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Surendra Jai Narain v. State Of U.P. & Others - WRIT - A No. 34043 of 2001  RD-AH 7287 (9 December 2005)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO. 34043 OF 2001
Surendra Jai Narain ------------- Petitioner
State of U.P. & Ors. ------------- Respondents
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Dilip Gupta, J.
(By Hon'ble Dr. B.S. Chauhan, J.)
This writ petition has been filed challenging the order dated 6.7.2001, by which the seniority fixed on 31st July, 1986, has been disturbed.
The facts and circumstances giving rise to this case are that the U.P. Public Service Commission (hereinafter called the Commission) conducted the examination in 1979 for selection of appointment to the post of District Panchayat Raj Officer, in which the petitioner as well as the respondent no. 5 were declared successful. The petitioner belonged to the reserved category (dependant of Freedom Fighter) and his name appeared in the Main List while respondent no. 5 was a general category candidate and was placed in the waiting list. Petitioner had been offered appointment in 1981 and joined the post in 1981 itself. Respondent no. 5 was subsequently appointed in 1983. A tentative seniority list was published on 31.7.1986 inviting objections in which petitioner was shown senior to respondent no. 5. Respondent no. 5 did not raise any objection regarding fixation of his seniority. The seniority list had been revised several times and the petitioner had always been shown senior to the said respondent no. 5. For the first time in the year 2000, respondent no. 5 filed a representation that as he was higher in merit to the petitioner, he should be given seniority over and above him. His representation was allowed by the impugned order dated 6th July, 2001. Hence this petition.
We have heard Shri Krishna Ji Khare, learned counsel appearing for the petitioner and Shri Satish Chaturvedi for respondent no. 5. Shri Krishna Ji Khare has submitted that while passing the order, the submissions of the petitioner to the effect that he had been appointed as a dependant of freedom fighter and appointed two years prior to the said respondent had not been taken into consideration and hence the order is totally illegal and is liable to be quashed.
Shri Satish Chaturvedi learned counsel appearing for the respondents could not furnish any explanation as under what circumstances the petitioner could be permitted to file any representation/objection at such a belated stage and if the seniority list had been published in 1986 and the respondent no. 5 kept silent then how he could make a representation after the expiry of 14 years. He could also not satisfy the Court as under what circumstances while passing the said impugned order dated 6th July, 2001, the aspect that the petitioner had been appointed under the reserved category and much prior to the said respondent, was not considered. His submission had been that as he had obtained higher marks in the combined examination, he was to be placed over and above the petitioner. Hence the petition is liable to be dismissed.
We have considered the rival submissions made by the learned counsel for the parties and perused the record.
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 subsequently on any ground whatsoever.
In the instant case, admittedly, while passing the impugned order dated 6th July, 2001 the authority did not consider at all that the petitioner had been appointed in the reserved category two years prior to the respondent no. 5. More so, the petitioner had been appointed from the main list while respondent no. 5 was appointed from the waiting list. It is quite possible, rather, in fact it must have been that the name of petitioner, being a reserved category candidate, found place in the roster much prior to the respondent no. 5, though the said respondent may have secured more marks. Respondent no. 5 could not be given place in the cadre even before his birth. Therefore, if he was given appointment for the first time in 1983, he could not be given seniority over and above the petitioner, who had been appointed two years prior to him in 1981.
In view of the above, the order cannot be sustained. The petition is allowed and the impugned order is hereby quashed.
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