted exercise. The appellants had been promoted retrospectively, given notional promotion from the date much earlier than the respondents. Therefore, direction to fix the seniority in view of their inter se seniority as it existed in the feeding cadre was not permissible. The appeals deserve to be allowed and the impugned judgment and order is liable to be set aside alongwith consequential seniority list dated 26.7.2002. The seniority list dated 12.7.2000 has to be upheld and remain intact. 9. On the other hand, Shri Ravi Prakash Mehrotra and Shri Gaurav Agrawal, learned counsel appearing for the respondents vehemently opposed the appeals and made full efforts to defend the judgment and order of the High Court and subsequent seniority list dated 26.7.2002 contending that in case the posting orders have been issued on the same date, inter se seniority of the parties on the post of Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guished the said judgment under the presumption that both set of officers had been given notional promotions from one and the same date. 13. The High Court has decided the earlier writ petition observing that vacancies which occurred prior to the date of amendment of the Rules, i.e., 13.10.1994, had to be filled up as per the unamended Rules. The State Government filed a Special Leave Petition, challenging the said order. This Court on 30.10.1995 passed the following order : During the pendency of the Special Leave Petition appointments may be made as per the existing Rules, but all the appointees will be informed that appointments are subject of the result of the petition and if the court rules that the revised rule has no application insofar on the respondents claimants are concerned, they will be liable to be reverted to the present post from which they would be promoted. In view of the above, the respondents had been promoted and allowed to continue. This Court, ultimately dismissed the said petition vide Order dated 19.8.1998 by the following order : We have heard Shri A.B. Rohtagi, the learned Senior Counsel appearing for the petitioners in support of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om delayed action by the act of the Court. (Vide Shiv Shankar Ors. Vs. Board of Directors, Uttar Pradesh State Road Transport Corporation Anr., 1995 Suppl. (2) SCC 726; M/s. GTC Industries Ltd. Vs. Union of India Ors., AIR 1998 SC 1566; and Jaipur Municipal Corporation Vs. C.L. Mishra, (2005) 8 SCC 423). 16. In Ram Krishna Verma Ors. Vs. State of U.P. Ors., AIR 1992 SC 1888 this Court examined the similar issue while placing reliance upon its earlier judgment in Grindlays Bank Limited Vs. Income Tax Officer, Calcutta Ors., AIR 1980 SC 656 and held that no person can suffer from the act of the Court and in case an interim order has been passed and petitioner takes advantage thereof and ultimately the petition is found to be without any merit and is dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized. 17. In Mahadeo Savlaram Sheke Ors. Vs. Pune Municipal Corporation Anr., (1995) 3 SCC 33, this Court observed that while granting the interim relief, the Court in exercise of its discretionary power should also adopt the procedure of calling upon the plaintif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d lead to unjust if not disastrous consequences. The Court further held : ..Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are earlier to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated Similarly in Karnataka Rare Earth Anr. Vs. Senior Geologist, Department of Mines Geology Anr., (2004) 2 SCC 783, a similar view has been reiterated by this Court observing that the party who succeeds ultimately is to be placed in the same position in which they would have been if the Court wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the unamended rules. However, at the cost of repetition, it may be pertinent to mention here that only 30 candidates/appellants were found suitable by the DPC held on 19.12.1998 and had been promoted, under the unamended Rules on the criterion of merit . The respondents had been promoted under the amended rules by carrying forward 12 vacancies, by another DPC held subsequently on 22.1.1999 on different criterion, i.e., Seniority subject to rejection being unfit . Indisputably, these 12 officers/respondents were found unsuitable for promotion under the unamended rules by the DPC held on 19.12.1998. Subsequent thereto, both set of officers had been promoted notionally from the back dates. The appellants had been given promotions as AEC against the vacancies for the year 1994-95 while the respondents were given notional promotions against the vacancies for the years 1996 and 1997. The seniority list dated 12.7.2000 was prepared accordingly. As the appellants had been given notional promotion w.e.f. 6.12.1995 and the respondents w.e.f. 28.2.1997 and 13.8.1997, their inter se seniority had rightly been determined while issuing seniority list dated 12.7.2000. The law permits pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgments. We are of the considered opinion that in absence of challenge to the promotion of the appellants, relief of quashing the consequential seniority list could not have been granted. 29. Sum up: Admittedly, the respondents were over and above the appellants in the seniority list of Excise Inspectors. The rules of 1992 were amended in the year 1994, changing the criterion for promotion from merit to seniority subject to rejection of unfit . Forty two posts of AEC were to be filled up from the Excise Inspectors, as no Excise Superintendent was available for being considered for promotion to the post of AEC. The State Government wanted to fill up the said vacancies by applying the amended rules. On being challenged by some of the appellants, the High Court held that the vacancies which occurred prior to the amendment of 1992 Rules, namely, 10.10.1994 had to be filled up according to the unamended rules. The operation of the judgment and order of the High Court was stayed by this Court making it crystal clear that promotions so made under the amended rules would be subject to the decision in special leave petition. Accordingly, 61 Officers/respondents were promoted. Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
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