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Judgment
R.C. Gandhi, J.—This LPA has been preferred against the judgment dated 13.05.1999 passed in SWP No. 157/94, whereby the Learned
Single Judge has allowed the Writ Petition of the writ petitioner Roshan Lal Mahaldar, Respondent No. 5 herein, for short ""respondent"", and
quashed the promotion of the Appellant as Head Assistant with further direction to the respondents No. 1 to 4 therein to consider the case of the
Respondent and if upon consideration under rules found suitable, to promote him to the post of Head Assistant with effect from 9.7,1993 treating
him senior to the Appellant as Senior Assistant and provide him all consequential benefits including monetary benefits from the date of such
promotion.
Relevant facts necessary for disposal of the appeal are; that the Respondent and the Appellant were appointed initially in the Agro Industries
Development Corporation Limited, Srinagar, for short"" The Corporation"". The Appellant was appointed as an Orderly on 07.02.1973. He was
promoted as Junior Assistant on 1-7-1976 and Senior Assistant on 23.4.1980. The Appellant was further promoted as Head Assistant on
09.07.1993. Respondent was appointed initially as Junior Assistant on 17.10.1973. In the Year 1978, he was working as Junior Assistant in the
Tractor Hiring Division, hereinafter called ""Division"" The Division was directed to be closed. Respondent along with other staff working in the said
Division was declared surplus. The Government formulated a scheme to absorb the surplus staff. The General Manager, Lumbering Undertaking,
Srinagar conveyed to the Secretary, Forest Department, Srinagar vide his letter No. 7353-54/BI/705 dated 28-10-1978 that four Junior
Assistants, which included respondent also, have been interviewed and can be adjusted in the Government Lumbering Undertaking Srinagar. This
letter was endorsed to the Managing Director of the Corporation vide dispatch No. Agro/P&S/5016-17 dated 17.11.1998 for making alternative
arrangement in place of the Respondent. The Divisional Manager of the Corporation vide his endorsement No. Agro/THD/3591 dated
27.11.1978 conveyed to Managing Director of the Corporation that other Junior Assistants can be relieved except the Respondent who is
working as Cashier-cum-Store keeper against a vacant post and stood adjusted vide Order No: Agro/Adm/131/78/1051 dated 15.7.1978.
Respondent No. 4 vide Govt. Order No. 1093/Agri of 1978 dated 28.11.1978 adjusted the surplus staff, including the Respondent, who was
adjusted as Junior Assistant in the Office of Assistant Agrotologist Agriculture Department. The Secretary of the Corporation addressed a letter
dated 16.12.1978 to the Divisional Manager of the Corporation to relieve the Respondent. Despite that he was not relieved.
Respondents issued seniority list of various categories of the employees including Junior Assistants, Senior Assistants, Cashier-cum-Store
keeper and Typists as on 01.02.1980. Appellant was shown at Sr. No. 6 in the seniority list of Jr. Assistants, whereas the Respondent was shown
in the list of Storekeeper-cum-Cashier. Respondent filed representation against wrong fixation of his seniority asserting that his name should have
been shown in the seniority list at Sr. No. 5 in the category of Junior Assistants. On consideration of the representation of the Respondent, the
Managing Director vide his order No. Agro/Adm-225/AIDCL of 1990 dated 28.4.1980 fixed the seniority of the Respondent at Sr. No. 5 as
Junior Assistant with further observation that the Junior Assistant appearing at Sr. No. 5 will go one position down. On the same day the Managing
Director issued another order No. Agro-Adm/227-AIDCL whereby the respondent was promoted as Senior Assistant giving retrospective effect
to the promotion from 23.04.1990.
The respondents issued another seniority list in the year 1993, wherein, the Appellant was shown at Sr. No. 2 and the Respondent at Sr. No. 3
in the list of Senior Assistants. The Appellant after issuance of the seniority list was promoted as officiating Head Assistant vide Order No. Agro-
Adm/52/AIDCL of 1993 dated 09.07.1993 issued by the General Manager of the Corporation for a period of six months or till confirmed. The
arrangement was immediately objected to by the Respondent vide his representation dated 22.07.1993 followed by another communication dated
23.11.1993. In the meantime, the arrangement of officiation of promotion of the Appellant was confirmed vide Order dated Agro-
Adm./10/AIDCL of 1994 dated 03/02/1994. Respondent's representation was not decided. He approached the Court on 7.2.1994, by means of
SWP No. 157/94, seeking to quash the order of promotion of the Appellant.
The Appellant did not appear before the Learned Single Judge despite having been served and was proceeded exparte vide Order dated
02.11.1998. The other respondents filed the Counter Affidavit and on consideration of the claims of the parties, the writ petition was allowed by
the learned Single Judge.
Aggrieved of the said order, the Appellant has challenged its correctness and legality on the ground that Respondent's cadre as Junior Assistant
was changed to Cashier - Gum-Storekeeper on account of his adjustment against the said post since 15.07.1978. His cadre was again changed by
the respondents from Cashier-cum-store keeper to Junior Assistant on 28.4.1980. Therefore, the Respondent's seniority is to be reckoned in the
category of Junior Assistant with effect from 28.4.1980 and not from the date of initial appointment i.e 17.10.1973. Another challenge to the order
under appeal is that the seniority position assigned to the Respondent in the year 1993 below to the Appellant was never questioned by the
Respondent, therefore, the Appellant being senior to him has been rightly promoted as Head Assistant, prior to him. He also seeks dismissal of the
writ petition on the ground that the Respondent has approached the Court belatedly though the cause of action was available to him since 3.4.1980
when the Appellant was promoted as Senior Assistant being shown senior in the seniority list issued in the year 1993 and the Learned Single Judge
should have dismissed the writ petition being hit by delay and latches.
We have heard the Learned counsel for the parties and perused the record.
The plea of Mr. Lone in that Respondent being surplus was adjusted as Cashier and because of his such adjustment he was not entitled to
seniority in the category of Junior Assistant. He was again adjusted as Junior Assistant on 28.4.1980, therefore, his seniority as Junior Assistant
should have been reckoned only with effect from 28.4.1980.
In support of his argument he has relied upon the judgment of the Apex Court reported in Superintending Engineer and Others Vs. A. Sankariah, .
The Apex court in this case was dealing with the proposition where a Junior Engineer respondent along with others was declared surplus. The
Government formulated a scheme for absorption of the surplus staff. The scheme indicated that the surplus staff wherever posted shall be treated
as fresh entrant in the new office/ organization. The respondent therein was declared surplus and appointed in C.P.W.D on 19.08.1988 as fresh
entrant. The appointment order contained a stipulation that it shall be the fresh appointment. The respondents CPWD wanted to provide enhanced
grade to the employees. The respondent being placed below to the employees of the CPWD sought benefit of the past service for purposes of
seniority and enhanced grade. The CPWD denied it on the ground that the re-development scheme did not indicate such a situation. The Tribunal
decided in favour of the respondent. The Apex Court set aside the judgment of the Tribunal and held that respondent is not found entitled to
seniority and enhanced grade being appointed in the CPWD as the new entrant. The observations of the Apex Court relevant for the purpose as
contained in para 12 of the judgment read as:
On re-deployment the respondent joined the service in the CPWD as Junior Engineer on 19.8.1988 as a fresh entrant and in the offer of
appointment dated 11.8.1988 it was clearly stipulated that his re-deployment in the CPWD will not get the benefit of his past service in
Dandakarnya Development Authority and his seniority in CPWD will be reckoned from the date of his actual joining the CPWD as Junior
Engineer. He had accepted this offer and joined the Junior Engineer in terms of letter of re-deployment in the CPWD. In case the interpretation put
by the Tribunal is accepted the very purpose of putting the term mentioned in the letter of appointment that on re-deployment the employee would
not get the benefit of his past service would be nullified. This would go against the express condition contained in the policy as well as in the letter
of appointment to the respondent.
The judgment (Supra) is of no help to the Appellant for advancing his cause of seniority, as the case in hand of facts and law is different.
The case in hand is that the Appellant and the Respondent both are the employees of the Corporation. Respondent after having been declared
surplus on account of closure of Tractor Hiring Division was adjusted against the post of Cashier-cum-Storekeeper on 15.07.1978. Despite
direction to relieve the Respondent was not relieved. Respondents assigned him the duties of Cashier-cum-Storekeeper which he remained
discharging. Respondents issued the seniority list as on 01.02.1980. He objected seniority list by way of representation. On acceptance of his
representation by the Respondents he was assigned Sr. No. 5 in the seniority list of Junior Assistants, i.e. in between Mr. B.L. Bhat and Mohd
Yasin Bhat vide order dated 28.4.1980, Appellant in consequence thereof went down by two steps i.e. at Sr. No. 7. Respondent on the basis of
his corrected and restored seniority, was promoted as Senior Assistant with effect from 23.4.1980. The respondents realizing that Respondent
being at Sr. No. 5 of the seniority list deserved to be promoted prior to the Appellant, promoted also as Senior Assistant giving retrospective
effect from 23.4.1980 which is the date of promotion of the Appellant.
To convince the Court Mr. Lone could not make out by reference of any rule of bye laws of the Corporation governing by the service that the
post of Cashier-cum-Storekeeper is born on different cadre instead of ministerial cadre. A cadre of the service has different classes and
categories. Seniority of the employee has to be fixed by reference to particular service, class, category or the grade. Posts born on the cadre of the
service form different classes and categories. Promotions and transfers, in certain situations are not ordinarily admissible. The ministerial cadre
contains the posts such as, Junior Assistant, Senior Assistant, Head Assistant. But in official parlance they are identified by their table assignment
job, such as, Record keeper, establishment clerk, Cashier, Store keeper etc. but these posts form a category of the ministerial cadre of the service.
If a Junior or Senior Assistant is assigned the job of Cashier, Record keeper or Store keeper that does not mean that such an employee because
of such assignment of the job is out from the category of Junior or Senior Assistant for purposes of seniority unless it is shown that the post is
specifically born on a different cadre. In the present case, the respondent while working as Junior Assistant was assigned the duties of the post of
Cashier. That does not mean that his cadre or category stood changed. He remained as Junior Assistant in the ministerial cadre. Mr. Lone has not
been able to convince us that the post of Cashier-cum-Store keeper against which the Respondent remained adjusted for about three years was
not of the category of Junior or Senior Assistant of the ministerial cadre. Respondent substantively remained holding the post of Junior Assistant
though discharging the duties of Cashier cum Storekeeper. Therefore, the plea that Respondent's seniority shall be reckoned from 28.04.1980 is
without any substance.
Another argument of Mr. Lone, Learned counsel for the Appellant is that by virtue of seniority list of 1993, the Appellant is senior, therefore,
the promotion of the Appellant could not have been set aside as the Appellant being senior was having prior right of consideration to that of the
Respondent. We have examined the said seniority list. We refrain to comment on the conduct of the respondents about the mischief played by
them for showing Respondent below to the Appellant. To show the Appellant senior, wrong service bio data of the Appellant was incorporated
and recorded in the seniority list. The date of appointment as Junior Assistant of the Appellant has been incorporated in the seniority list as
07.02.1973, which is incorrect. His correct date of appointment as Junior Assistant is 01.01.1976. Had the correct bio-data been recorded in the
seniority list the Respondent would have automatically appeared at Sr. No. 2 and the Appellant at Sr. No. 3 of the seniority list. The respondents
were aware that the representation of the Respondent against the promotion of the Appellant as senior Assistant has been accepted and he has
been assigned seniority position at Sr. No. 5, taking into account the date of appointment to the post of Jr. Assistant. Therefore, recording of
incorrect bio-data of the Appellant is not by over sight but is a mischief played by them to benefit the Appellant. Respondent is senior as a Junior
Assistant being appointed prior in time. The Respondent and the Appellant being promoted on the same date i.e. 23.4.1980 as Senior Assistant,
the Respondent being Senior as Junior Assistant has to remain senior as Senior Assistant. Respondent has to be senior also for the added reason
that the promotion has been made solely on the basis of seniority. Respondent, therefore, should have been shown as senior as Senior Assistant
also in the seniority list of 1993 and accordingly was having prior right of consideration. The plea of Mr, Lone that Appellant has been considered,
as being senior according to the seniority list of 1973 is misplaced, having no substance.
The last plea of Mr. Lone is that Writ petition deserved dismissal on account of delay and latches and the Learned Single Judge has
erroneously rejected it. To appreciate it, we have carefully seen the pleadings, which reveal that the Respondent in para 6 of writ petition has
averred that he filed protest representation against the seniority list issued in the year 1980 showing the petitioner under a different heading. His
representation was accepted. He was assigned seniority at Sr. No. 5 above the Appellant as Junior Assistant. He was promoted from the same
date i.e. 23.4.1980, the date from which the Appellant had been promoted. Respondent remained contended with this and rightly so because his
claim as senior to the Appellant was admitted and acted upon by the Respondents. Respondents issued another seniority list in the year 1993 while
both were wrong as Senior Assistants. In this list by introducing wrong service bio-data of the Appellant by the Corporation as stated in the earlier
paragraphs, Appellant was shown senior. On July 9, 1993 the Appellant was promoted as Head Assistant. The cause of action became available
on issuance of the seniority list in the year 1993 and also on the promotion of the Appellant in July 1993. The respondent objected to the
promotion and the assigned seniority position by filing representation dated 22.07.1993 i.e. within 13 days. He issued another reminder dated
23.11.1993. The Respondent did not decide his representation. He being landed in such a situation on account of the inaction on the part of
respondents, he approached the court on 7.2.1994 i.e. within about 7 months, which cannot be said to be an unreasonable delay, which too has
been explained satisfactorily. Therefore, the plea of Mr. Lone that petition deserves dismissal on account of delay latches is not sustainable and has
rightly been rejected by the Learned Single Judge.
For the aforesaid reasons, we uphold the judgment of the Learned Single Judge. Consequently, the appeal deserves dismissal which is
dismissed. No order as to costs.