Karnataka High Court
Malatesh N Kodliyavar vs State Of Karnataka on 27 March, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.12567 OF 2020 (S-RES)
BETWEEN:
1. MALATESH N. KODLIYAVAR
S/O NEELAPPA M KODLIYAVAR,
AGED ABOUT 53 YEARS,
WORKING AS DEPUTY GENERAL MANAGER
(QS AND S) CORPORATE OFFICE, BESCOM
K.R CIRCLE, BENGALURU - 560 001.
2. B. V PALANETRA
S/O B. VEERAPPA
AGED ABOUT 44 YEARS,
WORKING AS EXECUTIVE ENGINEER
WHITEFIELD DIVISION, BESCOM
WHITEFILED, BENGALURU - 560 060.
3. MANJAPPA
S/O CHENNAMOOLYA,
AGED ABOUT 55 YEARS,
WORKING AS SUPERINTENDING ENGINEER
ELECTRICAL, O AND M CIRCLE, MESCOM
MANGALURU.
..PETITIONERS
(BY SRI. D. R. RAVISHANKAR, SENIOR COUNSEL FOR
SMT. M. L. SUVARNA, ADVOCATE FOR)
2
AND:
1. STATE OF KARNATAKA
BY ITS ADDITIONAL CHIEF SECRETARY
TO GOVERNMENT, ENERGY DEPARTMENT,
VIKAS SOUDHA, DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
2. KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED, REPRESENTED
BY ITS MANAGING DIRECTOR,
CAUVERY BHAVANA, K. G ROAD,
BENGALURU - 560 009.
3. THE DIRECTOR (ADMIN AND HR)
KARNATAKA POWER TRANSMISSION
CORPORATION LIMITED,
CAUVERY BHAVAN, K. G ROAD,
BENGALURU - 560 009.
4. KRISHNA MURTHY P.,
THE GENERAL MANAGER,
POWER PURCHASE, CORPORATE
OFFICE, BESCOM, K R CIRCLE,
BENGALURU - 560 001.
5. NAGARAJ G. P.
THE SUPERINTENDING
ENGINEER, MESCOM
BHAVANA CORPORATE
OFFICE, MESCOM, BEJAI
KAVOOR ROAD, BEJAI,
MANGALORE - 575 004.
6. PUSHPA S. A.,
THE SUPERINTENDING
ENGINEER, MESCOM
BHAVANA, CORPORATE
3
OFFICE, MESCOM,
BEJAI KAVOOR ROAD, BEJAI,
MANGALORE - 575 004.
7. RAMESH H. J.,
THE GENERAL MANAGER,
METERS AND COMMERCIAL,
CORPORATE OFFICE, BESCOM,
K R CIRCLE,
BENGALURU-560 001.
8. SRINIVASAPPA,
THE GENERAL MANAGER,
KREDL, SCOUTS
BHAVANA, PALACE ROAD,
BENGALURU - 560 001.
9. VISHWANATHARAO SOLANKI. R.,
THE SUPERINTENDING
ENGINEER, O AND M WEST CIRCLE,
BESCOME, NEXT TO CHORD
ROAD HOSPITAL, SIDDAIAH
PURANIK ROAD, BASAVESHWAR
NAGAR, BENGALURU - 560 079.
10 . SHIVARAM SINGH
THE SUPERINTENDING ENGINEER, BMRCL
DEEPANJALI NGAR, MYSURU ROAD
BANGALORE-560026.
11 . BASAVARAJ B PATIL
THE SUPERINTENDENDING ENGINEER,
O AND M CIRCLE, HESCOM,
CHIKODI - 591 201.
12 . JAMES PHILIP
THE GENERAL MANAGER, DAS
SECTION, CORPORATE OFFICE,
4
BESCOM, K R CIRCLE,
BENGALURU - 560 001.
13 . SHARANAPPA. M. T.,
THE GENERAL MANAGER,
KAVIKA, BAPUJINAGAR,
MYSORE ROAD,
BENGALURU - 560 026.
14 . CHANDRAN. T. S.,
THE SUPERINTENDING
ENGINEER, C,OAND M NORTH
CIRCEL, BESOCM, 3RD FLOOR,
CRESCENT TOWERS, CRESCENT
ROAD, MADHAVANAGAR,
BENGALURU - 560 001.
15 . GOPAL, N. GAONKAR
THE SUPERINTENDING
ENGINEER, W AND M CIRCLE,
KPTCL, PRASARANA BHAVANA,
FTS COMPOUND, N R
MOHALLA, MYSURU - 570 007.
16 . GURUSWAMY K. H.,
THE SUPERINTENDING
ENGINEER, O AND M CIRLCE,
BESCOM, KOLAR - 563 102.
17 . GIRIDHAR KULKRNI,
THE SUPERINTENDING
ENGINEER, O AND M CIRCLE,
HESCOM, NEHRU NAGAR,
BELAGAVI - 590 010.
18 . VENKATESH PRASAD. R.,
THE SUPERINENDING ENGINEER,
TRANSMISSION, W AND M CIRCLE,
5
KPTCL, VIDYANAGAR,
SHIMOGGA - 577 201.
19 . SRIKANTH. M. SASALATTI
THE SUPERINTENDING
ENGINEER, W AND M CIRCLE,
KPTCL, NEHRU NAGAR,
BELAGAVI - 590 010.
20 . SRINIVAS. T. V.,
THE SUPERINTENDING
ENGINEER, (OFFICE) O AND M
ZONE, BESCOM
CHITRADURGA - 577 501.
21 . SHASHIDHAR O S.,
THE SUPERINTENDING
ENGINEER, IT AND MT,
CORPORATE OFFICE,
NAVANAGAR, HUBBALLI - 580 025.
22 . RAVINDRA. K. (1964),
THE SUPERINTENDING
ENGINEER, TL AND SS, KPTCL,
ANAND RAO CIRLCE,
BENGALURU - 560 009.
23 . MITARE. S. S.,
THE SUPERINTENDING
ENGINEER, RT CIRCLE,
VIDYUT NAGAR, KPTCL,
HUBBALLI -580024.
24 . HIREMATH. K. G.,
THE SUPERINTENDING
ENGINEER, O AND M CIRCLE,
HESCOM, BAGALKOT - 587 101.
6
25 . PRAKASH. V.,
THE SUPERINTENDING
ENGINEER, CORPORTE OFFIC,E
TECHNICAL, CESC, NO.29,
VIJAYANGARA, 2ND STAGE,
HINKAL, MYSURU - 570 014.
26 . ABDUL MAJID,
THE SUPERINTENDING
ENGINEER, BMRCL,
DEEPANJALI NAGAR,
MYSURU ROAD,
BENGALURU - 560 026.
27 . ALLABAKSH. B.,
THE SUPERINTENDING
ENGINEER, W AND M, KPTCL,
TUMKUR ASHOK NAGAR,
TUMKUR - 572 103.
28 . GIRISH. B.V.,
THE SUPERINTENDING
ENGINEER, RT AND R AND D,
KPTCL, KAVERI BHAVAN
BENGALURU - 560 009.
29 . RAMESH H. G.,
THE SUPERINTENDING
ENGINEER, ELECRICAL,
BENGALURU RURAL O AND M
CIRCLE, BESOCM, 1ST FLOOR,
TTMC, BENGALURU - 560 060.
30 . NAGESH S.,
THE EXECUTIVE ENGINEER,
TAQC, CORPORTE OFFICE,
CESC, NO.29, VIJAYANAGARA,
2ND STAGE, HINKAL,
7
MYSURU-570 017.
31 . RAMASWAMY M. L.,
THE DEPUTY GENERAL MANAGER
(OPERATION), CORPORATE
OFFICE, BESCOM, K R CIRLCE,
BENGALURU - 560 001.
32 . NATARAJ U. S.,
THE EXECUTIVE
ENGINEER, OFFICE OF THE
CHIEF ENGINEER, O AND M ZONE,
BALLARI - 583 102.
33 . MOHAN RAO BIRADAR,
THE SUPERINTENDING
ENGINEER, TL AND SS, KPTCL,
RAMANAGARA CIRCLE, 220 KV
R/S VRUSHABHAVATI, MYSURU
ROAD, BENGALURU - 560 039.
34 . SADEV MANKARE,
THE EXECUTIVE ENGINNER,
CORPORATE OFFICE, STATION
ROAD, GESCOM,
KALABURGI-585 102.
35 . SHARANAPPA G.,
THE SUPERINTENDING
ENGINEER, O AND M CIRCLE,
HESCOM, NEXT TO VDA
OFFICE, MANAGULI ROAD,
VIJAYAPURA - 586109.
36 . NAGARAJ M. L.,
THE DEPUTY GENERAL
MANAGER, CORPORATE OFFICE,
BESCOM, K R CIRCLE,
8
BENGALURU - 560 001.
37 . SWAMY H. S. (1961),
THE EXECUTIVE ENGINNER, MAJOR
WORKS DIVISION, KPTCL,
PRASARANA BHAVANA, FTS C
OMPOUND, N. R. MOHALLA,
MYSURU - 570 007.
38 . RIZWAN PASHA,
THE DEPUTY GENERAL
MANAGER (PMU), CORPORATE
OFFICE, BESCOM, K R CIRCLE,
BENGALURU - 560 001.
39 . RANGASWAMY P.,
THE DEPUTY GENERAL
MANAGER (PROJECTS),
CORPORATE OFFICE, BESCOM,
K R CIRLCE,
BENGALURU - 560 001.
40 . ATHEEBULLA KHAN,
THE EXECUTIVE ENGINEER,
TL AND SS DIVISION, KPTCL,
N R MOHALLA,
MYSURU - 570 007.
41 . SOMASHEKAR H.,
EXECUTIVE ENGINER,
TL AND SS DIVISION, KPTCL
HOOTAGALLI,
MYSURU - 570 027.
42 . RANGARAJU S.,
THE EXECUTIVE ENGINNER,
R T DIVISION KPTCL,
MYSURU
9
43 . ANANDA K. A.,
THE EXECUTIVE ENGINEER,
MAJOR WORKS DIVISION,
KPTCL, BAGALKT - 587102.
44 . ROMARAJU. M.,
THE EXECUTIVE ENGINEER,
TAQC, O/O CHIEF ENGINEER,
O AND M ZONE, BESCOM,
CHITRADURGA - 577501.
45 . GURAYYAMATH,
THE EXECUTIVE ENGINEER,
AUDIT PARA, KPTCL,
KAVERI BHAVAN,
BENGALURU - 560 009.
46 . NAGARAJ S. R.,
THE DEPUTY GENERAL
MANAGER (PROJECTS),
CORPORATE OFFICE, BESCOM,
K R CIRCLE,
BENGALURU - 560 001.
47 . LOKESH. L.,
THE EXECUTIVE ENGINEER
VIGILLANCE, CORPORATE
OFFICE, CESC, NO.29,
VIJAYANAGARA, 2ND STAGE
HINKAL, MYSURU - 570017.
48 . ABDUL REHAMAN
THE EXECUTIVE ENGINEER,
BMRCL, SADANANDANAGAR,
BENNIGANA HALLI,
BENGALURU - 560 038.
49 . YOGESH B. K.,
10
THE EXECUTIVE ENGINEER,
O AND M DIVISION, N R MOHALLA
CESC, MYSURU - 570 007.
50 . RAMESH H. N.,
THE EXECUTIVE ENGINEER,
TL AND SS DIVISION, TORE
KADANAHALLI, HALAGURU POST,
MALAVALLI TALUK,
MANDYA DISTRICT - 571421.
51 . SHIVAKUMAR. K.,
THE EXECUTIVE ENGINEER,
O AND M DIVISION, MESCOM
CHIKKAMAGALURU - 577101.
52 . VENKATESH P. K.,
THE EXECUTIVE ENGINEER
KARNATAKA ELECTRICITY
REGULATORY COMMISSION
MILLERS TANK BUND,
VASANTH NAGAR
BENGALURU - 560 052.
53 . BASAVARAJ S H
THE EXECUTIVE ENGINEER
TL AND SS
KPTCL
MUNIRABAD
54 . CHANNAASAPPA M
THE EXECUTIVE ENGINEER
TL AND SS . KPTCL, SOMANAHALLI
220KV STATION,
KANAKAPURA ROAD
BENGAULURU-560082
55 . H D MAHESH
THE EXECUTIVE ENGINEER
11
MAJOR WORKS DIVISION
KPTCL, MANDYA.
56 . METI HANUMANTHAPPA
THE EXECUTIVE ENGINEER
C AND M DIVISION
GESCOM
HOSAPETE
57 . NARAHARI K R
DGM, VIGILANCE, BESCOM
1ST FLOOR, CRESCENT TOWERS
CRESCENT ROAD
MADHAVANAGAR,
BENGALURU-560001.
58 . SALEEM
THE EXECUTIVE ENGINEER
TL AND SS
KPTCL, PEENYA
BENGALURU.
59 . KITTUR M M
THE EXECUTIVE ENGINEER
HOTLINE DIVISION, KPTCL,
VIDYUTH NAGAR,
HUBBALLI-580024.
60 . REVANASIDDAPPA G M
THE EXECUTIVE ENGINEER
MT DIVISION, BESCOM
CHITRADURGA.
61 . LOKESH BABU M
THE EXECUTIVE ENGINEER
MT DIVISION, BESCOM,
BMAZ GAVIPURAM,
BENGALURU
12
62 . RAMASWAMY R
THE EXECUTIVE ENGINEER
MT DIVISION, CORPORATE OFFICE
CESC, NO.29,VIJAYANAGAR
2ND STAGE, HINKAL
MYSURU-570017.
63 . AMARNATH N
THE EXECUTIVE ENGINEER
KARNATAKA SOLAR POWER
DEVELOPMENT CORPORATION LTD
SEEDS CORPORATION PREMISES,
NEAR HEBBAL FLY OVER BUS STOP,
BENGALURU.
64 . KHADARVALI S
THE EXECUTIVE ENGINEER
GIS STATION, EAST DIVSION
COMPOUND, RESIDENCY ROAD
BENGALURU-560001.
65 . SIDDAPPA BINJAGERI
THE EXECUTIVE ENGINEER
O AND M DIVISION, HESCOM
BIJAPUR.
66 . KRISHNA MURTHY B
THE DEPUTY GENERAL
MANAGER, DAS, HSR LAYOUT
BESCOM
BENGALURU.
67 . MOHAMED MUSHTAQ
THE EXECUTIVE ENGINEER
TECHNICAL SECTION, KPTCL
KAVERI BHAVN,
BENGALURU-560009.
13
68 . SHASHI KUMAR H S
THE EXECUTIVE ENGINEER
RT DIVISION, KPTCL,
MANDYA.
69 . SOMASHEKARA M K
THE EXECUTIVE ENGINEER
PURCHASE SECTION
CORPORATE OFFICE, CESC,
NO.29, VIJAYANAGAR 2ND STAGE,
HINKAL, MYSURU-570017.
70 . DINESH H R
THE EXECUTIVE ENGINEER
REGULATORY AFFAIRS
CORPORATE OFFICE, CESC, NO.29,
VIJAYANAGARA 2ND STAGE
HINKAL, MYSURU-570017.
71 . GIRISH KUMAR M
THE EXECUTIVE ENGINEER
RT DIVISION, KPTCL,
MANGALORE.
72 . BHARATHI K S
THE EXECUTIVE ENGINEER
O/O SUPERINTENDING ENGINEER,
O AND M CIRCLE, CESC,
SANTHEPETE, HASSAN-573201
73 . THIMMEGOWDA D
THE EXECUTIVE ENGINEER
O AND M DIVISION
CHANDAPURA, BESCOM
BENGALURU-560009
74 . SOMASHEKAR B
THE EXECUTIVE ENGINEER
14
O AND M DIVISION, CESC,
MADIKERI.
....RESPONDENTS
(BY SRI. T. P. SRINIVASA, PRL. GA &
SRI. M. S. NAGARAJA, AGA FOR R1
SRI. SHIRISH KRISHNA, ADVOCATE FOR R2 & R3.
SRI. M. SUBRAMANYA BHAT. ADVOCATE FOR R6, 8, 10,
11, 12, 13, 32, 35, 74, 72, 28, 21, 27, 23, 66, 43, 45,
53, 51, 60 & 63.
SRI. VIJAY KUMAR V. B. ADVOCATE FOR R7, 17,19,24
33, 31, 36 & 44.
SRI. ASHOK N. PATIL ADVOCATE FOR R38, 39,46, 48,54,
57, 58, 64 & 67.
SRI ABHINAV R. ADVOCATE FOR R42, 47, 49 & 55.
SRI. DEVADAS N, SENIOR COUNSEL FOR
SMT. K. S. ANASUYADEVI, ADVOCATE FOR R15, 69,
& 71, 22, 30, 41, 68 & 75. )
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
LETTER DATED 22ND MAY, 2020 VIDE ANNEXURE-A; AND ETC.
IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, petitioners are assailing the Endorsement dated 05.03.2020 (Annexure-Q) issued by the respondent No.3 interalia, seeking direction to the respondents to issue fresh seniority list in terms of the declaration of law by the Hon'ble Apex Court in the case of K.NARAYANAN AND 15 OTHERS VS. STATE OF KARNATAKA AND OTHERS reported in 1994 Supp. (1) SCC 44 and in the case of P. SUDHAKAR RAO AND OTHERS VS. U.GOVIND RAO AND OTHERS reported in (2013) 8 SCC 693 and also in terms of the Board orders dated 16.08.1996 and 27.12.1996 and further, sought for direction to re-fix the seniority accordingly.
2. Relevant facts for the adjudication of the case are that, the Karnataka Electricity Board amended the Karnataka Electricity Board Recruitment and Promotion Regulation, 1969, incorporating the new policy of appointment called as "Appointment by transfer" (for short, hereinafter referred to 'ABT' Policy) of the in-service junior engineers who possess or acquires B.E. or AMIE (India) qualification as Assistant Engineers (Elec.). Copy of the approval of the Board dated 26.07.1986 is produced as Annexure-A to the writ petition. Paragraph 2 of the Annexure-A provides for transfer. The said Board approval provided for retrospective seniority over and above the existing Assistant Engineers was questioned before this Court in the case of GURUSRIPAD VS. KARNATAKA ELECTRICITY BOARD in 16 WP No. 14622 of 1986. It is further stated in the writ petition that identical provision providing for retrospective seniority for appointment by transfer in the Public Works Department was challenged before the Hon'ble Apex Court in the case of K. Narayanan (supra). The Hon'ble Apex Court, struck down the provisions providing for retrospective promotion on the ground that undue benefit is being given to a class of employees over the other and the provisions providing for weightage of past service was upheld. It is contended by the petitioners that the dictum of the Hon'ble Apex Court was to highlight eligibility criteria only for in-service candidates while providing promotion. The Division Bench of this court following the dictum of the Hon'ble Apex Court in the case of K.Narayanan (supra) disposed of the writ petition in the case of Gurusripad (supra). Pursuant to the aforementioned judgments, respondent- Corporation was directed to prepare a fresh gradation list by holding the date of entry into service as Assistant Engineer (Elec.) from the cadre of Junior Engineers (Elec.) who were appointed by transfer. It is further stated in the writ petition that during the pendency of the aforementioned case, certain 17 Assistant Engineers, who are appointed under Appointment By Transfer Policy on the condition that their interse seniority ranking would be fixed after the disposal of the writ petition and at the time of regularizing their service as officiating Assistant Engineers and such appointment orders were passed by the respondent-Board as per Official Memorandum dated 30.01.1992, 07.09.1993, 23.09.1994 and 20.03.1995 (Annexure-B1 to B4 respectively). It is the case of the petitioners that all the Junior Engineers, who were appointed by transfer to the post of Assistant Engineer Cadre were aware that their Seniority ranking in the Assistant Engineer cadre would be subject to outcome of court proceedings in K.Narayanan case and Gurusripad case (supra). Following the dictum of the Hon'ble Apex Court in K.Narayanan case, respondent- Corporation amended the Board order dated 26.07.1986 on 16.08.1996 and 27.12.1996. As per the amended Board order dated 16.08.1996, Junior Engineer, who is appointed by transfer as Assistant Engineer on or after 26.07.1986 shall be entitled to count one-third of the service rendered by him as Junior Engineer subject to maximum 4 years for the purpose of 18 consideration of his eligibility for promotion to the post of Assistant Executive Engineer i.e., the Senior of such Junior Engineer is to be fixed in the cadre of Assistant Engineer from the date of transfer (Annexure-C). Subsequent amendment on 27.12.1996, it provides that a Junior Engineer to be appointed as Assistant Engineer under the 'ABT policy' should have put in minimum of 7 years service as a Junior Engineer (Annexure-D).
3. It is averred in the writ petition that the petitioners are appointed to the cadre of Assistant Engineer between 1988 and 1998. It is the grievance of the petitioners that the respondent-Corporation erroneously interpreting the law declared by the Hon'ble Apex Court in the case of K.Narayanan (supra), re-fixed the seniority of Junior Engineers i.e. the Senior of Junior Engineers appointed by transfer has been fixed in the Assistant Engineer cadre retrospectively over and above the seniority of existing Assistant Engineers by fixing their actual date of joining/reporting as Assistant Engineers much before they were able to get place in the cadre of Assistant Engineers and accordingly, Official Memorandum dated 04.11.2000 19 (Annexure-E) was issued by the respondent-Corporation. The said re-fixation was neither notified to the petitioners nor published in the website of the respondent-Corporation. The said Official Memorandum dated 04.11.2000 is contrary to the law declared by the Hon'ble Apex Court in the case of K.Narayanan. It is further amplified that, dictum of the K.Narayanan case was followed in the case of P.Sudhakar Rao (supra) by the Hon'ble Apex Court relating to Andra Pradesh Engineering subordinate service. It is also stated in the writ petition that the respondent- Corporation, notified the revised seniority list dated 27.10.2017 (Annexure-F), pursuant to the judgment of the Hon'ble Apex Court in the case of B.K.PAVITRA VS. UNION OF INDIA reported in (2017) 4 SCC 620. Thereafter, the petitioners have addressed representation dated 05.06.2017 (Annexure-G) to the respondent-Corporation and subsequently, the petitioners have filed WP No.35999 of 2019 before this Court, seeking consideration of the said representation and this Court, by order dated 04.12.2019 (Annexure-J), directed the respondent-KPTCL consider the same in accordance with law. Again the petitioners addressed one more representation dated 18.12.2019 20 (Annexure-K) to the respondent-Corporation and pursuant to the same, the respondent-Corporation has issued impugned Endorsement dated 05.03.2020 (Annexure-Q), rejecting the representation filed by the petitioners on the ground that the Seniority has been already re-fixed. Feeling aggrieved by the same, the petitioners have presented this writ petition.
4. I have heard Sri D.R. Ravishankar, learned Senior Counsel appearing on behalf of Smt. M.L.Suvarna, for petitioners; Sri T.P.Srinivasa, learned Principal Government Advocate appearing for respondent No.1; Sri Shirish Krishna, learned counsel appearing for the respondents 2 and 3; Sri M.Subramanya Bhat, learned counsel appearing for the respondents 6, 8, 10 to 13, 32, 35, 74, 72, 28, 21, 27, 23, 66, 43, 45, 53, 51, 60 and 63; Sri Vijay Kumar V.B., learned counsel appearing for the respondents 7, 17, 19, 24, 33, 31, 36 and 44; Sri Ashok N.Patil, learned counsel appearing for the respondents 38, 39, 46, 48, 54, 57, 58, 64 and 67; Sri Abinav R., learned counsel appearing for the respondents 42, 47, 49 and 55 and Sri Devadas N., learned Senior Counsel appearing on behalf of Smt. 21 K.S.Anasuyadevi, for respondents 15, 69, 71, 22, 30,41, 68 and
75.
5. Sri. D.R. Ravishankar, learned Senior Counsel appearing on behalf of the petitioners contended that the petitioners are Engineering graduates and they have been appointed by direct recruitment in to the respective cadre. The contesting respondents, who were appointed with a Diploma Certificate acquired graduation while in service and they have been transposed as Assistant Engineers and were placed in the seniority in the cadre of Assistant Engineers above the petitioners and the said action of the respondent-Corporation, is contrary to law. Referring to the respondent-Board orders dated 16.08.1996 and 26.07.1986, learned Senior Counsel appearing for petitioners contended that judgment of Hon'ble Apex Court in the case of K. Narayanan (supra), would clearly indicate that the Junior Engineer (Elec.) should put in a minimum experience of seven years of service in the cadre of Junior Engineer and thereafter, such Junior Engineers are eligible for ABT Policy to the post of Assistant Engineer (Elec.). He pleaded that, seniority of a Junior Engineers (Elec.) who has been appointed as 22 Assistant Engineer by transfer from the cadre of Junior Engineer shall be fixed in the category of Assistant Engineers (Elec.) from the date of their transfer and such Engineers cannot claim their seniority in the cadre of Assistant Engineer before it takes birth in the said cadre. Sri. D.R. Ravishankar, learned Senior Counsel having taken through the Recruitment and Promotion Regulations of the respondent-Corporation contended that the promotions have to be made on the basis of seniority-cum- merit. In this regard, he submitted that the foremost criteria to be considered for promotion of an employee is that the employee should be senior in the seniority list and by applying Regulation-2 of aforementioned Regulations that an employee appointed against a substantive vacancy shall be senior to all other persons who are appointed on officiating in the same cadre. Therefore, it is the principal contention of learned Senior Counsel appearing for the petitioners that the seniority of Assistant Engineers who are appointed by direct recruitment takes precedence over the promotees and all persons in the same cadre. Therefore, he contended that the petitioners in the present writ petition are direct recruitees and therefore, the 23 petitioners have to be placed above the Engineers appointed by transfer. Emphasize was also made that as the respondent - Corporation having not followed the procedure contemplated under their Regulations and same is violation of the orders dated 16.08.1996 and 27.12.1996. Accordingly, he sought for quashing the impugned endorsement.
6. Nextly, learned Senior Counsel appearing for the petitioners contended that as the contesting respondents having been appointed by transfer cannot claim the cadre equivalent to the petitioners herein on the ground that their entry into the said cadre is from the date of their transfer and therefore, Sri. D.R. Ravishankar, learned Senior Counsel argued that the impugned action of the respondent-Corporation is contrary to the law declared by the Hon'ble Supreme Court in the case of P. Sudhakar Rao (supra). He further contended that the respondent-Corporation has violated the principle that the Seniority to a person cannot be granted retrospectively even before such promotee was born in the cadre.
24
7. Learned Senior Counsel for the petitioners further contended that there are only two ways of recruitment to any cadre namely, by direct recruitment or by way of promotion. The respondent-Corporation, by introducing a new method of appointment by transfer of in-service employees, possessing and acquiring higher qualification to technical cadre course as per Board order dated 26.07.1986 is a scheme to provide for such employees of a lower cadre being appointed to a technical cadre post without any competition or examination, based on the acquisition of degree. Promoting such employees above the petitioners who have been directly recruited is contrary to law declared by Hon'ble Apex Court in the case of K.Narayanan (supra) wherein, it is held that the benefit of retrospective seniority is ultra-vires to the service jurisprudence. The respondent-Corporation having aware about its own Board orders dated 16.08.1996/27.12.1996 that only one-third weightage of service will be counted for the purpose of eligibility for promotion to the post of Assistant Executive Engineer cadre and not for the purpose of seniority however, the said order is violated by the respondent-Corporation. In this regard, he 25 referred to the Judgment of the Hon'ble Supreme Court in the case of K. NARAYANAN AND ANOTHER Vs. STATE OF KARNATAKA AND OTHERS reported in 1994 Suppl. 1 SCC 44, in the case of P. SUDHAKAR RAO AND OTHERS Vs. U.GOVIND RAO AND OTHERS reported in (2013) 8 SCC 693; GURUSRIPAD AND OTHERS Vs. KARNATAKA ELECTRICITY BOARD in WP No. 14622 of 1986 decided on 23.01.1986 ; in the case of GOVERNMENT OF INDIA AND OTHERS Vs. INDIAN TOBACCO ASSOCIATION reported in (2005) 7 SCC 396 and in the case of CHAIRMAN, STATE BANK OF INDIA AND ANOTHER Vs. M.J. JAMES, reported in (2022) 2 SCC
301.
8. In reply to the submission made by the learned counsel appearing for the parties with regard to delay and laches, Sri. D.R. Ravishankar argued that the petitioners and other similarly situated employees have been kept in dark and further the respondent-Corporation failed to implement the Judgments of the Hon'ble Apex Court and this Court, as there is violation of statutory duty by the respondent-Corporation and 26 same is a continuing wrong till the issuance of the seniority list, 2017 and immediately the petitioners made efforts to file the writ petition challenging the impugned notification issued by the respondent- Corporation as the same is contrary to the law declared by this Court in Gurusripad's case and retrospective seniority has been assigned to the Junior Engineers despite the Judgment of this Court and Hon'ble Apex Court and the same is in violation of the Board orders and as such, he argued that, delay and laches would not come in the way of granting relief to the petitioners. In this regard, he refers to the Judgment of the Hon'ble Apex Court in the case of AJAY KUMAR SUKLA AND OTHERS Vs. ARVIND RAI AND OTHERS reported in (2021) SCC Online 1195 and submitted that, as the seniority list has been prepared in contravention of statutory rules, same cannot be defended on the ground of delay and laches.
9. Per contra, Sri. Shirish Krishna, learned counsel appearing for respondents 2 and 3, invited the attention of the Court to the prayer made in the writ petition and submitted that, the petitioners have challenged the provisional seniority list and 27 same cannot be quashed. He further contended that the writ petition is liable to be dismissed on the ground of delay and laches and the rights of the petitioners cannot be enforced in writ proceedings after unreasonable lapse of action in service related disputes. Claiming seniority is not a fundamental right and is only a civil right, Sri. Shirish Krishna relied upon the Judgment of the Hon'ble Apex Court in the case of SHIBA SHANKAR MOHAPATRA AND OTHERS Vs. STATE OF ORISSA AND OTHERS reported in (2010) 12 SCC 471; in the case of CHAIRMAN / MANAGING DIRECTOR, U.P. POWER CORPORATION LIMITED AND OTHERS Vs. RAM GOPAL reported in 2020 SCC Online SC 101 and in the case of KARNATAKA POWER CORPORATION LIMITED VS. K. THANGAPPAN AND ANOTHER reported in (2006) 4 SCC 322 and argued that mere making representation to the authorities would not justify the belated approach by the petitioners in the present case. He further contended that the petitioners were well aware about the series of seniority list issued by the respondent-Corporation since 2000, however, approached this 28 Court with inordinate delay of more than a decade and therefore, he sought for dismissal of the writ petition.
10. Sri. N. Devdas, learned Senior Counsel on behalf of Smt. Anusuyadevi, appearing for some of the contesting respondents argued that the representation dated 05.06.2017 (Annexure-G) itself has become infructuous and therefore, consideration of the same does not arise at all. Petitioners having filed objections to the preliminary notification, have not attended the oral hearing afforded by the respondent-KPTCL to the objectors who had filed objections to the provisional seniority list. Learned Senior Counsel further contended that even after the judgment rendered by the Hon'ble Apex Court in the case of B.K. PAVITRA-II on 10.05.2019, the petitioners did not filed objections to their seniority and therefore, writ petition is liable to be dismissed for want of material facts. He further contended that the petitioners have suppressed vital material facts that the judgment delivered in Writ Appeal No.41 of 2020. Therefore, looking into the conduct of petitioners, learned Senior Counsel pleaded that, the writ petition deserves to be dismissed. 29
11. Nextly, Sri. N. Devadas, learned Senior Counsel argued that the petitioners are complaining about the issue of seniority of ABT Engineers after a lapse of 24 years, and therefore, the writ petition deserves to be dismissed on the ground of delay and laches. The petitioners were aware about the method of recruitment to the post of Assistant Engineer which provided for direct recruitment and also by Appointment By Transfer of the Junior Engineers who possess requisite qualification and at this stage, the petitioners cannot be permitted to raise the belated claim in this writ petition. Accordingly, he sought for dismissal of petition with cost.
12. Sri. Subramanya Bhat, Sri Ashok N.Patil, Sri Abhinav R., and Sri. Vijay Kumar, learned counsel appearing for the contesting respondents contended that some of the respondents have acquired B.E. Degree before their appointment as Junior Engineer and therefore as per the existing Rules under Regulation 10-A of Recruitment and Promotion Regulation, such respondents were permitted to change the cadre, having obtained the requisite degree in Engineering and were appointed 30 as Assistant Engineer under appointment by transfer (ABT) and accordingly, they sought for dismissal of the petition on the ground that these contesting respondents have been promoted, based on the seniority in the cadre of Assistant Engineer. Referring to Notification dated 16.08.1996, Clause 2 of Note (V) of paragraph 2, Sri. Vijay Kumar, learned counsel appearing for the respondents made a specific contention that the said Notification permits counting of one-third service rendered as Assistant Engineer for the purpose of qualifying service and eligible for promotion as Assistant Executive Engineer and considering the same, the contesting respondents have been promoted as Assistant Executive Engineer by orders dated 16.11.1999, 30.11.1999 and 29.07.2000 and therefore, he contended that as per order dated 27.12.1996, which prescribes a minimum seven years of service in the cadre of Junior Engineer for appointment by transfer is not applicable to the case of petitioners. It is the categorical argument of learned counsel Sri. Vijay Kumar that the contesting respondents are not beneficiaries of retrospective promotion, as claimed by the 31 petitioners and therefore, he sought for dismissal of the petition on the ground of delay and laches.
13. In the light of the submission made by learned counsel appearing for the parties, the principal claim of the petitioners is that the petitioners are entitled for promotion in terms of the judgment of the Hon'ble Apex Court in the case of K. Naryanan (supra) and P. Sudhakar Rao (supra) and they have to be placed above ABT Junior Engineers in the seniority list. Petitioners have also challenged the endorsement dated 05.03.2020 (Annexure-Q) whereby, pursuant to the direction issued by this Court on 04.12.2019 in Writ petition No.35999 of 2019 and the representation dated 05.06.2017 made by the petitioners requesting to place their seniority above the seniority of ABT Engineers in accordance with Board orders. It is relevant to extract the entire judgment rendered by this Court on 04.12.2019 in Writ Petition No.35999 of 2019, which reads as under:
"ORDER Petitioners being the employees of the 2nd respondent KPTCL are invoking the writ jurisdiction 32 of this court with an innocuous prayer i.e. a direction for considering their representation dated
05.06.2017, a copy whereof is at Annexure-C, whilst finalizing the final Seniority List of the Assistant Engineers in terms of the Apex Court judgment in the case of P.SUDHAKAR & OTHERS vs. U. GOVINDA RAO AND OTHERS, (2013) 8 SCC 693.
2. Sri C.N. Mahadeshwara, learned Additional Government Advocate accepts notice for 1st respondent -State and Sri A. Chandrachud, learned panel counsel accepts notice for 2nd respondent- KPTCL.
3. Learned Panel counsel for KPTCL fairly submits that there will be no difficulty for considering petitioners subject representation if a reasonable period is prescribed by this court and also if petitioners agree to produced all necessary material required for such consideration. This stand of 2nd respondent is fair and reasonable.
In the above circumstance, this writ petition succeeds; a Writ of Mandamus issues to the 2nd respondent to consider petitioners representation dated 05.06.2017, a copy whereof is at Annexure-C 33 within a period of six weeks and in accordance with law.
It is needless to mention that petitioners shall furnish all the necessary information/documents as may be solicited by the respondent-KPTCL; however, in the guise of such solicitation, delay shall not be brooked.
Result of consideration shall be made known to he petitioners without any delay.
14. It is the grievance of the writ petitioners that the Junior Engineers who were appointed with a Diploma certificate, acquired B.E. Degree while in service and on such acquisition, such appointment by Transfer (ABT-contesting private respondents), on acquisition of such Degree qualification transposed as Assistant Engineers and were placed in the seniority in the cadre of Assistant Engineers above the petitioners herein is contrary to Board orders dated 16.08.1996 and 26.07.1986.
15. In the backdrop of these aspects, I have carefully considered the judgment of the Hon'ble Apex Court in the case of K. Narayanan and Gurusripad (supra), identical provisions 34 existing in Public Works Department, wherein challenge was laid to the retrospective seniority granted to such Junior Engineers. In the case of K. Narayanan (supra), Hon'ble Apex Court at paragraph 5 to 9 held as under:
"5. Demarcation of cadres or gradation in the same cadre on higher and lower qualification is a common phenomenon for fixing hierarchy in services. It is a valid basis of classification as held by this Court in State of Mysore v. P. Narasing Rao, Union of India v. Dr S.B. Kohli (Mrs), State of J&K v. Triloki Nath Khosa, P. Murugesan v.
State of T.N. Engineering services throughout the country, normally, maintain distinction between Junior and Assistant Engineer on diploma and degree. It existed in the State of Karnataka right from the day the rules were framed. It has been done away with on assumption by the Cabinet that some of the duties performed by the two were common. The Tribunal did not agree with it, and in our opinion rightly. But that alone is not sufficient to strike down the rule. A policy decision taken by the Government is not liable to interference, unless the Court is satisfied that the rule-making authority has acted arbitrarily or in violation of the fundamental rights guaranteed under Articles 14 and 16. Appointment by transfer in the same service or from the different cadre or service but equal in rank and status is well known. But transfer from lower to higher cadre not by promotion but 35 direct appointment only because the incumbent became eligible without any selection, test or criteria may not be in consonance with service discipline. What the rules contemplate is that once a Junior Engineer acquires a degree qualification then he automatically should be deemed to have become an Assistant Engineer. An employee occupying a higher post in different cadre may on regularisation be entitled to claim his seniority from the date he was holding the post but giving a higher post in different cadre in which the employee has never worked either as officiating or temporary or even ad hoc because the employee became eligible earlier would be violative of the right of equality. The methodology adopted in the rules by transferring such a person and placing him in the category of direct recruits from the date of acquiring the degree the Government in our opinion violated the basic norms of appointment and recruitment to any particular service. The Government may appoint all the Junior Engineers en bloc after framing of the rule and place them below all those who were working as Assistant Engineers on that date but they cannot be so appointed as to get precedence over those who are working from before. It would result in artificially making unequals as equals. Any person entering the service can justly feel secure of equality in continuance, promotion etc. Any executive action violating it cannot be upheld. Seniority is an incident of service which cannot be eroded or curtailed by a rule which operates discriminately. The purpose of opening evening classes 36 and permitting diploma holders to study was to improve efficiency in service and provide better service conditions. When rules were framed and provision for appointment by transfer was made both these objectives were achieved. But operation of the rule with retrospective effect has no nexus with either except that it may result in undue benefit to one class of employees over the other. The impugned rules having been framed in 1985 with effect from 1976 result in entry of diploma holders as Assistant Engineer only because they became qualified as against those who entered in service before or after 1976 by competitive process. Devi Prasad] was upheld by this Court because it was found, 'as reasonable and in the circumstances fair'. The dispute was between non- graduate diploma holders working as supervisors etc. and graduates working as Junior Engineers. Since the Court found that there was functional parity between supervisors and Junior Engineers the rule framed by the Government giving weightage of four years to supervisors to make them eligible for appointment as Assistant Engineer was not invalid. But there can be no functional parity between employees of two different cadres. It would be too dangerous to accept such assumption. In R.N. Nanjundappa v. Thimmiah this Court struck down a rule for violation of Article 14 as it had attempted to bypass the regular method of recruitment by competitive examination or by selection or by promotion and provided for regularisation of a government servant working on deputation as deemed to have been appointed. In State 37 of A.P. v. K.S. Muralidhar the temporary supervisor who had succeeded before this Court in Devi Prasad case claimed seniority from the date of acquiring academic qualification. It was repelled and it was held that it could be from the date of appointment only.
6. Article 309 of the Constitution empowers the appropriate Legislature to frame rules to regulate recruitment to public services and the post. 'Recruitment' according to the dictionary means 'enlist'. It is a comprehensive term and includes any method provided for inducting a person in public service. Appointment, selection, promotion, deputation are all well-known methods of recruitment. Even appointment by transfer is not unknown. But any rule framed is subject to other provisions of the Constitution. Therefore it has to be tested on rule of equality. Transfer is normally resorted in same cadre. But when it is made in a different and higher cadre it must not be violative of constitutional guarantee and the rule of fairness. Providing for appointment of a diploma holder from the cadre of Junior Engineer to Assistant Engineer from back date without any test or selection on eligibility only does not sound reasonable and fair. Why was it done is apparent from the following notings by the Secretary:
"The most important issue was regarding the date of transfer of the Junior Engineer acquiring graduate qualifications, the weightage of past service had to be 38 taken into consideration. In the proposals submitted to the cabinet this crucial aspect was not outlined specifically and the impression that was created was that the transfer would take place with prospective effect. In such an event the weightage of previous service would have to be confined only up to date of graduation and this would not have been of any advantage to most of the Junior Engineers who have acquired the degree qualification several years ago. Even if the weightage of past service after graduation and up to the date of appointment as Junior Engineers was given the transferees would not have gained any significant advantage in the matter of notional seniority. The Karnataka Graduate Engineers have strongly represented on this issue and have urged that their transfer to the Assistant Engineer's cadre should be with retrospective effect i.e., from the date they have acquired graduate qualification. In support of their arguments they have pointed out that even in Andhra Pradesh a similar step was taken in that the transfer was allowed with retrospective effect. The points raised by the Graduate Engineers Association have been examined and it is felt that their demand to have the transfer effected with retrospective effect has some justification in view of the long years of service rendered by the Junior Engineers before and after acquiring graduate qualification. If this benefit is not given, the amendment to the C&R Rules allowing for their transfer would be of little use for many of the senior members of the Graduate Engineers Association who have been 39 fighting for this change for many years. Therefore taking an overall sympathetic view it is proposed that we may allow for the transfer of Junior Engineers who acquired graduate qualifications with retrospective effect from the date of acquisition of such qualification subject to the availability of vacancies at that time in the Assistant Engineer's cadre. It is seen that the first batch of the in- service Junior Engineers took their graduate degree in 1976 and hence the notification amending the rules would have to be effective from January 1, 1976."
Rules were thus bent and made retrospective as a sympathetic consideration as many Junior Engineers who were working since long would not have derived any benefit otherwise. May be true but if the extension of such benefit impinges upon the constitutional guarantee of equality then it cannot be upheld. And that does stand disturbed. Nothing further need be said. Nor it is necessary to pronounce on the validity of a rule which in the class of appointment by direct recruitment includes appointment by transfer resulting in entry of one class by competition or selection and other by acquisition of minimum qualification as the appellants did not challenge the rule of appointment by transfer but confined their claim to its operation retrospectively.
7. Rules operate prospectively. Retrospectivity is an exception. Even where the statute permits framing of rule with retrospective effect the exercise of power must not 40 operate discriminately or in violation of any constitutional right so as to affect vested right. The rule-making authority should not be permitted normally to act in the past. The impugned rule made in 1985 permitting appointment by transfer and making it operative from 1976 subject to availability of vacancy in effect results in appointing a Junior Engineer in 1986 with effect from 1976. Retrospectivity of the rules is a camouflage for appointment of Junior Engineers from a back date. In our opinion the rule operates viciously against all those Assistant Engineers who were appointed between 1976 to 1985. In Ex-Capt. K.C. Arora v. State of and P.D. Aggarwal v. State of U.P. it was held by this Court that the President or Governor cannot make such retrospective rules under Article 309 of the Constitution as contravene Articles 14, 16 or 311 and affect vested right of an employee. Even in B.S. Yadav v. State of where the power to frame rules retrospectively was upheld it was observed: (SCC p. 557, para 76) "Since the Governor exercises a legislative power under the proviso to Article 309 of the Constitution, it is open to him to give retrospective operation to the rules made under that provision. But the date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a long period as in this case."
41As seen earlier there is no nexus between framing a rule permitting appointment by transfer and making it retrospective with effect from 1976. Appointing a person to a higher post in a different cadre in which he has never worked is violative of constitutional guarantee of those who are working in the cadre. It is against basic principle of recruitment to any service. Even in Mohammad Shujat Ali where the Constitution Bench while reiterating that distinction in qualification was valid criterion for determining eligibility for promotion except where both held the same post and perform same duty did not strike down the rules as the differentiation in same class of persons was not brought about for the first time but existed from before and the two were treated as distinct and separate class. The retrospective operation of the impugned rule attempts to disturb a system which has been existing for more than twenty years. And that too without any rationale. Absence of nexus apart no rule can be made retrospectively to operate unjustly and unfairly against other (sic). In our opinion the retrospective operation of the rule with effect from January 1, 1976 is discriminatory and violative of Articles 14 and 16.
8. So far weightage is concerned such provision has been upheld by this Court in Devi Prasad. Even the appellants candidly stated that they were not against weightage. 42
9. For the reasons stated above these appeals and writ petition succeed and are allowed. The following directions are issued:
(i) The order of the tribunal dated October 21, 1988 is set aside. The second paragraph of the 1985 Amendment Rules making it operative from January 1, 1976 is struck down as ultra vires.
(ii) Note (2) shall be read as providing eligibility only."
16. In Gurusripad case (WP No.14622 of 1986), some of the employees have challenged Board order dated 26.07.1986 providing retrospective seniority and this Court, by order dated 23.01.1986, struck down the provision providing retrospective seniority and directed the respondent-Board therein to prepare fresh gradation list in the light of the judgment rendered in K. Narayan (supra).
".........
(2) the note relating to giving weightage shall be read as providing eligibility only and (3) the respondent are directed to prepare fresh gradation list n the light of this and in the light of the 43 observations made by the Supreme Court in NARAYANAN'S case referred to earlier. Let such action be taken by the Board within a period of four months from today."
17. In the backdrop of the aforementioned declaration of law made by the Hon'ble Apex Court, it is relevant to extract, the Board Resolution dated 26.07.1986 whereby, Note 4 and 5 of the said Board Resolution reads as under:
Note (iv): The transfer shall be effective from the date of graduation subject to the availability of vacancies without ignoring the interse seniority among those eligible for such transfer.
Note (v): A Junior Engineer who is appointed by transfer as Assistant Engineer on or after 1.1.76 shall be entitled to count one third of the service rendered by him as Junior Engineer, prior to appointment as Assistant Engineer, subject to a maximum of 4 years, as if it had been in the post of Assistant Engineer, for the purpose of consideration for promotion to the post of Assistant 44 Executive Engineer and subject to the following conditions, namely:-
(1) The seniority of a Junior Engineer who is appointed as Assistant Engineer shall be fixed in the category of Assistant Engineers with reference to the national date arrived at after giving weightage of service as aforesaid;
(2) A Junior Engineer who is appointed as Asst Engineer shall put in a minimum service of two years on duty as Assistant Engineer, after such appointment and a total service of five years as Assistant Engineer, inclusive of the service given as weightage to become eligible for promotion as Assistant Executive Engineer.
18. On careful examination of the aforementioned note would indicate that, a Junior Engineer who has been appointed by transfer as Assistant Engineer shall be entitled to count 1/3rd of the service rendered by him as Junior Engineer, and same is subject to a maximum of four years. Note 5 extracted above, comprises two sub-clause. A clear reading of Note 5 would makes it clear that the eligibility criteria for such promotion is 45 the relevant factor to be looked into at the time of consideration of the promotion. Undisputedly, the petitioners herein are working in the cadre of Superintendent Engineer and Executive Engineer in the respondent-Corporation. The above provisions of Board order dated 26.07.1986 providing retrospective seniority to the existing Assistant Engineer was tested by this Court, in Gurusripad's case. In terms of the judgment rendered in K.Narayanan's case supra and Gurusripad's case supra, respondent-Corporation ought to have prepared a fresh gradation list by holding the date of entry into service as Assistant Engineers from the date such Junior Engineers were appointed by transfer in the cadre of Assistant Engineers. It is also to be noted that, the contesting respondents, who are all Junior Engineers and appointed by transfer to the Assistant Engineer cadre were well aware about their Seniority ranking in the Assistant Engineer cadre in view of the judgments rendered by the Hon'ble Apex Court in the case of K.Naryanan's case and this court in Gurusripad's case (supra). It is also not in dispute that the petitioners herein are appointed as Assistant Engineers by way of direct recruitment and if the Board order 46 providing retrospective promotion to the ABT Engineers, is allowed to be continued, same would run contrary to the law declared by the Hon'ble Apex Court in K.Narayanan's case (supra). It is mandated in the Note 4 and 5 that, the actual date of joining/reporting as Assistant Engineer, by the ABT Junior Engineers is the determinative factor for consideration for promotion to higher cadre. Looking into the aforementioned Board orders, I am of the view that, the respondent- Corporation/Board, erroneously construed that, the seniority list of Assistant Engineers/Assistant Executive Engineer cadre, published up to 2014 wherein the date of entry into service of Junior Engineers was shown as that they had entered the service of the respondent-Corporation directly to the cadre of Assistant Engineer and not by way of promotion in terms of the Board orders by fulfilling the conditions of acquiring the necessary degree as well as putting minimum period of 7 years as mandated by Board order dated 27.12.1996 and therefore, it is clear violation on the part of the respondent-Corporation to issue the series of promotion, dehorse the eligibility criteria as well as the law declared by the Hon'ble Apex Court in the case of 47 K.Narayanan's case, and therefore, the petitioners herein have made out a case that the impugned final list of promotion made by the respondent-Corporation is contrary to law as well as the law declared by the Hon'ble Apex Court referred to above. If at all the Junior Engineer who became Assistant Engineers by way of appointment by transfer are given seniority in the cadre of Assistant Engineer from the date on which, they got promotion dehorsing the statutory provisions namely, criteria of eligibility as mentioned in the regulation would amounts to violation of the judgment Hon'ble Apex Court in the case of P.Sudhakar Rao (supra). It is pertinent to note that, impugned order of promotion is liable to be set aside on the ground that the respondent-Corporation did not make way for consider only the 1/3rd service weightage for the purpose of eligibility for promotion to the Assistant Executive cadre and very same scheme / policy of appointment by transfer would be defeated. Therefore, I find force in the submission made by Sri. D.R. avishankar, learned Senior Counsel appearing for the petitioners that respondent-Corporation failed to follow eligibility criteria 48 before considering the case of the contesting respondents who were appointed by transfer.
19. Though I have arrived at a conclusion, that the petitioners have made out a case for interference in the impugned Endorsement dated 05.03.2020, however, it is the principal submission of the all the counsel representing the respondents that the writ petition deserves to be dismissed on the ground of delay and laches as the petitioners have not approached this court at the earlier point of time and the belated claim made by the petitioners is required to be rejected. I have also noticed various judgments referred to by Sri. Shirish Krishna, learned counsel appearing for the respondent- Corporation with regard to delay and laches. It is well settled principle in law that right to promotion is not a fundamental right however, right for promotion of the aggrieved parties, have to be appreciated by looking into the statutory provisions or the claim made by the aggrieved parties, like petitioners in this petition, when there is discrimination based on applying the principle arbitrarily without following the statutory provisions, 49 interalia, dehorse the eligibility criteria of such applicants seeking promotion. In this regard, sum and substance of the submission of the respondents is that, promotion should not be disturbed after a long lapse of time when there is inordinate delay. It is essential that, one who feels aggrieved by the seniority assigned to him, should approached the Court as early as possible, otherwise, there would be administrative complications. It is argued by the learned counsel appearing for the respondents that writ court shall take into account the delay and laches on the part of the petitioners in approaching the court and if there is gross and unexplained delay, the court shall refuse to grant relief in favour of such petitioners. In the backdrop of these detailed arguments on delay and laches by the learned counsel appearing for the respondent-Corporation and other contesting respondents one cannot miss the fact that writ court is having a equitable jurisdiction under Article 226 of Constitution of India, and even if the respondents raised plea of delay and laches on the part of the petitioners, this Court is empowered to analise the satisfactory explanation offered by the petitioners and would grant relief to such petitioners, if the 50 petitioners satisfactorily explain the reasons for delay in approaching this Court. Having come to the conclusion that the respondent-Corporation has violated the norms by promoting the contesting respondents contrary to the Board orders and the judgment of the Hon'ble Apex Court in the case of K.Narayanan supra, it is relevant to extract the judgment of the Hon'ble Apex Court in the case of KULDEEP CHAND VS. UNION OF INDIA reported in 1995 (5) SCC 680. Paragraph 5 of the said judgment reads as under:
"5. When the aforesaid facts are taken into consideration, it would be obvious that the preparation of seniority list per se was illegal. Therefore, the mere fact that he did not challenge the seniority list, which was illegally prepared, till he was aggrieved for non-consideration of the claim to the post of accountant, his legitimate right to be considered cannot be denied. Under these circumstances, the delay is of no consequence for considering the claims of Ashok Kumar for the post of accountant."
20. Recently, Hon'ble Supreme Court had an occasion to discuss the issue relating to applicability of delay and laches in the petitions challenging the Seniority list in the case of AJAY 51 KUMAR SHUKLA AND OTHERS VS. ARVIND RAI and others reported in (2021) SCC Online SC 1195, at paragraphs 21 to 53 reads as under:
"21. We may now discuss the law on the point regarding delay in approaching the court and in particular challenge to a seniority list. The learned Single Judge had placed reliance on a judgment of this Court in the case of Shiba Shankar Mohapatra v. State of Orissa (supra). Dr. B.S. Chauhan, J., after considering the question of entertaining the petition despite long standing seniority filed at a belated stage discussed more than a dozen cases on the point including Constitution Bench judgments and ultimately in paragraph 30 observed that a seniority list which remains in existence for more than three to four years unchallenged should not be disturbed. It is also recorded in paragraph 30 that in case someone agitates the issue of seniority beyond period of three to four years he has to explain the delay and laches in approaching the adjudicatory forum by furnishing satisfactory explanation. Paragraph 30 is reproduced below:--
"30. Thus in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal, this Court has laid down, in crystal clear words that a seniority list which remains in 52 existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation."
22. On the other hand, the Division Bench while shutting out the appellants on the ground of delay relied upon following judgments of this Court.
• Dayaram Asanand Gursahani v. State of Maharashtra2 • B.S. Bajwa v. State of Punjab3 • Malcom Lawrence Cecil D'Souza v. Union of India4 • R.S. Makashi v. I.M. Menon5
23. In the case of Dayaram Asanand Gursahani (supra), there was a delay of 9 years. In the case of B.S. Bajwa (supra), there was a delay of more than a decade. In Malcom Lawrence Cecil D'Souza (supra), the delay was of 15 years and in R.S. Makashi (supra) there was a delay of 8 years. In all these cases, this court has recorded that the delay has not been explained. Shiba Shankar Mohapatra (Supra) is a judgment of 2010, which has laid down that, three to four years would be a reasonable period to challenge a seniority list and also that any challenge beyond the aforesaid period would require satisfactory explanation.
53
24. In view of the above legal proposition, we now examine the facts of the present case, firstly, as to whether there was delay of more than three to four years and secondly, if there was delay of more than three to four years, whether the same has been satisfactorily explained.
25. In October, 2001, when the appointment letters were issued it carried a stipulation that the seniority would be determined later on as per rules. It is an admitted position that before 2006, the seniority list of the appellants was not notified. In March, 2006, when the tentative list was published, it did not mention about the three select lists nor was this fact mentioned when the final seniority list was published on 05.09.2006. Rather, it clearly mentioned that the seniority list had been prepared on the basis of merit. This was in fact an incorrect statement. The seniority list had not been prepared on the basis of merit but on the basis of receipt of the three separate select lists one after the other. As the Agricultural list was received first on 28.09.1999, all the selected candidates of agricultural stream were en bloc placed on the top, thereafter the Mechanical list was received on 06.01.2000, they were placed below the Agricultural stream and lastly, the Civil stream list was received on 07.11.2000, they were placed at the end.
26. Rules 5 and 8 of Rules 1991 clearly mention that there shall be one list for one selection of direct recruits. 54 Creating three separate lists for one selection was contrary to the provisions contained in Rules 5 and 8 of Rules 1991. Rules 2009 clearly mention that seniority would be determined and prepared as per 1991 Rules. Rule 5 of Rules 1991, dealt with the selections made only through direct recruitment whereas Rule 8 thereof dealt with the situation where seniority list is to be prepared of both the direct recruits and the promotees. However, the principles underlined in both these Rules are the same that there has to be one list for one selection, as is clear from Rule 8(2)(a) and Rule 5 of Rules 1991.
27. Once it is established that the seniority list was prepared in contravention to the statutory provisions laid down in Rules 1991, the seniority list could be interfered with. The Appointing Authority would be bound by the statutory rules and any violation or disregard to the statutory rules would vitiate the seniority list. The same would be arbitrary, de hors the rules and in conflict with Articles 14 and 16 of the Constitution. The only exception to the above would be where there is unreasonable delay which is unexplained.
28. In the present case, if we accept the submission of the appellants then the delay at best could be a few months or a year however, if we accept the contentions of the private respondents then the delay could be of five years. In the first contingency, no explanation would be required. However, in the second contingency, if the 55 appellants are successful in satisfactorily explaining the delay, then even this hurdle could be overcome. In the facts of the present case what we find from the final seniority list of 05.09.2006 is that it nowhere mentioned that there were three separate lists of separate streams and that they were received on different dates. On the contrary, there was a recital therein and specific averment to the effect that the list had been prepared on the basis of merit. Thus, it cannot be said that the appellants were aware of the three separate select lists dispatched by the Commission on three different dates at the time of publication of final list dated 05.09.2006.
29. It would also be worthwhile to mention here that the appellants had no occasion to know about the three separate lists either at the time they were dispatched by the Commission or at any time thereafter as the appointment letters of all selected candidates of all the three streams were issued simultaneously under Office Order dated 08.10.2001. It would also be relevant to mention that the order finalizing the seniority list of 05.09.2006 also nowhere mentioned that three separate lists of three streams were received from the Commission and placed en bloc as received one after the other.
30. At the time of notifying the tentative list on 29.12.2009, it was not stated anywhere that there were three separate lists received on three different dates. As such it could not be alleged that the appellants even at 56 that stage did not file objections regarding preparation of common seniority list. It was only when the final seniority list was published on 05.03.2010 and in the order finalizing the list, it was mentioned by the department that there were three separate lists received on three separate dates and in that sequence the combined seniority was prepared. Thus, it is for the first-time that appellants came to know of the error on publication of the final seniority list on 05.03.2010.
31. The respondents have not been able to show any material which could clearly indicate that the appellants had knowledge of three separate lists and the preparation of the seniority list on its basis. A frail attempt has been made by the respondents referring to office order dated 17.03.2006 Annexure-P-30 to the Appeal @ SLP(C) No. 5435 of 2020 which is the order notifying the tentative seniority list. Paragraph 3 thereof mentions that the sequence whereunder the selection list of Junior Engineers selected by the Commission has been received, the seniority has been given in that sequence. Paragraph 3 reads as under:
"3 : The sequence, where under the selection list of the Junior Engineers selected by the Commission has been received, in that sequence, the Seniority has been given in accordance with Seniority detailed therein."
32. A reading of the above paragraph does not refer to any details either of any stream, the year of selection, the 57 selection being made on the basis of which advertisement or the dates on which separate lists were received. It is a general statement. This submission of the respondents stands completely diluted in view of the facts recorded in paragraph 5 and last sentence as contained in paragraph 25 of the same office order dated 05.09.2006. We will analyse the same but before that they are reproduced hereunder:
"5. Shri Vinod Kumar Singh has requested to enter his Name in the Seniority List and requested to grant Seniority in ratio of 50 : 30 : 20 to the Agriculture/Mechanical/Civil Engineering. In this regard, it is clear that the above ratio is only for recruitment. From Commission, on 6.01.2000, on 27.01.2000 and on 07.11.2000 list was sent. Therefore, in this sequence, on the basis of merit, the Seniority has already been assessed. Name of Shri Vinay Kumar has been entered at the required place in the Seniority List as his Name was left to be entered therein and as requested to increase and enter his Name in this Seniority List.
xxx xxx xxx xxx xxx
25. "...The Seniority of the candidates selected from the Public Service Commission have been kept in their Serial of merit."
33. Reading of paragraph 5, it is again mentioned that three lists were received by the Commission and in that 58 sequence, on the basis of merit, the seniority has been assessed. Paragraph 5 was dealing with objection of one Vinod Kumar Singh requesting to enter his name in the seniority list and further requesting to grant seniority in the ratio of 50 : 30 : 20. The competent authority allowed the request finding that the name of Vinod Kumar Singh was left to be entered and accordingly it was incorporated at the required place. Further, the last sentence of this office order clearly mentions that the seniority of the candidates selected from the Commission has been kept in their serial of merit. It does not refer to any separate merit being considered for preparing the seniority list of the three separate streams.
34. After coming of Rules 2009, fresh exercise was undertaken for preparation of seniority list. A tentative list was notified by the Office Order dated 29.12.2009. This Office Order mentions that the seniority list has to be prepared according to 1991 Rules. While dealing with the finalization of this tentative list, vide office order dated 05.03.2010, we find reference to disposal of an objection by Mahesh Chand Bagani and Mahesh Kumar in which they had apparently sought clarification regarding the requisition send to the Commission and other related aspects. In paragraph 11 of the Office Order, it is mentioned that the Commission had forwarded the three lists of the Agriculture, Mechanical and Civil streams separately on 06.01.2000, 27.01.2000 and 07.11.2000 respectively. It further mentioned that it was in that sequence i.e. the date of receiving that the combined 59 seniority was assessed. Thus, again the seniority list was finalized in the same sequence as the three lists have been received and in that order. It is thereafter that the representations were made that the seniority list of the direct recruits of 2001 was wrongly prepared contrary to the Rules, however, when no action was taken, Rajiv Nain Upadhyay and fourteen others approached the High Court by way of W.P. No. 53123 of 2012 in October 2012 which was within a period of two to two and half years and till such time they had been pursuing their representation after office order dated 05.03.2010. From the above facts, it is clear that in the first contingency or in the second contingency, the appellants cannot be found at fault. The Division Bench committed an error in holding that the claim lodged by the appellant suffered from delay and laches.
35. The plea to defend the seniority list prepared contrary to the statutory provisions on the ground of delay would be a difficult proposition. Apart from the submission of the appellants that there is no delay as they came to know of the three separate lists only in March, 2010, even if it is assumed that there was some delay and a fresh seniority list was being prepared in 2009-2010 again contrary to the provisions of statutory rules, such seniority list cannot be sustained or defended on the ground of delay of five years.
60
36. It is also admitted by the parties that the next promotion of Junior Engineers in the higher grade is to the post of Assistant Engineer. In the cadre of Assistant Engineer, there are no separate streams but only one cadre of Assistant Engineers. It is the seniority list of the cadre of Junior Engineers which would be the feeder cadre for the post of Assistant Engineers. The Junior Engineers of Agricultural stream of the selection of the year 2001, would have direct march over the Junior Engineers selected in the same selection of the Mechanical and Civil streams, even though the overall merit of some or many of Agricultural stream Junior Engineers could be lower than some or many of the Engineers of the Mechanical and Civil streams. The appointing authority ought to have prepared a combined merit list based upon the performance or the proficiency on the basis of the marks received in the selection test as prepared by the Commission. Otherwise, it would amount to denial of the right of consideration for promotion to a more meritorious candidate as against a candidate having lesser merit. Right to promotion is not considered to be a fundamental right but consideration for promotion has now been evolved as a fundamental right.
37. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in the case of Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty6 in paragraph 4 of the report which is reproduced below: 61
"4... There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent/writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified."
38. A Constitution Bench in case of Ajit Singh v. State of Punjab7, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her's fundamental right. Jagannadha Rao, J. speaking for himself and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27:
"21 : Articles 14 and 16(1) : is right to be considered for promotion a fundamental right 22 : Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in matters 62 relating to employment or appointment to any office under the State".
It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right.
"Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1) xxxx xxxx xxxx xxxx xxxx
27. In our opinion, the above view expressed in Ashok Kumar Gupta and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guarantee to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. 63 whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950."
39. This Court in Major General H.M. Singh, VSM v. UOI8, again reiterated the legal position, i.e. right to be considered for promotion as a fundamental right enshrined under Article 14 and Article 16 of the Constitution of India. The relevant extract from paragraph 28 is reproduced below:
"28. The question that arises for consideration is, whether the non-consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition that the respondents were desirous of filling the vacancy of Lieutenant-General, when it became available on 1-1-2007. The factual position depicted in the counter-affidavit reveals that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the senior most serving Major-General eligible for consideration (which he undoubtedly was), he most 64 definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential Order dated 29-2-2008, and thereafter, by a further Presidential Order dated 30-5-2008. The above orders clearly depict that the aforesaid extension in service was granted to the appellant for a period of three months (and for a further period of one month), or till the approval of the ACC, whichever is earlier. By the aforesaid orders, the respondents desired to treat the appellant justly, so as to enable him to acquire the honour of promotion to the rank of Lieutenant-General (in case the recommendation made in his favour by the Selection Board was approved by the Appointments Committee of the Cabinet, stands affirmed). The action of the authorities in depriving the appellant due consideration for promotion to the rank of the Lieutenant- General would have resulted in violation of his fundamental right under Article 14 of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary."65
40. If the seniority list is allowed to be sustained then the engineers who are more meritorious in the Mechanical and Civil streams than the Junior Engineers of the Agricultural stream would be deprived of their right of being considered for promotion and in fact their right would accrue only after all the Junior Engineers of the Agricultural stream selected in the same selection are granted promotion. For these reasons also the seniority list in question must go.
41. The other ground taken by the High Court for non- suiting the appellants were that they had not impleaded all the affected Junior Engineers. For the said proposition, the Division Bench of the High Court has placed reliance upon judgment of this Court in the case of Ranjan Kumar v. State of Bihar9. The above case was in respect of selection and appointment on the ground that the same had been made only on the basis of interview without holding any written test. The High Court had quashed such selection and appointments even of those appointees who were not even parties to the petition. It was in these circumstances that this Court held that the appointments of non-parties could not be quashed. Facts of the said case are clearly distinguishable.
42. The Division Bench of the High Court also relied upon another judgment of this Court in Prabodh Verma v. State of Uttar Pradesh10. This case again related to challenge to appointments and in the said case there was no 66 impleadment even in the representative capacity. In such circumstances, this Court said that the petition was liable to be dismissed for non-joinder of necessary parties. In fact, this judgment helps the appellants. Paragraph 50 thereof is reproduced below:
"50(1) : A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties."
43. The third case relied upon by the Division Bench for the above proposition namely State of Uttaranchal v. Madan Mohan Joshi11 was again a case where none of the affected parties were impleaded not even in the representative capacity. In such circumstances, this Court remanded the matter to the High Court leaving it open to the original petitioners therein to move an appropriate application for impleading some of the affected teachers in their representative capacity.
44. The fourth case relied upon by Division Bench on the above proposition is Indu Shekhar Singh v. State of U.P.12. In this case also, the affected parties were not impleaded and this Court relied upon the judgment of this Court in Prabodh Verma (supra).
67
45. In the case of Tridip Kumar Dingal v. State of West Bengal13, C.K. Thakker, J., held that the case falls within the ambit of non-joinder of necessary parties as none of the 66 candidates against whom the complaint was made, were made parties. It further held that some of the respondents should have been arrayed in representative capacity. Paragraph 41 is reproduced below:
"41 : Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the employment exchange and they were selected and appointed in 1998-1999. The candidates who were unable to get themselves. selected and who raised a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (selected candidates) as respondents in the original application, which was not done. In any case, some of them ought to have been arrayed as respondents in a "representative capacity". That was also not done. The Tribunal was, therefore, wholly right in holding that in absence of selected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set aside."
46. In the recent case of Mukul Kumar Tyagi v. The State of Uttar Pradesh,14 Ashok Bhushan, J., laid emphasis that when there is a long list of candidates against whom the case is proceeded, then it becomes unnecessary and 68 irrelevant to implead each and every candidate. If some of the candidates are impleaded then they will be said to be representing the interest of rest of the candidates as well. The relevant portion of paragraph 75 from the judgment is reproduced below:
"75...... We may further notice that Division Bench also noticed the above argument of non-impleadment of all the selected candidates in the writ petition but Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity."
47. The present case is a case of preparation of seniority list and that too in a situation where the appellants (original writ petitioners) did not even know the marks obtained by them or their proficiency in the examination conducted by the Commission. The challenge was on the ground that the Rules on the preparation of seniority list had not been followed. There were 18 private respondents arrayed to the writ petition. The original 69 petitioners could not have known who all would be affected. They had thus broadly impleaded 18 of such Junior Engineers who could be adversely affected. In matters relating to service jurisprudence, time and again it has been held that it is not essential to implead each and every one who could be affected but if a section of such affected employees is impleaded then the interest of all is represented and protected. In view of the above, it is well settled that impleadment of a few of the affected employees would be sufficient compliance of the principle of joinder of parties and they could defend the interest of all affected persons in their representative capacity. Non- joining of all the parties cannot be held to be fatal.
48. The Division Bench has also dealt with an issue which according to us was totally irrelevant and alien to the adjudication of the present appeals. In paragraph 45 of the judgment of the Division Bench there is a reference to an issue where a party takes calculated chances of participating in selection/appointment process and later turns around after being unsuccessful would be hit by doctrine of estoppel. For the said proposition, the Division Bench made detailed discussions in paragraphs 46, 47, 48 and 49 of the judgment and relied upon a number of case laws. In our considered view, this issue was not at all relevant. The said issue does not arise in the present case. The appellants/original writ petitioners had never challenged the selection process. The challenge was only 70 to preparation of the seniority list. As such, this discussion by the Division Bench is totally irrelevant.
49. The Division Bench further in paragraph 51 had in a generalized and vague manner recorded that the authorities relied upon by the learned single Judge were rendered in a different fact situation and were not applicable. The Division Bench did not consider the judgments relied upon by the learned Single Judge but only made this passing remarks. What we find is that the authorities relied upon by the learned Single Judge were relevant and correctly applied.
50. Further, the Division Bench in paragraphs 51, 52, 53 proceeded to deal with the delay stating it to be 11 years, the basis for calculation of 11 years was that the seniority list of 2006 was challenged by way of amendment by the appellants in the year 2017 and therefore there was a delay of 11 years. This discussion by Division Bench also cannot be sustained. The first seniority list was prepared in 2006. It was not disclosed as to how the seniority list has been prepared by treating the three separate lists independently on their merits but not as a result of combined merit of the three lists. It was only in 2010 that the appellants came to know of the fallacy and soon thereafter they challenged the seniority list of 2010. Even if, they did not challenge the seniority list of 2006, 2010 seniority list could always be revisited, reviewed and prepared afresh, if the same was quashed. The appellants 71 could not have been at any loss even if they had not challenged the 2006 seniority list.
51. The reasoning given in paragraphs 54, 55, 56 regarding issue of single selection is also not sustainable in view of Rules 1991 as also Rules 2009.
52. Lastly, paragraph 57 of the judgment of the Division Bench which deals with Rule 5 and 8 of 1991 Rules, we may only reiterate that, whether it was Rule 5 which was applicable or Rule 8 which was applicable, the seniority inter se of direct recruits to one selection has to be one combined list based on the performance and the marks awarded in the examination prepared either by the Commission or the Committee, as the case may be. True, the learned Single Judge, in the operative portion mentioned that a fresh seniority list be prepared in accordance with Rule 5 and apparently did not consider the effect of Rule 8, would not vitiate the judgment inasmuch as the basis for preparation of the seniority list of direct recruits was the same in both the Rules. It may be noted that there is no lis inter se between direct recruits and promotees.
53. For all the reasons recorded above, we find that the Division Bench fell in error in allowing the appeal and dismissing the writ petition. The learned Single Judge was right in his view in setting aside the final seniority list and directing the appointing authority for preparation of fresh 72 seniority list in accordance with Rules 1991, be it Rule 5 or Rule 8 thereof."
21. Following the dictum of the Hon'ble Apex Court in the case of Ajay Kumar Shukla (supra), I am of the view that, the contentions raised by learned counsel appearing for the respondents, with regard to delay and latches cannot be accepted.
22. I have also noticed that, the respondent-Corporation has amended the Board orders, on 16.08.1986 and 27.12.1996 particularly Note 4 paragraph 2, wherein, minimum service of 7 years as Junior Engineer was mandated to be consider while appointing as Assistant Engineer. It is also gathered from the writ petition that, despite the direction to prepare the fresh gradation list, as per Gurusripad's case, respondent- Corporation did implement its own board orders, and acted contrary to the orders and provided retrospective seniority to the ABT Junior Engineers. Taking into consideration the aforesaid aspects, I am of the view that, the contentions raised by the 73 respondents not only with regard to delay and laches but also regarding suppression of materials, cannot be accepted.
23. It is pertinent to mention here that, statutory rules cannot override by executive orders, by the respondent- Corporation (see. (1998) 8 SCC 469). In the event, interference is not made in the present writ petition to set right the wrong being continued by the respondent-Corporation and allowing for continuing wrong with the determination of the seniority on the basis of struck down orders of 1986 by the Board, despite the same is amended in terms of the judgment of this Court, same would amounts to perpetuate the illegality and arbitrary exercise of power by the respondent-Corporation providing retrospective seniority to ABT Engineers and same would amounts to violation of Article 14 of Constitution of India. Hon'ble Apex Court in the case of P.C. SETI VS. UNION OF INDIA reported in (1975) 4 SCC 67 held that delay cannot be a ground to deny the relief to the aggrieved parties, when there is violation of their constitutional rights. It is the duty of the Court to enforce the fundamental rights and the ground of delay and laches is an 74 exception to the same. Petitioners have clearly demonstrated that the discrimination has been made by promoting ABT Juniors.
24. This Court has categorically ordered in WP No.35999 of 2019 that the respondent-Corporation shall consider the representation dated 05.06.2017 made by the petitioners in accordance with the declaration of law made by the Hon'ble Supreme Court in the case of P. Sudhakar (supra). The aforesaid, judgment was questioned in Writ Appeal No.41 of 2020 and the Division Bench, by its order dated 22.01.2020, directed the respondent-Corporation, accordingly, to address the grievance of the petitioners in the light of judgment of Hon'ble Apex Court in the case of P. Sudhakar Rao (supra). Thereafter, the petitioners have made one more representation dated 18.12.2019 (Annexure-K) to the writ petition. Petitioners have also brought to the notice of the respondent-Corporation, objecting the ranking made in the provisional seniority list date 08.05.2017 on the ground that the Junior Engineers who had been appointed by transfer to the cadre of Assistant Engineer 75 and promoted them by granting seniority with retrospective effect and same is contrary to the law declared by Hon'ble Supreme Court in P. Sudhakar case (Supra). Petitioners have also highlighted the Board orders from the inception is order 26.07.1986 till the 27.12.1996. Judgment of Hon'ble Apex Court in the case of K.Narayanan (supra) and other judgment were also placed before the respondent-Corporation to take decision in the matter is a manner known to law. At this juncture, it is relevant to cite the dictum of Hon'ble Apex Court in the case of DIRECTOR OF SETTLEMETNS, A.P. AND OTHERS vs. M.R. APPARAO AND ANOTHER reported in (2002) 4 SCC 638 at paragraph 17, Hon'ble Supreme Court held as under:
"17. Coming to the third question, which is more important from the point of consideration of the High Court's power for issuance of mandamus, it appears that the Constitution empowers the High Court to issue writs, directions or orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part III and for any other purpose under Article 226 of the Constitution of India. It is, therefore essentially, a power 76 upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non- fundamental or ordinary legal rights, which may come within the expression "for any other purpose". The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon their discretion, they must be exercised along the recognised lines and subject to certain self-imposed limitations. The expression "for any other purpose" in Article 226, makes the jurisdiction of the High Courts more extensive but yet the Courts must exercise the same with certain restraints and within some parameters. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it 77 would lie to any person who is under a duty imposed by a statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition (Kalyan Singh v. State of U.P.. The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law. When the aforesaid principle is applied to the case in hand, the so-called right of the respondents, depending upon the conclusion that the Amendment Act is constitutionally invalid and, therefore, the right to get interim payment will continue till the final decision of the Board of Revenue, cannot be sustained when the Supreme Court itself has upheld the constitutional validity of the Amendment Act in Venkatagiri case [State of A.P. v. Rajah of Venkatagiri, on 6-2-1986 in Civil Appeals Nos. 398 and 1385 of 1972 and further declared in the said appeals that interim payments are payable till determination is made by the Director under Section 39(1). The High Court in exercise of power of issuance of mandamus could not have said anything contrary to that on the ground that the earlier judgment in favour of the respondents became final, not being challenged. The impugned mandamus issued by the Division Bench of the Andhra Pradesh High Court in the teeth of the declaration made by the Supreme Court as to the constitutionality of 78 the Amendment Act would be an exercise of power and jurisdiction when the respondents did not have the subsisting legally enforceable right under the very Act itself. In the aforesaid circumstances, we have no hesitation to come to the conclusion that the High Court committed serious error in issuing the mandamus in question for enforcement of the so-called right which never subsisted on the date, the Court issued the mandamus in view of the decision of this Court in Venkatagiri case [State of A.P. v. Rajah of Venkatagiri, . In our view, therefore, the said conclusion of the High Court must be held to be erroneous."
25. It is also relevant to extract the law laid down by the Ho'ble Apex Court in the case of CHAIRMAN, STATE BANK OF INDA AND OTHERS VS. M.J. JAMES reported in (2022)2 SCC
301. Paragraph 38 to 41 reads as under:
"38. In Ram Chand v. Union of India [Ram Chand v. Union of India, and State of U.P. v. Manohar [State of U.P. v. Manohar, this Court observed that if the statutory authority has not performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable 79 time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India v. Tarsem Singh [Union of India v. Tarsem Singh, may be continuing cause of action. The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. (Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. Jal Nigam v. Jaswant Singh after referring to several judgments, has accepted the following elucidation in Halsbury's Laws of England : (Jaswant Singh case, SCC pp. 470-71, paras 12-13)
12. The statement of law has also been summarised in Halsbury's Laws of England, Para 911, p. 395 as follows:
In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii) any change of position that has occurred on the defendant's part.80
Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.'
13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have 81 taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?"
39. Before proceeding further, it is important to clarify distinction between "acquiescence" and "delay and laches". Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action 82 mirroring acceptance. However, acquiescence will not apply if lapse of time is of no importance or consequence.
40. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.
41. The questions of prejudice, change of position, creation of third-party rights or interests on the part of the party seeking relief are important and relevant aspects as delay may obscure facts, encourage dubious claims, and may prevent fair and just adjudication. Often, relevant and material evidence go missing or are not 83 traceable causing prejudice to the opposite party. It is, therefore, necessary for the court to consciously examine whether a party has chosen to sit over the matter and has woken up to gain any advantage and benefit, which aspects have been noticed in Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpurand State of Maharashtra v. Digambar [State of Maharashtra v. Digambar. These facets, when proven, must be factored and balanced, even when there is delay and laches on the part of the authorities. These have bearing on grant and withholding of relief. Therefore, we have factored in the aspect of prejudice to the appellants in view of the relief granted in the impugned judgment."
26. Having applied the dictum of the Apex Court to the factual aspects on record, it is relevant to borne in mind that the appointment by transfer is an appointment of in-service candidates- Junior Engineers (cadre of Group-C) to the post of Assistant Engineers (cadre of Group-B) on the basis of acquiring Degree qualification without appearing for the competitive examination nor following the reservation - roster as mandated in the Constitution of India, and therefore, the appointment by transfer is itself is an exception to the regular mode of 84 appointment/promotion to the higher cadre of Assistant Engineer. In that view of the matter, following the law declared by Hon'ble Supreme Court in the case of P. Sudhakar Rao (supra) and K. Narayanan (supra) and also order passed by this Court in Gurusripad case, the directly recruited Assistant Engineers takes precedence over the Assistant Engineers who were promoted by ABT. Regulation 2(a) of Chapter IV of Rerecruitment and Promotion Regulation makes it clear that the employees appointed substantially in clear vacancies shall be Senior to all persons appointed on officiating or any other basis in the same cadre of service. Regulation 3 of the same, provided that the employees recruited by promotion or by direct recruitment will take precedence over the promoted employees where the date of appointment is the same. Regulation 2(a) and 3(a) shall be read conjunctively with Regulation 7 which mandates that the promotions of eligible employees shall be made on seniority-cum-merit basis. Perusal of the aforementioned Regulations, envisages that the appointment by transfer (ABT) Engineers, cannot claim their seniority in the cadre of Assistant Engineer before they takes birth in the said 85 cadre. The issue involved in this writ petition is not with regard to Seniority however, Seniority as claimed by the parties is the by-product of appointment and if there is no appointment, the question of Seniority does not arise. In that view of the matter, the contentions rasied by the learned counsel appearing for the parties banking upon the judgment of the Hon'ble Apex Court in Shiba Shankar (supra) and other cases relating to delay and laches, are not applicable to facts on record as the cases referred to by the learned counsel appearing for the respondents are with regard to Seniority disputing in a particular cadre and does not deal with the issue of appointments made to the retrospective dates and it is pertinent to mentioned here that the issue involved in this writ petition is with regard to non implementation of the judgments of the Hon'ble Apex Court in K.Narayananan (supra) and Gurusripad (supra) viz-a-viz application of the amended Board orders dated 16.08.1996 and 27.12.1996 and therefore, the illegal benefits have been extended to the Junior Engineers appointed by transfer to the cadre of Assistant Engineer and therefore, said illegality has to be put an end by allowing this writ petition. If not so, the 86 illegality will be perpetuate and further promotions will be made in violation of Rules, Regulations, Orders passed by the Hon'ble Apex Court in the aforementioned cases, and that apart two amended orders of the Board have not been implemented in its true spirit. I have also borne in mind that, appointment by transfer is only an appointment but not to promotion. Junior Engineers who were working as one Rank below the Assistant Engineers had been promoted and placed above by providing impugned seniority and thereby such Junior Engineers who were working under the Assistant Engineers have been appointed and placed above in the Seniority of Assistant Engineers under whom they were working. This aspect of the matter has not dealt by the court referred to by the learned counsel appearing for the respondents. Therefore, I am of the view that, the impugned endorsement dated 05.03.2020 is contrary to Articles 14 and 16 of the Constitution of India and consequently, the Official Memorandum dated 04.11.2000 issued by the respondent- Corporation is contrary to Board orders dated 16.08.1996 and 27.12.1996. In the result, I pass the following: 87
ORDER
(i) Writ petition is allowed;
(ii) Endorsement dated 05.03.2020 (Annexure-Q) issued by the respondent No.3 is hereby quashed and direction is issued to the respondent-Corporation to redo the Seniority in accordance with the judgments of Hon'ble Apex Court in the case of K. Narayanan (Supra) and P. Sudhakar Rao (Supra) and in terms of the Board orders dated 16.08.1996 and 27.12.1996 (Annexure-C and D respectively), within a period of six weeks from the date of receipt of this order.
(iii) It is made clear that having taken note of judgments of Hon'ble Apex Court in case of K. Narayanan (Supra) and P. Sudhakar Rao (Supra), respondent-Corporation is directed to implement the Board orders dated 16.08.1996 and 27.12.1996 with effect from 26.07.1986, date on which the Board order produced at Annexure-A was notified and no further promotion shall be effected till implementation of the amended Board Order dated 16.08.1996 and dated 27.12.1996 effect from 26.07.1986.
88
Ordered accordingly.
SD/-
JUDGE SB