Gauhati High Court
Ningoyomi Breeze Doye And Ors. vs State Of Arunachal Pradesh And Ors. on 11 November, 2002
Equivalent citations: (2003)1GLR62
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. With the help of the present application made under Article 226 of the Constitution of India, the petitioners, who are Assistant Project Officer (DWCRA) in the District Rural Development Agency, have sought issuance of appropriate writ(s) commanding the State respondents to correctly project the position of the petitioners in the inter se seniority list of the petitioners vis-a-vis the private respondents, who are all direct recruits to the posts aforementioned.
2. In a nut-shell, petitioner's case may be stated as follows :
'The petitioners are all female persons belonging to the Scheduled Tribe Communities of Arunachal Pradesh . An advertisement, dated 10.12.1992 (Annexure A to the writ petition) was issued by the respondent No. 3 inviting applications for recruitment to the post of Assistant Project Officers (DWCRA) under the District Rural Development Agency, Arunachal Pradesh. The petitioners, who were working as Junior Teachers in the Department of Education, Government of Arunachal Pradesh, and had already put in, more than 12-13 years of service, on regular basis, in the said department, applied for the said posts of APO(DWCRA). After holding the written test and viva voce/interview, the result of the test so held was declared on 24.5.1994 and a common merit list (Annexure D to the writ petition), consisting of all the candidates, who had so faced the written test and interview/viva voce, was published, wherein the petitioners No. 1 to 6 were placed at Serial Nos. 2, 4, 5, 6, 8 & 10 respectively. The petitioners were accordingly appointed as APO (DWCRA) vide order, dated 5.7.1994 (Annexure C to the writ petition) in different districts, The petitioners were initially appointed, on deputation, as APO (DWRCA) for a period of three years, which was subsequently extended and, in course of time, when the Rural Development Agency asked for options, the petitioners opted for being absorbed in the Rural Development Agency and the petitioners were accordingly absorbed on 23.9.1999. The Department of Rural Development Agency published vide its order, dated 1.2.2000, a provisional inter se seniority list (Annexure E to the writ petition), wherein the petitioners No. 1 to 6 were shown at Serial Nos. 7, 6, 9, 10 & 11 respectively, which was contrary to the merit list (Annexure D to the writ petition) already announced. The petitioners submitted a representation, on 19.12.2000, objecting to the seniority list, dated 1.12.2000, aforementioned and seeking modification thereof by reflxing their seniority as per the original merit list. The respondent authority, however, published, on 27.07.2001, a final inter se seniority list (Annexure F and F1) maintaining the position of the petitioners at Serial No. 6 to 11 and that of the respondents. No. 4 to 8 at Serial No. 1 to 5 respectively. Since the petitioners had appeared in the same competitive examination in terms of the advertisement, dated 10.12.92, aforementioned as had done by the private respondents and they (i.e., the petitioners) were selected on the basis of their performance, the inter se seniority list, in question, ought to have been prepared in the same order as reflected from the merit list prepared following the written examination and viva voce test. However, the respondents have acted arbitrarily in placing all the petitioners as junior to the direct recruits in the final seniority list, dated 27.7.2001, aforementioned issued by the respondents No. 2. This apart, the petitioners had already put in 12-13 years of service in the Department of Education before they had participated in the competitive examination aforementioned and, hence, the seniority, list ought to have been prepared either as per the merit list aforementioned or by taking into consideration the length of service that the petitioners had already put in their parent department, but the State respondents have, most arbitrarily, computed the date of seniority of the petitioner from the date of their regular absorption, on 23.3.1999, in the Rural Development Agency without giving weightage to even the five years of service that the petitioners had rendered in the borrowed department."
3. The State respondents, namely, respondent Nos. 1, 2 and 3 have contested this case by filing their affidavit-in-opposition, the case of the State respondents being, briefly stated, thus : The petitioners, being, originally, employeed in the Education Department of the Government of Arunachal Pradesh. were, initially, appointed as APO (DWCRA), on deputation, for a period of three years subject to the consent of the lending department. The deputation period was subsequently extended and before expiry of the extended period of deputation, the petitioners, on their expressing willingness to be absorbed in the borrowed department, were absorbed w.e.f. 23.03.1999 (Annexure VII to the State respondents, affidavit-in-opposition). While publishing the provisional seniority list of direct recruits vis-a-vis the departmental candidates, relevant guidelines of the Government of India were borne in mind. According to these guidelines (Annexure X to the statements, affidavit-in-opposition) a person, who is, initially, taken on deputation and absorbed later (where the relevant recruitment rules provide for deputation/ absorption) his seniority in the grade in which he is absorbed will be, normally, counted from the date of absorption. As per these guidelines, the seniority of the petitioners, who were initially brought on deputation and absorbed later in the Rural Development Agency, has been counted from the date of their absorption i.e. with effect from 23.3.1999. Since the seniority of a person, on deputation, is counted from the date of his/her absorption in the borrowed department, in contrast to the direct recruits, whose seniority is counted from the date of appointment/joining, the seniority list published by the State respondents is correct and valid and may not be interfered with.
4. As far as the direct recruits are concerned, they have been impleaded as respondents No. 4 to 8. They too have contested this case by filing their affidavit-in-opposition, their case being in, brief, that the petitioners were appointed as APO (DWCRA) on deputation and, hence, they were neither regular employees nor direct recruits in the Rural Development Agency. The seniority list was prepared in accordance with the term and conditions of their service, which lay down that the seniority of a deputationist shall be counted from the date of his/her absorption in the borrowed department. Viewed from this angle, the seniority list is correct and valid. The private respondents were, initially, appointed on probation for a period of one year and on successful completion of their probation period, they were allowed to continue as direct recruits in the said department as its regular employees. No constitutional/legal right of the petitioners has been infringed in preparing the final seniority list, which is under challenge.
5. I have carefully perused the materials on record. I have heard Mr. T. Michi, learned counsel for the petitioners, and Mr. R. H. Nabam, learned Additional Senior Government Advocate appearing on behalf of the State respondents. I have also heard Mr. G. Ori, learned counsel appearing on behalf of the private respondents, namely, respondents No. 4 to 8.
6. Drawing attention of this Court to the office memorandum, dated 17.11.1992 (Annexure 1 to the affidavit-in-opposition of State respondents), Mr. Michi has submitted that according to this office memorandum, the posts of APO (DWCRA) shall be filled up by direct recruitment. This memorandum makes it clear, points out Mr. Michi, that in the instant case, the selection was to be made by direct recruitment and on merit and though persons, already in Government service, could have applied for the post of APO (DWCRA), they too were required to compete in the same competitive examination. This memorandum also makes it clear, farther points out Mr. Michi, that in the event of their selection, the serving employees of the Government departments were to have either resigned from their existing service or they were to come to Rural Development Agency, on deputation, for a period of, at least, three years at a stretch.
7. Since the petitioners were selected on merit after having participated in the same competition in which the direct recruits also participated, it is contended by Mr. Michi that while absorbing the petitioners permanently in the borrowed department, they ought to have been absorbed with effect from the date of their appointment as Assistant Project Officer (DWRCA) and their seniority ought to have been accordingly fixed on the basis of said the merit list inasmuch as there is no justification, contends Mr. Michi, to absorb the petitioners with effect from the date of the order of their absorption ignoring the fact that the petitioners had already put in 12-13 years of service in the Department of Education and were also on merit far ahead of the direct recruits.
8. Mr. Michi has also submitted that the private respondent No. 8, who was also a deputationist in the borrowed department, has, however, been considered as a direct recruit and she has accordingly been placed higher in the inter se seniority list than the petitioners. It is, thus, clear, contends Mr. Michi, that the petitioners have been treated differently, though their cases stand on the same footing as does the case of the private respondent No.8. In this view of the matter, submits Mr. Michi, the treatment meted out to the petitioners is discriminatory in nature.
9. Controverting the above submissions made on behalf of the petitioners, Mr. R.H. Nabam has submitted that the petitioners were, initially, brought on deputation to the Rural Development Agency and their deputation was extended till 31.3.1999, but on their expressing willingness to be absorbed in the borrowed, department, the absorption of the petitioners, on regular basis, was approved by the Government vide its order, dated 23.3.1999 (Annexure VIII to the affidavit-in-opposition of the State respondents). However, as per Government of India's guidelines (Annexure X to the affidavit-in-opposition of the State respondents) which lay down the manner of fixing of seniority of the absorbees vis-a-vis direct recruits, the seniority of an absorbee shall be counted from the date of his/her absorption. Acting upon these guidelines, submits Mr. Nabam, the seniority of the petitioners have been fixed w.e.f. their date of absorption in the borrowed department.
10. As regards the private respondent No. 8, namely Miss Nyabi Ete, Mr. Nabam has pointed out that though she, originally, came, on deputation, to the Rural Development Agency, she had resigned and it was thereafter that she was directly recruited in the Rural Development Agency and, hence, her case cannot be placed on the same footing as the case of the petitioners.
11. As far as Mr. G. Ori is concerned, his submission is that the petitioners were absorbed as per Government's approval received on 23.3.1999 (Annexure VIII to the affidavit in opposition of the Stale respondents) and the petitioners have challenged their seniority position published in the seniority list in 2001. This delay, according to Mr. G. Ori, is enough to defeat the claim, if any, of the petitioners to obtain seniority over the direct recruits. This belated approach by the petitioners is, according to Mr. Ori, untenable in law. Mr. Ori has also pointed out that the petitioners were, initially, brought on deputation and during the extended period of their deputation, they . submitted their option to be absorbed in the borrowed department on regular basis. Since the Govt. of India's guidelines, in question, were already in force, the petitioners knew, points out Mr. G. Ori, that their seniority would be fixed with effect from the date of their absorption in the Rural Development Agency and having known this position, when the petitioners opted to get absorbed, they must be deemed to have waived, if they had any, right to claim seniority over the private respondents as per the original merit list.
12. It is also submitted by Mr. Ori that since the private respondents are direct recruits and regular employees of Rural development Agency w.e.f. the date of their appointment, which was as far as back in July, 1994, and the writ petitioners have become regular employees of Rural Development Agency w.e.f. their absorption as late as in March, 1999, the petitioners cannot claim seniority over the private respondents, who had already completed almost 5 years of service in Rural Development Agency before the writ petitioners were absorbed .
13. Having heard both sides and upon perusal of the materials on record, what emerges as the essential undisputed facts of the case at hand are that the relevant recruitment policy, as reflected from the office memorandum, dated 17.11.1992 (Annexure 1 to the affidavit in opposition of the State respondents), the appointment in the Rural Development Agency of the APO (DWCRA) is/was to be made on the basis of a common competitive examination. However, according to this office memorandum, while the persons, who were not in government service, were to be absorbed as regular members of the Rural Development Agency, the Government servants, who would have come out successfully from such competition, were required to either resign from their existing service or come to the Rural Development Agency, on deputation, for a period of, at least, three years at a stretch. As per this office memorandum, a common competitive examination was held in which both - the writ petitioners as well as the private respondents - took part and a common merit list was prepared, wherein all the present writ petitioners were placed higher in order of merit over the private respondents, but while appointing the selected candidates as APO (DWRCA), the private respondents were appointed as direct recruits to the post of APO (DWCRA), whereas the petitioners were brought from the Department of Education to the Rural Development Agency, on deputation, for a period of three years. This period of deputation was subsequently extended up to 31.3.1999, but before the expiry of this extended period, the petitioners were given the option to get regularly absorbed in the Rural Development Agency vide Government letter, dated 24.08.1998 (Annexure V to the affidavit in opposition of the State respondents) and it was made clear, I notice, while so seeking the option, that the DRDA was a society registered under the Societies Registration Act and officers should not opt for regular absorption on the mistaken notion that the DRDA was a normal Govt. department. Be that as it may, the petitioners opted to get absorbed in their borrowed department and their absorption was accordingly approved by the Government vide order, dated 23.03.1999 (Annexure VIII to the writ petition), the date of their absorption being 23.3.1999. There is also no dispute before me that the Govt. of India's guidelines fixing seniority of the absorbees vis-a-vis direct recruits, as reflected from Annexure X to the affidavit-in-opposition of the State respondents, are, generally, followed by the State Government inasmuch as the State Government has no specific guidelines/rules of their own in this regard. The relevant guidelines state, I notice, as follows:
"3.4.1. In the case of a person who is initially taken on deputation and absorbed later (i.e., where the relevant Recruitment Rules provide for "deputation/absorption"), his seniority in the grade in which he is absorbed will, normally, be counted from the date of absorption. If he has, however, been holding already (on the date of absorption) the same or equivalent grade on regular basis in his parent department, such regular service in the grade shall also be taken into account in fixing his seniority, subject to the condition that he will be given seniority from the date he has been holding the post on deputation.
(or) the date from which he has been appointed on regular basis to the same or equivalent grade in his parent department, whichever is later."
(Emphasis is supplied)
14. From the above guidelines, it is clear that the seniority of an absorbee will, "normally", be counted from the date of absorption, and, hence, the petitioners have been treated as junior to the direct recruits, who got regularly appointed as AOP (DWRCA) w.e.f. the date of their original appointment in July, 1994, while the petitioners were absorbed as late as on 23.03.1999.
15. It is contended, on behalf of the petitioners, that while absorbing them in the borrowed department, their seniority should have been counted from the date, when they were brought, on deputation, to the borrowed department and that their seniority should be fixed as per the original merit list. The respondents disputed this contention and submit that the Government of India's guidelines resorted to, as hereinabove mentioned, fix seniority of absorbees from the date of their absorption only and not from the date, when the absorbees were brought to, the borrowed department on deputation.
16. The question, now, is as to whether the State respondents are justified in treating the seniority of the petitioners w.e.f. the date of their absorption as indicated hereinabove. This question, in fact, brings us to a more fundamental question and the question is as to whether it was fair and just on the part of the Government to absorb the petitioners, in the facts and attending circumstances of the present case, with effect from 23.3.1999, i.e., the date on which their permanent absorption in the Rural Development Agency was finally approved.
17. While answering the above question, it is worth noticing that though the petitioners have contended, in their writ petition, that they ought to have been absorbed from the date of their joining the Rural Development Agency, they have not, in the relief portion of their writ petitions, asked for granting any relief to the effect that they should be treated to have been absorbed in Rural Development Agency with effect from the date of their joining the said Agency. Be that as it may, the fact remains is that if, on the basis of the materials on record, a Writ Court finds that for giving ultimate benefit to a petitioner, the reliefs, which he has not sought for, is also essentially available to him, there is no impediment on the part of the Court to grant such a relief. Reference in this regard may be made to Manager, A.P.S.R.T.C. v. Kondi K. Rambabu, (2000) 9 SCC 270, wherein the Apex Court has held that the High Court can mould relief, to meet the ends of justice, where relief is deserved by the petitioner provided that such relief is not barred by any law.
18. In the face of the above settled position of law, when I consider the factual matrix of this case, what I notice as the most significant part of the entire case is that the present one is not a case, where there were two different schemes or two different selection processes for recruitment to the posts of APO (DWRCA), one for the direct recruits and the other for persons coming, on deputation, to the Rural Development Agency. There was, in fact, as already mentioned above, a common competitive examination in which all the writ petitioners as well as the private respondents participated and this selection process ended with the publication of a common merit list. The merit list had to be a common one, because the competitive examination held was one and the same for persons, who were not serving in any Government department, and those, who came from the Government department. In this merit list, the petitioners were, admittedly, placed higher than the private respondents.
19. It is, therefore, clear that though the private respondents were brought to the Rural Development Agency as direct recruits and the writ petitioners were brought, on deputation, to Rural Development Agency, the merit position of all these persons coming from the said two streams remained the same as per the original merit list. The question, now, is as to what could have been the correct date, in the facts and circumstances of the present case, for absorption of the writ petitioners.
20. It is also worth noticing that in the letters issued by the State respondents making enquiry if the petitioners were willing to be absorbed in the Rural Development Agency, the Government made it clear that the Rural Development Agency was not a regular Government department and, hence, persons should not opt for permanent absorption in this Agency on a mistaken notion that it is a Government department. It is neither pleaded nor is there any material, on record, to show that the Government had, formally, at any stage, adopted Government of India's guidelines aforementioned for application to the Rural Development Agency and it was, in fact, only at the time of absorption of the writ petitioner that these guidelines appear to have been taken into account and acted upon by the State Government. The application of these guidelines to the prejudice of the writ petitioners is, in my form view, highly unfair.
21. It is settled position of law that if post held in the parent and the post held on deputation are analogous, one is entitled to count, for the purpose of seniority, services rendered by him on regular basis in the parent department.
22. In the case at hand, since there is nothing to show nor it is contended that the petitioners were holding posts of equivalent grade in their parent department, the services, which petitioners had put in their parent department, may not be, strictly speaking, counted, while considering their seniority in the absorbed department.
23. However, the question is as to whether it is just and permissible to ignore or omit to consider the lengths of service, which the petitioners have put in the equivalent grade in the borrowed department before the date of their absorption. Suffice it to mention here that not considering the services, which the petitioners have put in the borrowed department, is against the established position of service jurisprudence and if such refusal to consider length of service in the borrowed department is allowed to stand good on record, it will be highly unjust and will cause serious miscarriage of justice.
24. Relying on its earlier decisions in R. S. Makashi v. I. M. Memon, (1982) 1 SCC 379, Wing Commander J. Kumar v. Union of India, (1982) 2 SCC 116, the Apex Court held in K. Madhavan v. Union of India, (1987) 4 SCC 566, as follows :
"It will be against all rules of service jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post. The transfer cannot wipe out his length of service in the post from which he has been transferred. It has been observed by this Court that it is a just and wholesome principles commonly applied where persons from different sources are drafted to serve in a new service that their pre-existing total length of service in the parent department should be respected and presented by taking the same into account in determining their ranking in the new service."
25. In fact, in A.K. Bhatnagar v. Union of India, (1991) 1 SCC 544, the Apex Court has held that in the absence of a provision, the length of service is, ordinarily, taken into account in determining seniority.
26. In M. Ramachandran v. Gobin Ballav and Anr., (1999) 8 SCG 592, the Apex Court, after taking into consideration R.S. Makashi (supra), Wing Commander J. Kumar (supra), A.K. Bhatnagar (supra) and some other earlier decisions of the Apex Court held as follows :
"Seniority is a relevant (sic) term having reference to the class, category and the grade to which the reference is made. Length of service is a recognised method of determining the seniority. Such length of service shall have reference to the class, category or grade, which the parties were holding at the relevant time. It, therefore, follows that total length of service is not relevant for determining the seniority but length of service to a particular class, category or grade is relevant consideration for the purposes of counting the period with respect to length of service for the purposes of determining the seniority.
Any other interpretation would be against the settled rules of service jurisprudence and is likely to create many anomalies resulting in failure of justice and defeating the acquired rights of the civil servants based upon their length of service.
(Emphasis is added)
27. Though the facts of the case in M. Ramchandran (supra) are somewhat different In nature, the fact remains that the Apex Court was of the view that the length of service rendered by the person concerned in the grade in which he is absorbed is a relevant factor, while determining his seniority inasmuch as M. Ramachandra (supra) clearly lays down that the total length of service of a person is not relevant for determining seniority, but the length of service rendered by such a person in particular class, category or grade is, indeed, a relevant consideration for the purpose of determining seniority. Viewed from this angle, the services which the petitioners have rendered as APO (DWRCA) in DRDA (which is the grade in which they have been absorbed and in which grade, their seniority position is subject-matter of discord) cannot be ignored, while computing their length of services for the purpose of determining their seniority as APO (DWRCA). In this view of the matter, the seniority of the petitioners to my mind, ought to have been counted not really from the date of their absorption, but from the date in which they were appointed as APO (DWRCA). More so, when the conflict in the present case is not between direct recruits and the promotees ; rather, the dispute is essentially between two categories of direct recruits inasmuch as both the petitioners as well as private respondents had participated in the same competitive examination and got selected as APO (DWCRA), the only different being that while the private respondents were appointed as direct recruits and rendered their services in the said Agency as APO (DWRCA) as direct recruits, the petitioners rendered same services on the same post not as direct recruits but as deputationists.
28. In fact, in K. Angaiah and Ors. v. K. Chandraiah and others, (1998) 2 SCC 218, the Apex Court was more explicit in para 7 of its judgment in clearly laying down that it is a just and wholesome principle of service jurisprudence to take into account pre-existing length of services for determining length in the new service cadre.
29. What emerges from the above discussions is that in the case at hand, since the petitioners had not rendered services in their parent department in the same grade in which they have rendered their services in the borrowed department, the services rendered by the petitioners in the parent department can be ignored but while so ignoring, for the purpose of seniority, the services rendered by the petitioners in the parent department, their pre-existing services in the absorbed department must be considered for the purpose of determining inter se seniority between the petitioners and the private respondents, because the petitioners had participated in the same competitive examination as had done by the private respondents and the distinction, if any, between the private respondents (as direct recruits) and the writ petitioners (as deputationists) ceased to exist when the State respondents decided to absorb the petitioners.
30. What crystallises from the above discussion is that if a person has put in some services in the post in which he is, later on, confirmed or regularised, then, the services, which such person has already rendered, while holding the post, shall be counted at the time of making him permanent and/or absorbing him.
31. In view of the fact that there is no prior order or memorandum or decision of the Government of Arunachal Pradesh laying down, as a matter of policy, that para 3.4.1 of the Central Government's office memorandum aforementioned will be applied to the deputationists in the District Rural Development Agency, it will be highly unjust to ignore and wipe out completely the lengths of service, which the petitioners have rendered in the grade of APO (DWRCA) in the borrowed department.
32. What is, now, of immense importance to note is that even the Govt. of India's guidelines, relied upon by the State respondents, show, on a close analysis, that these guidelines do not exclude the possibility of absorption of deputationist vis-a-vis direct recruits from a date other than the date of absorption.
33. In the above guidelines, two factors are of immense importance, the first important feature being that as per the guidelines contained in para 3.4.1, the Recruitment Rules should provide for deputation/ absorption. In the case at hand, the original policy, which was prepared, do not foresee absorption of deputationists. The second important feature of these guidelines is that these guidelines are to be "normally" acted upon inasmuch as these guidelines mention, "his seniority in the grade in which he is absorbed will 'normally' be counted from the date of absorption". The use of the words, "normally", shows that there may be cases, where these rules of absorption need not be made applicable on account of the peculiar facts and circumstances of the case. The present one is, to my mind, one of such peculiar and exceptional cases, the peculiarity being that in the instant case, the selections were made for direct recruits as well as absorbees essentially on the basis of the same competitive examination in which the absorbees proved that they were far more meritorious than the direct recruits and coupled with this, when the absorbees had already put in 12-13 years of regular services in their parent department, their absorption should have been from the date of their joining the Rural Development Agency and their seniority should have been fixed on the basis of the merit list.
34. According to Webster's Unabridged Dictionary of the English Language (189 Edition), the word "normally" means in a formal manner; under normal circumstances; general customs, etc.; and the word "normal" means conforming to the standard or the common type; as usual; not abnormal; regular; natural.
35. In Peak Trailer & Chassis Ltd. v. Jackson (1967) 1 All ER 172, 176 (QBD) Widgery J. held that the word "normally" has a perfectly ordinary meaning, which would be given to it by ordinary people in everyday use and that in using the word "normally", one is referring to something, which is in contradiction to abnormal or exceptional.
36. As per para 3.4.1., the seniority of the person concerned, in the grade in which he is absorbed, will be "normally" counted from the date of absorption, but if he has already been holding, on the date of such absorption, same or equivalent grade on regular basis, in his parent department, such regular service in the grade shall be taken into account in fixing his seniority.
37. Situated thus, I am firmly of the view that the present one is a case, which is not governed by the guidelines contained in para 3.4.1 aforementioned, and since the Government had not formally adopted these guidelines as their policy for the Rural Development Agency, which was not a regular Government department, these guidelines were inapplicable and even if these guidelines were assumed to be applicable, these guidelines could not have been applied to the facts of the present case and the Government could not have acted upon them .
38. As regards the contention of the respondents that the writ petition is not maintainable on the ground that the petitioners have approached this Court belatedly, it needs to be noted that in Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur and Ors., (1992) 2 SCC 598, the Apex Court observed as follows :-
"The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delaying such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of latches."
39. From the above observation of the Apex Court, it becomes clear that even when there is delay on the part of a writ petitioner in approaching the Court, exercise of discretion to grant relief by the Writ Court depends upon the facts of the given case and where the circumstances justifying belated approach to Court exists, the legality, which is manifest, cannot be sustained on the sole ground of delay or laches, particularly when no parallel right is found to have been created in favour of those, who are likely to be affected as a result of granting of reliefs to the writ petitioners.
40. Coupled with the above, it is also worth mentioning that immediately on publication of their inter se seniority list, the petitioners raised their objection thereto, but when the final seniority list was published ignoring their objection, they approached this Court. It is also important to note that the Court's disinclination/reluctance to enquire into belated grievances is based on the principle that Courts are not inclined to upset any right, which might have occurred in favour of the party complained against, because of lapses/latches on the part of the writ petitioner. It is, therefore, as a rule of prudence that the Courts, normally, do not interfere in stale claims, when it relates to seniority. In the case at hand, however, no promotion has been earned by the private respondents and the petitioners have expressed their grievances against the inter se seniority before any such promotion could take place.
41. In the context of the facts and attending circumstances of the present case, it cannot, therefore, be said that any right has grown in favour of the private respondents and the same cannot be upset by interference in exercise of powers under Article 226 of the Constitution of India.
42. Because of what have been discussed above, I am of the view that State Government ought to have absorbed the writ petitioners in accordance with their position in the merit list and with effect from the date of their joining in the Agency and ought to have fixed inter se seniority of the writ petitioners vis-a-vis the private respondents on the basis of original merit list, which forms the basis for selection of both the present writ petitioners as well as the private respondents.
43. In the result and for the reasons discussed above, this writ petition succeeds. The impugned seniority lists are set aside and quashed and the State respondents are directed to correct the relevant seniority list, as per the original merit list aforementioned, within a period of 1(one) month from today.
44. No order as to costs.