Himachal Pradesh High Court
Himachal Pradesh University And ... vs Shri Mohinder Pal And Others on 8 August, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No. 87 of 2011.
Judgment reserved on 01.08. 2016.
Date of decision: 8th August, 2016.
.
Himachal Pradesh University and another .....Appellants Versus Shri Mohinder Pal and others ...Respondents.
Coram:
of The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1
rt Yes.
For the appellants: Mr. J.L. Bhardwaj, Advocate.
For the respondents: Mr. Onkar Jairath, Advocate. ____________________________________________________ Mansoor Ahmad Mir, Chief Justice.
This Letters Patent Appeal is directed against the judgment and order dated, 24.12.2010, made by the learned Single Judge of this Court in CWP (T) No. 13628 of 2008, titled Mohinder Pal and others versus H.P. University and another, for short "the impugned judgment", whereby the writ petition filed by the petitioner came to be allowed, on the grounds taken in the memo of appeal.1
Whether the reporters of Local Papers may be allowed to see the judgment ?.
::: Downloaded on - 15/04/2017 20:59:24 :::HCHP -2-2. The facts, as emerge from the record, in brief are that in the month of October, 1992, appellant/ writ respondent No.1, vide office order dated .
26.10.1992 Annexure A-1, appended to the writ petition, had appointed petitioners No.1 and 2 as Junior Engineers (Civil) with effect from 27.10.1992, of on ad hoc basis. They joined as such on 27.10.1992 as is evident from the office order dated 23.11.1992 Annexure rt A-2. Petitioner No.3 like-wise was appointed as Junior Engineer (Electrical) on ad-hoc basis. Petitioner No.4 was appointed as Junior Engineer (Civil) vide office order dated 26.6.1993 Annexure A-4 on ad-hoc basis. Petitioner No.5, vide office order dated 6.9.1993, Annexure A-5 was also appointed as Junior Engineer (Civil) on ad-hoc basis.
The petitioners are stated to have discharged their duties like regular appointed Junior Engineers. They were paid salary and all allowances as were paid to the regular appointed Junior Engineers.
3. In the year 1998, appellant/writ respondent No.1 held a meeting of Recruitment & ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP -3- Promotion Committee for regularization of ad-hoc services of the employees of various categories, including petitioners. Appellant/writ respondent No.2, .
on the recommendations of Recruitment & Promotion Committee regularized the ad-hoc services of the petitioners against the posts of Junior Engineers vide of office order dated 25.9.1998 Annexure A-6 with immediate effect.
4. rt It is stated that the writ petitioners were not given the same treatment as was given to other employees. It has been pleaded that one Anjna Sharma, Clerk was appointed on ad-hoc basis on 22.4.1994. The Recruitment & Promotion Committee recommended the regularization of Smt. Anjna Sharma w.e.f. 22.4.1994 and she was confirmed on 23.4.1995 vide office order dated 3.4.1999. It has been pleaded that the petitioners have been discriminated.
5. The petitioners have submitted representations regarding their grievance for regularization from the date they were appointed on ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP -4- ad-hoc basis as has been done in other cases, but appellant/ writ respondent No.1/University has not responded to the representations made by the .
petitioners. The petitioners have stated that the impugned action of respondent is discriminatory.
6. The petitioners challenged the said action of of the respondents by the medium of Original Application before the Erstwhile H.P. State rt Administrative Tribunal on 9.5.2006, which on the abolition, came to be transferred to this Court and registered as CWP (T), as stated supra.
7. The learned Single Judge of this Court, vide judgment dated 24.12.2010, granted the writ petition, as referred to supra, subject matter of this appeal.
8. The question to be determined in this Letters Patent Appeal is whether the ad hoc service rendered by the writ petitioners/respondents herein can be counted towards seniority and can they rank senior to a person who came to be appointed after following due selection process, that too, against substantive ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP -5- posts? The answer is in negative for the following reasons.
9. The record reveals that the petitioners were .
appointed on ad hoc basis. The orders whereby the writ petitioners/respondents herein were appointed on ad hoc basis, are couched in one language and same wording. It is apt to reproduce one of the appointment of orders herein.
"OFFICE ORDER rt The Vice-Chancellor under powers vested in him vide Ordinance 35.7 of the First Ordinances of the University has been pleased to appoint S/Sh. Mohinder Lal in the pay scale of Rs.1800-10-2000-50-2400-60-2700-75-3000-100-1200 plus usual allowances purely on ad hoc basis with effect from 27.10.1992 till further orders.
This ad hoc appointment can be terminated at any time and does not confer any claim for appointment on regular basis.
In case, these terms and conditions may be acceptable, they may submit their acceptance and joining accordingly.
Deputy Registrar (Estt.) Dated 26.10.1992."
[Emphasis added]
10. While going through the appointment order, one comes to an inescapable conclusion that the writ petitioners/respondents herein came to be appointed on ad hoc basis, without following due process of law ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP -6- and their appointment was just ad hoc and not temporary or permanent in any way.
11. The petitioners accepted the terms and .
conditions of the appointment orders and have not raised any finger or murmur. Their services were liable to be terminated at any time, without any notice. They cannot claim regularization and are caught by law of of estoppel, conduct, acquiescence and waiver.
12. The rt apex Court in case titled P.S. Gopinathan versus State of Kerala and others, reported in 2008 AIR SCW 4602, has held as under:
"31....................The act and action of the appellant in accepting his appointment as temporary one amounts to his assent to the temporary appointment and the appellant throughout till he raised an objection on 29.10.1992 has slept on his right of being appointed permanently on the post of District & Sessions Judge. By his conduct at the time of the issuance of the order by the High Court on 29.2.1992 and thereafter issuance of the second appointment order on 15.7.1992 with full knowledge of his own right and the act of the High Court which infringes it, led the High Court to believe that he has waived or abandoned his right. Lord Campbel in Cairncross v. Lorrimer, 3 LT 130 held that ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP -7- "generally speaking if a party having an interest to prevent an act being done had full notice of its being done, and acquiesce it, so as to induce a reasonable belief that he consents to it and the position .
of the others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license."
32. The aforesaid facts clearly make out an acquiescence of the appellant of accepting order dated 14.1.1992 being treated as temporary appointment of order on the post of District & Sessions Judge and he cannot now be permitted to change his position and claim the permanent appointment from 14.1.1992 to rt claim seniority on the post. Besides this, the High Court has rightly held that in the absence of the challenge to the second appointment order dated 15.7.1992 from the fresh panel dated 21.2.1992, that order will stand, though later in time, and has to be given effect to as an order of appointing the appellant on permanent basis under Rule 6 of the Rules."
13. A person who is appointed on ad hoc basis cannot be said to have borne on the cadre on the date when he was appointed on ad hoc basis.
14. The question arose before the apex Court in a latest case titled V. Venkata Prasad and others versus High Court of A.P. and others reported in AIR 2016 SC 3159. It is apposite to reproduce paras 23, 25 and 28 of the said judgment herein.
::: Downloaded on - 15/04/2017 20:59:24 :::HCHP -8-"23. In Debabrata Dash , almost in a similar situation, the three- Judge Bench reproduced a passage from O.P. Singla v. Union of India, 1984 4 SCC 450 :-
"21. This Rule shows that two conditions must co-exist in order that a person can become a 'Member of the Service'. Firstly, his appointment has to be in a substantive capacity and secondly, the .
appointment has to be to the Service, that is, to a post in the Service.
Persons who hold posts bearing designations similar to the designations of posts comprised in the Service cannot, for that reason alone, become members of the Service. It is only when they are appointed in a substantive capacity to a post in the Service, that they become members of the Service."
24. .. .. ..
of
25. Thereafter, the Court referred to the Constitution Bench judgment in Direct Recruitment Class II Engineering Officers' Association and after adverting to the legal position (Clauses A, B and C) stated thus:-
rt "The essence of direction in Clause (A) is that the seniority of an appointee has to be counted from the date of his appointment and not according to the date of his confirmation once a recruitee is appointed to a post according to the rules. In other words, where initial appointment is only ad hoc and not according to the rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority".
26-27.. .. .. .. .....
28. In State of Haryana v. Vijay Singh, 2012 8 SCC 633 the issue emerged with regard to determination of seniority in the backdrop of ad hoc initial appointment made dehors the seniority rules which were regularised by the State Government. The Court appreciating the fact situation held that ad hoc period would not be counted for the purpose of fixation of seniority."
15. The apex court in an another judgment in case titled Debabrata Dash and another versus Jatindra Prasad Das and others, reported in (2013) 3 SCC 658, has held as under:
"41.A five-Judge Bench of this Court in Direct Recruit Class II Engineering Officers' Association2 was concerned with a question of seniority in service between the direct recruits and promotees amongst ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP -9- Deputy Engineers in the State of Maharashtra. This Court considered previous decisions of this Court, including S.B. Patwardhan v. State of Maharashtra, 1977 3 SCC 399 and Baleshwar Dass v. State of U.P., 1980 4 SCC 226 and in paragraph 47 of the Report .
summed up the legal position. Clauses (A), (B) and (C) of paragraph 47 are relevant for the present purpose which read as follows:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the of date of his confirmation.
The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rt rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly."
16. It is also profitable to reproduce paras 26 and 33 of the judgment delivered by the apex Court in case titled Bhupendra Nath Hazarika and another versus State of Assam and others, reported in 2013 AIR SCW 401.
::: Downloaded on - 15/04/2017 20:59:24 :::HCHP- 10 -
"26. We have referred to the facts in detail and what this Court had ultimately held only for the purpose that where recruitment of service is regulated by the statutory rules, the .
recruitment must be made in accordance with those rules and if any appointment is made in breach of the rules, the same would be illegal and the persons so appointed have to be put in a different class and they cannot claim seniority.
27 to 32. ..... ...... ......
33. Recently, in State of Haryana and others v. Vijay Singh and others, 2012 8 SCC 633 the question arose with regard of to the fixation of seniority in the backdrop of ad hoc initial appointment made de hors the statutory rules but later on services were regularized by the State Government. The Court took note of the fact that the respondents therein were rt neither appointed by the competent authority on the recommendations made by the Board which was constituted by the Governor of Haryana nor were they placed on probation as required under the rules and, therefore, their ad hoc period could not be counted for the purpose of fixation of seniority. Thus, emphasis was laid that when appointment is made without following the procedure prescribed under the rules, the appointees are not entitled to have the seniority fixed on the basis of the total length of service. In essence, it has been ruled that when the appointment is made de hors the rules, the appointee cannot claim seniority even if his appointment is later on regularized."
17. In case titled State of Haryana and others versus Vijay Singh and others, reported in (2012) 8 SCC 633, the apex Court has laid down similar principles of law. It is profitable to reproduce paras 29 and 30 of the said judgment herein.
::: Downloaded on - 15/04/2017 20:59:24 :::HCHP- 11 -
"29. In Dr. Chandra Prakash v. State of U.P., the Court interpreted the U.P. Medical Service (Men s Branch) Rules, 1945, U.P. Medical Services (Men s Branch) (Amendment) Rules, 1981, U.P. Regularisation of Ad Hoc Appointments (on Posts within the Purview of the Public Service Commission) Rules, 1979 and held that the appellants who had been .
appointed against substantive vacancies and were continuing from 1965-1976 to 1983 and were enjoying all the benefits of regular service are entitled to seniority from the date of initial appointment. The Court also observed that the rule of seniority had been interpreted by the Court for a long period of time and it would not be proper to upset the principles laid down in other judgments.
of
30. None of the aforesaid judgments can be read as laying down a proposition of law that a person who is appointed on purely ad hoc basis for a fixed period by an authority other than the one who is competent to make regular appointment to the rt service and such appointment is not made by the specified recruiting agency is entitled to have his ad hoc service counted for the purpose of fixation of seniority. Therefore, the respondents, who were appointed as Masters in different subjects, Physical Training Instructor and Hindi Teacher on purely ad hoc basis without following the procedure prescribed under the 1955 Rules are not entitled to have their seniority fixed on the basis of total length of service. As a corollary to this, we hold that the direction given by the High Court for refixation of the respondents seniority by counting the ad hoc service cannot be approved."
18. In case titled State of Punjab and another versus Ashwani Kumar and others, reported in 2008 AIR SCW 7112, the apex Court has held as under:
"5.Learned counsel for the respondents strenuously contended that the respondents who are Clerks serving under the State of Punjab are governed by a set of Rules and circulars different from those which were considered in the decided case and, therefore, the ratio in that case will not be applicable in these cases. We have carefully considered the said contention. We have also considered the Government Letter No.4/8/85- ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP
- 12 -
3PPI/4408 dated 13.3.1996 containing the policy instructions. On a plain reading of the letter, it is clear that the instructions contained therein were based on the decision of the Punjab and Haryana High Court taking the view that ad-hoc service should be taken into .
account for the purpose. This letter in our view can no longer form the basis of the contention in view of the recent decision by this Court in State of Hayana v.
Haryana Veterinary & AHTS Association and Anr. (supra). Undisputedly, the respondents at the time of their appointment were governed by the Punjab Civil of Services (General and Common Conditions of service) Rules, 1994. In Rule 8 of the said Rules it is provided that the seniority of the persons appointed on purely rt provisional basis or on ad-hoc basis shall determined as and when they are regularly appointed be keeping in view the date of such regular appointment.
Further, in the orders appointing the respondents on ad-hoc basis, it was specifically stated that they will be governed by the aforementioned Rules. It was further stated in paragraph III of the appointment letter that the appointees' seniority will be determined only by merit in which he or she is placed by Punjab Public Service Commission. Thus it is clear that only regular service is to be counted towards seniority.
6. We do not feel it necessary to delve further into merits of the case in view of the decision of this Court in State of Hayana v. Haryana Veterinary & AHTS Association and Anr. (supra). We are satisfied that the ratio in that case applies to the case in hand. The resultant position that emerges is that the judgment/order passed by the High Court holding that ad- hoc service is to be included in calculating the period of service for giving the higher scale of pay is unsustainable and has to be vacated. Accordingly, the appeal is allowed and the judgment/order of the High Court under challenge is set aside.
::: Downloaded on - 15/04/2017 20:59:24 :::HCHP- 13 -
19. It is also apt to reproduce para 15 of the judgment delivered by the apex Court herein in case .
titled Ch. Narayana Rao versus Union of India and others reported in 2010 AIR SCW 5725.
"15.We have minutely examined the same but are unable to accept the said contention as according to us corollary of clause (A) of para 47 of the aforesaid of judgment would be applicable to the Appellant's case. It cannot be disputed that the initial appointment of the Appellant was only ad-hoc and for a temporary period rt and was also not in accordance with the Rules of 1990 as he did not appear in the requisite test, which is conducted by Staff Selection Commission, before his appointment. The same was only a stop-gap arrangement. Therefore, his officiation on such a post cannot be taken into account for considering the seniority. Thus, in our considered opinion neither clause (A) nor clause (B), as reproduced hereinabove, would be applicable to the Appellant's case and he cannot draw any advantages therefrom. On the other hand, he would be squarely covered by the corollary appended to clause (A).
20. In case titled Direct Recruit Class-II Engineering Officers' Association versus State of Maharashtra and others reported in (1990) 2 SCC 715, the apex Court has laid down the same principles of law. It is apt to reproduce para 47 of the said judgment herein.
::: Downloaded on - 15/04/2017 20:59:24 :::HCHP- 14 -
"47. To sum up, we hold that:
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the .
initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service of in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from rt the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. (F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the; subject., (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP
- 15 -
inference is that the executive instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy .
Engineers.
(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position.
With respect to Writ Petition No. 1327 of 1982, we further of hold:
(K) That a dispute raised by an application under Art. 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if rt the same has been earlier decided by a competent Court by a judgment which became final.
In view of the above and other findings recorded earlier, we do not find any merit in any of the civil appeals, writ petitions and special leave petitions which are accordingly dismissed. There will be, however, no order as to costs."
21. Applying the test, the learned Single Judge has fallen into an error in granting the writ petition and directing the respondents to consider the cases of the petitioners for regularization from the date of their initial appointments on ad hoc basis as Junior Engineers.
22. The learned Single Judge has held that the writ respondents have granted regularization to other persons from the date of their initial appointment on ad hoc basis, the writ petitioners are also entitled to ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP
- 16 -
regularization from the date of their initial appointment on ad hoc basis.
23. It is settled law that equality can be claimed .
on legal basis and on the foundation which is permissible under the law. Equality cannot be claimed amongst unequals, that to, with whom who have been given benefit by illegal means or in breach of the of Rules.
24. The similar principles of law have been laid rt down by the apex Court in case titled M/s Laxmi Rattan Cotton Mills Ltd. vesus State of U.P. and others reported in 2009 AIR SCW 20. It is apt to reproduce para 16 of the said judgment herein.
"16.The act of discrimination and/ or inappropriate action on the part of the employer, if any, should have been the subject matter of a demand immediately after their appointment as clerks. They not only accepted their appointments to the post of clerk; as noticed hereinbefore, they were made permanent in the said post.
Another principle which was applicable in the instant case was also lost sight of by the Tribunal, viz., that Article 14 of the Constitution of India carries a positive concept and no equality can be claimed in illegality.
In Mahendra L. Jain and Others v. Indore Development Authority and Others [(2005) 1 SCC 639], this Court held:
"19. The question, therefore, which arises for consideration is as to whether they could lay a valid claim for regularisation of their services. The answer thereto must be ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP
- 17 -
rendered in the negative. Regularisation cannot be claimed as a matter of right. An illegal appointment cannot be legalised by taking recourse to regularisation. What can be regularised is an irregularity and not an illegality. The constitutional scheme which the country has adopted does .
not contemplate any back-door appointment. A State before offering public service to a person must comply with the constitutional requirements of Articles 14 and 16 of the Constitution. All actions of the State must conform to the constitutional requirements. A daily-wager in the absence of a statutory provision in this behalf would not be entitled to regularisation."
of [See also M.P. Housing Board and Another v. Manoj Shrivastava (2006) 2 SCC 702, M.P. State Agro Industries Development Corpn. Ltd. and Another v. rt S.C. Pandey (2006) 2 SCC 716, Indian Drugs & Phrmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408, Gangadhar Pillai v. Siemens Ltd. (2007) 1 SCC 533 and C. S. Azad Krishi Evam Prodyogiki Vishwavidyalaya v. United Trades Congress and Anr. (2008) 2 SCC 552]."
25. The concept of Article 14 of the Constitution of India is positive and not negative. Article 14 of the Constitution of India cannot be pressed into service for granting relief which has been illegally granted to some person(s). It does not mean that if writ respondents had committed any illegality, the Court should put seal on it and direct to grant the same relief to the petitioners, which is not permissible under law.
::: Downloaded on - 15/04/2017 20:59:24 :::HCHP- 18 -
26. An employee who was not borne on the cadre cannot claim seniority prior to the date he was appointed. If it is granted, that would amount to grant of .
seniority from a date before birth in service.
27. Similar principles of law have been laid down by the apex Court in case titled State of Jammu and Kashmir and others versus Javed Iqbal Balwan of and others, reported in 2009 AIR SCW 2467.
"20. We see no infirmity in the decision taken by the State rt Government and we find the submissions of the learned Advocate General well founded. The impugned directions of the High Court are clearly contrary to the decision of this Court in a case coming from J & K itself in Suraj Prakash Gupta v. State of J & K . We find that among the large number of decisions referred by it, the decision in Suraj Prakash Gupta (supra) was also noticed by the High Court, at more than one places, in its judgment coming under appeal but the High Court referred to and relied upon the decision on the issue of regularization of service of the departmental promotees on the post of Tehsildar in the States Revenue (Gazetted) Service. Strangely the High Court completely overlooked the decision on the point of antedating the seniority of the direct recruits. It may be noted that in paragraph 17 of the decision in Suraj Prakash Gupta (supra) this Court had framed one of the points arising for consideration as follows:
(4) Whether the direct recruits could claim a retrospective date of recruitment from the date on which the post in direct recruitment was available, even though the direct recruit was not appointed by that date and was appointed long thereafter?
22. Seen in the light of the decision in Suraj Prakash Gupta (supra) the impugned directions appear quite contrary to the ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP
- 19 -
law laid down by this Court and are clearly unsustainable. We accordingly accept the appeal of the State Government and set aside the impugned directions. It is made clear that we do not propose to disturb the other directions particularly those relating to monetary and other benefits to the direct .
recruits."
28. It is worthwhile to record herein that the writ petitioners/respondents herein were appointed on ad hoc basis in the year 1992 and were regularized in the of year 1998. They have filed the Original Application on 9.5.2006, as is evident from the record. The petitioners rt have not explained the delay right from 1992 to 2006, till the filing of the Original Application, are caught by delay and laches. In case, the petitioners are given regularization and seniority from the date they were appointed on ad hoc basis, after such a long time, it would tantamount to unsettling the settled position(s).
29. The apex Court in case titled A.P. Public Service Commission versus K. Sudharshan Reddy and others, reported in 2006 AIR SCW 3430, has laid down the principles of law. It is apt to reproduce paras 10 and 20 of the said judgment herein.
"10.In addition to his aforesaid submission on the merits of the views expressed by the Tribunal and the Division Bench of the Andhra Pradesh High Court, Mr. ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP
- 20 -
Kumar also urged that if the judgment and order of the Tribunal and the High Court were allowed to stand, it would result in unsettling of the entire seniority position which prevailed in 1981 in different services through out the State and the same would lead to a chaotic .
situation. It was submitted that such an action could hardly be undertaken at such a distant point of time. 11 to 19. ... ..... .... ...
20.Apart from the above, the other submission of Mr. Ranjit Kumar regarding the difficulty of unsettling the settled position after all these years cannot also be of lightly brushed aside."
30. The apex Court in case titled Shiba rt Shankar Mohapatra and others versus State of Orissa and other reported in 2010 AIR SCW 348, has held as under:
"16.The question of entertaining the petition disputing the long standing seniority filed at a belated stage is no more res integra. A Constitution Bench of this Court, in Ramchandra Shanker Deodhar & Ors. v. State of Maharashtra & Ors., 1974 AIR(SC) 259, considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. A party should approach the Court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. H.B. Munshi, 1970 AIR(SC) 898, wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP
- 21 -
be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under:-
"A party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the Courts cannot harm innocent parties if their .
rights emerge by reason of delay on the part of person moving the court."
17. This Court also placed reliance upon its earlier judgment of the Constitution Bench in R.N. Bose v. Union of India & Ors., 1970 AIR(SC) 470, wherein it has been observed as under:-
"It would be unjust to deprive the respondents of the of rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be defeated after the number of years."
rt
18. In R.S. Makashi v. I.M. Menon & Ors., 1982 AIR(SC) 101, this Court considered all aspects of limitation, delay and laches in filing the writ petition in respect of inter se seniority of the employees. The Court referred to its earlier judgment in State of Madhya Pradesh & Anr. v. Bhailal Bhai etc., 1964 AIR(SC) 1006, wherein it has been observed that the maximum period fixed by the Legislature as the time within which the relief by a suit in a Civil Court must be brought, may ordinarily be taken to be a reasonable standard by which delay in seeking the remedy under Article 226 of the Constitution can be measured. The Court observed as under:-
"We must administer justice in accordance with law and principle of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set-aside after the lapse of a number of years..... The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of 1968... We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid ::: Downloaded on - 15/04/2017 20:59:24 :::HCHP
- 22 -
down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the prayer for quashing the said Government resolution, should have been dismissed."
.
19. The issue of challenging the seniority list, which continued to be in existence for a long time, was again considered by this Court in K.R. Mudgal & Ors. v. R.P. Singh & Ors., 1986 AIR(SC) 2086. The Court held as under:-
"A government servant who is appointed to any post ordinarily should at least after a period of 3-4 years of his appointment be allowed to attend to the duties attached to of his post peacefully and without any sense of insecurity......... Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Government servants created by writ petitions filed after several years as in this rt case. It is essential that any one who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties.... In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches."
20. While deciding the case, this Court placed reliance upon its earlier judgment in Malcom Lawrance Cecil D Souza v. Union of India & Ors., 1975 AIR(SC) 1269, wherein it had been observed as under:-
"Although security of service cannot be used as a shield against the administrative action for lapse of a public servant, by and large one of the essential requirement of contentment and efficiency in public service is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in a seniority list after having been settled for once should not be liable to be re-opened after lapse of many years in the instance of a party who has itself intervening party chosen to keep quiet. Raking up old matters like seniority after a long time is likely to resort in administrative complications and difficulties. It would, ::: Downloaded on - 15/04/2017 20:59:25 :::HCHP
- 23 -
therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."
21. In B.S. Bajwa v. State of Punjab & Ors., 1999 AIR(SC) 1510, this Court while deciding the similar issue re-iterated .
the same view, observing as under:-
"It is well settled that in service matters, the question of seniority should not be re-opened in such situations after the lapse of reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This along was sufficient to decline interference of under Article 226 and to reject the writ petition".
22. In Dayaram Asanand v. State of Maharashtra & Ors., 1984 AIR(SC) 850, while re-iterating the similar view this Court held that in absence of satisfactory explanation for rt inordinate delay of 8-9 years in questioning under Article 226 of the Constitution, the validity of the seniority and promotion assigned to other employee could not be entertained.
23. In P.S. Sadasivaswamy v. State of Tamil Nadu,1975 AIR(SC) 2271, this Court considered the case where the petition was filed after lapse of 14 years challenging the promotion. However, this Court held that aggrieved person must approach the Court expeditiously for relief and it is not permissible to put forward stale claim. The Court observed as under :-
"A person aggrieved by an order promoting a junior over his head should approach the Court at least within 6 months or at the most a year of such promotion."
24. The Court further observed that it was not that there was any period of limitation for the Courts to exercise their powers under Article 226 nor was it that there could never be a case where the Courts cannot interfere in a matter after certain length of time. It would be a sound and wise exercise of jurisdiction for the Courts to refuse to exercise their extra ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who standby and allow things to happen and then approach the Court to put forward stale claim and try to unsettle settled matters.
::: Downloaded on - 15/04/2017 20:59:25 :::HCHP- 24 -
25. A similar view has been re-iterated by this Court in Smt. Sudama Devi vs. Commissioner & Ors., 1983 2 SCC 1; State of U.P. vs. Raj Bahadur Singh & Anr., 1998 8 SCC 685; and Northern Indian Glass Industries vs. Jaswant Singh & Ors., 2003 1 SCC 335.
.
26. In Dinkar Anna Patil & Anr. vs. State of Maharashtra, 1999 AIR(SC) 152, this Court held that delay and laches in challenging the seniority is always fatal, but in case the party satisfies the Court regarding delay, the case may be considered.
27. In K.A. Abdul Majeed vs. State of Kerala & Ors., 2001 6 SCC 292, this Court held that seniority assigned to any of employee could not be challenged after a lapse of seven years on the ground that his initial appointment had been irregular, though even on merit it was found that seniority of the petitioner therein had correctly been fixed. rt
28. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (vide Aflatoon & Ors. vs. Lt. Governor, Delhi & Ors., 1974 AIR(SC) 2077; State of Mysore vs. V.K. Kangan & Ors., 1975 AIR(SC) 2190; Municipal Council, Ahmednagar & Anr. vs Shah Hyder Beig & Ors., 2000 AIR(SC) 671; Inder Jit Gupta vs. Union of India & Ors., 2001 6 SCC 637; Shiv Dass vs. Union of India & Ors., 2007 AIR(SC) 1330; Regional Manager, A.P.SRTC vs. N. Satyanarayana & Ors., 2008 1 SCC 210; and City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala & Ors., 2009 1 SCC 168.
29. 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 (supra), this Court has laid down, in crystal clear words that a seniority list which remains in 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 ::: Downloaded on - 15/04/2017 20:59:25 :::HCHP
- 25 -
period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation."
31. Having glance of the above discussion, the .
learned Writ Court has fallen into an error in granting the writ petition.
32. Viewed thus, the impugned judgment is set aside, the LPA is allowed and the writ petition is of dismissed.
rt (Mansoor Ahmad Mir)
Chief Justice.
August 08, 2016. (Tarlok Singh Chauhan) (cm Thakur) Judge.
::: Downloaded on - 15/04/2017 20:59:25 :::HCHP