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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9544 OF 2013 (Arising out of S.L.P. (C) No. 21202 of 2011)

State of Rajasthan … Appellant

Versus

Ucchab Lal Chhanwal       …Respondent

WITH

CIVIL APPEAL NO. 9545 OF 2013 (Arising out of S.L.P. (C) No. 21201 of 2011)

J U D G M E N T

Dipak Misra, J.

Leave granted in both the special leave petitions.

2. Regard being had to the identic issue involved in both  

the appeals they were heard together and are disposed

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of  by  a  common  judgment.   For  the  sake  of  

convenience the facts  from the appeal  arising out  of  

S.L.P. (C) No. 21202 of 2011 are adumbrated herein.

3. The  respondent  was  appointed  in  Rajasthan  Police  

Service  (Junior  Scale)  after  his  selection  through  

Rajasthan  Public  Service  Commission  (for  short  “the  

Commission”)  vide  order  dated  19.10.1989.   As  

stipulated in Rajasthan Police Service Rules, 1954 (for  

short “the Rules”) the R.P.S. cadre is divided into four  

categories  and  the  lowest  category  is  in  the  junior  

scale.  The persons from the junior Scale are promoted  

to senior scale and thereafter to super time scale.  The  

Rules  provide  that  the  person  who  has  six  years  

experience  in  junior  scale  becomes  eligible  for  

consideration  to  senior  scale.   A  seniority  list  was  

published  on  19.8.1997  wherein  the  name  of  the  

respondent found place at serial  number 51 in junior  

scale.  In respect of vacancies in the promotional posts  

arising against  the quota of  1996-97 a Departmental  

Promotion Committee (DPC) was convened and on the

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basis of recommendations of the DPC persons junior to  

the respondent were promoted.   It  is  apt to mention  

here that the criterion for promotion was seniority-cum-

merit.

4. Be it noted, the DPC though considered the case of the  

respondent,  yet  his  case  was  not  recommended  for  

promotion for the vacancy occurring in 1996-97 as he  

was  imposed  with  the  punishment  of  censure  on  

1.12.1992.   However,  he  was  promoted thereafter  in  

the  year  1998.   In  this  backdrop  the  respondent  

approached the High Court by way of filing S.B.  Civil  

Writ  Petition  No.  6574  of  1997  for  quashing  of  the  

penalty of censure imposed on him on 1.12.1992 and  

further  for  setting  aside  the  order  dated  22.8.1997  

whereby he had been superseded and his juniors had  

been  promoted.   A  prayer  was  made  for  issue  of  a  

direction to consider his candidature for promotion to  

the post of senior scale in Rajasthan Police Service and,  

if  he  was  found  suitable,  to  promote  him  with  all  

consequential benefits.

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5. The writ court vide order dated 5.3.2010 came to hold  

that the promotion of the respondent could not have  

been deferred as the seniority was required to be given  

more  weightage  over  the  merit  as  per  the  decision  

rendered in  B.V. Sivaiah and others v.  K. Addanki  

Babu and others1.  Being of this view the writ court  

allowed the writ petition and quashed the order dated  

1.12.1992  as  far  as  it  denied  promotion  to  the  

respondent to the senior scale against the vacancies of  

the year 1996-97 and directed that he was entitled to  

promotion to the senior scale against the vacancy of  

the year 1996-97 with all consequential benefits.

6. Being dissatisfied with the aforesaid order the State of  

Rajasthan preferred D.B. Civil Special Appeal (Writ) No.  

08449 of 2010.  In the appeal circular dated 26.7.2006  

which sets out certain guidelines relating to the types  

of punishments and their impact/effect on promotion of  

a  personnel  as  per  which  the  respondent  was  found  

unfit  to  be  promoted was pressed into  service.   The  

1 (1998) 6 SCC 720

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Division  Bench  vide  judgment  and  order  dated  

11.11.2010  placing  reliance  on  B.V.  Sivaiah (supra)  

and K. Samantaray v. National Insurance Co. Ltd.2  

and  the  decisions  of  the  High  Court  of  Rajasthan  in  

Shankar  Lal  Balai  v.  State  of  Rajasthan  and  

others3, Satyamani Tiwari  v.  State of Rajasthan  

and others4 and various other pronouncements of the  

High  Court  came  to  hold  that  the  circular  dated  

26.7.2006  was  not  applicable  as  the  controversy  

relating to  promotion pertained to  the  year  1996-97.  

The  High  Court  further  observed  that  in  case  of  

promotion  based  on  seniority-cum-merit  the  person  

who  had  been  inflicted  with  the  penalty  of  censure  

which is a minor penalty, cannot be denied promotion  

without being considered and, in any case, it could not  

have taken into  consideration  in  respect  of  the  year  

1996-97.  Being of this view the Division Bench affirmed  

the order passed by the learned single Judge.

2 (2004) 9 SCC 286 3 2009 (Raj.) unreported cases page 777 4 S.B.C.W.P.No. 2878/2003 decided on 11.8.2006

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7. We  have  heard  Dr.  Manish  Singhvi,  learned  counsel  

appearing  for  the  appellant  in  both  the  appeals,  Ms.  

Sandhya Goswami, learned counsel for the respondent  

in appeal arising out of S.L.P. (C) No. 21202 of 2011,  

and  Mr.  Santosh  Mishra,  learned  counsel  for  the  

respondent in appeal arising out of S.L.P. (C) No. 21201  

of 2011.

8. It is submitted by Dr. Manish Singhvi, learned counsel  

for  the  appellant,  that  though  the  respondent  was  

entitled  to  be  considered  for  promotion  but  the  

principle  relating  to  seniority-cum-merit  would  come  

into play when he is compared with other persons and  

in  that  event  the  punishment  of  censure  has  to  be  

taken  note  of.   It  is  his  further  contention  that  the  

punishment  does  not  stand  wiped  off  unless  the  

Rules/instructions so provide.  The learned counsel for  

the State has criticized the approach of the writ court  

and that of the Division Bench on the ground that there  

has been incorrect appreciation of facts and the view  

expressed  ignoring  the  distinction  between

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consideration  for  promotion  and  suitability  for  

promotion is legally unsustainable.

9. Learned  counsel  for  the  respondents  in  both  the  

appeals  submitted  that  censure  which  is  a  minor  

punishment  cannot  be  an  impediment  for  the  entire  

service career and it has to be restricted to a specified  

period of time and when there is consideration on the  

base of seniority-cum-merit,  seniority has to be given  

due weightage.  For the aforesaid purpose they pressed  

into service the decisions which have been relied upon  

by the High Court.  It is also canvassed by them that  

the High Court  has  correctly  opined that  the  circular  

cannot be made applicable retrospectively having been  

issued  in  the  year  2006  to  a  promotional  matter  

pertaining to the year 1996-97.

10. There can be no scintilla  of  doubt that the finding  

recorded by the High Court pertaining to the circular is  

absolutely correct and unassailable.  The said circular  

could not have been placed reliance upon by the State

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to  contend  that  the  respondents  could  have  been  

deprived of  promotion.   However,  the said circular  is  

totally  inconsequential  for  the present case,  for  what  

we are going to hold.   

11. Though some argument was canvassed with regard  

to the relevance of the punishment of censure, yet the  

said aspect need not be adverted to.  On a perusal of  

the writ petition, the order of the writ court and that of  

the Division Bench we notice that there were specific  

averments that juniors placed at serial numbers 9, 10  

and 11 in gradation list had been promoted vide order  

dated  20.8.1997.   They  have  not  been  arrayed  as  

parties.  Needless to emphasize, in the event the order  

passed by the High Court is affirmed, the persons who  

are seniors to the respondents in the promotional cadre  

are bound to become junior regard being had to their  

seniority position in the feeder cadre.  It is well settled  

in law that no order can be passed behind the back of  

the  person  that  shall  adversely  affect  him.   In  this  

context,  we  may  refer  with  profit  to  the  decision  in

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Vijay  Kumar  Kaul  and  others  v.  Union  of  India  

and others5 wherein it has been held thus: -

“Another  aspect  needs  to  be  highlighted.  Neither before the Tribunal nor before the High  Court, Parveen Kumar and others were arrayed  as parties. There is no dispute over the factum  that they are senior to the appellants and have  been conferred the benefit of promotion to the  higher posts. In their absence, if any direction is  issued for fixation of seniority, that is likely to  jeopardise  their  interest.  When they  have not  been  impleaded  as  parties  such  a  relief  is  difficult to grant.”

12. After so stating this Court referred to the decision in  

Indu Shekhar Singh v. State of U.P.6 wherein it has  

been held thus: -

“56. There is another aspect of the matter. The  appellants herein were not joined as parties in  the  writ  petition  filed  by  the  respondents.  In  their  absence,  the  High  Court  could  not  have  determined the question of inter se seniority.”

13. In  Public Service Commission v.  Mamta Bisht7  

this Court while dealing with the concept of necessary  

parties  and the effect  of  non-impleadment  of  such  a  

5 (2012) 7 SCC 610 6 (2006) 8 SCC 129 7 (2010) 12 SCC 204

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party  in  the  matter  when  the  selection  process  is  

assailed observed thus: (SCC pp. 207-08, paras 9-10)

“9. … in Udit Narain Singh Malpaharia v.  Board  of  Revenue8,  wherein the Court has explained  the distinction between necessary party, proper  party and pro forma party and further held that  if a person who is likely to suffer from the order  of the court and has not been impleaded as a  party has a right to ignore the said order as it  has been passed in violation of the principles of  natural justice. More so, proviso to Order 1 Rule  9  of  the  Code  of  Civil  Procedure,  1908  (hereinafter  called  ‘CPC’)  provides  that  non- joinder  of  necessary  party  be  fatal.  Undoubtedly,  provisions  of  CPC  are  not  applicable  in  writ  jurisdiction  by  virtue  of  the  provision of Section 141 CPC but the principles  enshrined  therein  are  applicable.  (Vide  Gulabchand  Chhotalal  Parikh v.  State  of  Gujarat9,  Babubhai  Muljibhai  Patel v.  Nandlal  Khodidas Barot10 and Sarguja Transport Service  v. STAT11.)

10.  In  Prabodh  Verma v.  State  of  U.P.12 and  Tridip  Kumar  Dingal v.  State  of  W.B.13,  it  has  been  held  that  if  a  person  challenges  the  selection  process,  successful  candidates  or  at  least some of them are necessary parties.”

8 AIR 1963 SC 786 9 AIR 1965 SC 1153 10 (1974) 2 SCC 706 11 (1987) 1 SCC 5 12 (1984) 4 SCC 251 13 (2009) 1 SCC 768

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14. In  J.S.  Yadav  v.  State  of  Uttar  Pradesh  and  

another14 it has been held as follows:-

“No order can be passed behind the back of a  person  adversely  affecting  him  and  such  an  order if passed, is liable to be ignored being not  binding on such a party as the same has been  passed in violation of the principles of natural  justice.”  

15. In the case at hand the dispute relates to promotion  

which  will  have  impact  on  inter  se  seniority.   The  

learned  counsel  for  the  respondents  assiduously  

endeavoured to convince us that they are agitating the  

grievance  with  regard  to  their  promotion  and  it  has  

nothing to do with the persons junior to them who had  

been promoted.   Despite  the indefatigable  effort,  we  

are  not  persuaded  to  accept  the  aforesaid  

proponement, for once the respondents are promoted,  

the  juniors  who  have  been  promoted  earlier  would  

become  juniors  in  the  promotional  cadre,  and  they  

being not arrayed as parties in the lis, an adverse order  

cannot  be  passed  against  them  as  that  would  go  

14 (2011) 6 SCC 570

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against  the  basic  tenet  of  the  principles  of  natural  

justice.  On this singular ground the directions issued by  

the writ court as well as the Division bench pertaining  

to grant of promotion to the respondents are quashed.  

To elaborate, as far as the conclusion of the High Court  

relating the circular is concerned, it is unexceptionable  

and we concur with the same.

16. Consequently,  the appeals  are allowed in part  and  

the order passed by the Division Bench as well as by  

the writ court is set aside to the extent directions have  

been  issued  granting  benefit  of  promotion  to  the  

respondents.   In  the  facts  and  circumstances  of  the  

case, there shall be no order as to costs.

………………………..J. [Anil R. Dave]

………………………..J. [Dipak Misra]

New Delhi; October 22, 2013.