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SURENDRA JAI NARAIN versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Surendra Jai Narain v. State Of U.P. & Others - WRIT - A No. 34043 of 2001 [2005] RD-AH 7287 (9 December 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

CIVIL MISC. WRIT PETITION NO.  34043 OF 2001

Surendra Jai Narain       -------------    Petitioner              

Versus.

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.

No costs.

9.12.2005

AHA/AKSI


Copyright

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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