TMI Blog2015 (9) TMI 1567X X X X Extracts X X X X X X X X Extracts X X X X ..... longwith the Applicants were appointed. They will not be entitled for back wages but the period will not counted for increments and their pay will be fixed at the time of joining by adding the increment they would have earned, had they joined their service from the retrospective date. It would also count towards seniority of the Applicants. The Applicants would be entitled to be placed in the pension scheme, which was applicable in 2003, i.e. the pension scheme of 1972. The aforesaid directions would be complied with within four months from the date of receipt of a certified copy of this order. The applicant in OA 3672/2011 (Ms. Sunita Rao) would be entitled to seniority above all those who were directly recruited/promoted as School Inspector (General) (F) after her joining/ appointment. - Original Application Nos. 3672 of 2011, 2064 and 4299 of 2012 - - - Dated:- 1-9-2015 - A.K. Bhardwaj, Member (J) and K.N. Shrivastava, Member (A) For the Appellant : Susheel Sharma For the Respondent : R.K. Jain, Rashmi Chopra, Ajesh Luthra, Rahul Singh and Balendu Shekhar ORDER A.K. Bhardwaj, Member (J) 1. These OAs involve overlapping facts, thus are taken up for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of the applicants and against the respondents in the facts and circumstances of the case. The plea raised by the applicants in the said OA was that the appointment on compassionate ground can be made only in Group C/Group D posts and no appointment on compassionate ground could be made against a group B post. It was also one of the pleas taken in the OA that the applicant herein being already in employment of KVS, no case for her appointment on compassionate ground had been made out. In the counter reply filed by the Corporation, it could be espoused that the applicant was given employment against a vacancy in direct recruitment quota in exercise of powers conferred on the competent authority under Section 92 of the Delhi Municipal Corporation Act. The OA was disposed of in terms of in terms of order dated 23.7.2010, relevant excerpt of which read thus : 6. Sometimes, technicality of law and rules are to be avoided to balance the situation, so that the equity and sympathetic consideration does not get defeated in the context of career prospect of a litigant before us. If by adjudicating the case on merits a person looses the very employment, which by an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein below : In the wake, the applicant filed present Original Application, praying therein: (i) to quash and set aside the impugned seniority list of School Inspector (General) Female(2011) circulated by Respondent No. 2 vide No. D/Dy. Director/Estt/Edn/HQ/2011/68 dated 18th January, 2011. (ii) to direct the official respondent(s) to prepare a fresh final seniority list of School Inspector (General) Female by showing applicants name at serial No. 1, she being the senior most School Inspector (General) Female amongst all the candidates. (iii) To grant any other or further order(s), as the Hon'ble Tribunal deems fit and proper keeping in view the facts and circumstance of the present case. The learned counsel for the applicant submitted that once the applicant had been appointed in terms of Office Order No. 2.5.2000 and had assumed the charge of the post of School Inspector (General) w.e.f. 14.7.2000, Dr. Rita Sharma, Ms. Sangita Jain and Ms. Dolly Kaur i.e. respondents No. 3 to 5 herein who were appointed in the year 2003 could not have been assigned the seniority above her. Regarding the order of this Tribunal passed in OA No. 2464/2009, the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 submitted that he did not file any reply to OA for last three years deliberately and need further time to do so. The issue involved in OA No. 2064/2012 filed by Ms. Usha Rani and Ms Renu is exactly identical to one in OA 4299/2012, and the stand of the parties is also similar. 5. We heard learned counsel for parties and perused the record. As far as OA No. 3672/20011 filed by Ms. Sunit Rao (respondent No. 6 in OA No. 4299/2012 and OA 2064/2012) is concerned, indubitably in terms of the Scheme for compassionate appointment, the post to which such appointment can be made need to be in group C or group D category against the direct recruitment quota. Clause 4 of the Scheme read thus: 4. Posts to which appointments can be made Group 'C' or Group D' posts against the direct recruitment quota. Only the members of the bereaved family in indigency in need of immediate assistance for relief from financial destitution are eligible for being considered for compassionate appointment. Nevertheless the direct recruitment on compassionate appointments are exempted from observance of the recruitment procedure and there is also a provision for relaxation in upper age ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the said Secretary or Auditor, to category C posts. (2) The claims of the members of the Scheduled Castes shall be taken into consideration consistently with the maintenance of efficiency of administration, in the making of appointments of municipal officers and other municipal employees. In the factual backdrop, that the applicant was already employed as TGT in KVS; (ii) on account of sudden demise of her husband, she was in distress; (ii) had the responsibility to maintain accommodation in Delhi to look after her children and (iv) the TGT KVS had liability for all India transfer etc., the Corporation cannot be found wholly unjustified in giving her appointment. 6. In OA 2464/2009, this Tribunal nixed the interference with the appointment of the applicant and found the same justifiable. Nevertheless, the issue of fixation of seniority was left for MCD to decide. As far as the plea put forth by the counsel for respondents No. 3 to 5 in OA No. 3672/2011 regarding interpretation of para 6 of the order passed in OA No. 2464/2009 is concerned, it is stare decisis that these are the statutes which need interpretation and the order passed by the Court are not open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. Besides it is the reasoning forming basis of the judgment alone, which can be followed as judicial precedent. In the present case, having made certain observation in para 6, the Tribunal left it open to MCD to evolve an apt methodology/solution which could balance the right of the applicants in the OA as well as the respondent No. 2 i.e. the applicant herein OA No. 3672/2011. Once the Tribunal had left it to MCD to take its own decision and the decision taken by the MCD is under challenge before us, the order passed in OA 2464/2009 can be cited only as part of factual development and not as judicial precedent. As has been ruled in Zee Telefilms and another v. Union of India and others, (200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explains the concept of sub silentio at p. 153 in these words: A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind. The Court may consciously decide in favour of one party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the Court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the Court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.'' 12. In Cerard v. Worth of Paris Ltd. (K), (1936) 2 All ER 905, the only point argued was on the question of priority of the claimant's debt, and, on this argument being heard, the Court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with reference to the date of recruitment. In SurajPrakash Gupta's case (supra), the relevant seniority rule was extracted in paragraph 53 which provided, that seniority would be determined with reference to the date of first appointment. The rule itself expressed that the words date of first appointment would mean the date of first substantive appointment against a clear vacancy. In Pawan Pratap Singh's case (supra) the question which arose for consideration, related to determination of inter se seniority between two sets of direct recruits. The first set comprised of vacancies advertised in 1987 which came to be filled up in 1994, and the second set comprised of vacancies of the year 1990 which came to be filled up in the year 1991. The controversy in Pawan Pratap Singh's case (supra) was conspicuously different from the controversy in hand. In view of the fact that the seniority rules, as also the factual matrix in the cases relied upon was substantially at variance with the relevant OMs dated 7.2.1986 and 3.7.1986 (which are the subject of interpretation in so far as the present case is concerned), as also the facts of the cases in hand, it is apparent, that the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendations of the UPSC or other selecting authority and the persons appointed as a result of an earlier selection should be senior to those appointed as a result of subsequent selection. Para 2.1 of the OM read thus : 2.1 The relative seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendations of the UPSC or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection. In the present case, it is not in dispute that the applicant in OA 3672/2011 was appointed as direct recruit ahead of respondent Nos. 3 to 6. Merely because her appointment was made in relaxation of the rules, the candidates appointed subsequent before her appointment cannot question her right to fixation of seniority in accordance with the existent instructions. As far as the claim of the applicants in OA 4299/2012 and 2064/2012 for fixation of their seniority with reference to their position in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw form the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate Court is bound by the enunciation of law made by the superior Courts. A coordinate Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement. This Court in the case of Tribhuivandas Purshottamdas Thakur v. Radial Motilal Patel, (1968) 1 SCR 455 : (AIR 1968 SC 372) while dealing with a case in which a Judge of the High Court had failed to follow the earlier judgment of a larger Bench of the same Court observed thus : The judgment of the Full Bench of the Gujarat High Court was binding upon Raju, J. If the learned Judge was of the view that the decision of Bhagwati, J. in Pinjare Karimbhai's case 1962 (3) Guj LR 529 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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