Rajasthan High Court - Jodhpur
N.M.Chambar vs State And Ors on 18 February, 2022
Author: Rekha Borana
Bench: Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2279/2002
Narendra Mal Chambar S/o Shri Chhot Malji, aged about 52
years, by caste Chambar, Resident of 17-E-31, Chopasani
Housing Board, Jodhpur
----Petitioner
Versus
1. The Rajasthan Civil Services Appellate Tribunal Bench at
Jodhpur through its Chairman.
2. The State of Rajasthan through the Secretary, Public Works
Department, Secretariat, Jaipur.
3. The Chief Engineer, Public Works Department (B&R),
Rajasthan Jaipur
4. Shri V.D. Kalla, Executive Engineer, P.W.D., (B&R)
5. Shri Ramesh Chandra Garg, Executive Engineer, P.W.D.,
(B&R)
6. Shri Tulsi Ram Sharma, Executive Engineer, P.W.D.
7. Shri Suresh Chandra Garg, Executive Engineer, P.W.D.,
(B&R)
8. Shri B.D. Goyal, Executive Engineer, P.W.D., (B&R)
9. Shri Dharam Prakash, Executive Engineer, P.W.D., (B&R)
10. Shri R.S. Chouhan, Executive Engineer, P.W.D. (B&R)
----Respondents
For Petitioner(s) : Mr. Manoj Bhandari, Sr. Advocate
asst. by Mr. Aniket Tater
For Respondent(s) : Mr. S.R. Paliwal for
Mr. Anil Bachhawat.
HON'BLE MS. JUSTICE REKHA BORANA
Order 18/02/2022 The petitioner was appointed as a Junior Engineer with the Lands and Buildings Tax Department on 24.01.1974 and was confirmed on 27.02.1981.
Subsequently, the said post was abolished by the State Government and the employees of the L.B.T. Department were absorbed in various other Departments. The present petitioner was absorbed in the P.W.D. Department and he joined with the said department on 17.06.1982. The seniority list was issued by (D.B. SAW/874/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 10:04:30 PM) (2 of 8) [CW-2279/2002] P.W.D. on 02.07.1983 and in this list, the name of the petitioner was shown at serial No.57-B. But the said seniority list was revised vide seniority list issued on 18.11.1983. The petitioner moved a representation on 01.07.1984 objecting to his place in the seniority list and submitting that he ought to have been placed between Item No.72A and 72B in the seniority list. The final seniority list of the A.En. was issued on 13.02.1987. The petitioner was shown to be at serial No.323. The said list was again revised in the year 1992 and in the list declared on 04.02.1992, the petitioner was placed at S.No.323.
In the year 1998, the promotion as Executive Engineers was accorded to the Assistant Engineers by the Department, but the petitioner was not promoted. He laid a challenge before the Rajasthan Civil Services Appellate Tribunal. The learned Tribunal vide its order dated 25.01.2002 proceeded on to reject the claim of the petitioner on the ground of delay.
Against the order dated 25.01.2002 passed by the Tribunal, the present petition has been filed. It is relevant to note that the petitioner has meanwhile superannuated in the year 2010.
Counsel for the petitioner submitted that the learned Tribunal proceeded on wrong premises in rejecting the claim of the petitioner solely on the ground of delay and laches. Counsel submitted that after the declaration of the provisional list of A.En. on 16.04.1984, the petitioner had moved a representation on 01.06.1984 itself and therefore, it cannot be held that the petitioner never agitated his cause or raised his claim at the belated stage. Counsel submitted that till date his seniority has not been finalized by the Department and the seniority accorded to him is till date provisional. Therefore, the cause survives till (D.B. SAW/874/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 10:04:30 PM) (3 of 8) [CW-2279/2002] date and until and unless his seniority is finalized, it cannot be said that his claim was belated.
Counsel further submitted that other similarly situated employees of the L.B.T. Department who had been absorbed with the other Departments, for example- the Commercial Taxes Department, have been confirmed with effect from the date of their initial appointment with the L.B.T. Department and therefore his case also deserves to be considered from the date of initial appointment with L.B.T. Department.
Counsel further submitted that the issue regarding the services of the employees of the L.B.T. Department who had been absorbed by the other Departments would be considered from the date of their initial appointment with the L.B.T. Department is no more res integra and the same has been decided in favour of the employees in the case of Shanti Raj Singhvi vs. C.P. Mathur & Ors.; D.B. Civil Writ Petition No.4573/1994 and the said view has also been affirmed by the Hon'ble Apex Court in the case of Ramesh Kumar Sharma vs. Rajasthan Civil Services & Ors.; Appeal (Civil) No.6298- 99 1995).
Counsel for the respondents although could not controvert the ratio laid down in the cases of Shanti Raj (supra) and Ramesh Kumar Sharma (supra) rather conceded on the same. The only ground raised by the counsel for the respondents is that the present petition cannot be entertained on the ground of delay and laches. Counsel submitted that the Tribunal was right in rejecting the case of the petitioner on the ground of delay. He submitted that the first seniority list of the J.En. was declared by the Department in the year 1983 but the petitioner did not chose to challenge the same at that stage. It was only in the year 1994 (D.B. SAW/874/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 10:04:30 PM) (4 of 8) [CW-2279/2002] when the provisional seniority list of the A.En. was declared that the petitioner moved a representation against the same. Therefore, it must be concluded that the petitioner was not aggrieved of the seniority list issued in the year 1983.
Counsel relied upon the judgment of Hon'ble Apex Court passed in B.S. Bajwa and Anr. vs. State of Punjab & Ors.; Civil Appeal No.7605-7610/1996.
In rejoinder, counsel for the petitioner reverting to the argument of the counsel for the respondents on the ground of the delay, relied upon the Ramchandra Shankar Deodhar and Ors. vs. The State of Maharashtra and Ors.; reported in (1974) 1 SCC 317; Firdosh Khan vs. State of Rajasthan and Ors. reported in 2000(3) WLC 127; and K. Thimmappa and Ors. vs. Chairman Central Bd. Of Dirs. SBI and Ors. reported in (2001) 2 SCC 259.
Heard learned counsel for the parties and perused the material available on record.
In view of the ratio laid down in the case of Shanti Raj Singhvi (supra) and Ramesh Kumar Sharma (supra) and in view of the fact that counsel for the respondents has also conceded to the ratio, it is now not in dispute that the petitioner was entitled to the seniority with effect from the date of his initial appointment with the L.B.T. Department. In the case of Ramesh Kumar Sharma (supra), the Hon'ble Apex Court was dealing with the question, held as under:
"The crucial question that requires consideration is what is meaning of the expression substantive service and whether the services of the private respondents under the Land and Building Tax Department from 1.3.1974, could be held to be substantive service."
(D.B. SAW/874/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 10:04:30 PM) (5 of 8) [CW-2279/2002] Replying to the said question the Hon'ble Apex Court held as under:
"This being the legal position and in the case in hand the initial appointment to the post in the Land and Building Tax Department of the private respondents having been made after subjecting the incumbent to prescribed test and on being selected after initially making their appointments on probation and thereafter excluding the expression probation from the terms of appointment and continuing them against the temporarily created post till the posts were made permanent and then the incumbent were also made permanent, it cannot be but be held that these private respondents had continuously held a post in the Land and Building Tax Department on substantive basis which post is equivalent to the post of Commercial Tax Inspectors Grade II in which these private respondents were absorbed, and consequently, for the purpose of determining the seniority of the appellants who were direct recruits to the post of Commercial Tax Inspector Grade II and the respondents who had held an equivalent post in the Land and Building Tax Department on substantive basis with effect from 1.3.1974 the continuous substantive service from that date will have to be reckoned."
In view of the above mentioned ratio, it is clear that the issue is no more res integra and therefore, it is held that the petitioner is entitled to the seniority on the post of Junior Engineer (Civil) from the date of initial appointment in the L.B.T. Department that is with effect from 13.02.1974 with all consequential benefits.
The only question now remains is whether the tribunal was right in rejecting the claim of the petitioner on the ground of delay and laches. In the case of Ramchandra Shankar Deodhar (supra), the Hon'ble Apex Court observed as under:
(D.B. SAW/874/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 10:04:30 PM) (6 of 8) [CW-2279/2002] "In this view of the matter, we do not agree with the learned Single Judge that the writ petition is not maintainable on the ground of delay and laches. Once the writ petition has been admitted, normally the question regarding its maintainability does not at all arise."
In the case of Firdos Khan (supra), the Division Bench of this Court while dealing with the matter of reinstatement in service, which was rejected on the ground of delay and laches, held as under:
"The Supreme Court has deprecated the practice of dismissing the writ petition on the ground of laches and availability of alternate remedy in a case where violation of fundamental rights and principles of natural justice are alleged in the writ petition. In MANU/SC/0102/1962 : AIR 1962 SC 1506, the Supreme Court has held that if there is allegation of violation of principles of natural justice or violation of any provision of the Act or the Rules, the dismissal of the writ petition on the ground of delay or laches or alternate remedy is not proper."
So far as the ratio laid down in the case of B.S. Bajwa (supra) as relied upon by counsel for the respondents is concerned, the same was a case wherein the petitioners who entered in the department from 1971-72, raised the grievance for the first time in the year 1984. It was the case where the Hon'ble Apex Court specifically observed that during the entire period of more than a decade, the petitioners were treated as junior to the aforesaid persons and the right inter se had crystallized, which ought not to have been reopened after lapse of such a long period. In view of the said facts, the Hon'ble Apex Court held as under:
"It is well settled that in service matters the question of seniority should not be re- opened in such situations after the lapse of a reasonable period because that results in (D.B. SAW/874/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 10:04:30 PM) (7 of 8) [CW-2279/2002] disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition."
In the present matter, it is clear on record that the seniority list was declared for the first time on 02.07.1983 and the same was revised just after a short period on 18.11.1983. The petitioner was promoted as A.En. vide order dated 22.12.1983 and the provisional seniority list of A.En. was declared on 16.04.1984. Soon after declaration of the said list, the petitioner submitted his representation on 01.06.1984 with specific averment that his place of seniority ought to have been at Sr. No.216 and not at Sr. No.337 as shown in the list.
It is relevant to note that the list declared on 16.04.1984 was a provisional seniority list and the petitioner had raised his objection to the same within time. The seniority list of A.En. was again declared on 13.04.1987, further reviewed on 04.02.1992 and again declared on 05.02.1998. A perusal of the seniority list declared on 05.02.1998 shows that the seniority of the petitioner was kept provisional. Therefore, it is clear that the final place in the seniority list has not been assigned to the petitioner till date and therefore, in absence of any final seniority being assigned to the petitioner, any objection by the petitioner to the same cannot be presumed of.
Moresoever, it is clear that the petitioner had, at the first instance way back in the year 1984, raised his objection. It is only in the year 1998, when the petitioner was not promoted as Executive Engineer, the actual cause of action arose to him and the same was therefore challenged before the tribunal at that (D.B. SAW/874/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 10:04:30 PM) (8 of 8) [CW-2279/2002] stage. The said challenge of the petitioner can in no terms be said to be delayed.
As argued by counsel for the petitioner and admitted by counsel for the respondents, similar persons who were the employees of L.B.T. Department and absorbed with the Commercial Taxes Department, have been confirmed with effect from the date of the initial appointment. Therefore, in the facts and circumstances of the present case, it can be safely concluded that the challenge of the petitioner was not delayed and even if it was so, as observed by the Hon'ble Apex Court, delay cannot defeat the fundamental right of an incumbent.
In view of the ratio laid down in the case of Ramchandra Shankar Deodhar (supra) and Firdos Khan (supra) and in view of the observation as made above, the present writ petition is allowed. The judgment and order dated 25.01.2002 passed by the Rajasthan Civil Services Appellate Tribunal is set aside. The respondents are directed to grant seniority to the petitioner on the post of Junior Engineer(Civil) from the date of his initial appointment in the LBT department with effect from 13.02.1974 with all consequential benefits.
All pending applications also stand disposed of.
(REKHA BORANA),J Ashutosh-90 (D.B. SAW/874/2022 has been filed in this matter. Please refer the same for further orders) (Downloaded on 25/12/2022 at 10:04:30 PM) Powered by TCPDF (www.tcpdf.org)