Rakesh Kumar Pandey vs State of U.P. and Another

B.S. Chauhan, J.—Heard learned Counsel for the appellant and learned Standing Counsel for the respondents.

This special appeal has been filed against the judgment and order of the learned Single Judge dated 7.5.2004 dismissing the writ petition of the appellant/petitioner.

The facts and circumstances giving rise to this case are that the petitioner-appellant, who had been a Roller Cleaner/Driver, was appointed on 17.4.1978. His grievances had been that he had been regularised subsequent to the date persons junior to him had been regularised. Petitioner-appellant had been regularised with effect from 25.2.1997, though three persons namely Awadh Narain, Shri Ram Bahadur and Ramesh Kumar Shukla who had been much junior to him had been regularised with effect from 24.32.1988, 1.7.1990 and 6.12.1990. Being aggrieved he filed the writ petition which had been dismissed on the ground of availability of alternative remedy before the Uttar Pradesh Public Service Commission. Hence, this appeal.

Without entering into the merits of the case, as to whether appellant should have been relegated to the appropriate forum, we are of the opinion that the petition should not be entertained at such a belated stage, as the persons junior to him had been regularised in 1988-1990 and petitioner-appellant did not challenge their regularisation for such a long period. Moreso, none of them has been impleaded either in the writ petition or in the special appeal. In fact, appellant-petitioner is fighting for seniority, indirectly which cannot be granted to him in absence of the parties, who had been regularised before him, as they are necessary parties. [Vide Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, ; Government of A.P. and Another Vs. A.V. Venugopala Rao, ; Bhagwanti and Ors. v. Subordinate Services Selection Board, Haryana and Anr., 1995 Supp (2) SCC 663, ; Central Bank of India v. S. Satyam and Ors. (1996) 6 SCC 419; J. Jose Dhanapaul Vs. S. Thomas and Others, ; Arun Tiwari and Ors. v. Zila Mansavi Shikshak Sangh and Ors. AIR 1998 SC 331; Azhar Hasan and Others Vs. Distt. Judge, Saharanpur and Others, ; Ram Swarup and Others Vs. S.N. Maira and Others, ; Shri L. Chandrakishore Singh Vs. State of Manipur and Others, ; Mohd. Riazul Usman Gani and Others Vs. District and Sessions Judge, Nagpur and Others, ; Nirmala Anand Vs. Advent Corporation Pvt. Ltd. and Others, ; M.P. Rajya Sahkari Bank Maryadi Vs. Indian Coffee Workers'' Co-operative Society Ltd. and Others, and Ramrao and Ors. v. All India Backward Class Bank Employees Welfare Association and Ors. (2004) 2 SCC 1501].

Even otherwise, the appellant-petitioner has not challenged the seniority list issued about a decade ago, in which all the three persons had been placed over and above to him. Learned Counsel for the appellant has suggested that he be given time to file applications for impleadment as well as amendment, challenging the said seniority list, However, we do not consider it necessary for the reason that, it is not permissible for him in law. to challenge the seniority list at such a belated stage.

A Constitution Bench of the Hon''ble Supreme Court, in Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and Others, , 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 and Motichand and Others Vs. H.B. Munshi and Another, , 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 Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, , 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 and Others Vs. I.M. Menon and Others, , 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 Vs. Bhailal Bhai and Others, , 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 be in existence for a long time, was again considered by the Hon''ble Apex Court in K.R. Mudgal and Others Vs. R.P. Singh and Others, 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 Malcom Lawrence Cecil D''souza Vs. Union of India (UOI) and Others, , 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 reopened 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 and Another Vs. State of Punjab and Others, , 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 Dinakar Anna Patil and Anr. v. 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 v. State of Kerala and 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 on any ground whatsoever.

It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. [Vide Aflatoon and Others Vs. Lt. Governor of Delhi and Others, ; State of Mysore and Others Vs. V.K. Kangan and Others, ; Pt. Girdharan Prasad Missir and Another Vs. State of Bihar and Another, ; H.D. Vora Vs. State of Maharashtra and Others, ; Bhoop Singh Vs. Union of India and others, ; The Ramjas Foundation and Others Vs. Union of India and Others, ; Ram Chand and Others Vs. Union of India (UOI) and Others, ; State of Maharashtra Vs. Digambar, ; Municipal Corporation of Greater Bombay Vs. The Industrial Development Investment Co. Pvt Ltd., and others, ; C. Padma and Others Vs. Dy. Secretary to the Govt. of T.N. and Others, ; Hindustan Petroleum Corporation Ltd. and Another Vs. Dolly Das, ; Life Insurance Corporation of India and Others Vs. Jyotish Chandra Biswas, ; L. Muthukumar and Another Vs. The State of Tamil Nadu and Others, ; The Municipal Council, Ahmednagar and Another Vs. Shah Hyder Beig and Others, ; and Inder Jit Gupta and Others Vs. Union of India and Others, .

The issue of delay in filing the writ petition was considered by the Hon''ble Apex Court in Smt. Sudama Devi Vs. Commissioner and Others, , wherein the Apex Court has observed as under :

"There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner."

Similarly, in State of U.P. and Others Vs. Raj Bahadur Singh and Another, ; the Hon''ble Apex Court held that "there is no time limit for filing the writ petition. All that the Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him."

In S.K. Mastan Bee Vs. The General Manager, South Central Railway and Another, , the Hon''ble Supreme Court held that entitlement of a particular right guaranteed under hapness condition of a party may be a ground to entertain a petition even at a belated stage. But that was a case where third party''s interest had not crystallized.

In Northern Indian Glass Industries Vs. Jaswant Singh and Others, , the Hon''ble Apex Court held that the High Court cannot ignore the delay and laches in approaching the writ Court and there must be satisfactory explanation by the petitioner as how he could not come to the Court well in time.

In view of the above, petition suffers from delay and laches as well as for non-joinder of parties.

We therefore uphold the judgment of the learned Judge to the extent that the petition should be dismissed but set aside that part which permits the petitioner to seek the alternative remedy. Subject to the aforesaid, the appeal is dismissed. There shall be no orders as to costs.