WPSS/2402/2017 of Sri Pan Singh Bangari AND ANOTHER Vs State Of Uttarakhand AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALWrit Petition No. 2402 (S/S) of 2017

Sri Pan Singh Bangari & another ….Petitioners

Versus

The State of Uttarakhand & others ….Respondents

Mr. Jitendra Chaudhary, Advocate for the petitioners. Ms. Mamta Bisht, Deputy Advocate General for the State of Uttarakhand/ respondent nos. 1 to 3. Mr. K.K. Harbola, Advocate, holding brief of Mr. BhagwatMehra, Advocate for respondent nos. 5, 8 & 9.

Dated: 17.05.2019

Hon’ble Manoj K. Tiwari, J. (Oral)

Heard learned counsel for the parties.

2. Petitioners are serving as Chief Assistant in State Animal Husbandry Department. They are aggrieved by the order dated 22.06.2017, whereby the seniority list issued earlier was amended and settled inter se seniority of the petitioners qua respondent nos. 4 to 9 was reversed. Petitioners have challenged the order dated 22.06.2017 and the amended seniority list issued on 15.07.2017.

3. Petitioners and private respondents were appointed as Junior Clerk pursuant to the same selection held in the year 1987 and they were appointed by the Deputy Director, Animal Husbandry, Nainital vide order dated 15.04.1987. Pursuant to the appointment order, they joined duties on different dates. On 09.10.1990, seniority list of ministerial employees was issued, in which petitioners were shown as senior to some of the private respondents. In the absence of any challenge, the said seniority list became final and petitioners were promoted to post of Senior Assistant. Thereafter, another seniority list was prepared in the year 1999 and was circulated by the Deputy Director, Animal Husbandry

Department vide letter dated 31.05.1999. In the said seniority list also, petitioners were placed above some of the private respondents which, according to the petitioners, attained finality in the absence of any challenge.

4. Thereafter, on 03.05.2012, another tentative seniority list of ministerial employees serving in Kumaon Region was prepared, which was circulated vide order dated 29.06.2012 and petitioners were again shown as senior to some of the private respondents. The respondent no. 8 submitted objection against the said tentative seniority list, which was rejected by the Deputy Director vide order dated 22.06.2012 on the ground that the seniority list is based on the seniority list prepared earlier. Thereafter, final seniority list was issued on 29.06.2012, in which their inter se seniority, as existing in the earlier list, was maintained. It appears that respondent no. 5, thereafter, submitted one representation to Director, Animal Husbandry Department against the seniority list, which was rejected by the Director vide order dated 19.10.2012, on the ground that since no one submitted objection against the tentative seniority list, therefore the same has been finalized and there is no reason to disturb the seniority list, once it is finalized.

5. According to the petitioners, some of the private respondents, thereafter submitted representations against the final seniority list, in the year 2016. The Additional Director, Animal Husbandry Department constituted Committee to consider those representations. The Additional Director was the Chairman of the said Committee and, based on the recommendation of the Committee, the inter se seniority

of the petitioners qua the private respondents was disturbed and the petitioners were treated as enbloc junior to the private respondents. This, according to the petitioners, is impermissible, as their inter se seniority qua the private respondents cannot be disturbed after such long delay.

6. counter affidavit has been filed on behalf of respondent nos. 1, 2 & 3. In paragraph no. 4 whereof, it is admitted that, in the year 1990-91, seniority list was finalized. It is further stated in the counter affidavit that in the year 2012-13, tentative seniority list of ministerial employees was issued and objections were invited, some of the private respondents filed objections and the Additional Director (earlier Deputy Director) issued final seniority list after deciding the objections. It has been further stated that, after issuance of final seniority list, some of the ministerial employees submitted representations to re-determine their seniority and the Additional Director rejected the representations. Thereafter, the ministerial employees again submitted representations and the Additional Director constituted Committee and, based on the recommendation made by the Committee, the seniority list was amended.

7. Learned counsel for the petitioners submits that there is no provision in any Rule, which enables the Competent Authority to entertain representation against final seniority list and representations made against tentative seniority list alone can be considered. He further submits that it is settled position in law that long standing inter se seniority position cannot be disturbed after nearly 30 years. He further submits that petitioners were not heard while deciding the representations made by the private respondents against the final seniority list,

in other words, petitioners were not heard while disturbing their long standing seniority position.

8. Per contra, learned counsel appearing for the private respondents submits that criterion adopted for determining inter se seniority in the earlier seniority lists was date of joining which is contrary to the provisions contained in Uttarakhand Government Servant Seniority Rules, 2002. According to him, Rule 5 of the seniority Rules provides that inter se seniority of persons appointed through the same selection has to be determined as per their ranking in the merit list. He, thus, submits that the impugned seniority list has been prepared in accordance with the provisions contained in the seniority Rules, therefore, challenge made to the said list is without any substance.

9. Learned counsel for the petitioners submits that petitioners were appointed in the year 1987 and, seniority list was prepared in the year 1990, therefore, provisions contained in Uttarakhand Government Servant Seniority Rules, 2002 cannot have any application in the present case. He further submits that State of U.P. had also framed seniority Rules in the year 1991, which too are not attracted to the present case as those Rules are also prospective.

10. Admittedly, the inter se seniority of the petitioners and private respondents was determined in the year 1990 and petitioners were treated as senior to some of the private respondents. Thereafter, seniority list was revised from time to time, however, their inter se seniority position remained the same. Against the final seniority list issued in the year 2012, Mr. Ganesh Dutt Joshi (respondent no. 8 herein) submitted objection on 19.05.2012, which was rejected by the Additional

Director vide order dated 22.06.2012. The rejection order was not challenged by respondent no. 8 before any judicial forum. Similarly, Mrs. Leela Bist (respondent no. 5 herein) submitted objection, which too was rejected. It is also an admitted position that, by the impugned order, settled inter se seniority has been disturbed without hearing the petitioners. Once seniority list is finalized and final list is issued, the Competent Authority cannot thereafter amend the same. While determining inter se seniority, the Competent Authority performs quasi-judicial functions, as the Competent Authority has to decide rival claims made by the members of service. Therefore, in the absence of any enabling provision, the Competent Authority cannot review his order. There is no enabling provision in any Rule, which enables the Competent Authority to amend the seniority list after its finalization. Thereafter, the only remedy available to an aggrieved person is to approach judicial forum, however, in the present case, the Additional Director erroneously constituted Committee to consider the representations received against the final seniority list and, based on the recommendations of the Committee, he amended the seniority list.

11. Hon’ble Supreme Court has held that settled inter se seniority cannot be disturbed after long delay. In the case of H.S. Vankani and others Vs. State of Gujarat and others, reported in (2010) 4 SCC 301, Hon’ble Supreme Court has held as under:

“38. Seniority is civil right which has an important and vital role to play in one’s service career. Future promotion of Government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority etc. Seniority once settled is decisive in the upward march in one’s chosen work or calling and gives certainty and assurance and boosts the morale to

do quality work. It instills confidence, spreads harmony and commands respect among colleagues which is paramount factor for good and sound administration. If the settled seniority at the instance of one’s junior in service is unsettled, it may generate bitterness, resentment, hostility among the Government servants and the enthusiasm to do quality work might be lost. Such situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and Government, driving the parties to acute penury. It is well known that salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further it also consumes lot of judicial time from the lowest court to the highest resulting in constant bitterness among parties at the cost of sound administration affecting public interest.39. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmental action. Legal principles have been reiterated by this Court in Union of India and Another v. S.K. Goel and Others (2007) 14 SCC 641, T.R. Kapoor v. State of Haryana (1989) 4 SCC 71, Bimlesh Tanwar v. State of Haryana, (2003) 5 SCC 604. In view of the settled law the decisions cited by the appellants in G.P. Doval’s case (supra), Prabhakar and Others case, G. Deendayalan, R.S. Ajara are not applicable to the facts of the case.”

12. Similar view has been taken by Hon’ble Supreme Court in the matter of Shiba Shankar Mohapatra and others Vs. State of Orrisa and others, reported in (2010) 12 SCC 471. Paragraph nos. 16 to 29 of the said judgment are extracted below.

“16. The question of entertaining the petition disputing the long standing seniority filed at belated stage is no more res integra. Constitution Bench of this Court, in Ramchandra Shanker Deodhar & Ors. v. State of Maharashtra & Ors. AIR 1974 SC 259, considered the effect of

delay in challenging the promotion and seniority list and held that any claim for seniority at belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. party should approach the Court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898, wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is reasonable explanation for delay. The Court further observed as under:-

“7…. The party claiming fundamental rights must move the Court before others’ rights come out into existence. The action of the Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court.”

17. This Court also placed reliance upon its earlier judgment of the Constitution Bench in R.N. Bose v. Union of India & Ors. AIR 1970 SC 470, wherein it has been observed as under:-

“33…..It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected long time ago would not be defeated after the number of years.”

18. In R.S. Makashi v. I.M. Menon & Ors. AIR 1982 SC 101, this Court considered all aspects of limitation, delay and laches in filing the writ petition in respect of inter se seniority of the employees. The Court referred to its earlier judgment in State of Madhya Pradesh & Anr. v. Bhailal Bhai etc. etc., AIR 1964 SC 1006, wherein it has been observed that the maximum period fixed by the Legislature as the time within which the relief by suit in Civil Court must be brought, may ordinarily be taken to be reasonable standard by which delay in seeking the remedy under Article 226 of the Constitution can be measured. The Court observed as under:-

“28…. ’33….We must administer justice in accordance with law and principle of equity, justice and good conscience. It would be

unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected long time ago would not be set-aside after the lapse of number of years…..’*

30…. The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of 1968… We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the prayer for quashing the said Government resolution, should have been dismissed.”

19. The issue of challenging the seniority list, which continued to be in existence for long time, was again considered by this Court in K.R. Mudgal & Ors. v. R.P. Singh & Ors. AIR 1986 SC 2086. The Court held as under:-

“2…. government servant who is appointed to any post ordinarily should at least after period of 3-4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity………

7….. Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Government servants createdby writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties…. In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches.”

20. While deciding the case, this Court placed reliance upon its earlier judgment in Malcom Lawrance Cecil D’Souza v. Union of India & Ors.

AIR 1975 SC 1269, wherein it had been observed as under:-

“9. Although security of service cannot be used as shield against the administrative action for lapse of public servant, by and large one of the essential requirement of contentment and efficiency in public service is feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one’s position in seniority list after having been settled for once should not be liable to be re-opened after lapse of many years in the instance of party who has itself intervening party chosen to keep quiet. Raking up old matters like seniority after long time is likely to resort in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given quietus after lapse of some time.”

21. In B.S. Bajwa v. State of Punjab & Ors. AIR 1999 SC 1510, this Court while deciding the similar issue re-iterated the same view, observing as under:-

“7…. It is well settled that in service matters, the question of seniority should not be re-opened in such situations after the lapse of reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such grievance. This along was sufficient to decline interference under Article 226 and to reject the writ petition”.

22. In Dayaram Asanand v. State of Maharashtra & Ors. AIR 1984 SC 850, while re-iterating the similar view this Court held that in absence of satisfactory explanation for inordinate delay of 8-9 years in questioning under Article 226 of the Constitution, the validity of the seniority and promotion assigned to other employee could not be entertained.

23. In P.S. Sadasivaswamy v. State of Tamil Nadu AIR 1975 SC 2271, this Court considered the case where the petition was filed after lapse of 14 years challenging the promotion. However, this Court held that aggrieved person must approach the Court expeditiously for relief and it is not

permissible to put forward stale claim. The Court observed as under :-

“2…. person aggrieved by an order promoting junior over his head should approach the Court at least within 6 months or at the most year of such promotion.”

24. The Court further observed that it was not that there was any period of limitation for the Courts to exercise their powers under Article 226 nor was it that there could never be case where the Courts cannot interfere in matter after certain length of time. It would be sound and wise exercise of jurisdiction for the Courts to refuse to exercise their extra ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who standby and allow things to happen and then approach the Court to put forward stale claim and try to unsettle settled matters.

25. similar view has been re-iterated by this Court in Smt. Sudama Devi vs. Commissioner & Ors. (1983) 2 SCC 1; State of U.P. vs. Raj Bahadur Singh & Anr. (1998) 8 SCC 685; and Northern Indian Glass Industries vs. Jaswant Singh & Ors. (2003) 1 SCC 335.

26. In Dinkar Anna Patil & Anr. vs. State of Maharashtra, AIR 1999 SC 152, this Court held that delay and laches in challenging the seniority isalways fatal, but in case the party satisfies the Court regarding delay, the case may be considered.

27. In K.A. Abdul Majeed vs. State of Kerala & Ors. (2001) 6 SCC 292, this Court held that seniority assigned to any employee could not be challenged after lapse of seven years on the ground that his initial appointment had been irregular, though even on merit it was found that seniority of the petitioner therein had correctly been fixed.

28. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (vide Aflatoon & Ors. vs. Lt. Governor, Delhi & Ors. AIR 1974 SC 2077; State

of Mysore vs. V.K. Kangan & Ors., AIR 1975 SC 2190; Municipal Council, Ahmednagar & Anr. vs Shah Hyder Beig & Ors., AIR 2000 SC 671; Inder Jit Gupta vs. Union of India & Ors. (2001) 6 SCC 637; Shiv Dass vs. Union of India & Ors., AIR 2007 SC 1330; Regional Manager, A.P.SRTC vs. N. Satyanarayana & Ors. (2008) 1 SCC 210; and City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala & Ors. (2009) 1 SCC 168).

29. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation.”

13. In the present case, the seniority list of ministerial employees was prepared in the year 1990, in which petitioners were placed above some of the private respondents. Based on the said seniority list, promotions were also made from time to time. The inter se seniority position determined in the said seniority list was maintained for 27 years, therefore, it was not open to the authorities to disturb the settled inter se seniority position after such long lapse of time.

14. In such view of the matter, the impugned order dated 22.06.2017 and the amended seniority list issued on 15.07.2017 cannot be sustained in the eyes of law. Consequently, the writ petition is allowed and the impugned orders are quashed.

(Manoj K. Tiwari, J)

17.05.2019

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