Karnataka High Court
M A Murthy vs Karnataka State Financial Corporation on 28 February, 2020
Author: G.Narendar
Bench: G.Narendar
1 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
WRIT PETITION NO.11692/2017 (S-RES)
Between:
M.A. Murthy
S/o Munikrishnappa,
Aged about 53 Years,
Working as Assistant
General Manager,
(Incharge Deputy
General Manager)
KSFC, Rayapura, PB Road,
Dharwad-580009,
And residing at No.72,
10th Cross, First Phase,
J P Nagar, Bangalore-78.
... Petitioner
(By Sri, K. Subba Rao, Sr. Adv., for
Sri. Subramanya Bhat M., Advocate)
And:
1. Karnataka State Financial Corporation,
Head Office, No.1/1, K.S.F.C. Bhavan,
Thimmaiah Road, Bengaluru-560052,
Rep by the Chairman.
2. The Managing Director,
Karnataka State Financial Corporation,
Head Office, No.1/1, K.S.F.C. Bhavan,
Thimmaiah Road,
Bengaluru-560052.
2
3. Udyashankar, S,
Working as Assistant General Manager
(In charge Deputy General Manager), KSFC,
HPFS Department, No.1/1, Thimmaiah Road,
Bengaluru-560052.
4. Narayanappa V,
Working as Assistant General Manager
(Incharge Deputy General Manager), KSFC,
Rajajinagar Branch, West of Chord Road,
Bengaluru-560086.
5. Sri. Vanahalli A G,
Working as Assistant General Manager
(In Charge Deputy General Manager), KSFC,
Finance Department,
No.1/1, Thimmaiah Road,
Bengaluru-560052.
6. Sri. Vijayakumar V,
Working as Assistant General Manager
(In charge Deputy General Manager) KSFC,
Tumkur Branch, Tumkur-572103.
7. Sri. Sharad G Naik,
Working as Assistant General Manager
(Incharge Deputy General Manager), KSFC,
IA Department, No.1/1, Thimmaiah Road,
Bengaluru-560052.
8. Sri. Sreenivasappa M,
Working as Assistant General Manager
(Incharge Deputy General Manager), KSFC,
Saraswathipuram, Mysore-570001.
... Respondents
(By Sri Raghavendra G. Gayathri, Adv., for R1 and R2
Sri. S.V. Narasimhan, Adv., for R3 - R5 & R-7,
Sri. Venkatesh R. Bhagat, Advocate for R6 & R8)
3
This Writ Petition is filed under Article 226 of the
Constitution of India, praying to quash the reply dated
14.6.2016 issued to the petitioner's counsel on behalf of the
R-1 & 2 at Annex-K as the same is violative of Articles 14,16
and 19 of the Constitution of India besides being contrary to
Rule 3 of the Karnataka Government Service (Seniority)
Rules, 1957 etc.
This writ petition having been heard and reserved for
orders on 26.09.2019, coming on for pronouncement of
orders, this day, the Court made the following:-
ORDER
Heard the learned senior counsel Sri. K. Subba Rao along with the counsel for the petitioner Sri. Subramanya Bhat M. and the learned counsel Sri. Raghavendra G. Gayathri for respondent Nos.1 and 2 and the learned counsel Sri. S.V. Narasimhan for respondent Nos.3 to 5 and 7 and Sri. Venkatesh R. Bhagat on behalf of the respondent Nos.6 and 8.
2. The facts in brief, necessary for disposal of the petition are as under:-
The first respondent corporation by notification dated 18.07.1995, invited applications for filling-up 4 various posts including 2 posts of Managers (F&A), by way of direct recruitment and one post was reserved in favour of candidates hailing from the Scheduled Caste category. Pursuant to the notification, 5 candidates were recruited for the post of Managers (F&A) on 16.12.1995. But the petitioner was not recruited and being aggrieved by the appointment of 2 candidates, namely Sri. N. Venkatesh and Sri. Ramakrishna and non consideration of his candidature, he approached this Court in W.P. No.5322/1996. The co-ordinate Bench of this Court was pleased to dismiss the petition by order dated 19.12.1997. Aggrieved, the petitioner preferred an intra-court appeal in W.A.No.479/1998.
The Hon'ble Division Bench was pleased to dismiss the writ appeal by order dated 16.01.2002. The petitioner thereafter approached the Hon'ble Apex Court in SLP Nos.8113-14/2002. During the pendency of the petition before the Hon'ble Apex Court, the first respondent appointed the petitioner as Manager (F&A) by order 5 dated 09.11.2002. The Special Leave Petition came to be re-numbered as Civil Appeal Nos.6193-94/2003 and was disposed of by the judgment and order dated 09.02.2003, by holding that the appointment of the petitioner is with retrospective effect i.e. with effect from the date of the appointment of the respondents therein and further observed that he shall rank senior to the respondents for the purpose of seniority and continuity of service but denied any wage arrears and financial benefits.
The order of the Apex Court came to be implemented by the first respondent by office order dated 29.11.2003 and the seniority of the petitioner in the cadre of Manager (F&A) was with effect from 16.12.1995 and the seniority of the petitioner was at serial No.6 in the seniority list of Executives published on 07.11.2003. That, thereafter by representation dated 26.10.2007 the petitioner preferred a representation to 6 set-right the anomaly pertaining to the seniority in the light of the instructions issued by the State Government dated 29.10.2002.
The claim of the petitioner was premised on the provisions of the Rules and contending that in the event of date of appointment being the same in respect of candidates appointed by direct recruitment and by promotion, in the matter of seniority the direct recruitees are required to be placed above such officers who came to be appointed by promotion. The true copy of the instructions 29.10.2002 is produced as Annexure-C1.
There being no response, the petitioner submitted one more representation on 20.06.2008 praying that he be placed above the promotee Officers. That in the interregnum, the petitioner came to be appointed as Assistant General Manager with effect from 05.12.2014 and a seniority list of the officers in the cadre of 7 Assistant General Manager came to be published without considering the objections put-forth by the petitioner. Thereby, the promotee officers were continued as seniors to the petitioner.
Aggrieved, the petitioner once again submitted one more objection by way of representation to the second respondent on 03.07.2015 and also enclosed the State Govt. order dated 29.10.2002 in support of his claim. As the objection did not evoke any response he submitted one more representation dated 25.04.2016 reiterating his objection to the promotee officers being placed above him in the seniority list. Despite the objection, the second respondent got published one more seniority list dated 08.02.2016 and yet again the respondent No.3 to 8 were placed above him. Aggrieved, the petitioner got issued a legal notice demanding re- fixation of the seniority. The demand by the petitioner came to be rejected by reply legal notice dated 8 14.06.2016 contending that objections had been called for and after considering the same, the senior list was finalised. Copy of the legal notice and the reply are produced as Annexure-J and K.
3. Aggrieved by the rejection of his claim, the petitioner has approached this Court. The claim of the petitioner is resisted by the respondents. The sum and substance of the objection is that the reply to the legal notice does not give a cause of action as it is not an order allowing or abridging any right. Hence, the writ petition is not maintainable. That the order of the Hon'ble Apex Court is not binding on the private respondents as they are not parties to the proceedings. Lastly, it is contended that there is an enormous delay of 10 years and the extraordinary delay is fatal in the light of the law laid down by the Hon'ble Apex Court in the case of Union of India vs. Hemraj Singh Chauhan, reported in (2010) 4 SCC 290. That the petitioner having 9 failed to object to the seniority list in a timely manner is now estopped from agitating the correctness of the seniority list and by not objecting he has acquiesced and that the instant attempt is nothing but means to climb the ladder. That the provisions of Rule 3 is inapplicable to the officers of the Corporation and their service conditions are governed by the K.S.F.C. Staff Regulations, 1965 and Services (Conduct) Regulations, 2004 and Services (C.C. & A) Rules, 2003 and would place reliance on Rule 22 of the Staff Regulations-1965, which reads as under:-
"22. Seniority : - An employee appointed by direct recruitment in the Corporation's service shall rank for seniority in his grade from the date he joins the post for which he is selected.
An employee of the Corporation promoted to a higher grade shall rank for seniority in the promoted grade from the date of his promotion to the higher grade."
4. In the light of the above, it is lastly contended that the State Govt. has no specific control 10 and instructions issued by the State Govt. are not binding and that Regulation 22 does not in any manner provide for placing direct recruits over the promotees in the matter of seniority.
5. In the above facts and circumstances, the points that fall for consideration is below:-
i) Whether the first respondent-
Corporation is bound by the
instructions issued by the Government from time to time?
ii) Whether the respondents demonstrate that either statutorily or as a matter of policy they are entitled to rank promotee officers above officers directly recruited?
iii) Whether the petition is hit by the doctrine of delay and laches?
6. As regards the first point for consideration, this court has adverted to the statement of objections preferred on behalf of the first respondent. A careful perusal of the same does not anywhere reveal a plea that the instructions and orders of the Government are 11 not binding on the Corporation. There is not even a whisper to the said effect in the pleadings apart from baldly stating in paragraph No.9 that the respondent is a statutory Corporation and that the Karnataka Civil Service Rules are inapplicable. In the pleadings, there is no categorical, much less even a mere denial of the binding effect, of the instructions and orders issued by the State Government. This court is constrained to take note of this in view of the attempt made by the respondent Corporation during the course of hearing. It was vehemently contended that the institution is a statutory body and there is no specific control of the Government over the statutory Corporation. Further such a case though argued but not pleaded was sought to be advanced in the garb of memo filed into court in the course of hearing wherein the final unnumbered paragraph of page 4, it is contended as under:-
"Therefore, there is no specific control of the State Government and the 12 instructions issued by the State Government only requesting to consider his case."
To state the least, the said contention is per-se false and it is falsified by no less a communication emanating from the office of the Secretary to Government, Finance Department, Government of Karnataka dated 29.10.2002, and addressed to the Managing Director. It is even more relevant to note that the clarification was issued on the request of the first respondent placed before the Government vide letter bearing No.KASFC- PRA;SIBBANDI;C476 dated 15.07.2002. Though reliance is placed on the communication dated 29.10.2002 but the same is sought to be brushed aside. The respondent No.1 and 2 have conveniently screened from this court the communication dated 15.07.2002 pursuant to which the said clarification has been issued. In the column subject, it is stated that the clarification is issued with regard to the seniority list and as requested by the respondent Nos.1 and 2. 13 Reading of the clarification makes it amply clear that the State Government has clarified in categorical terms that officers who are recruited by promotion and by direct recruitment of any service or class of post, such of those officers directly recruited will take precedence over the promoted officers in case the date of appointment is the same. It is relevant to note that none of the respondents have placed before the court any material which would demonstrate that the said clarification has been superseded or set-aside. As per the binding nature of the said clarification this court need not travel further than the provisions of Section 39 of The State Financial Corporations Act, 1951 which deals with the power of the State Government to issue instructions to the Financial Corporations on questions of policy and the same reads as under:-
"39. Power to give instructions to Financial Corporation on questions of policy
1) In the discharge of its functions, the Board shall be guided by such instructions on questions of policy as may be given to it by the State Government in consultation with and after 14 obtaining the advice of the (Small Industries Bank).
(2) If any dispute arises between the State Government and the Board as to whether a question is or is not a question of policy, the decision of the State Government shall be final.
[(2A) Nothing contained in sub-section (1) and sub-section (2) shall apply in a case where a State Government holds less than fifty-one per cent of the equity shares in the Financial Corporation.
(2B) Notwithstanding the equity share holding of a Financial Corporation by a State Government, the State Government may advise the Financial Corporations on the matters of policy.] (3) If the Board fails to carry out the instructions on the question of policy laid down by the State Government under sub-section (1) of this section or the instructions given to the Board under sub-section (4) of section 37A, the State Government shall have the power to supersede the Board and appoint a new Board in its place to function until a properly constituted Board is set up, the decision of the State Government as to the grounds for superseding the Board shall not be questioned in any court."
7. The language employed in sub-section (1) makes it amply clear, that the Board in the discharge of its functions shall be guided by such instructions on questions of policy as may be given to it by the State Government. Sub-section (2) further amplifies the 15 primacy and binding effect of the instructions imparted by the Govt. in the matter of policy. Though it was vociferously argued, as borne-out in the reply to the legal notice and the reply effected by the sub-ordinate officers that the Board as a policy has reckoned the promotee officers as direct recruits. Neither such policy nor resolution of the Board is placed before this court. It being a matter of policy, it would not lie in the mouth of the private respondents to contend otherwise. Be that as it may, the private respondents, apart from arguing so, have not placed any material to demonstrate that instructions of the Government are not binding on the Corporation.
8. In view of the above discussion, this court has no hesitation in holding that the directions issued by the State Government in consonance with the provisions of Section 39 of the State Financial Corporations Act, are binding on the respondent- 16 Corporation and consequently, the respondent corporation is required to frame, modulate and implement its policies in consonance with the directions/instructions/clarifications issued by the State Government from time to time. Accordingly, the first point for consideration is answered accordingly.
9. In the light of the above findings, this court notes with concern the attempt by the Corporation to misinform the court. Though no pleadings have been set-forth denying the binding effect of instructions issued by the Government a subtle effort was made by the Corporation in the form of replies and in the reply notice an attempt was made to demonstrate it as a matter of policy adopted by the Board. Though such a stand, is asserted by the subordinate officers, in their communications addressed to the petitioner and in the form of the reply notice, no material is placed before the court to demonstrate the formulation and adoption of 17 such a policy by the Board. Not a single resolution of the Board to this effect is placed before this court. This attempt by the official respondents smacks of malice.
10. The second point for consideration should not detain this court for long. In the light of the discussion above, the clarification issued by the Govt. produced as Annexure-C1 to the writ petition and dated 29.10.2002, leaves no quarter for this court to entertain any doubt regarding the issue whether promotee officers rank over and above direct recruits. In this regard, a useful reference to the regulations, more particularly Regulations 22 in Chapter III of Staff Regulations-1965 (it is relevant to note at this stage itself that the staff regulations placed before this court is inclusive of amendments upto 1.4.2002 only) reads as under:-
"22. Seniority:- An employee appointed by direct recruitment in the Corporation's service shall rank for seniority in his grade 18 from the date he joins the post for which he is selected.
An employee of the Corporation promoted to a higher grade shall rank for seniority in the promoted grade from the date of his promotion to the higher grade."
11. From a reading of the above, it is apparent that even as per the regulations, the officers recruited directly have been categorised separately and in the matter of drafting the regulations, precedence has been accorded to the direct recruits and the promotee officers have been placed next in that order of priority. The priority accorded in the matter of drafting of the regulations cannot be rendered meaningless, for otherwise, if it was the intention of the Board to equate both the direct recruits and promotee officers and place them on the same pedestal, the regulation would have been drafted in the manner as set-out in paragraph 10 of the Statement of Objections which reads as under:-19
"10. Regulation 22 of KSFC Staff Regulations deals with the seniority of officials of the Corporation which is reproduced below.
"an employee appointed by direct recruitment in the Corporation's service shall rank for seniority in his grade from the date he joins the post for which he is selected" similarly "an employee of the Corporation promoted to a higher grade shall rank for seniority in the promoted grade from the date of his promotion to the higher grade".
12. The Board in the matter of drafting the regulations has clearly categorized the direct recruits as a separate class and the purpose behind this ought to be that the Board has recognized that they have a priority in the matter of promotion in the event of direct recruits vis-à-vis the promotee officers who are appointed on the same date. This is the only inescapable conclusion that one can arrive at, if regulation 22 is viewed in the background of the 20 clarification (Annexure-C1 dated 29.10.2002 issued by the State Government and in the backdrop of rule 3 of the KCS Rules. This court takes note of the mischievous attempt by the respondent Corporation to misread the provisions of regulation 22 as set-out in paragraph 10 of the Statement of Objections. This court has no qualms in holding that the attempt is not only mischievous but also malicious.
13. In view of the foregoing discussion, this court has no hesitation in holding that the respondents have failed to demonstrate that they are entitled to rank and accord seniority to promotee officers over and above the direct recruits in the event of both being appointed on the same date. This court further holds that in the matter of fixation of seniority the clarification (Annexure-C1) dated 29.10.2002 is binding on the respondent-Corporation and the regulation 22 is required to be interpreted in a manner, in consonance 21 with rule 3 of Karnataka Government Service (Seniority) Rules, 1957 in the absence of any contra material. Consequently it is held that in the matter of fixation of seniority inter-se between direct recruits and promotee officers, the direct recruits shall be accorded seniority over and above the promotee officers, in the event of both being appointed on the same date.
14. The last limb of contention that has been vehemently contend by all the respondents is the application of the doctrine of delay and laches. It is contended by the respondent Nos.1 and 2 that the writ petition is highly belated and is preferred after a lapse of nearly 10 years. The private respondents on their part have taken a plea that the petition is highly belated by more than a decade.
15. It is the case of the respondents that the final seniority list was published on 18.06.2010 and the respondents were ranked above the petitioner and 22 despite the same no legal challenge was mounted by the petitioner to the same and any interference at this stage would unsettle the settled position resulting in placing the respondents in an inequitable position. The official respondents would contend that the provisional seniority list had been published in 1997 and objections have been called for and objections were considered and final seniority list was published in 2003.
16. The learned counsel for the first respondent would invite the attention of the court to Annexure-R1. On a perusal of the same it is seen that the same is published on 02.05.2003 pursuant to a provisional list dated 04.06.1997 and a final list dated 25.07.1998. The said Annexure would be of no avail as a defence, as the petitioner entered into service only on 09.11.2002 after fighting a bitter battle which ended in the Apex Court. Hence, the question of putting the said list, 23 which was finalised on 25.07.1998, against the petitioner would not arise.
17. Be that as it may, it would not be out of place to refer to the additional documents placed on record by the petitioner dated 10.12.2003, that is, almost within a month of assuming an office. The question of addressing the representation would not have arisen as the published list was pursuant to the final seniority list published in 1998. In fact, on a reading of the above, the same would reveal an oral promise, by the General Manager to rectify the same which unfortunately was not to be the case. Further on perusal of Annexure-R1 it is seen that the date from which the seniority is considered is published on 09.11.2002. The said entry itself is contrary to the direction of the Hon'ble Apex Court, a copy of which is produced as Annexure-A to the writ petition as by the order of the Hon'ble Apex Court he was required to be 24 placed above the private respondent Nos.4 and 5 i.e. he ought to have been ranked at least at serial number 51. The reliance on Annexure-R1 by the official respondents despite said position having been corrected would only demonstrate the malicious attitude of the employer towards this particular employee.
18. Further, reliance is placed on the endorsement produced as Annexure R2, wherein the General Manager is said to have intimated the petitioner that the Corporation while formulating the seniority list has followed the principle of a promotee being senior to a direct recruitee. As discussed above the said excuse is palpably a false one. Neither the official nor the private respondents have placed before this court any material much less a resolution of the Board adopting such a policy. The audacity of the officer is further amplified in the light of Annexure-C1. 25
19. The learned counsel for the official respondents would reiterate the same by placing reliance on Annexure-R3 & R4 whereby the request of the petitioner has been turned down yet again by another subordinate of the respondent 1 & 2, namely the Deputy General Manager. This time around, he would label the act of misfeasance as the practice prevailing in the Corporation and as provided under the provisions of staff regulations. Neither Annexure R2, R3 or R4 refer to any authority delegated by the Board or any resolution of the Board or any policy formulated by the Board to substantiate the assertions made therein by the sub-ordinate officers. It is also not made known to this court under what authority the endorsements were issued by the General Manager and Deputy General Manager.
20. The counsel for the official respondents places reliance on Annexure-R5, to contend that the 26 objections have been considered and rejected and thereafter, the seniority list, for the post of Deputy General Manager has been finalised. On perusal of the same, it is seen that the same is authored by the Chairman and Managing Director and there is absolutely no reference to the issue raised by the petitioner. On a query as to whether the objections of the petitioner have been considered separately and communicated, the answer is in the negative. The petitioner has produced the objection submitted to the seniority list published on 04.10.2010. The same has been acknowledged by the office of the Chairman and Managing Director the author of Annexure-R5, which in the opinion of the respondents is the final seniority list and so also as per the private respondents. It is in the background of this seniority list published on 04.12.2010, the contention of the petition being hit by the doctrine of delay and laches, is canvassed. The respondents in support of the above contention have 27 placed reliance on the ruling of the Hon'ble Apex Court reported in (2013) 12 SCC 179. The Hon'ble Apex Court has recorded the facts involved in the said case in paragraphs 14 which is as under:-
"14. The centripodal issue that really warrants to be dwelled upon is whether the respondents could have been allowed to maintain a claim petition before the Tribunal after a lapse of almost two decades inasmuch as the said Madhav Singh Tadagi, a junior employee, was conferred the benefit of ad hoc promotion from 15-11-1983. It is not in dispute that the respondents were aware of the same. There is no cavil over the fact that they were senior to Madhav Singh Tadagi in the SAS Group III and all of them were considered for regular promotion in the year 1989 and after their regular promotion their seniority position had been maintained. We have stated so as their inter se seniority in the promotional cadre has not been affected. Therefore, the grievance in singularity is non-conferment of promotional benefit from the date when the junior was promoted on ad hoc basis on 15-11-1983."28
21. On a reading of the above paragraph it is apparent that the alleged junior had been accorded promotion in 1983 which came to be impugned in 2003, that is, after the passage of a full 20 years. In the interregnum the petitioner therein had also been accorded promotion in the year 1989 which promotion was also accepted by them without any demur. In the facts stated above, the Hon'ble Apex Court after placing reliance on the following rulings rendered by it in 1) C. Jacob v. Director of Geology and Mining 2) Union of India v. M.K. Sarkar 3) Karnataka Power Corporation Ltd. v. K. Thangappan 4) BSNL vs. Ghanshyam Dass 5) State of T.N. v. Sheshachalam 6) NDMC v. Pan Singh and lastly placing reliance on the observation made in P.S. Sadasivaswamy v. State of T.N. was pleased to hold as under in paragraph 27, that one who sleeps like Rip Van Winkle and arise from their slumber at their own leisure are bound to suffer. The Apex Court has held in paragraph 27 as under:-
29
"27. We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondent chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Anyone who sleeps over his right is bound to suffer. As we perceive neither the Tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion."
22. It was further pleased to hold in paragraph 28 as follows:-
"28. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional 30 benefits definitely should not have been entertained by the Tribunal and accepted by the High Court."
23. With the above passage the Apex Court has placed a caveat on its own proposition which caveat is further amplified by the observation of the Apex Court as under in paragraph 29.
"But equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, has it been said that everything may stop but not the time, for all or in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time."
and with the above observations, the Apex Court was pleased to allow the appeal and set aside the order of the tribunal and the High Court by placing reliance on the doctrine of delay and laches.
24. The learned counsel for the respondents have placed reliance another ruling of the Apex Court 31 reported in 2018 (3) SCC 391. The facts have been recorded by the Apex Court in paragraphs 2, 3 and 4. The facts in a nutshell reveal that the first and second petitioner and fourth respondent were recruited on the same day by the Committee which consists of experts who after apprising the candidates that is the petitioner 1, 2 and 4th respondent awarded a higher merit and placed him as No.1 in the merit list on the date of entry i.e. 04.06.2003. The said position continued even on the date of their subsequent promotion as Associate Professor on 01.07.2003 and also as on the date of their further appointment as Additional Professor on 23.09.2005 and the subsequent promotion as Professors on 01.07.2010. The Apex Court noted that the 4th respondent has all along been ranked as the senior above the petitioners and the same was never protested. The Apex Court has further examined the issue, in the light of the provisions of Section 25, with 32 regard to control of the Government, which is akin to the provisions of Section 39 (1) of the Act.
25. The Hon'ble Apex Court was pleased to hold as below in paragraphs 19, 20 & 24.
"19. The Court is confronted in the present case with a situation in which recruitment to the post of Additional Professor was carried out in 2005. That was well over 12 years ago. The petitioners have instituted these proceedings under Article 32 in November 2017 to question the order of ranking made by the Selection Committee on 12-9-2005. There is no cogent explanation for this belated recourse to legal remedies. The petitioners cannot legitimately explain the delay on their part merely by contending that they were representing to the first respondent to remedy their grievances. The petitioners may have believed in good faith that the AIIMS administration would pay heed to their grievances. They had a sympathetic ear of the Union Ministry of Health and Family Welfare. But twelve years is too long a period, by any means, to not seek recourse to judicial remedies. As the narration of facts would indicate, the governing body had on 14-4-2012 decided to maintain the order of merit 33 in terms of which the fourth respondent was ranked first, above the two petitioners. Even thereafter, a three-member committee was constituted by the governing body in October 2012 and a decision was once again taken on 19-7-2013 to maintain the order of seniority. This was reiterated on 12-5-2014 and 22-6- 2016. The petitioners were thus aware of the consistent position which was adopted by the first respondent. The delay on their part in seeking recourse to their legal remedies must weigh against them. At this stage it would be manifestly unfair to unsettle the inter se seniority between the three Professors in the CTVS Department by reopening the recommendation made by the Selection Committee in 2005.
20. In holding that an unexpected delay on the part of the petitioners would disentitle them to relief, we place reliance on a judgment of this Court in State of Uttaranchal v. Shiv Charan Singh Bhandari [State of Uttaranchal v. Shiv Charan Singh Bhandari, (2013) 12 SCC 179 : (2014) 3 SCC (L&S) 32] . The learned Chief Justice, after adverting to the settled position of law in that regard, observed thus: (SCC pp. 185-86, paras 27-28) "27. We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no 34 promotions may be unsettled. ... the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Anyone who sleeps over his right is bound to suffer. ...
28. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed.
But, a stale claim of getting promotional benefits definitely should not have been entertained by the Tribunal and accepted by the High Court."
There has to be an element of repose and a stale claim cannot be resuscitated.
24. In the present case, the record of the court indicates that while making its recommendations for appointment to the post of Additional Professor, the Selection Committee had borne in mind the performance of the candidates, their records as well as the opinion of the technical experts.35
The minutes of the meeting of 12-9- 2005 indicate that the views of the technical experts were considered. To re-evaluate what took place well over twelve years ago would neither be feasible nor appropriate. The policy decision of 1997 indicates that the gradings given by all the members of the Selection Committee and the technical experts are to be placed before the Chairman of the Selection Committee and the final selection "may be made" on the basis of the gradings/markings given by the members of the Selection Committee and the technical experts. The Selection Committee which was constituted in 2005 considered the issue of selection and inter se ranking of the selected candidates. In making its final recommendation in regard to their order of merit, upon appointment as Additional Professors, the Selection Committee had due regard to relevant matters including the performance of the candidates, their records and the opinion of the experts. Hence, the ranking which has been assigned cannot be regarded as being in breach of the policy decision of 1997. It would be iniquitous to unsettle the position of seniority, over twelve years after the petitioners and the fourth respondent were selected as Additional Professors. Even thereafter, when each of them has been promoted as a Professor, it is 36 the fourth respondent who has been ranked higher than the petitioners."
26. From a reading of the above, it is apparent that it is a case of ranking been fixed at the entry level itself on the basis of gradation awarded during the time of selection in the year 2005 which gradation was sought to be overturned in 2017 and the Apex Court was pleased to observe in paragraph 25 as under:-
"25. For the above reasons, we have come to the conclusion that the grant of relief would unsettle the inter se seniority between the petitioners and the fourth respondent well over twelve years since the recommendation of the Selection Committee for appointment as Additional Professors. This cannot be done. Some expressions of opinion in favour of the first petitioner in the departmental processes may have engendered a sense of hope. But that cannot furnish a legal ground to unsettle something that has held the field for long years. We close the proceedings with the expectation that these distinguished doctors will pursue their avocations at AIIMS without rancour. Our decision on seniority is no reflection 37 upon their distinguished service to a premier national institution."
27. It would not be ought of place to place reliance on the observation of the Hon'ble Apex Court, that it's rulings are not to be read as Euclid's Theorems. In this regard the learned counsel appearing on behalf of the petitioner would contend that this is a classic case of victimisation as the petitioner is from a marginalised society. He would contend that the victimisation commenced at the stage of selection itself and that ultimately justice was rendered at the hands of the Hon'ble Apex Court and he came to be appointed only on 09.11.2002 and hence it cannot be gainfully argued that the petitioner has not protested the seniority list published on 25.07.1998 even though he was considered to have been promoted retrospectively with effect from 16.12.1995. He would submit that the final seniority list published in 2010 i.e. the seniority list which is the first, since the petitioner entered into 38 service has been forthrightly protested but till date the same has not evoked any response from the first respondent even though the first respondent was duty bound to consider the same even as per the regulations. He would contend that, let alone the objections submitted in 2010, neither the objections submitted subsequently or even earlier have evoked any reply and that is why the petitioner was constrained to get issued a legal notice and left with no option a reply was got effected to their advocate which reply is nothing but a bundle of falsehoods. That none of the contentions raised in defense in the reply notice have been demonstrated before this court. The learned counsel would point out to the shifting stands adopted by the respondents. In the endorsement issued by the General Manager and Deputy General Manager they would canvass the case of a principle adopted and as a prevailant practice but subsequently in the reply they would contend that objections have been called for and 39 after examining the objections seniority list has been published on 04.12.2010. He would contend and rightly so that not an iota of material has been placed to demonstrate the consideration of the objections prior to the publication of the list or thereafter. He would submit that there is not a whisper as to when the provisional list was published and as to when objections were invited before publishing the final seniority list on 04.12.2010. He would submit that the contentions, that the objections of the petitioner has been considered is an absolute falsehood as the material placed by the respondents before this court nowhere reveals the consideration of the objections by the authority that is vested with the power to finalise and publish the seniority list. As rightly contended, even as per the pleadings, it is nowhere stated by the respondents, that the competent authority has considered the objections and regulation 21 mandates that the Managing Director shall maintain a record of service in respect of each 40 employee. The onus was on the respondents to demonstrate that the General Manager and the Deputy General Manager were authorized or were competent to fix the seniority list, muchless consider any objection to the same. Annexure-D, the objection has been submitted on 20.06.2008 and is addressed to the second respondent Managing Director and there is nothing on record to demonstrate that the same has been considered and disposed. Even as per the pleadings the last endorsement was issued on 15.12.2008.
28. As regards the delay, it is submitted by the learned counsel appearing on behalf of the petitioner, that the petitioner was on deputation which contention is not controverted. It is apparent that the official respondent No.1 and 2 have maintained an ominous silence to the objections preferred by the petitioner and only inference that can be drawn is that they could not reject the same on a ground that was apparently 41 contradictory to the clarification (Annexure-C1) issued by the State Govt. as by rendering such an opinion they ran the risk of being removed or superseded in terms of subsection (3) of Section 39 of the State Financial Corporations Act, 1951. The promotions of 2014 are sought to be put against the petitioner, which has also been objected to and it is not the case of the respondents that he has accepted the promotion without any demur.
29. It is relevant to note that promotions have been accorded to all, including the petitioner. It is not the case of the respondents that they were promoted to higher posts and the petitioner was retained in the lower post and the same has been accepted by the petitioner, as in the case in the cited rulings. In fact it is this promotion which has inspired the petitioner to register his protest by way of legal notice and thereafter he has preferred the instant writ petition. Though two long years had passed by the respondents had not filed 42 their objections and only when the matter was taken up for hearing and an interim order subjecting the promotions granted to the respondents made dependent on the outcome of the petition, were the objections statement filed.
30. The learned counsel in defense of his contention, regarding the petition being vitiated by delay and laches places reliance on the ruling of the Apex Court reported in 1992 Suppl. (2) SCC 172 wherein the Hon'ble Apex court has been pleased to reject the ruling of the tribunal rejecting the application on the grounds of delay alone. in Second ruling relied upon, i.e., (2009) 3 SCC 90 wherein the Hon'ble Apex Court has at paragraph 11 and 12 held as under;
"11. If, thus, for the reasons known to the respondent that he was entitled to the benefit of the status of the Scheduled Caste in the Andaman and Nicobar Islands, irrespective of the fact that the advertisement issued recognised only two categories of reserved categories viz. Scheduled Tribes and "OC", there was no reason 43 to deprive the respondent from the said benefit. The respondent, therefore, was not appointed because of a mistake committed on the part of the authorities of the appellants. They, thus, cannot be permitted to take advantage of the same.
12. In that view of the matter, the delay in filing the original application should not be held to be a bar in granting him an equitable relief. The Union of India as a benevolent litigant cannot be permitted to take advantage of its own wrong. Furthermore, the appellants are guilty of suppression of material facts before this Court. It, in its list of dates, did not state that the original order of the High Court dated 9-7-2004 had been recalled and reviewed by the Division of the said Court by an order dated 30-10-2004."
31. The learned counsel for the official respondents is unable to justify the failure on the part of the respondent Nos. 1 and 2 in not considering the objections nor is he able to explain as to why the respondents have failed to address the objections raised that too with reference to the clarification issued by the Govt. The learned senior counsel for the private 44 respondents submits that the failure of the authorities to consider the objections cannot be put against them and he would reiterate that the petition stands vitiated on account of delay and laches and prays for dismissal of the petition.
32. From the foregoing discussion it is apparent that the action of the official respondents is malicious and an act of malfeasance and is vitiated by legal malice. The silence of the official respondents is not only ominous but speaks volumes about the approach of the official respondents towards this employee/petitioner. The approach of the official respondents even before this court, even in the matter of presenting facts and even in reproducing the regulations cannot be appreciated and a deliberate attempt has been made by both the official and private respondents to misinform this court and have deliberately resorted to an erroneous presentation of regulation 22, to show as if the regulation considers 45 both Class of officers in the same vein. As noted above, the petitioner has been subjected to discrimination and hostility at the hands of the official respondents. They have tried every trick to deny the petitioner that to which he is legitimately entitled to. Endorsements have been gotten issued by persons who prima facie do not have any authority to do so. The officers subordinate to the respondents No.1 and 2 have adopted varying stands which is not in consonance either with the regulation or the statute. Even in the objection to the petition the official respondents have not placed on record in categorical terms, their stand in respect of Annexure-C1 i.e., the instruction/clarification issued by the Government. This is a clear case of Jekly and Hyde approach resorted to only with the intention of denying the petitioner his rights. The official respondents having failed to discharge their duty would venture to raise the bogey of delay and laches. The act of the official respondents borders on a fraud upon public policy. The 46 denial of the petitioners rights is not unknowingly or innocently or bonafidely. The denial is deliberate, motivated and by design.
33. To expect an employee to litigate at the drop of a hat, and that too against the might of the organization, is utopian. But unfortunately we live in a world, that is far from utopian. A world plagued by all known evils. The denial being vitiated by legal malice, delay and laches cannot be permitted to be a defence. This is a case in example of an underdog citizen who has dared to take on the might of the statutory organization, one which in the instant case, has contrived and resorted to every method to deny the legitimate rights of the petitioner, who is none other than it employee. In the light of the fact that the contention of the petitioner that he was on deputation and hence could not immediately agitate the injustice before the courts having not been controverted this court is of the considered opinion that the writ petition 47 cannot be denied on the grounds of delay and laches. Accordingly, the writ petition is allowed.
ORDER
i) The respondent Nos.1 and 2 is directed to redo the seniority list in accordance with the instructions issued by the Govt. vide annexure-C1 dated 29.10.2002.
ii) Re-fix the seniority in accordance with regulation 22 as interpreted by this court herein above.
iii) The exercise shall be completed by the respondent Nos.1 and 2 within a period of twelve weeks.
iv) All promotions, in-charge or otherwise, granted to the private respondents are subject to the re-fixation of seniority as directed above.
The writ petition stands ordered accordingly.
Sd/-
JUDGE Chs* CT-HR