Ashok Kumar And Others vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

In this writ petition, the petitioners have prayed for the following reliefs:-

"i) Issue a writ, order or direction in the nature of certiorari quashing the seniority list dated 21.08.2012 passed by respondent No. 3 (contained as Annexure no. 6 to this writ petition) by which the direct recruitee Junior Engineers have been awarded seniority in the cadre of Junior Engineer (E & M) from the day when they had joined as Trainee.

ii) Issue a writ order or direction in the nature of mandamus commanding/directing the respondent no. 3 to declare the seniority list of the Junior Engineers (Electrical & Mechanical) showing therein the seniority of the direct recruitee Junior Engineers w.e.f. the day of satisfactory completion of one year training as Junior Engineers (Trainee).

iii) Issue a writ order or direction in the nature of mandamus commanding /directing the respondent no. 3 to issue the seniority list of the petitioners.

iv) issue any other writ, order or direction which this Hon'ble Court may deem just and proper in the circumstances of the case.

v) award the costs of the writ petition in favour of the petitioners."

The main grievance, which has been canvassed by the petitioners, is that on account of inaction on part of the respondent in not considering and determining the seniority of the petitioners and simultaneously proceeding to determine the seniority of the private respondent Nos. 4 to 59 by the impugned seniority list dated 21.08.2012 by virtue of which, it is the case of the petitioners that direct recruitee Junior Engineers have been awarded seniority in the cadre of Junior Engineer (E & M) from the day they have joined as "Trainees".

After being noticed, the private respondents, who were the beneficiaries of the impugned seniority list dated 21.08.2012, have not put in appearance nor had engaged any counsel, and consequently the writ petition was directed to be proceeded with ex parte against them by an order dated 21.06.2018.

The learned counsel for the respondent Nos. 2 and 3 had raised a preliminary objection in para 4 of the counter affidavit to the effect that on the questions of seniority, the writ petition would not be maintainable in the light of the ratio as laid down by the Division Bench in a judgement as reported in 2006(2) UD 439, Bhuvan Chandra Pandey and others v. State of Uttaranchal and others and in particular, the reference is made to para 9 of the said judgement which is quoted hereunder:-

"9. It is well settled principle of law that the High Court cannot lose sight of the fact that the matters of alternative remedy has nothing to do with the jurisdiction of the cases, normally the High Court should not interfere if there is an adequate efficacious alternative remedy available. If anybody approaches the High Court without availing the alternate remedy the High Court would ensure that he had made out a strong case or that there exist good ground to invoke the extraordinary jurisdiction. The rule of alternative remedy is essentially a rule of policy, convenience and discretion. When the petitioner files the petition before the High Court he should also state the reasons as to why he thought that the alternative remedy would not be efficacious. The High Court should not bypass the said Tribunal where the government servant is aggrieved by an order of the government pertaining to the service matter within the jurisdiction of the Tribunal."

Admittedly, the petitioners themselves have approached this Court by filing the instant writ petition on 04.05.2017 i.e. almost after about 5 years from the date of determination of the seniority list as passed by the respondent on 21.08.2012. It is also ratio propounded that long standing seniority settled as per law are not to be disturbed by the Court, unless it suffers from same apparent error.

In the peculiar circumstances of the case, the interse determination of seniority list of the petitioners along with the respondent Nos. 4 to 59, which has been determined on 21.08.2012, could not be possibly decided in absence of private respondents who would be effected and also until and unless the respondent take a decision with regard to relief No. (ii), as claimed by the petitioners for determining their seniority in accordance with the Rules, on which the reliance has been placed by the learned counsel for the respondents called as "U.P. State Electricity Board Employees Seniority Regulation, 1998."

So far as the relief No. (i) is concerned, where there is a challenge to the seniority of the private respondents, the relief claimed for in the writ petition would be tenable only before the State Public Service Tribunal in the light of the judgement as rendered in Bhuvan Chandra Pandey's case (Supra). But, so far as the relief nos. (ii) and (iii) are concerned, the same would not be barred by Section 5 of the State Public Service Tribunal Act, because the remedy before the Tribunal in relation to relief No. (ii) and (iii) would not lie as the Tribunal has got no power to either determine the seniority or to issue an order of mandamus.

In the peculiar set of circumstances of the case, this writ petition is being disposed of in the following manner:-

So far as the relief No. (i) is concerned, where the challenge is given to the seniority list dated 21.08.2012 passed by respondent No. 3 in relation to respondent Nos. 4 to 59 by filing the writ petition at a belated stage after almost five years, the remedy would lie before the State Public Service Tribunal, in the light of the judgement as rendered in Bhuvan Chandra Pandey's case (Supra). Hence, for relief No. (i), the writ petition would stand dismissed on account of the availability of an alternative remedy.

So far as the relief No. (ii) is concerned, it speaks about the inaction on the part of the respondent, which has been contended by the learned counsel for the petitioners that the determination of seniority of the petitioners has been deliberately delayed in order to provide undue benefits to the private respondents. In that eventuality, so far as the relief Nos. (ii) and (iii) are concerned, the respondent No. 3 is directed to determine the seniority of the petitioners vis-à-vis seniority of respondent Nos. 4 to 59, within a period of six weeks from the date of production of certified copy of this order.

On determination of seniority of the petitioners thus directed above, it will be open for the petitioners to put challenge the seniority list dated 21.08.2012 before the State Public Service Tribunal if they are so advised.

Subject to the above observation and the liberty given, the writ petition stands dismissed. However, there would be no order as to costs.