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RAKESH KUMAR PANDEY versus STATE OF U.P. & ANR.

High Court of Judicature at Allahabad

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Rakesh Kumar Pandey v. State Of U.P. & Anr. - SPECIAL APPEAL No. 825 of 2004 [2004] RD-AH 1743 (17 December 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO.34

SPECIAL APPEAL  NO. (825)   OF 2004

Rakesh Kumar Pandey           .......... Petitioner

                    Versus

State of U.P.& anr.     ............     Respondents

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan,J)

Heard learned counsel for the appellant and learned Standing Counsel for the respondents.

This special appeal has been filed against the judgment and order of the learned Single Judge dated 7/5/2004 dismissing the writ petition of the appellant/petitioner.

The facts and circumstances giving rise to this case are that the petitioner-appellant, who had been a Roller Cleaner/Driver, was appointed on 17/4/1978. His grievances had been that he had been regularized subsequent to the date persons junior to him had been regularized. Petitioner-appellant had been regularized with effect from 25/2/1997, though three persons namely Awadh Narain, Shri Ram Bahadur and Ramesh Kumar Shukla who had been much junior to him had been regularized with effect from 24/12/1988, 1/7/1990 and 6/12/1990. Being aggrieved he filed the writ petition which had been dismissed on the ground of availability of alternative remedy before the Uttar Pradesh Public Service Commission. Hence, this appeal.

Without entering into the merits of the case, as to whether appellant should have been relegated to the appropriate forum, we are of the opinion that the petition should not be entertained at such a belated stage, as the persons junior to him had been regularized in 1988-1990 and petitioner-appellant did not challenge their regularization for such a long period. More so, none of them has been impleaded either in the writ petition or in the special appeal. In fact, appellant-petitioner is fighting for seniority, indirectly which cannot be granted to him in absence of the parties, who had been regularized before him, as they are necessary parties.  (Vide Prabodh Verma Vs. State of U.P., AIR 1985, SC 167; Ishar Singh Vs. Kuldeep Singh 1995 (Supp) 1, SCC 179; Bhagwati & Ors. Vs. Subordinate Service Selection Board, Haryana & Ors., 1995 (Supp) 2 SCC 663; Central Bank of India Vs. S. Satyam & Ors., (1996) 6 SCC 419; J. Jose Dhanapaul Vs. S. Thomas & Ors., (1996) 3 SCC 587; Arun Tiwari & Ors. Vs. Zila Manasavi Shikshak Sangh & Ors., AIR 1998 SC 331; Azar Hasan & Ors. Vs. District Judge, Saharanpur 1998, 3 SCC 246; Ram Swarup & Ors. Vs. S.N. Maira & Ors., (1999) 1 SCC 738; Chandra Kishore Singh Vs. State of Manipur & Ors., (1999) 8 S.C.C. 287; Mohd. Riazul Usman Gani & Ors. Vs. District & Sessions Judge, Nagpur & Ors., (2000) 2 SCC 606; Nirmala Anand Vs. Advent Corporation (P) Ltd. & Ors., (2002) 5 SCC 481 and M.P. Rajya Sahkari Bank Maryadit Vs. Indian Coffee Workers' Cooperative Society Ltd. & Ors (2002) 9 SCC 204; and Ramrao & Ors. Vs. All India Backward Class Bank Employees Welfare Association & Ors., (2004) 2 SCC 1976).

Even otherwise, the appellant-petitioner has not challenged the seniority list issued about a decade ago, in which all the three persons had been placed over and above to him. Learned counsel for the appellant has suggested that he be given time to file applications for impleadment as well as amendment, challenging the said seniority list. However, we do not consider it necessary for the reason that, it is not permissible for him in law, to challenge the seniority list at such a belated stage.

A Constitution  Bench of the Hon'ble  Supreme Court,  in  Ramchandra Shanker Deodhar &  ors.  Vs. State of Maharashtra & ors., AIR 1974 SC 259, considered   the   effect of delay in challenging  the 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.   While deciding  the  said  case, the Apex  Court  placed  reliance  upon its earlier judgments, particularly in Tilokchand  Motichand  Vs.  H.B. Munshi,  AIR 1970 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 reasons of delay in filing the writ petition  should  not 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."

The  Apex Court also placed reliance  upon  its earlier  judgment in R.N.  Bose Vs.  Union  of  India & ors., AIR 1970 SC 470, wherein it has been                observed as under:-

"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 defeated after  the number of years."

         In  R.S.  Makashi Vs.  I.M.  Menon & ors., AIR 1982  SC  101, the Apex Court  considered  the  entire aspect  of limitation, delay and laches  in filing the   writ   petition.    The  Court   also  referred  to  its  earlier judgment in  State  of Madhya Pradesh  &  Anr.   Vs.  Bhailal  Bhai  etc.  etc., AIR  1964  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 further  considered  the issue and  held  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 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."

     The  issue  of  challenging  the  existing seniority list, which continued to be in existence  for a long  time,  was  again  considered  by  the Hon'ble Apex  Court  in K.R.  Mudgal &  ors.   Vs.  R.P.  Singh  & ors., AIR 1986 SC 2086 and the Apex Court held as under:-

"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 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."                          

While  deciding  the case, the Apex  Court placed reliance  upon  its   earlier  judgment  in Melcom Lawrance Cecil D'Souza Vs.  Union of India & ors., AIR  1975  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 services 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 the  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, 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."

In  B.S.   Bajwa  Vs.  State of  Punjab  &  ors., (1998) 2 SCC 523, the Hon'ble Apex Court has taken 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 under  Article 226 and to reject the  writ  petition."

In  Dinikar Anna Patil & Anr.  Vs. State of Maharashtra,  (1999)  1  SCC 353,  the Hon'ble Supreme 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.

In K.A. Abdul Majeed Vs.  State of Kerala & ors., (2001) 6 SCC 294, the  Hon'ble Supreme Court held that seniority assigned to any employee could not  be  challenged after a lapse  of  seven years;  though  even  on merit it was  found  that seniority  of the petitioner therein had correctly   been fixed.

       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,  it cannot be  challenged  and changed on any ground whatsoever.

It is settled  law  that  fence-sitters cannot be  allowed  to  raise   the  dispute   or  challenge  the  validity of the order  after  its    conclusion.   (Vide  Aflatoon  & ors.   Vs. Lt. Governor,  Delhi & ors., AIR 1974 SC 2077;  State of Mysore  Vs.  V.K.  Kangan & ors., AIR 1975  SC      2190;  Pt.  Girdharan Prasad Missir Vs.  State of   Bihar & ors., (1980)  2 SCC 83;  H.D.  Vora  Vs.   State of  Maharashtra,  AIR 1984 SC  866;   Bhoop Singh Vs.   Union ofIndia, AIR 1992 SC 1414;  The  Ramjas Foundation  & ors.  Vs.  Union of India  &  ors., AIR  1993 SC 852;  Ram Chand Vs.  Union of India, (1994) 1 SCC 44;  State of Maharashtra Vs.   Digambar,   AIR   1995    SC   1991;    Municipal                  Corporation  of  Greater Bombay  Vs.   Industrial   Development  Investment  Co.  (P) Ltd. &  ors., (1996) 11 SCC 501;  Padma Vs.  Dy.  Secy.  to the Govt. of Tamil  Nadu,  (1997) 2 SCC 627; Hindustan  Petroleum Corp. Ltd. Vs.  Dolly Das, (1999) 4  SCC 450;  Life Insurance Corporation of India Vs.   Jyotish Chandra Biswas, (2000) 6  SCC  562;  L. Muthu Kumar & Anr.  Vs. State of Tamil   Nadu & ors., (2000) 7 SCC  618; Municipal   Council,  Ahmednagar & Anr.  Vs.  Shah Hyder Beig   & ors., AIR 2000 SC 671;  and Inder Jit Gupta Vs.   Union of India & ors., (2001) 6 SCC 637.          

The  issue  of  delay in filing  the  writ   petition  was considered by the Hon'ble Apex Court  in Smt.   Sudama  Devi Vs.  Commissioner  &  ors., (1983) 2  SCC  1,  wherein   the  Apex  Court  has  observed as under:-                                

"There is no period  of   limitation   prescribed  by any law for filing the writ   petition   under   Article   226  of the Constitution. It  is, in fact,  doubtful whether  any such period of limitation can   be  prescribed by law.  In any event,  one   thing  is  clear and beyond doubt that  no  such period of limitation can be laid down  either  under  the rules made by the  High Court  or by practice.  For every case, it would  have to be decided on the facts and  circumstances  whether  the petitioner  is  guilty of laches and that would have to be done  without  taking   into  account  any   specific  period as period of  limitation. There  may be cases where even short delay may  be  fatal  while there may  be  cases  where  even  a  long   delay  may  not  be  evidence  of  laches  on the part  of  the  petitioner."                              

Similarly,  in  State  of U.P.   Vs.   Raj  Bahadur Singh  &  Anr.,  (1998) 8  SCC  685;   the  Hon'ble Apex  Court  held that "there is  no  time  limit for  filing the writ petition.  All that the  Court has to see is whether the laches on the part  of the petitioner are such as to disentitle him to the relief claimed by him."                        

        In   S.K.   Mastanee   Bee  Vs.    General  Manager,  South Central Railways & ors., (2003)  1 SCC 184,  the  Hon'ble  Supreme  Court  held  that  entitlement of a particular right guaranteed under  hapness condition  of  a party may be a ground  to entertain a petition even at a belated stage.  But  that was  a case where third party's interest  had  not crystallized.                                  

In  Northern  Indian Glass Industries  Vs.  Jaswant Singh  &  ors.,  (2003)  1  SCC  335,  the  Hon'ble Apex Court held that the High Court cannot  ignore the  delay  and laches in  approaching  the writ court   and   there   must  be   satisfactory  explanation  by the petitioner as how he could not come to the Court well in time.                    

In view of the above, petition suffers from delay and laches as well as for non-joinder of parties.

We therefore uphold the judgment of the learned Judge to the extent that the petition should be dismissed but set aside that part which permits the petitioner to seek the alternative remedy. Subject to the aforesaid, the appeal is dismissed. There shall be no orders as to costs.

17/12/2004

SB.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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