Himachal Pradesh High Court
Rajinder Kumar vs Hon'Ble High Court Of Himachal Pradesh on 7 January, 2020
Bench: Vivek Singh Thakur, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.74 of 2017 Reserved on : December 17, 2019 Decided on : January 7, 2020 .
Rajinder Kumar ...Appellant.
Versus
Hon'ble High Court of Himachal Pradesh and others ...Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting? Yes.
For the Appellant : Mr. B.C. Negi, Senior Advocate, with Mr. Tara Singh Chauhan, Advocate.
For the Respondents : Mr. J.L. Bhardwaj, Advocate, for respondent No.1.
Mr. S.C. Sharma, Mr. Desh Raj Thakur and Ms Rameeta Rahi, Additional Advocates General, for respondent No.2.
Mr. K.D. Sood, Senior Advocate, with Mr. Sukrit Sood, Advocate, for respondent No.3.
Mr. Rahul Mahajan, Advocate, for respondent No.4.
Vivek Singh Thakur, Judge This Letters Patent Appeal, under Section 10 of the Delhi High Court (Original Side) Rules, as applicable to the State of Himachal Pradesh, has been preferred against judgment dated 21st June, 2017, passed by learned Single ::: Downloaded on - 07/01/2020 20:26:52 :::HCHP LPA No.74 of 2017 Judge of this Court, in CWP No.17 of 2012, titled as Rajinder Kumar v. Hon'ble High Court of Himachal Pradesh & others, whereby Writ Petition, preferred by petitioner-
.
appellant Shri Rajinder Kumar (hereinafter referred to as petitioner) against assigning seniority to respondent No.3 Ms Abira Basu (hereinafter referred to as respondent No.3) above him and respondent No.4 Shri Sachin Raghu (hereinafter referred as respondent No.4), has been dismissed.
2. Petitioner, respondent No.3 and respondent No.4 have joined the Himachal Pradesh Judicial Service (hereinafter referred as H.P. Judicial Service) in the year 2003, after their selection through competitive examination, conducted by the Himachal Pradesh Public Service Commission (hereinafter referred to as Commission), pursuant to requisitions sent by respondent No.2-State of Himachal Pradesh (hereinafter referred to as respondent-State), on the request of respondent No.1-High Court of Himachal Pradesh (hereinafter referred to as High Court).
3. Petitioner and respondent No.4 were appointed to the H.P. Judicial Service vide Notification No.Home-
B(E)3-17/2003, dated 19th/21st November, 2003 (Annexure 2 of 60 ::: Downloaded on - 07/01/2020 20:26:52 :::HCHP LPA No.74 of 2017 P-4 to the Writ Petition) (hereinafter referred to as First Notification), whereas respondent No.3 was appointed to the H.P. Judicial Service vide Notification No.Home-B(E)3- .
17/2003, dated 18th December, 2003 (Annexure R-1 to the reply of respondent No.3 to Writ Petition) (hereinafter referred to as Second Notification).
4. Dispute between the private parties arose in the year 2010, at the time of their promotion and appointment as Civil Judge (Senior Division), when respondent No.3 had represented for placing her correctly in seniority on her appointment in Senior Division, on the basis of merit higher than the petitioner and respondent No.4 in H.P. Judicial Service Competitive Examination, 2003, in pursuant to order of merit reflected and notified by the Commission in its Notification, published in Extraordinary Official Gazette of Himachal Pradesh dated 29th October, 2003 (Annexure P-14 to the Writ Petition), wherein respondent No.3 is at Serial No.6, and the petitioner and respondent No.4 are at Serial Nos.21 and 10, respectively. It is also apt to record here that respondent No.3 has qualified the Competitive Examination under General Category, whereas petitioner 3 of 60 ::: Downloaded on - 07/01/2020 20:26:52 :::HCHP LPA No.74 of 2017 and respondent No.4 have qualified the same under Scheduled Caste category.
5. Vide First Notification, seven appointments .
were made to the H.P. Judicial Service, wherein first five candidates were from General Category and respondent No.4 and the petitioner were at Serial Nos.6 and 7, respectively. Vide Second Notification, nine candidates were appointed to the H.P. Judicial Service, wherein respondent No.3 was at Serial No.1 and she was appointed under General Category.
6. We have heard learned counsel for the parties and have also perused the records of Writ Petition as well as High Court, produced during hearing of the appeal.
7. In the year 2003, Writ Petition bearing No.324 of 2003, titled as Anil Chauhan v. State of H.P. & others, came up for adjudication before the High Court and in sequel to the order passed therein, vide letter No.Home-
B(E)3-17/2003, dated 12th May, 2003, the Additional Chief Secretary (Home) to the Government of Himachal Pradesh had sought information from the Registrar General of High Court about the number of vacancies of Sub Judge, as existing on 30th April, 2003. In response thereto, vide letter No.HHC/GAZ/14-49/74-IV-9460, dated 13th May, 4 of 60 ::: Downloaded on - 07/01/2020 20:26:52 :::HCHP LPA No.74 of 2017 2003, it was informed by the High Court that as on 30th April, 2003, five posts of Sub Judge-cum-Judicial Magistrate were lying vacant, whereupon the Additional Chief .
Secretary (Home) had asked the detail of those vacancies, which was supplied vide letter No.HHC/GAZ/ 14-49/74-IV-
9513, dated 13th/14th May, 2003, stating the places where posts of Sub Judge were lying vacant and in continuation thereof vide letter No.HHC/GAZ/14-49/74-IV-9758, dated 17th May, 2003, information regarding vacancy position, with complete detail of the posts, alongwith dates, causing the five vacancies, was also supplied and in addition thereto, it was also informed that one post of Sub Judge was also lying vacant on account of suspension of one Judicial Officer since 25th December, 2002 and further that three more vacancies were going to be available on account of promotion of one of the Members of H.P. Judicial Service against the available post of H.P. Higher Judicial Service and on such promotion of two more Members, due to creation of two Fast Track Courts by the respondent-State at Shimla and Dharamshala, in near future. As such, availability of five clear-cut vacancies, three anticipated vacancies and one adhoc vacancy was conveyed to the respondent-State.
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8. Vide Advertisement No.1/2003, dated 20th May, 2003 (Annexure P-1 to the Writ Petition), issued by the Commission, on the basis of requisitions sent by the .
respondent-State, seven vacancies of H.P. Judicial Service (4 UR + 2 SC + 1 OBC) were advertised, in accordance with the Himachal Pradesh Judicial Service Rules, 1973 (hereinafter referred to as Rules 1973) and also according to the order of the High Court passed on 15th May, 2003 in CWP No.324 of 2003. Thereafter, vide letter No.HHC/GAZ/14-49/74-IV-16595, dated 5th August, 2003, in pursuant to the observations made and directions passed by a Division Bench of High Court, vide order dated 15th May, 2003, in CWP No.324 of 2003, the High Court, on administrative side, had supplied the details of vacancies, likely to be occurred in future with request to respondent-
State to make a reference to the Commission to select at least 25 persons in the course of the ongoing selection process, enabling appointments, without delay, against the existing vacancies, anticipated vacancies and also the vacancies which may arise during the period of one year from the date of finalization of selection process. Copy of this letter was also endorsed to the Secretary of the Commission.
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9. The Division Bench of the High Court, in its orders dated 15th May, 2003 and 8th September, 2003, passed in CWP No.324 of 2003, had observed that seven .
vacancies had been shown to be in existence in communication dated 15th May, 2003, but by the time, the selection process was to be completed many more vacancies were likely to come up and, therefore, had directed the respondent-State, High Court and the Commission to prepare a panel, based on the selection process, for filling up the vacancies, which were available at that time and also which were likely to be occurred thereafter and vide order dated 8th September, 2003 had directed to hold a meeting in the High Court in the Chamber of the Registrar General to be attended by the Registrar General, Secretary of the Commission and Additional Chief Secretary (Home) to the Government of Himachal Pradesh to sort out the entire issue and to take final decision for making formal reference by the respondent-State to the Commission, in compliance of Rules and Regulations, intimating the Commission about requirement of 25 vacancies, with category-wise breakup, so as to enable the Commission to ensure compliance of order dated 15th May, 2003, in its letter and spirit.
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10. In sequel to the aforesaid order, meeting was held in the Chamber of Registrar General on 12th September, 2003 and vide letter No.HHC/CWP .
No.324/2003-835-36, dated 12th/15th September, 2003, Minutes thereof were communicated, in writing, to the Additional Chief Secretary (Home) to the Government of Himachal Pradesh and the Secretary of the Commission, wherein category-wise breakup of additional 18 vacancies, as 15 UR, 2 Scheduled Caste and 1 OBC, was also communicated. It was also communicated that out of these 18 persons, in addition to seven persons to be appointed against seven clear-cut vacancies, communicated earlier, one more person was to be appointed against 8th vacancy, which had become available due to promotion of General Category Officer and the remaining 17 persons were to be included in the panel of selected candidates for appointment against future vacancies.
11. In pursuant to the aforesaid communication, respondent-State, vide letter No.Home-B(B)3-17/2003, dated 16th September, 2003, had sent another requisition to the Commission for advertising additional 18 vacancies (15 UR + 2 SC + 1 OBC) to be filled up on the basis of 8 of 60 ::: Downloaded on - 07/01/2020 20:26:52 :::HCHP LPA No.74 of 2017 ongoing selection process. In sequel thereto, an Addendum to Advertisement No.1/2003 (Annexure P-1 to the Writ Petition), was published on 19th September, 2003 .
(Annexure P-2 to the Writ Petition), notifying the aforesaid 18 more vacancies, referred supra, to be filled-in on the basis of H.P. Judicial Service Examination, 2003.
12. The process of recruitment was completed by the Commission in October, 2003, by conducting interviews w.e.f. 7th to 21st October, 2003 and vide letter dated 22nd October, 2003, list of candidates (hereinafter referred to as Select List), recommended by the Commission, on the basis of H.P. Judicial Service Competitive Examination, 2003, for appointment to the posts of Sub Judge-cum-Judicial Magistrate Class-1 Gazetted, was communicated to the respondent-State and the said Select List was also published in Extraordinary Official Gazette of Himachal Pradesh dated 29th October, 2003 (Annexure P-14 to the Writ Petition).
13. Respondent-State, vide First Notification, had appointed all seven candidates, including the petitioner and respondent No.4 in it as candidates belonging to Schedule Caste. Undoubtedly, respondent No.3 was higher in merit to the petitioner and respondent No.4 and 9 of 60 ::: Downloaded on - 07/01/2020 20:26:52 :::HCHP LPA No.74 of 2017 she was in Select List at Serial No.6, i.e. immediately next to the first five persons appointed through this Notification.
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14. High Court, vide letter dated 25th November, 2003, had requested the respondent-State to make appointment against additional two vacancies, one on temporary basis, like persons appointed vide First Notification, against the vacancy caused due to promotion and another on adhoc basis against the vacancy caused due to suspension. As discussed supra, these vacancies had already been communicated to the respondent-State in earlier communications, including in Minutes of Meeting dated 12th September, 2003.
15. Seven persons, including the petitioner and respondent No.4, notified to be appointed by the respondent-State vide First Notification, were posted/attached with District & Sessions Judges for the purpose of practical/Court training, vide Notification dated 3rd December, 2003 (Annexure P-5 to the Writ Petition), issued by the High Court.
16. During intervening period, i.e. on 13th November, 2003, respondent-State had, vide Notification No. Home-B(E)1-5/2002, had notified establishment of 10 of 60 ::: Downloaded on - 07/01/2020 20:26:52 :::HCHP LPA No.74 of 2017 seven Fast Track Courts (FTC) to be made functional by 31st December, 2003 and in sequel thereto the High Court, vide communication No.HHC/GAZ/14-158/84-II-879, dated .
3rd December, 2003, had recommended the names of seven Members of H.P. Judicial Service to the respondent-
State, for their appointment as Presiding Officers of FTC and had also requested the respondent-State, vide communication No.HHC/GAZ/14-49/74-IV-880, dated 3rd December, 2003, to make two more appointments against available vacancies, on account of promotion and appointment of a Member of H.P. Judicial Service to H.P. High Judicial Service and on account of suspension of a Member of H.P. Judicial Service, with further information that appointment against first vacancy had been requested to be made on regular basis and appointment against the second vacancy had been requested to be made on adhoc basis; and also to make appointment against seven vacancies available on account of appointment of seven Members of H.P. Judicial Service as Presiding Officers of seven FTC.
17. Appointment of seven Members of H.P. Judicial Service as Presiding Officers for seven FTC, created vide Notification Home-B(E)1-5/2002, dated 13th November, 11 of 60 ::: Downloaded on - 07/01/2020 20:26:52 :::HCHP LPA No.74 of 2017 2003, on the basis of recommendations of the High Court, dated 3rd December, 2003, was notified on 12th December, 2003 and in sequel thereto their posting orders were .
issued by the High Court, vide Notification No.HHC/ GAZ/14-53/74-IV, 16th December, 2003, causing seven more vacancies. Thereafter, vide Second Notification, respondent-State had notified appointment of nine persons from the Select List, wherein name of respondent No.3 was at Serial No.1, against the clear-cut vacancy available, as communicated in the Minutes of Meeting dated 12th September, 2003, transmitted to the respondent-State vide letter No.HHC/CWP No.324/2003- 835-36, dated 12th/15th September, 2003.
18. For completion of facts, it is also apt to record here that lateron, for creation of temporary Courts of Civil Judge (Junior Division) at Mandi, Hamirpur, Una and Ghumarwin, vide Notification No.Home-B(E)3-19/2002-Vol-
I, dated 24th June, 2004, issued by the respondent-State, four more persons, out of Select List (Annexure P-4 to the Writ Petition) were appointed to the H.P. Judicial Service, vide Notification No.Home-B(B)3-19/2002-Vol-I-loose, dated 26th July, 2004, thereby all persons from the Select List, except one Shri Sunil Chauhan, who could not be 12 of 60 ::: Downloaded on - 07/01/2020 20:26:52 :::HCHP LPA No.74 of 2017 appointed for availability of post during the life of Select List, were appointed to the H.P. Judicial Service
19. Subsequent to the appointment of petitioner, .
respondent No.3 and respondent No.4, the High Court sent a Gradation List of Members of H.P. Judicial Service, as it stood on 1st January, 2005, to all District and Additional District and Sessions Judges/ Presiding Officers of Fast Track Courts, and all the Civil Judges (Senior Division)-
cum-Chief Judicial Magistrates/ Civil Judges (Junior Division)-cum-Judicial Magistrates 1st Class, in Himachal Pradesh, vide letter dated 28th January, 2004 (Annexure P-
9 to the Writ Petition) and similarly Gradation Lists for subsequent years were published by the High Court and as such Gradation List of H.P. Judicial Service Officers, as it stood on 1st January, 2010, was also notified vide letter dated 26th/29th March, 2010 (Annexure P-11 to the Writ Petition). In all these Gradation Lists, respondent No.3 was shown below respondent No.4 and petitioner.
20. Plea of respondent No.3 remained uncontroverted that in the aforesaid last Gradation List, published in the year 2010, appointees of April 2009 were shown senior to appointees of February, 2009, on the basis of order of merit, reflected by the Commission in 13 of 60 ::: Downloaded on - 07/01/2020 20:26:52 :::HCHP LPA No.74 of 2017 Select Panel, despite the fact that persons with higher merit were appointed two months after the persons lower in merit in the Select Panel. During the same year, i.e. .
2010, process for promotion and appointment of Civil Judges (Junior Division)-cum-Judicial Magistrates as Civil Judges (Senior Division) was initiated, wherein petitioner, respondent No.3 and respondent 4, being in the zone of consideration, had participated, wherein in the merit-cum-
suitability test for the post of Civil Judge (Senior Division), respondent No.3 had secured 60 marks, whereas petitioner and respondent No.4 had secured 59.5 and 58.3 marks, respectively.
21. Not expecting her promotion and appointment before petitioner and respondent No.4, for her placement below them and expecting her promotion/appointment in order of her placement in the Gradation List and noticing the assignment of seniority to appointees of April 2009 above the appointees of February 2009, respondent No.3 had represented to the High Court vide Representation dated 29th September, 2010 (Annexure P-13 to the Writ Petition) and, referring the aforesaid facts, she had claimed her placement above the petitioner and respondent No.4, in order of merit in the Select List, 14 of 60 ::: Downloaded on - 07/01/2020 20:26:52 :::HCHP LPA No.74 of 2017 prepared by the Commission at the time of her appointment after completion of process of H.P. Judicial Service Competitive Examination, 2003.
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22. On receiving representation of respondent No.3, the Chief Justice of High Court had constituted a Committee of three learned Judges of the High Court for its consideration and the Committee, before taking a decision on representation, had issued notice thereof to the petitioner and respondent No.4, and in response thereto they had submitted their respective replies (Annexure P-
16/1 to the Writ Petition and Annexure R-1/C to the reply filed by the High Court to the Writ Petition), wherein prayer of respondent No.3, made in the representation, was opposed and contested mainly on the ground that at the time of issuance of First Notification, there were only seven clear-cut vacancies in H.P. Judicial Service, out of which four posts were for General Category, two for SC and one for OBC candidates and for want of availability of OBC candidate, fifth post was offered to next General Category candidate, whereas respondent No.3 was offered appointment to the H.P. Judicial Service against vacancy which was not available at the time of appointment of petitioner and respondent No.4 and further that she had 15 of 60 ::: Downloaded on - 07/01/2020 20:26:52 :::HCHP LPA No.74 of 2017 not objected her placement in the Gradation List, issued as on 1st January, 2004 and, thereafter, till the year 2010 and, thus, her claim was liable to be rejected for delay and .
laches and her non-promotion to the post of Civil Judge (Senior Division) could not have given her fresh cause of action to agitate the Gradation List of H.P. Judicial Service Officers, as it stood on 1st January, 2004, which had attained finality, for want of valid challenge to the same within reasonable time, and as she was not falling in merit against the five posts available for appointment from General Category, on her appointment subsequent to the petitioner and respondent No.4, despite being in merit, she was to be placed below them, as petitioner and respondent No.4 were appointed against the posts available to their category at the time of First Notification.
23. After considering the representation and replies thereto, and the provisions of Rules 1973, particularly proviso to Rule 7(2)(ii), in Part-V thereof, dealing with seniority, which were in force at the time of H.P. Judicial Service Competitive Examination, 2003, and also taking into consideration the latest Himachal Pradesh Judicial Service Rules, 2004 (hereinafter referred to as Rules 2004), which came into force on 20th March, 2004, 16 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 with reference to Rule 13(3) of these Rules, the Committee had submitted its report on 1st September, 2011, recommending acceptance of representation of .
respondent No.3. The said report was placed before the Full Court meeting of the High Court on 29th September, 2011 and the Full Court had accepted the report of the Committee and had ordered to place respondent No.3 below Shri Abhay Mandyal and above respondent No.4, whereas the petitioner was already below respondent No.4.
24. During interregnum, vide Notification dated 22nd October, 2010 (Annexure P-16 to the Writ Petition), petitioner was promoted and appointed as Civil Judge (Senior Division) with immediate effect, but purely on adhoc basis against available vacancy whereas respondent No.4 was promoted and appointed as such on 25th October, 2010.
25. Being aggrieved by the decision of the High Court, on Administrative Side, petitioner had assailed it by invoking jurisdiction of the High Court of Himachal Pradesh, under Article 226 of the Constitution of India, by preferring CWP No.17 of 2012, raising all the grounds 17 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 taken in the response to the representation of respondent No.3.
26. Petition was contested by respondents No.1 .
and 3, by filing their response, justifying the claim of respondent No.3 and supporting the decision taken by the High Court of Himachal Pradesh, on Administrative Side, whereas respondent No.4 despite his service on 30th January, 2012 for 29th March, 2012, had not chosen to be represented and to contest the Writ Petition, however, respondent No.2 has filed a formal reply.
27. After considering the pleadings of the contesting parties, arguments raised by their respective counsel on their behalf, learned Single Judge has dismissed the Writ Petition vide Judgment dated 21st June, 2017, which is under challenge here in this appeal.
28. At the time of conducting the H.P. Judicial Service Competitive Examination, 2003, Rules 1973, were in vogue, Rule-7 contained in Part-V whereof deals with seniority of Members of H.P. Judicial Service, which reads as under:
"7. (1) The High Court shall prepare and maintain a list of members of service appointed in order of seniority.
18 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 (2) The High Court shall prepare a list of members of Service, arranged in order of seniority as determined in the manner specified below:
(i) The persons appointed to the service .
under Rule 6 (Part IV) of these rules shall be senior to all others appointed under Rule 5 (Part III) and their inter se seniority shall be the same as determined under Himachal Pradesh Subordinate Judicial Service.
(ii) In the case of persons appointed under rule 4 (Part-III) seniority in the service shall be determined by the order in which appointments are made to the service.
Provided that persons recruited on the results of the competitive examination in any year shall be ranked inter se in the order of merit in which they are placed at the competitive examination on the results of which they are recruited, those recruited on the basis of an earlier examination being ranked senior to those recruited on the basis of the later examination."
29. Rules 1973 were replaced by Rules 2004, w.e.f.
20th March, 2004. Rule 13 thereof deals with seniority of Members of H.P. Judicial Service, which reads as under:
"1) Where officers are recruited to a cadre by promotion and direct recruitment, seniority shall be regulated by the roster maintained for such recruitment. Officer appointed against higher point of roster shall rank senior to the officer appointed a lower point.
Provided that no person appointed to a cadre by direct recruitment shall for the purpose of fixation of his seniority claim any particular place in seniority unconnected with the date of his actual appointment.
2) Where more than one Officers are promoted to cadre at the same time inter-se seniority of persons 19 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 so promoted shall be determined by their inter-se seniority in the lower cadre.
3) Where direct recruitment is made to a cadre, the inter-se seniority of persons so recruited shall be in .
the order in which their names are arranged in the select list.
4) Every year in the month of January seniority list of Officers in all cadres shall be prepared and published by the High Court and the lists so published shall be issued for the purpose of making promotions to the next higher cadres."
30. Rule 7 of Rules 1973 mandates the High Court to prepare and maintain a list of Members of service appointed in order of seniority by determining the same in the manner specified in this Rule. Since 20th March, 2004, Rules 2004 have come into force. In these Rules also mandate of Rule 13(4) is that every year, in the month of January, Seniority/Gradation List of Officers in all cadres shall be prepared and published by the High Court and the List so published shall be issued for the purpose of making promotions to the next higher cadre.
31. Determination of seniority at the time of appointment of petitioner, respondent No.3 and respondent No.4 is governed by Rules 1973, whereas for appointments in the year 2009, the same is governed by Rules 2004. Respondent No.3, in her representation, had requested for treating her in the manner like the 20 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 appointees of the year 2009. It appears that for that reason only, the Committee had taken into consideration the provisions with respect to seniority of direct recruits in .
both Rules, i.e. Rules 1973 and Rules 2004, as in case of similar provisions in the Rules, the like persons were to be treated in one and the same manner and for any difference in the Rules, respondent No.3 was not having any right to claim same the treatment as was given to appointees of year 2009.
32. Rule 7(2)(ii), contained in Part-V of Rules 1973, provides general rule that seniority of direct recruits in the service shall be determined by the order in which appointments are made to the service, but with exception in its proviso that persons recruited on the result of competitive examination, in any year, shall be ranked inter se in the order of merit in which they are placed at the competitive examination on the result of which they are recruited with further qualification that persons, those recruited on the basis of earlier examination, will be ranked senior to those recruited on the basis of later examination. Similar provision is available in Rule 13(3) of Rules 2004, which provides that inter se seniority of direct recruits to a cadre shall be in the order in which their 21 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 names are arranged in the Select List. Undoubtedly, Select List is a result of a competitive examination, in order of merit, on the basis of which persons are recruited, .
who have undergone one and the same competitive examination. Therefore, provision of Rule 13(3) of Rules 2004 is pari materia to proviso to Rule 7(2)(ii) of Rules 1973.
33. Applying Rules 1973, respondent No.3, despite having higher order of merit, was placed at a lower place, whereas by applying similar provisions, contained in Rules 2004, appointees of April 2009 were placed above appointees of February 2009. In both cases, method for determining seniority amongst direct recruits, appointed on the basis of one and the same competitive examination is identical, but that has been applied differently in two situations. A same or similar provision of Rules/statute cannot be and must not be applied differently in identical situations. It appears, therefore, the Committee of Judges and Full Court of the High Court, after considering the Rules 1973 and Rules 2004, have assigned the seniority, in accordance with the method/provision to be applied in such situation and which has now been upheld by learned Single Judge.
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34. Mr. B.C. Negi, learned Senior Counsel, appearing for the petitioner, has contended that after appointment of Judicial Officers out of the Select List .
prepared in H.P. Judicial Service Competitive Examination, 2003, the Court had issued Gradation List of Officers of H.P. Judicial Service, as it stood on 1st January 2005, and the High Court continued to issue such Gradation Lists in the subsequent years also and respondent No.3 had represented only after publication of Gradation List as it stood on 1st January, 2010, which was forwarded to all concerned for information and record, vide communication dated 26th/29th March, 2010 (Annexure P-11 to the Writ Petition). He has further submitted that the Gradation List is nothing but Seniority List published by the High Court in consonance with the provisions of Rules 1973 as well as Rules 2004, and till 29th September, 2010, for five years, respondent No.3 did not object the Gradation List and, therefore, her representation was hit by delay and laches and was liable to be rejected at the very initial stage, as she was not entitled to unsettle the settled seniority of such a long period, but despite raising this issue in response to the notice received from the Committee, the Committee as well as the Full Court of the High Court had 23 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 ignored the same and, keeping silence in this regard, representation of respondent No.3 had been accepted and she had wrongly been assigned seniority above petitioner .
and respondent No.4.
35. It is also canvassed that the issue of delay and laches has been dealt with by learned Single Judge, in Para-6 of the impugned judgment, in a very casual manner and case law referred in that Para, i.e. State of Madhya Pradesh v. Syed Qamarali, 1967 SLR 228; P.L. Shah v. Union of India & another, AIR 1989 SC 985; and M.R. Gupta v.
Union of India, AIR 1996 SC 669, is not relevant in present case, but deals with the issue related to claim of employee for salary or its arrears.
36. According to the learned Senior Advocate, learned Single Judge has erroneously applied the principle of "continuing wrong" in present case. To substantiate plea on this ground, relying upon pronouncements of the Apex Court in Union of India & others v. Tarsem Singh, (2008) 8 SCC 648; and Union of India v. C. Girija & others, 2019 (3) Scale 527, it is strongly argued that delayed representation of respondent No.3 was not maintainable, but was liable to be rejected at the threshold.
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37. Referring to Union of India v. H.R. Patankar & others, 1984 (Supp) SCC 359, learned Senior Advocate has further submitted that Gradation Lists issued by the High .
Court since 1st January, 2005 were nothing but the Seniority Lists prepared by the High Court in consonance with provisions of the Rules, but respondent No.3 did not file any objection thereto published consecutively for five years and now she cannot take stand that no Seniority List was published by the High Court, more particularly from the averments made in the representation (Annexure P-13 to the Writ Petition) as well as in the reply filed to the Writ Petition, it is evidently clear that respondent No.3 herself had considered the Gradation Lists as Seniority Lists.
38. Referring Bhey Ram Sharma & others v.
Haryana State Electricity Board & others, 1994 Supp (1) SCC 276, it is contended on behalf of the petitioner that while determining inter se seniority between the Officers appointed by the same process, at different times, the date of entering in the service is relevant and in present case petitioner and respondent No.4 have entered in service in November, 2003, whereas respondent No.3 has entered the service in December, 2003 and, thus, 25 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 respondent No.3 is not entitled for seniority above the petitioner and respondent No.4.
39. Similarly, reliance has also been placed on .
pronouncement of the Apex Court on Nirmal Chandra Sinha v. Union of India, (2008) 14 SCC 29, wherein it has been held that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post and it is contended that all seven vacancies advertised for appointment were exhausted in November, 2003 and, therefore, respondent No.3, who had been appointed lateron, in December, 2003, has no right to claim her right of seniority from the date of appointment of petitioner and respondent No.4.
40. Referring Rakhi Ray & others v. High Court of Delhi & others, (2010) 2 SCC 637, learned Senior Counsel has argued that any appointment, made beyond the number of vacancies advertised, is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India and, thus, a nullity, unexecutable and unenforceable in law and in case the vacancies notified stand filled up, the process of selection comes to an end and, therefore, in present case after issuance of offer of appointment vide First Notification, exhausting all 26 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 vacancies advertised on 23rd May, 2003, process of selection had come to an end and appointments made thereafter, in view of this pronouncement of the Apex .
Court, are nullity and, thus, confer no right on respondent No.3 to claim any benefit against the appointees of the first list, muchless seniority above them in order of merit of Select List, which had already been exhausted.
41. Lastly, it is contended that in reply to the representation (Annexure P-16/1 to the Writ Petition), the petitioner had raised aforesaid issues, but the Committee in its decision (Annexure P-19 to the Writ Petition) had failed to deliberate upon the same and, therefore, committed a mistake in allowing the representation of respondent No.3, after ignoring the delay and laches as well as date of appointment of respondent No.3.
42. Mr. K.D. Sood, Senior Advocate, learned arguing Counsel for respondent No.3 has canvassed that appointment of petitioner and others, vide First Notification, was purely on temporary basis, conferring no right on the petitioner to claim to maintain his placement in furtherance thereto, as respondent No.3 was also appointed out of the same Select List in the Month of December, 2003 and both the petitioner as well as 27 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 respondent No.3 were attached with District & Sessions Judges for training in the month of December, 2003 only.
It is also claimed on behalf of respondent No.3 that .
promotion of the petitioner, vide Notification dated 22nd October, 2010 (Annexure P-16 to the Writ Petition) as Civil Judge (Senior Division) was purely on adhoc basis and, thus, on the basis of such adhoc promotion, petitioner cannot be allowed to claim accrual of any vested right for such promotion made prior to respondent No.3, as respondent No.3 had submitted her representation on 29th September, 2010, prior to his promotion and further that irrespective of date of first appointment, seniority amongst the petitioner, respondent No.3 and respondent No.4 was to be determined as per provisions of Rule 7 of Rules 1973, which provides assignment of seniority to respondent No.3 above petitioner and respondent No.4, who were lower in merit in the Select List of H.P. Judicial Service Competitive Examination, 2003. He has further submitted that all the posts against which appointments were made vide First Notification and Second Notification were already advertised vide Advertisement No.1 of 2003, dated 23rd May, 2003 and Addendum dated 19th September, 2003 thereto (Annexures P-1 and P-2 to the 28 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 Writ Petition) and, therefore, after appointments against these posts, even by two separate Notifications, seniority of appointees was to be determined in order of merit of .
Select List (Annexure P-14 to the Writ Petition), if not of all appointees but of respondent No.3, as at the time of making appointment of petitioner and respondent No.4 vide First Notification, the post against which respondent No.3 had been appointed was very much available.
43. It is further contended on behalf for respondent No.3 that the vacancy was available for appointment of respondent No.3, at the time of offering appointment to first lot and in response to the representation of employee (respondent No.3), the High Court has accepted and rectified the mistake, and, therefore, now respondent No.3 cannot be ousted on account of delay and laches, if any.
Relying upon pronouncement of Apex Court in Shiba Shankar Mohapatra & others v. State of Orissa & others, (2010) 12 SCC 471, it is contended that submission of representation, after about five years of publication of Gradation List is not an inordinate delay but within reasonable time for the circumstance as existing at the time of submitting representation.
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44. It is also contended that Seniority List was never issued by the High Court in accordance with law.
Neither Tentative Seniority List was published nor .
objections were invited and Final Seniority List was never published at any point of time and, therefore, non-
representation against placement of respondent No.3, till 2010, cannot be termed as stale, delayed or belated claim.
45. Relying upon Shankarsan Dash v. Union of India, AIR 1991 SC 1612, it is argued that respondent-State should have issued offer of appointment to respondent No.3 alongwith petitioner and respondent No.4, for availability of post at that time and further that though it is prerogative of the employer to fill or not to fill the vacancy, but decision not to fill the vacancy should not be arbitrary or malafide.
46. Mr. J.L. Bhardwaj, learned counsel for the High Court, has submitted that Committee of Judges has rightly decided the representation of respondent No.3 as per Rules, which has been accepted by the Full Court of the High Court and upheld by the learned Single Judge, as respondent No.3 was placed below the petitioner and respondent No.4 erroneously, contrary to the provisions of relevant Rules applicable to them, as respondent No.3 was 30 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 at Serial No.6 of Select List, above the petitioner and respondent No.4. He has fairly admitted that no Tentative Seniority List was ever published by the High Court and no .
objections at any point of time were invited, regarding placement of Judicial Officers in seniority. However, he has submitted that Gradation List was prepared and issued in order of seniority assigned to the Judicial Officers. For provisions of Rules applicable at the relevant point of time, he has justified decision of the High Court on the Administrative Side, and the Judgment passed by the learned Single Judge. For material available on record with respect to correspondence between the High Court and the Government, he has submitted that total eight clear-
cut vacancies were available in September, 2003 for appointment and in addition thereto one adhoc vacancy, on account of suspension of one Judicial Officer, was also available. He has also submitted that factual matrix, as existing during process of H.P. Judicial Service Competitive Examination, 2003 and making appointments in pursuant thereto is also on record in affidavits filed on behalf of the High Court as well as respondent-State.
47. Learned Additional Advocate General has submitted that initially seven posts were advertised and, 31 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 therefore, seven persons were appointed vide First Notification and the post available, advertised in Addendum to the main advertisement, was filled on 18th .
December, 2003. According to him, no OBC candidate, against the posts advertised on 23rd May, 2003, was available and, therefore, vide First Notification, five candidates of General Category were appointed and against two vacancies reserved for Scheduled Caste candidates, petitioner and respondent No.4 were rightly appointed by the same Notification. On the basis of record of respondent-State, he has submitted that respondent No.3 was appointed against the vacancy arisen on 18th August, 2003, on account of promotion of one D.K. Sharma from the H.P. Judicial Service to the H.P. Higher Judicial Service.
48. For further deliberation on the issue, it would be relevant to have the details of posts available at the time of issuance of First Notification. Detail of posts available, as per record and as also submitted by the learned Counsel for the High Court and the learned Additional Advocate General, during September to December 2003, is as under:
"A" Clear-Cut Vacancy 32 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 Vacancy Date of Reasons for occurrence Category occurrence 1st 29.6.2001 Due to promotion of Shri Sher Singh Sen (SC) as SC ADJ on superannuation .
of Shri Janeshwar Goyal
DJ on 31.3.2001
2nd 20.11.2001 Due to death of Shri Piar SC
Chand, Sub Judge (SC)
3rd 8.7.2002 Due to promotion of Shri
J.S. Mahantan (UR) as
ADJ on superannuation f UR
Shri B.S. Chauhan, DJ on
31.3.2002.
4th 30.11.2002 Due to promotion of Shri
K.L. Sharma (UR) as ADJ
on pre-mature UR
retirement of Shri
Mahant Ram Chaudhary,
DJ on 7.11.2002
5th
5.5.2003 Due to posting of Shri
R.K. Mittal (UR) as
Administrative Officer in UR
H.P. State Judicial
Academy on Deputation
basis.
6th 18.8.2003/ Due to promotion of Shri UR
5.9.2003 D.K. Sharma (UR) as ADJ
7th 18.8.2003/ Due to promotion of Shri
8.9.2003 Ravinder Prakash (UR)
as PO FTC (ADJ) vide UR
Notification dated
18.8.2003
8th 18.8.2003/ Due to promotion of Shri
27.9.2003 A.S. Jaswal (UR) as PO
FTC (ADJ), vide UR
Notification dated
18.8.2003.
"B" Adhoc Vacancy
Vacancy Date of Reasons for occurrence Category
occurrence
Due to suspension of
9th 26.12.2002 Shir K.P. Singh, Sub UR
Judge (UR)
"C" Anticipated/Future Vacancies
33 of 60
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LPA No.74 of 2017
Vacancy Date of Reasons for occurrence
occurrence
On account of establishment of
10th to 16th 12.12.2003 new Fast Track Courts, proposed
to be created.
.
49. Despite having eight clear-cut vacancies, vide First Notification, only seven candidates were appointed, out of which two available Scheduled Caste candidates, i.e. petitioner and respondent No.4, were also appointed.
50. In Shankarsan Dass's case supra, referring its earlier pronouncements in State of Haryana v. Subhash Chander Marwaha, AIR 1973 SC 2216; Miss Neelima Shangla v. State of Haryana, (1986) 4 SCC 268; and Jitender Kumar v. State of Punjab, AIR 1984 SC 1850, the Apex Court has reiterated that for notifying vacancies to make appointments, no successful candidate acquires indefeasible right to be appointed against such posts, as such notification of vacancies merely amounts to invitation to qualified candidates to apply for recruitment and, therefore, on their selection they do not acquire any right to the post, and further unless the relevant recruitment Rules so indicate, employer is under no legal duty to fill-up all or any of vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner.
Decision not to fill-up the vacancies has to be taken 34 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 bonafide for appropriate justifiable reasons. If the vacancies or any of them are filled-up, the State is bound to respect the comparative merit of the candidates, as .
reflected at the recruitment test, and no discrimination can be permitted. Ratio reiterated by the Apex Court is that decision not to fill the notified vacancies must not be arbitrary, malafide or for ulterior motive.
51. In present case, at the time of filling up seven posts vide First Notification, there was no such decision for not filling-up the eighth post of clear-cut vacancy, rather it was categorically communicated by the High Court to fill-
up not only the said regular vacancy but also to fill-up the adhoc vacancy, which fell vacant on account of suspension of a Judicial Officer. Therefore, appointment of respondent No.3 is in continuation of the First Notification against the clear-cut vacancies available on the date of the said Notification. No impediment, muchless legal impediment, for the State or the High Court for appointing respondent No.3 alongwith appointees of First Notification, has been placed on record or brought to our notice. Rather record speaks contrary to that as the High Court as well as Government had not only decided but were keen for making appointment against the said post.
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52. The moment post is filled, person appointed to that post shall be entitled for benefit flowing from such appointment as an appointee alongwith other appointees, .
out of the same Select List prepared during process of the same Competitive Examination/recruitment process, obviously as per existing Rules applicable to such appointment.
53. No doubt, as reiterated by the Apex Court, after considering its earlier pronouncements in Bhey Ram's case supra, relied upon by the petitioner, it is almost settled that while determining the inter se seniority amongst Officers recruited from different sources or between Officers appointed by the same process, at different times, the date of entering in service is relevant. But, in the same judgment, it has been further held by the Apex court that a person, who enters in the service first shall rank senior unless there is some Rule providing otherwise, which can be held to be consistent with Articles 14 and 16 of the Constitution of India. In present case, according to Rules 1973 and Rules 2004, provision whereof has never been assailed being inconsistent with Articles 14 and 16 of the Constitution, and, thus, for presumption of constitutionality and validity attached thereto, the 36 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 seniority of the persons recruited on the result of the Competitive Examination, in any year, shall be ranked inter se in the order of merit in which they are placed at .
the Competitive Examination, on the result of which they are recruited.
54. There is no quarrel with respect to the principle reiterated in Nirmal Chandra Sinha's case supra, relied upon by the petitioner, that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post. In the said case, the appellant was promoted as General Manager on 29th November, 1996, but he had claimed to deem him to have been promoted with effect from 13th March, 1990, with consequential benefits, whereas in the present case respondent No.3 is neither asking to deem her appointed on the date of First Notification nor the High Court, has assigned the date of her appointment as such. In the present case, the seniority has been assigned to respondent No.3 in accordance with the provisions of existing Rules, validity and constitutionality whereof is not in question. Therefore, this judgment is not relevant for the purpose of adjudication of issue in question in present case, particularly for the reason that in the present case, 37 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 not only the vacancies were available but the same were advertised and there was a request to fill-up all vacancies together, but for the reasons best known to the .
respondent-State, as nothing has been disclosed for such lapse or action, appointment to the eighth clear-cut vacancy was not made, which is a lapse on the part of the concerned authority and relevant Rules are taking care of such situation, entitling respondent No.3 to have seniority above the other appointees, who are lower in merit in the Select List. A person should not be punished for no fault on his part, but for lapse of authorities.
55. In the present case, the post was not only existing and available for appointment but also intended to be filled-in alongwith other vacancies. However, it was not filled-up alongwith other vacancies earlier for no cogent reason. It was, however, filled-in during the same year that too within a period of about one month. Under the provisions of relevant Rules, availability of the post and intention of High Court and Government to fill-up the said post, the fact of appointment of respondent No.3, at later stage, is immaterial for the purpose of determining her seniority on the basis of her merit in the Select List of the same H.P. Judicial Service Competitive Examination, 38 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 2003, therefore, she is entitled for seniority according to order of merit in the Select List above the petitioner and respondent No.4.
.
56. In normal course, against available advertised posts, appointments are made simultaneously and if for any reason there is delay in joining of the candidate, in such eventuality seniority is not to be considered on the basis of joining but on the basis of order of merit in the Select List. However, it appears, at the time of framing rules, to determine seniority in order of merit in Rule 7(2)(ii) of Rules 1973 as well as rule 13(3) of Rules 2004, a situation of withholding the appointment of a candidate against an available advertised post, inadvertently or for extraneous reasons, may not have been contemplated and also appointment of a candidate, out of a common Select List prepared for advertised existing and anticipated vacancies, against a post becoming available on a later date to the date of previous appointment(s), out of the Select List, also does not appear to have been taken care of.
57. In case, on the date of previous appointment(s), in a situation when post if available and candidate in Select List is also available, the State may 39 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 decide to fill or not to fill the vacancy and where there are number of posts are available and candidates in Select List are also available, the State may also decide to fill all the .
vacancies or some of those vacancies, but resolution not to fill vacancy or vacancies must be on the basis of just and legal decision for genuine and valid reasons sustainable in the eye of law, in consonance with principle of "Rule of Law" and in absence thereof, the person higher in merit appointed subsequently must not be deprived from seniority for which he was entitled on the basis of merit at the time of appointment made previously when post against which he has been appointed was available and not filled for extraneous reasons or by mistake.
58. For clarity and to avoid further unnecessary and unwarranted dispute and litigation, arising out therefrom, we feel it necessary to record here that benefit of proviso to Rule 7(2)(ii) of Rules 1973 as well as Rule 13(3) of Rules 2004, for assigning seniority to subsequent appointee, in order of merit, shall be available only to that appointee, who is appointed out of the same Select List prepared in the same selection process, but subject to further condition that the post against which he is appointed, must be existing and available for filling-up on 40 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 the date when appointment of persons, having lesser merit than him, belonging to the same Select List of the same selection process, has been made coupled with the .
fact that there was no just and valid reason for not filling-
up the said post at the time of first appointment(s). It is for the reason that seniority can be assigned against existing post. However, when there is no post available on a particular date, i.e. date of first appointment(s), but is available on subsequent date to the date of previous appointment, for reasons, like creation, promotion, death or resignation, etc., person appointed against such post, for want of existence of the post at the time of previous appointment(s), cannot claim seniority over others appointed earlier against posts existing at the time of their appointments. Such appointee cannot claim appointment from the date when there was no post/ vacancy available for appointment. Similarly, in case there is a legal impediment for not filling-up the post available alongwith other available posts together, then also, subsequent appointee will not have any right to claim for seniority above the appointee(s) of prior date.
59. In Rakhi Ray's case supra, relied upon by the petitioner, the Apex Court has held that appointment 41 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 made, beyond the number of vacancies advertised, is nullity, unexecutable and unenforceable in law. However, this principle is not applicable in present case, as it is .
neither case of petitioner nor factually correct that appointments made vide Second Notification in December, 2003 were not advertised and thus are nullity, unexecutable and unenforceable in law. There is no challenge laid to the appointment of respondent No.3, on any ground, muchless on the ground that the post was not advertised nor such challenge could have been laid, for the reason that all the vacancies were duly advertised vide Advertisement No.1 of 2003 and Addendum dated 19th September, 2003, and appointments were not made from waiting list but out of the Select List prepared by the Commission in consonance and in compliance with the order passed by High Court in CWP No.324 of 2003 and in accordance with requisition sent by the Government to the Commission.
60. Rule-7 of Rules 1973 mandates preparation and maintenance of list of Members of H.P. Judicial Service appointed in order of seniority, whereas there is similar provision in Rule 13(4) of Rules 2004 providing for preparation and publication of Seniority List of Officers, by 42 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 the High Court in the month of January of every year and use of such published list for the purpose of making promotions to the next higher cadre.
.
61. The Apex Court in its pronouncement in Shiv Dass v. Union of India & others, (2007) 9 SCC 274, referring its various earlier pronouncements, has observed that in an appropriate case the High Court may refuse to invoke its extraordinary power if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party and doctrine of laches in the Courts of equity is not an arbitrary and technical doctrine and where it would be practically unjust to give a remedy, lapse of time and delay are most material, with further qualification that in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, therefore that delay being not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon substantially equitable principles and it is further observed that two circumstances, always important in such cases are, the length of the delay and the nature of the act done during the interval, which might affect either party and 43 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 considering these Court has to cause a balance of justice or injustice in taking one course or the other, so far as it relates to the remedy. It is also observed that High Court .
does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties and when writ jurisdiction is invoked, unexplained delay coupled with creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
62. After taking into consideration its earlier pronouncements, the Apex Court in Tarsem Singh's case supra has held that if grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then claim will not be entertained.
63. The essence of the aforesaid pronouncement of the Apex Court is that normally for an inordinate delay, 44 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 writ petition is not to be entertained, however, it has also been clarified that a just relief should not be denied on the basis of defence founded upon mere delay and further .
that unexplained delay coupled with creation of third party right in the meantime is an important factor for deciding to exercise or not to exercise jurisdiction by the Court.
64. Similarly, in Shiba Shankar's case supra, relied upon by respondent No.3, the Apex Court, referring its earlier pronouncements, has observed that the Court exercising public law jurisdiction does not encourage agitation of stale claims where right of third party crystallises in the interregnum and also that 3-4 years is a reasonable period for challenging the seniority.
65. In present case, respondent No.3 has approached the High Court after more than five years, but at that time status of petitioner, respondent No.3 and respondent No.4 was the same, as on the date of first appointment as well as publication of Gradation List on 1st January, 2005. Though we are not satisfied that Gradation List is the Final Seniority List published in accordance with law, however even if it is considered as Seniority List, status of the Judicial Officers in present case was the same on 1st January, 2010 also. Therefore, it cannot be said 45 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 that on that day, on account of settled position, third party right had crystallised or there was creation of third party rights in the meantime in favour of any other person and it .
would be practically unjust to give remedy to respondent No.3 causing prejudice to the petitioner and respondent No.4, as there was no change in the status of the parties since publication of first Gradation List till publication of Gradation List in the year when respondent No.3 had objected the same, rather for discussion supra it is evident that it was otherwise just and substantially equitable to assign seniority to respondent No.3, as claimed by her in her representation, in consonance with the rules applicable thereto. It is neither pointed out nor reflected in the record made available to the Court that grant of seniority to respondent No.3 in the year 2010 would have affected several others also and re-assignment of seniority to her would have affected the settled right of third parties, rather it is admitted position that petitioner and respondent No.4 were promoted after receiving representation of respondent No.3, that too on adhoc basis.
66. As fairly admitted by learned counsel for the High Court, neither any list, as Tentative Seniority List, 46 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 was ever published nor objections were ever invited from the Members of service and, thus, there is no question of publication of Final Seniority List. However, Gradation List .
of Members of H.P. Judicial Service is being published by the High Court almost regularly in order of seniority assigned to the Officers. It can also be considered as publication of seniority of H.P. Judicial Officers, but in that also objections were never invited. Even if it is construed that being a Judicial Officer, well versed with law, respondent No.3 should have objected for her wrong placement in Gradation List at earlier point of time, then also, she had represented in the year 2010, well before accrual of right and interest in favour of third party, including petitioner and respondent No.4 and even when further promotion of petitioner and respondent No.4 was made subsequent to the said representation and that too on adhoc/temporary basis, the same was definitely subject to legal and valid right of any other person entitled for such promotion in accordance with law, prior to the petitioner.
67. As noticed supra, in identical situation, seniority to subsequent appointees was assigned in the case of appointees of the year 2009. In these circumstances, it 47 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 appears that the Committee as well as Full Court had rightly did not accept the plea for rejection of representation of respondent No.3, on the ground of delay .
and laches.
68. There is another distinction in the present case in comparison to the cases involved in case law cited before us, wherein it has been observed that normally Courts do not entertain the belated, delayed or stale claims/writ petitions, whereas in the present case, representation has been entertained by the High Court and not by the Court and the matter came before the Court against the decision taken by the High Court against the petitioner. In all cases, referred supra, the petitioner had approached the Court for redressal of his grievance after inordinate delay, whereas in present case claim of respondent No.3 has been accepted and grievance of the employee has been acknowledged, accepted and redressed by the High Court. Therefore, it would not be justifiable to oust her at this stage mere on technical ground of delay.
69. In case of C. Girija's case supra, the Apex Court has rejected the claim of the petitioner not only on the ground of delay and laches but also coupled with certain 48 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 other factors which tilted the balance against the petitioner. In that case, claim for inclusion of name of the petitioner in the penal issued on 9th January, 2001 was .
made by filing representation on 25th September, 2007, i.e. after more than 6½ years, which was replied by employer on 27th December, 2007, and it was also revealed from the material on record that after declaration of panel on 9th January, 2001, there were further selections under 30 per cent promotion by LDCE quota in which the petitioner had participated in 2005, but was declared unsuccessful and for her non-inclusion in panel in the year 2005 Selection she had also filed Original Application before the Tribunal, which was dismissed and, therefore, it was considered that after participating in subsequent selections unsuccessfully, by mere filing representation on 27th September, 2007, with regard to selection made in the year 2001, the delay and laches shall not be wiped out and further that after participating in the selection for promotion, wherein bifurcation of vacancies was part of process of selection, it was not open for the petitioner to challenge the bifurcation of vacancies after taking a chance to get selected. Therefore, in the given facts and 49 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 circumstances of the present case, this judgment is strictly not applicable.
70. In H.R. Patankar's case supra, the Apex Court .
has rejected the plea of Union of India that in absence of any Executive Order or Rule laying down the plea for determining inter se seniority between the Officers involved in that case, such an Executive Order or Rule must be implied from the Gradation List issued by the Government of India. The Apex Court has observed that Gradation List has to be prepared in accordance with the principle of seniority laid down by the Government, either statutorily or by means of an Executive Order or Rule and that with reference to such principle of seniority laid down by the Government, the validity of Gradation List is required to be judged and the Gradation List must follow the enunciation of the appropriate principle of seniority by the Government and no principle of seniority can be implied from the inter se seniority fixed in such Gradation List, as it would be putting the cart before the horse.
Therefore, this pronouncement is of no help to the petitioner, as the essence of the pronouncement is that the Seniority/Gradation List should be in consonance with 50 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 the Rules and Rules are not to be interpreted on the basis of seniority assigned in Gradation List.
71. Assignment of wrong seniority and continuation .
thereof in Seniority List of every subsequent year is perpetration of wrong, causing continuous harm giving cause of action to the affected person to assail/object the same, but with rider that by the time it is objected or assailed there should not be creation/accrual/crystallisation of third party right. Denial to entertain a belated claim is not for the reason that by passage of time injustice becomes justice or infringement of legal right becomes justified but for the reason that in case of accrual/creation of third party rights, disturbing a situation would not only open a Pandora Box but also cause prejudice/harm to the third party, leading to another injustice to the person who has no role in the decision making and is not personally at fault for such settled position in his favour. In normal course, it is also basic principle of law that illegality should not be allowed to perpetuate and further rules of procedure are meant to advance the cause of justice and not to short-circuit decision on merit. Therefore, where no third party right has accrued on the date of objection/ assailing any 51 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 illegality, including wrongly assigned seniority, the person should not be ousted for delay and laches only but when laxity or lack of due diligence is apparently visible in act .
and conduct of a person he may be ousted for delay and laches.
72. The essence of representation of respondent No.3 is that she was not aware about the impact of her placement in Gradation List on her further promotion to selection post and also about her position where she was or ought to have been placed and on noticing assignment of seniority of appointees of April 2009 above the appointees of February, 2009, as reflected in the Gradation List of 2010, she had found that she had been placed at a wrong place and impact of such wrong placement was visualized by her during the process of promotion to the post of Civil Judge (Senior Division) in September, 2010, but before accrual of right of third party, including petitioner and respondent No.4, she had represented to the High Court and after giving opportunity of being heard to the petitioner and respondent No.4, representation was decided in her favour, however, pending consideration the representation, petitioner and respondent No.4 had been promoted temporarily/on adhoc 52 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 basis. Apparently, for the reason that assignment of seniority to respondent No.3 in Gradation List published in the year 2005 and subsequent years was patently wrong .
and in violation of rules, neither the Committee nor Full Court of the High Court had considered it appropriate to reject her representation, on the ground of delay and laches raised by the petitioner and respondent No.4 in their response to the representation of respondent No.3.
73. It is also settled that there cannot be estoppal against law/statutory provisions and further limitation to assail a Seniority List is to be taken from date of its final publication. In present case, commission/omission, objected by respondent No.3, was patently wrong and in gross violation of statutory rules. Therefore, principle of estoppal is not applicable for acquiescence of Seniority List, as there was no Final Seniority List published after issuance of temporary/tentative seniority list and inviting objections.
74. It has also been contended on behalf of the petitioner that case law referred by learned Single Judge, in Para-6 of the impugned judgment, is not applicable in present case as the said case law deals with the subject matter of salary. Learned Single Judge has referred these 53 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 judgments in support of his view that when relevant orders/Gradation List are legally invalid, there is no limitation for challenging such invalid orders/Gradation List .
and to avoid perpetration of continuing wrong there is no limitation prescribed for correcting a continuing wrong and when impugned decision is making illegal potency, representation of respondent No.3 is not hit by delay and laches.
75. In Syed Qamarali's case supra, the Apex Court has held that there is no legal existence of an order made in breach of a mandatory provision of the rules and, therefore, there is no necessity to have such order set aside by a Court and accordingly the Apex Court had rejected the defence of limitation based on contention that order had to be set aside by a Court before it becomes invalid. In present case also assignment of seniority to respondent No.3 in Gradation List has been found to be patently wrong, in gross violation of statutory rules applicable to the case. Therefore, despite the fact that petition in that case was for recovery of amount on account of pay and allowances of the employee but the legal principle propounded therein is applicable in present case.
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76. In P.L. Shah's case supra also the claim in the petition was with respect to fixation of subsistence allowance during suspension of the petitioner, but the said .
claim was rejected by the Administrative Tribunal on the ground of limitation and the Apex Court had observed that in the circumstances of the case, even though no relief could be given to the appellant in respect of the period which was beyond three years from the date on which Tribunal commenced to exercise its power under the Act, it was quite open to the Tribunal to consider whether it was proper for the Government to continue to give effect to the order dated 6th May, 1982 from any subsequent date and it was directed that if the Tribunal came to the conclusion that the order dated 6th May, 1982 was required to be revised, it could pass an appropriate order, notwithstanding the fact that period of five years had elapsed on the date when the order revising the subsistence allowance was passed. The principle propounded by the Apex Court in this judgment is that where impugned action/order is found to be illegal, relief could be granted to the petitioner, entire claim of the petitioner should not be rejected on the basis of delay and laches/limitation and further that for the continuing wrong 55 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 relief should not be denied for limitation but may be restricted for a prescribed past period and/or for future. In the present case, learned Single Judge has considered the .
reflection/assignment of wrong seniority of respondent No.3 in succeeding Gradation Lists as a continuing wrong and had drawn support from this judgment and no benefit for pre-representation period was claimed nor granted.
77. The dispute in M.R. Gupta's case supra is also with respect to fixation of pay but the issue involved therein and adjudicated by the Apex Court is that whether petitioner was disentitled to the relief on account of laches and it has been held that where there is a case of one time action, delay and laches is to be considered from the date of action, whereas the action of the employer, like payment of correct salary every month, gives rise to a fresh cause of action each time the salary is incorrectly computed and paid. Therefore, ratio of law is that continuous wrong gives rise to the recurring cause of action. As already noticed, learned Single Judge, considering the reflection of respondent No.3 in successive Seniority Lists, has considered it a continuing wrong and has, thus, referred this judgment of the Apex Court for rejecting the plea of delay and laches.
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78. No doubt, subject matter of the case referred by learned Single Judge was grant of salary, fixation of subsistence allowance, but principle propounded therein .
with respect to delay and laches and limitation is legal and applicable in cases related to other subject matters also, in similar conditions, facts and circumstances. Basic ratio contained in these judgments is that limitation should not come in the way for doing justice, but subject to certain rider based on principles of equitability.
79. Even if wrong placement in succeeding Seniority/Gradation Lists is not considered to be a continuing wrong, then also at the time of making representation by respondent No.3, there was no change in status and there was patent illegality in Gradation/ Seniority List, representation after five years, but prior to accrual/crystallisation of third party right, more particularly in favour of petitioner and respondent No.4, as they had not been promoted by that time on account of their placement and seniority. Therefore, representation of respondent No.3 has rightly been considered and accepted by the Committee as well as Full Court of the High Court. Circumstance of the date on which representation has been made is to be considered for 57 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 determining the validity and merit of the claim and not the circumstance subsequent thereto. In fact, after receiving representation of respondent No.3, appointments/ .
promotions should have been made subject to the decision of representation as the said representation had been filed prior to any promotion.
80. Patent illegality or error apparent on the face of record, in gross violation of statutory Rules, must be corrected at any stage, for avoiding perpetuation of illegality but definitely before the creation or crystallisation of settled third party rights. Disturbance thereof may again result into grave injustice to those who have been conferred a status without any fault on their part but for absence of due care and caution taken by the objector well in time.
81. Before parting, we feel it to be appropriate to direct the High Court to make suitable amendment in the Rules, governing the seniority of Judicial Officers/to insert a provision therein for publication of Tentative/Temporary Seniority List, inviting objections and publication/ issuance of Final Seniority/Gradation List thereafter. In the meanwhile, pending consideration the amendment in Rules, we issue Mandamus to the High Court to publish 58 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 and issue Tentative/Temporary Seniority List, according to the seniority of the Officer, as on 1st January of every year, in the month of January and invite objections .
thereto, if any, on or before 31st March of that year and to publish and issue Final Seniority/Gradation List on or before 30th April of that year if no objection is received and if objection is received then on or before 30th of June of that year after considering the objection, if any.
82. We also feel that Rule 13(3) of Rules 2004 does not, in clear terms, deal with all eventualities, as discussed herein supra. Besides this there is also ambiguity in the provisions of Rules 13(1) and proviso thereto, which does not envisage in it the principle of ROTA QUOTA when recruitment is from more than one source. Therefore, the High Court is also directed to look into this aspect and to make suitable amendments, making the Rule more clear and explicit, if advised so.
83. In view of above discussion, no interference in the conclusion arrived at in the impugned judgment, passed by learned Single Judge, is warranted. Hence, the petitioner/appellant is not entitled to the relief claimed in the petition as well as in this appeal. Accordingly, appeal is dismissed with further direction to the High Court to 59 of 60 ::: Downloaded on - 07/01/2020 20:26:53 :::HCHP LPA No.74 of 2017 make further promotions after updating its record in consonance with the decision of the Full Court, under challenge in present proceedings, in terms of discussion .
herein above, to avoid further unnecessary litigation on this issue.
Appeal stands disposed of alongwith pending application(s), if any.
( Vivek Singh Thakur ),
Judge
( Ajay Mohan Goel ),
January 07, 2020(sd) Judge.
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