Balbir Singh vs Punjab State and Others

G.S. Sandhawalia, J.—The present writ petition has been filed under Articles 226 /227 of the Constitution of India seeking a direction against respondents No. 1 to 3 to assign to the petitioner correct placement in seniority (gradation) list of the Ministerial staff of the Director of Fisheries. Punjab (Head Office cadre) above respondents No. 4 and 5. The pleaded case of the petitioner is that in pursuance of the advertisement published by the Subordinate Service Selection Board (hereinafter after called as "the Board") in 1975 for the posts of Punjabi Typists, test/interview was held for selection to the said posts between September 1975 to February, 1976. The petitioner and respondent No. 4-Sita Wati were selected alongwith other candidates. The Board published another advertisement for selection to the posts of English/Punjabi Typists and test for the same was held in May, 1976, in which respondent No. 5-Raghbir Singh was selected alongwith other candidates. The petitioner and respondent No. 4-Sita Wati were selected in one batch prior to 1976 and as per the merit list of the Board petitioner was placed at serial No. 245 while respondent No. 4-Sita Wati was placed at serial No. 429. Respondent No. 5-Raghbir Singh was selected later on and in subsequent batch in the month of May, 1976 and his merit placement was at serial No. 413. Thus, both the private respondents were junior to the petitioner in the selection made by the Board.

The Board recommended the name of the petitioner initially to the Director, Health Department, Punjab, Chandigarh on 21.4.1977 but he did not get any appointment letter from the said department. His name was thereafter recommended by the Board to the Director and Warden of Fisheries, Punjab, Chandigarh on 22.6.1977. The petitioner was, accordingly, issued appointment letter on 27.7.1977 by the department and he joined on 17.8.1977 after completing formalities including medical test etc. The name of respondent No. 4-Sita Wati was recommended on 6.5.1977 and she joined on 25.5.1977. Similarly, the name of respondent No. 5-Raghbir Singh was also recommended by the Board to the Director, Health Department, Punjab but he did not get the appointment letter there and later on his name was recommended on 21.6.1977 to the Director and Warden of Fisheries, Punjab, Chandigarh and he joined this office on 12.8.1977.

Respondent No. 3 had prepared seniority (gradation) list of the Ministerial staff of the Director of Fisheries, Punjab (Head office cadre)as on 1.1.1988 and name of the petitioner was mentioned at Sr. No. 23 whereas names of respondent No. 4-Sita Wati and respondent No. 5-Raghbir Singh were mentioned at Sr. No. 21 and 22 respectively. Thus, the petitioner had been shown junior to both the private respondents and respondent No. 3 circulated the said seniority list amongst the officials of its Directorate and invited objections thereto, if any. The petitioner submitted his objections on 5.7.1988 and elaborated his position on 25.7.1988 but did not get any reply from the official respondents. On 28.4.1989, it was conveyed to the petitioner that his representation has been considered and filed. The petitioner filed an appeal before the Government on 2.6.1989 and the same was rejected on 6.4.1994 and was conveyed to the petitioner on 22.8.1994. Reference was made to the rules called the Punjab Fisheries (Ministerial State Service) Class III Rules, 1984 (hereinafter called "the 1984 Rules") and pleaded that seniority was to be determined as per the aforesaid Rules and the order of merit determined by the Board shall not be disturbed. It was further pleaded that in case the 1984 Rules did not govern the case of the petitioner and respondents No. 4 and 5, yet the petitioner could not be placed in the seniority list below private respondents No. 4 and 5. The Board was constituted in 1957-58 and prior to that the members of the service were governed by the Rules called the Punjab Fisheries Subordinate Service Rules, 1935 (hereinafter referred to as "the 1935 Rules"). The Board had selected the candidates and prepared the list according to their merit and recommended their names to the various departments for appointment. Reference was made to the instructions dated 15.3.1962 and 8.9.1986 to plead that merit list prepared by the Board would prevail.

In the written statement filed by respondents No. 1 to 3, it was admitted that petitioner and respondent No. 3-Sita Wati were selected in the same batch whereas respondent No. 5-Raghbir Singh was selected in the later batch in the month of May, 1976. It was also admitted that the petitioner and respondent No. 4-Sita Wati were placed in merit list at serial Nos. 245 and 429 respectively whereas respondent No. 5-Raghbir Singh was placed in merit list at serial No. 413 of the later batch. The fact that the petitioner''s name was recommended initially to the Director, Health Department, Punjab but he did not get appointment and later on his name was recommended by the Board to respondent No. 3 and the petitioner joined as Clerk on 17.8.1977 whereas respondent No. 4-Sita Wati joined as Clerk on 25.5.1977 and respondent No. 5-Raghbir Singh joined as Clerk on 12.8.1977 was also admitted. The seniority(gradation) list as on 1.1.1988 was circulated on 24.6.1988 and prior to that list seniority (gradation) list as on 1.1.1980 was circulated on 27.9.1980 by respondent No. 3 in which name of the petitioner appeared at Sr. No. 26 while names of respondents No. 4 and 5 appeared at Sr. No. 23 and 25 respectively above him. The petitioner had not made any representation against that while another person namely Amarjit Kaur had made objections. On the basis of the said objections, the revised seniority list was circulated on 30.5.1985. No representation was made by the petitioner against this revised seniority list in which respondents No. 4 and 5 were again shown senior to him. Respondent No. 4-Sita Wati was confirmed as Clerk with effect from 11.4.1984 vide order dated 26.2.1986 but the petitioner did not make any representation. Respondent No. 5-Raghbir Singh was also confirmed with effect from 1.12.1985 as per order dated 10.10.1986 against which no representation was made by the petitioner.

The petitioner had suddenly on circulation of seniority (gradation) list dated 24.6.1988 raised objections that he is senior on the basis of the Government circular dated 8.9.1986. The petitioner was confirmed as Clerk vide order dated 6.12.1988 as per his seniority (gradation) on availability of a permanent vacancy and his representation had been duly considered and filed. Respondent No. 4 had also been promoted as Senior Clerk vide order dated 12.12.1988 under the relevant rules and there was no reason requiring change in the seniority position. The Government policy dated 15.3.1962 and 8.9.1986 did not indicate anything in favour of the petitioner''s claim. The seniority list dated 24.6.1988 had been circulated to exclude the persons who had left the department and rectifying the seniority position of those who had made representations against their seniority position. The petitioner in his representation dated 5.7.1988 merely stated that he be placed above respondent No. 5 because the later was not a member of the Scheduled Castes whereas his name was recommended by the Board against reserved post meant for scheduled caste. In the subsequent representation dated 25.7.1988, he claimed seniority over and above respondents No. 4 and 5 on the basis of merit list drawn by the Board which was filed and he was duly informed. The appeal filed by the petitioner was rejected and the 1984 Rules would govern the petitioner as well as respondents No. 4 and 5 from the date the same were published and not from the date earlier to it. The petitioner as well as respondents No. 4 and 5 were recruited in 1977 and the seniority (gradation) list was circulated on 27.9.1980 which was modified on 31.5.1985 before publication of the 1984 Rules. The 1984 Rules which provided for determining seniority of Clerks were not applicable on 1.1.1980 or on 1.2.1984 when their seniority had been determined on their joining duty in the Head Office. The seniority of the petitioner as well as respondents No. 4 and 5 have been determined in preference to the date of issue of their appointment orders and further their dates of joining.

The petitioner filed replication alleging that objections were not invited regarding seniority (gradation) list circulated earlier. Policy Annexure P-11 was relied upon and since the name of the petitioner had been earlier recommended by the Board and was higher in merit but could join only on subsequent date was pleaded. The petitioner did not know the merit position of respondents No. 4 and 5 who were juniors to him and, therefore, he could not make any representation to challenge their placement in the seniority list circulated in the year 1980 or in the year 1985. Since he was posted in Establishment Section in 1988 and there he had access to the record and there he learnt about the fact that respondents No. 4 and 5 were junior to him. The lapse was on the part of official respondents and they were taking the benefit of their own wrong and shifting the onus on the part of the petitioner. The assignment of the seniority to the petitioner was against the rules and policy and, therefore, the petitioner was entitled for the correct position in the seniority list.

Respondent No. 4 in her written statement pleaded that petitioner had not raised any grievance against the seniority of the answering respondent and only had claimed the seniority being a scheduled caste candidate. The name of respondent No. 4 had been recommended on 6.5.1977 earlier to the name of the petitioner against the reserved post as member of the scheduled caste. The name of petitioner was initially recommended for appointment in the Directorate Health Services, Punjab. Reference was made to the 1935 Rules and the seniority was governed under Rule 10 of the said Rules wherein it was provided that seniority was to be determined by the date of their substantive appointment. Respondent No. 4 was confirmed as Clerk with effect from 11.4.1984 vide order dated 26.2.1986. The merit drawn by the Board was irrelevant in view of the statutory provisions of the service rules. The name of the petitioner was initially recommended to the Directorate of Health Services, Punjab on 21.4.1977 and subsequently on 22.6.1977 to respondent No. 3 and he joined as Clerk on 17.8.1977 whereas respondent No. 4 had joined on 25.5.1977. The appointments of the petitioner as well as respondent No. 5 were made later than respondent No. 4 and, therefore, both the officials were junior to her. The seniority (gradation) list as it stood on 1.1.1980 was circulated on 27.9.1980 and the petitioner had been shown junior to respondent No. 4 and no representation had been made by the petitioner. Revised seniority list was again circulated on 21.5.1985 showing therein dates of confirmation and the petitioner had not made any representation. Respondent No. 4 was confirmed as Clerk with effect from 11.4.1984 vide order dated 26.2.1986 against which no representation was made by the petitioner. The representation of the petitioner had been duly considered and filed and the seniority list circulated on 24.6.1988 was only due to the reasons that some persons had left the department. The 1984 Rules were not applicable and the petitioner as well as private respondents were to be governed by the 1935 Rules which would prevail at the time of their appointments.

Respondent No. 5 also filed written statement taking similar pleas on the point of joining and pleaded that merit drawn by the Board was irrelevant and had nothing to do in view of the statutory provisions of the Service Rules of 1935. Reference was made to the earlier seniority list circulated in the year 1980. Accordingly, it was pleaded that the seniority was to be determined by virtue of the date of appointments of the officials.

Counsel for the petitioner, accordingly, submitted that the petitioner was senior in the merit list which was prepared by the Board and, therefore, he was liable to be declared senior to respondents No. 4 and 5 and given the correct placement in the seniority list alongwith consequential benefits. The second submission made by the counsel for the petitioner was that the instructions Annexures P-10 and P-11 would prevail. Reference was also made to the decision of this Court in Civil Writ Petition No. 2584 of 1980-Satinder Pal, Clerk v. The State of Punjab and others decided on 27.3.1991 to contend that the Court while placing reliance on the instructions dated 15.3.1962 and 8.9.1986 had held that seniority of the members was to be determined in accordance with the order of merit in which they have been placed by the Board at the time of selection and persons appointed as a result of an earlier selection must rank senior to those selected as a result of a subsequent selection.

Counsel for the State as well as respondent No. 5 on the other hand has contended that there was delay on the part of the petitioner and he had made no representation against the seniority list of 1980. Reference was also made to the 1935 Rules and that the instructions dated 8.9.1986 were of subsequent date.

After hearing the counsel for the parties, this Court is of the opinion that the petitioner''s case has no merit. There is no dispute regarding the fact that respondent No. 4 had joined on 25.5.1977 and respondent No. 5 had joined on 12.8.1977 prior to the petitioner''s joining on 17.8.1977. The parties at that point of time were governed by the 1935 Rules which was in force. Rule 10 of the 1935 Rules reads as under:-

Seniority of members of the service:- The seniority of the member of the service shall, in each class of appointment shown in the Appendix, be determined by the dates of their substantive appointment, on probation or otherwise to a permanent vacancy in that class.

A perusal of the aforesaid Rule goes on to show that the seniority of the members of the service was to be determined from the date of their substantive appointments. The said 1935 Rules remained in force till the same were repealed in 1984 by the 1984 Rules. Thus, the seniority of the petitioner as well as respondents No. 4 and 5 was to be determined by the 1935 Rules which were in force at the time they joined the service. Reference to the 1984 Rules which provides that the seniority is to be governed by the order of merit determined by the Board would be of no use. The Hon''ble Apex Court in Suresh Chandra Jha Vs. State of Bihar and Others, has held that if there are no rules governing the field, it is the placement in the merit list which is to be seen and not the date of joining. In the present case, once the 1935 Rules were in force, the instructions which the petitioner is relying upon would not prevail. The Hon''ble Apex Court in Bhey Ram Sharma and others Vs. Haryana State Electricity Board and others, has held that persons who had joined earlier though selected by later advertisement would be senior to the persons who had not joined prior to them.

Recently the Hon''ble Apex Court in State of Haryana and Others Vs. Vijay Singh and Others, ) Recent Apex Judgments (RAJ.) 478 : (2012) 8 SCC 633 has held that the rules framed by the State Government would apply and they would be sole consideration which have to be taken into consideration for determining the seniority inter-se between the employees. The relevant paragraph of the judgment reads as under:-

Before concluding, we consider it proper to notice the judgments on which reliance has been placed by learned counsel for the respondents. This consideration needs to be prefaced with an observation that the cases in which recruitment and conditions of service including seniority are regulated by the law enacted by Parliament or the State Legislature or the rules framed under Article 309 of the Constitution, the general proposition laid down in any judgment cannot be applied de hors the relevant statutory provisions and dispute relating to seniority has to be resolved keeping in view such provisions.

The judgment of the Single Bench relied upon by the petitioner is not applicable to the facts and circumstances of the case due to the fact that the Rules would govern the case of the petitioner as well as respondents No. 4 and 5 over and above the instructions.

Another aspect of the matter which is to be taken into consideration is that the petitioner did not object to the seniority list circulated in the year 1980 and in the year 1985. The petitioner tried to explain that once he was posted in the Establishment Section then only he came to know that the respondents No. 4 and 5 were junior to him in the merit list which cannot be accepted. The official respondents have clearly stated that the tentative seniority list was circulated on 27.9.1980 (Annexure R-1) and the petitioner''s name was mentioned at Sr. No. 25 below respondents No. 4 and 5. Thereafter, the list was again circulated on 30.5.1985 and again the petitioner was shown junior to private respondents No. 4 and 5 but the petitioner did not make any objection at that stage. He only objected on 5.7.1988 when the seniority (gradation) list was circulated on 24.6.1988. In the said representation also, he only requested that he should be made senior to respondent No. 5 since he also belonged to scheduled caste category and the said post should have been given to him. The petitioner raised the issue of the seniority as fixed by the Board in his representation dated 25.7.1988. The petitioner would have been well aware that respondent No. 5 was selected in the subsequent batch for which test was held in May, 1976 and he did not object to the placement of respondent No. 5 in the seniority (gradation) list over and above him till then. The Hon''ble Apex Court time and again reiterated that delay in filing objections against seniority list is a relevant factor and should not be beyond a period of three years. The petitioner''s challenge by way of the present writ petition in the year 1994 on the strength that his appeal was rejected on 22.8.1994 cannot be accepted since respondents No. 4-Sita Wati was confirmed as Clerk with effect from 11.4.1984 vide order dated 26.2.1986 whereas respondent No. 5 was confirmed as Clerk with effect from 1.12.1985 vide order dated 10.10.1986 and the petitioner did not raise any objection and he was only confirmed as Clerk on 6.12.1988 with effect from 1.12.1988.

The Hon''ble Apex Court in P.S. Sadasivaswamy Vs. State of Tamil Nadu, has held that the writ petition is to be filed within six months or at the most in a year for relief in service matter and stale claims cannot be entertained.

2..............Not only respondent 2 but also respondents 3 and 4 who were the appellant''s juniors became Divisional Engineers in 1957 apparently on the ground that their merits deserved their promotion over the head of the appellant. He did not question it. Nor did he question the promotion of his juniors as Superintending Engineers over his head. He could have come to the Court on every one of these three occasions. A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner''s petition should, therefore have been dismissed in limine. Entertaining such petitions is a waste of time of the court. It clogs the work of the Court and impedes the work of the court in considering legitimate grievances as also its normal work. We consider that the High court was right in dismissing the appellant''s petition as well as the appeal.

This appeal is dismissed with costs.

The Hon''ble Apex Court in P. Chitharanja Menon and Others Vs. A. Balakrishnan and Others, held that where the earlier order has not been challenged then the subsequent order could not be made basis of the cause of action. In the present case once the earlier seniority list had been circulated in the year 1980 and 1985 and the petitioner had failed to object the same, he cannot get a fresh cause of action on the circulation of fresh seniority list in the year 1988. The Hon''ble Apex Court in Shiba Shankar Mohapatra and Others Vs. State of Orissa and Others, has held that in seniority matters, delay should not be beyond a period of 3 years and the reasons for not approaching the Court should be explained. In the present case, the explanation given by the petitioner that he only came to know of the respondent being junior when he was posted in the establishment branch cannot be accepted. The relevant observation reads as under:

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, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation.

A Division Bench of this Court in K.K. Srivastava Vs. National Hydroelectric Power Corporation Ltd. and Others, has held that the Courts are reluctant to unsettle the settled positions of seniority and a person aggrieved by the supersession must move the Court within a reasonable period of time.

In the present case, it is apparent that the petitioner filed objections on 5.7.1988 solely on the strength of the instructions dated 8.9.1986 and on dismissal of his appeal, filed the present writ petition raking up a stale claim. A perusal of Annexure R-1 dated 27.9.1980 would go on to show that the tentative seniority list as stood on 1.1.1980 was circulated not only to respondents No. 4 and 5 but also to the petitioner apart from the other employees and objections were invited. The petitioner, thus, in the present case has failed to furnish any satisfactory explanation for delay in challenging the said seniority list and on this ground also he is not entitled for the relief claimed. Accordingly, there is no merit in the present writ petition and the same is dismissed.