Madhya Pradesh High Court
Surendra Singh Bhandari vs The State Of Madhya Pradesh on 9 May, 2016
1 W.P. No.9529/2013
HIGH COURT OF MADHYA PRADESH: PRINCIPAL
SEAT AT JABALPUR
Writ Petition No.9529/2013(S)
Surendra Singh Bhandari
Vs.
State of M.P. and others
Present: Justice Sujoy Paul
Shri K.C. Ghildiyal, learned counsel for the petitioner.
Smt. D.K. Bohre, learned Govt. Advocate for the
respondents/State.
Shri Anil Khare, learned senior counsel with Shri Anil
Sharma, learned counsel for respondent No.5.
None for respondent Nos.3 & 4.
ORDER
(09/05/2016) In this petition filed under Article 226 of the Constitution, the petitioner has challenged the order dated 27- 04-2013 (Annexure-P/13), whereby the department has re- determined the inter se seniority between the petitioner and the private respondents. The Government opined that the seniority of the employees must be determined on the basis of their respective merit position in the selection held for the post of Assistant Research Officer.
2 W.P. No.9529/20132. The stand of the petitioner is that the respondent Nos.1 to 3 issued an advertisement on 12-07-1986 (Annexure- P/1), whereby the candidature for 10 posts of Assistant Research Officer in different subjects and 2 posts for Lecturer were invited. The petitioner submitted his candidature for the post of Assistant Research Officer in Cartography. He appeared in the written examination and after clearing it, was called for interview vide communication dated 30-08-1986 (Annexure- P/2). The petitioner was declared successful in the final selection process and was placed at Sr. No.1 of the merit list in Cartography cadre. Shri Ghildiyal placed reliance on Annexure- P/3 in support of the contention that the petitioner secured No.1 position in merit. It is further submitted that pursuant to appointment-cum-posting order dated 17-03-1987 (Annexure- P/4), the petitioner joined at the respective place. Another posting order of the petitioner dated 01-04-1987 is filed as Annexure-P/5.
3. Shri Ghildiyal contended that in view of the unblemished record of the petitioner, in due course of time, he was promoted on the next promotional posts. A seniority list for the post of Assistant Research Officer showing the position as on 01-04- 1999 was issued on 27-06-2001, wherein the petitioner was shown at Sr. No.32 whereas the respondent Nos.4 & 5 were at No.40 and 45 respectively. The seniority list is annexed as Annexure-P/6.
4. It is argued that pursuant to representation of respondent Nos.4 & 5 for alteration of seniority list, the 3 W.P. No.9529/2013 respondents issued a communication dated 25-11-2009. Since communication was issued without any intimation to the petitioner, he submitted a representation before respondent No. 1 on 02-08-2010 (Annexure-P/8). Petitioner was apprehending that the respondents may alter the seniority position, hence he filed Writ Petition No.13051/2010 before this Court. The said writ petition was disposed of on 19-09-2012. In view of the order of this Court, the petitioner submitted a fresh representation to respondent No.1. The respondent No.1 by letter dated 02-11-2012 directed the petitioner to attend hearing in his office on 08-11-2012. Ultimately, hearing took place later on and then respondents passed the impugned order on 27-04-2013. By this order, the respondents opined that seniority of petitioner and private respondents will be based on their respective merit position in the initial selection. It is mentioned that petitioner has secured 40 marks whereas private respondents herein secured 73 and 62 marks respectively. Hence, the private respondents who are more meritorious must rank over and above in the matter of seniority.
5. Shri K.C. Ghildiyal, learned counsel for the petitioner contended that the said action is wholly impermissible because :-
(i) Seniority for the post of Assistant Research Officer cannot be altered after about 25 years of service during which petitioner is further promoted.
(ii) Although the advertisement for selection is common, as per the details mentioned in communication dated 4 W.P. No.9529/2013 02.08.2010 (Annexure-P/8), it is clear that the petitioner was interviewed on 25-09-1986, whereas the private respondents were interviewed in June, 1987 and August 1987 respectively. The petitioner was appointed vide order dated 17-03-1987 whereas the respondents followed him in the matter of appointment in January, 1988 and October, 1987.
The petitioner secured a march in relation to date of joining also. He joined on 13-04-1987, whereas private respondents joined in January, 1988 and October, 1987. Thus, in every respect, petitioner is senior.
(iii) Petitioner holds the post of Assistant Research Officer in the cadre of Cartography whereas the private respondents are holding the same post in different cadres of Survey & Valuation and General Cadre. Since all the cadres are different, the respondents have erred in drawing a common merit thereby altering the seniority. In support of his contention, he relied on 1986 (4) SCC 531 ( K.R. Mudgal and others Vs. R.P. Singh and others ), 1998 (2) SCC 523 (B.S. Bajwa and another Vs. State of Punjab and others), 2010 (1) SCC 417 (Amarjeet Singh and others Vs. Devi Ratan and others) and 2013 (11) SCC 451 ( Rohitash Kumar and others Vs. Om Prakash Sharma and others).
6. Per contra, Mrs. D.K. Bohre, learned Govt. Advocate 5 W.P. No.9529/2013 for the State supported the impugned order. She placed reliance on various paragraphs of return and the judgments filed with the return. She urged that as per order dated 12-09-2012 passed in Writ Petition No.13051/2010, no fault can be found in passing the order Annexure-P/13 after more than two decades. This Court in the said writ petition permitted the respondents to undertake the aforesaid exercise of fixation of seniority. Reliance is also placed on an order passed by the Gwalior Bench of this Court in Writ Petition No.6538/2011 dated 30-09-2011 (Sushma Sharma Vs. State of M.P and others).
7. Shri Anil Khare, learned senior counsel assisted by Shri Anil Sharma for respondent No.5 supported the order Annexure- P/13. By placing reliance on the Recruitment Rules, namely, M.P. Tribal and Harijan Welfare (Gazetted) Service Recruitment Rules, 1969 (hereinafter referred to as 'the Recruitment Rules'), it is urged that there exists only one cadre of Assistant Research Officer. As per the scheme of the Recruitment Rules, it is clear that there is an unified and single cadre of Assistant Research Officer. Hence the contention of the petitioner that petitioner and private respondents are belonging to different cadre is a misconceived notion. Shri Khare further submits that since the cadre is same, since beginning a common seniority list was published. It is further argued that the advertisement for selection is common and interviews have taken place on different dates, hence result came on different dates pursuant to which appointment and joining took place on different dates. He placed reliance on Rule 12 of the Recruitment Rules and Rule 12 of the M.P. Civil Services (General Conditions of Service) 6 W.P. No.9529/2013 Rules, 1961 and contended that it is the merit position of the selection which will determine the seniority position and not the date of interview, date of issuance of appointment order or actual date of joining of the candidate. He further submits that initially the respondents committed an error in drawing different merit lists and the petitioner and the private respondents who secured No.1 position in their respective merit lists. However, after the representation filed by the private respondents, the respondents realized the mistake and prepared a consolidated merit list wherein it was found that the petitioner has secured less marks qua private respondents. It is common ground that in view of the order passed by this Court in Writ Petition No.13051/2010 and as per the order passed by the Gwalior Bench, the action of respondents in altering the seniority list is permissible and is not hit by delay and laches.
It is important to mention here that during the course of hearing, learned counsel for the parties fairly admitted that after issuance of impugned order dated 27-04-2013 (Annexure P/13), the private respondents were further promoted on the post of Joint Director and Additional Director respectively. It is admitted by the parties that these promotions were made by convening review D.P.Cs. The review D.P.Cs. were held based on revised seniority arising out of impugned order. They fairly admitted that the basis for aforesaid subsequent promotions is the alteration of seniority vide Annexure P/13.
8. The parties confined their arguments to the extent indicated hereinabove.
7 W.P. No.9529/20139. I have bestowed my anxious consideration on the rival contentions and perused the record.
10. The main points need determination in this matter are:-
(1) Whether the respondents were justified in altering the seniority after 26 years ? (2) Whether the post of Assistant Research Officer belongs to one cadre or posts mentioned in the advertisement belong to different discipline wise cadres.
(3) Whether the seniority of the parties herein are rightly determined by order Annexure P/13 dated 27.04.2013.
11. The first question goes to the root of the matter. If impugned action of re-determination of seniority is interfered with on the ground of delay itself, the action of re-determination of seniority need not be judged on merits. Since, this question goes to the root of the matter, I deem it apposite to deal with this aspect first.
12. The petitioner's stand is that he was appointed in 1987 and was shown senior to private respondents. The seniority list was lastly drawn way back on 27-06-2001 showing the position as on 01-04-1999. On the basis of this seniority list, wherein he is shown above private respondents, he secured two promotions on the post of Joint Director w.e.f. 26-10-2002 and as Additional Director w.e.f. 28-12-2006. The action of the official respondents in entertaining the representation of alteration of seniority after about quarter century is wholly impermissible. More so, when 8 W.P. No.9529/2013 the seniority list of 2001 was operated twice and petitioner secured two further promotions mentioned hereinabove. The stand of the respondents is that it is permissible in view of the order of this Court passed in WP. No. 13051/10. This controversy requires serious consideration. The P.S.C. wrote a letter on 25- 11-2009 (Annexure P/7). This letter was sent to the respondent/department pursuant to its letter dated 26-10-2009. The petitioner assailed this order in WP. No. 13051/10. This Court has taken note of petitioner's stand that after 24 years, the petitioner's seniority cannot be unsettled. However, no finding was given by this Court at that stage because in the return filed by the State in the said case it was stated that the recommendations have not yet been acted upon because the said WP is pending before the Court. In view of said stand of State Government, this Court opined that the recommendation of P.S.C. aforesaid is only its opinion which is not binding on the State Government. Looking to aforesaid, this Court held that keeping such a petition for adjudication at this stage when decision is yet to be taken by the State Government would be meaningless. For this reason, writ petition was dispose of with the direction to the government to decide the claims of seniority keeping in view the stand of petitioner in the writ petition and after giving due opportunity of hearing to the parties. It is important to note that a clear direction was given by this Court that decision should be taken 'keeping every such facts as has been averred by the petitioner in this petition.' The petitioner's repeated representations contain specific objection that seniority cannot be altered after 24/26 years. Interestingly, when called upon, the petitioner appeared before the respondents for 9 W.P. No.9529/2013 hearing and filed his written statement dated 29-12-2012 (Annexure P/11). In his representations and in his statement the petitioner took specific objection that seniority cannot be altered after longtime particularly when earlier seniority list dated 27- 06-2001 has attained finality.
13. In the considered opinion of this Court, the petitioner in his representations, in earlier writ petition and the statement before the department, categorically took the objection about permissibility of altering the seniority after 25 years. The order dated 27-04-2013 (Annexure P/13) does not contain any reason as to why the petitioner's said objection was not found trustworthy by the respondents. In my view, this Court in the earlier round issued specific directions to take into account every fact/ground which is raised by the petitioner in the petition. After considering the said facts only, the respondents could have taken a decision. Thus, while taking a decision about re- determination of seniority, the respondents were obliged to first deal with the basic objection of the petitioner about the delay and laches. Putting it differently, the respondents ought to have first examined whether after 25 years, any representation made regarding alteration of seniority can be entertained at all or not. Unfortunately, the impugned order is silent on this aspect. Thus, the impugned order is not passed in consonance with the directions issued by this Court in the order dated 12-09-2012. I am unable to read the order dated 12-09-2012 in the manner suggested by the respondents. This Court has merely directed to take a decision on the rival claims of seniority on the basis of representations made by the parties. The order dated 12-09- 10 W.P. No.9529/2013 2012 of this Court nowhere shows that department was permitted to redetermine seniority without dealing with the aspect of delay.
14. In view of aforesaid, the question is whether seniority can be permitted to be altered after more than two decades. In my view, the point is no more res-integra. A Constitution Bench of Supreme Court in AIR 1975 SC 1269 (Malcom Lawrence Cecil D'Souza vs. Union of India and others) held that Although security of service cannot be used as a shield against administrative action for lapse of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult to 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 the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result 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 a quietus after lapse of some time.
15. This view is followed by Apex Court in K.R. Mudgal (supra). The Apex Court held that Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the Government servants created by the writ petitions filed after several years. It is essential that any one 11 W.P. No.9529/2013 who feels aggrieved by the seniority assigned to him should approach the court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the Government servants there would also be administrative complications and difficulties. A government servant who is appointed to any post ordinarily should at least after a period of 3 or 4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity. This kind of fruitless and harmful litigation should be discouraged. It was held that the High Court was wrong in rejecting the preliminary objection raised on behalf of the appellants on the ground of laches.
16. In (2010) 4 SCC 301 (H.S. Vankani and others vs. State of Gujarat and others), the Apex Court opined that Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a 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 a 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 a situation may drive the parties to approach the administration for resolution of that acrimonious and 12 W.P. No.9529/2013 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. 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 action.
17. In (2010) 12 SCC 471 (Shiba Shankar Mohapatra and others vs. State of Orissa and others), the Apex Court again followed its earlier judgment passed in K.R. Mudgal (supra). In no uncertain terms, it was held that such actions whereby the parties have agitated against stale claims cannot be encouraged. More so, where the right of third party is crystallized in the interregnum. Following the ratio of K.R. Mudgal (supra), it was made clear that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), the Supreme Court laid down it in crystal clear words that a seniority list which remains in existence without challenge for 3 to 4 years, should not be disturbed. In 13 W.P. No.9529/2013 the case of Mohapatra (supra), the Apex Court held that where seniority was challenged after a long period of time, the tribunal ought to have dismissed the case only on the ground of delay and laches. The Apex Court criticized the High Court for not dealing with the issue of delay and laches which, in the opinion of Supreme Court 'goes to the root of the case.' It was clearly held that such inordinate delay cannot be ignored and such applications must be dismissed. The same view is taken by the Supreme Court in (1998) 2 SCC 523 (B.S. Bajwa and another vs. State of Punjab and others).
18. In the present case, the order of this Court in earlier round of litigation (Jabalpur and Gwalior bench) cannot be read in the manner suggested by the respondents. This Court only permitted the respondents to decide the representations preferred by the rival parties. Thus, when representations are preferred and objection by the petitioner was specifically raised, it was obligatory on the part of the department to first deal with the objection of delay which goes to the root of the matter. The department has miserably failed to deal with the said aspect despite specific direction of this Court in WP. No. 13051/10 to take every fact into account which is pleaded in the WP.
19. The common string in all the judgments mentioned hereinabove is that delay is fatal, if seniority list is assailed after 3-4 years. The private respondents have not given any cogent reason for belatedly seeking alteration in the seniority. Thus, I find substance in the first objection of the petitioner regarding delay and laches in seeking alteration of seniority. The impugned 14 W.P. No.9529/2013 order cannot ascertain judicial scrutiny because by this order the seniority position is altered by the respondents after 24-25 years.
20. The respondents have annexed various judgments alongwith the return. Suffice it to say that the said judgments are relating to the merits of the case. Shri Anil Sharma in his return synopsis has relied on various Supreme Court judgments. These judgments are relevant for the purpose of determination of inter-se seniority. These judgments do not deal with the aspect of delay and laches. These judgments could have been of assistance provided the first objection regarding delay and laches was decided against the petitioner. Since, the objection is decided in favour of the petitioner by holding that seniority list cannot be altered after 24-25 years, the question of dealing with the rival claims of seniority on merits does not arise. Thus, remaining questions aforesaid pales into insignificance and need not be answered in the present case.
21. As analyzed above, the impugned order dated 27-04- 2013 (Annexure P/13) is bad in law. Consequently, the said order (Annexure P/13) is set aside. As a consequence thereof, the petitioner will remain senior to the private respondents herein. Petition is allowed. No cost.
(Sujoy Paul) Judge Biswal & mohsin/