Shri Hemendra Kumar Bhattacharjee vs Assam Administrative Tribunal and Others

B.L. Hansaria, J.—In this petition under Article 226 of the Constitution of India, we are concerned with the seniority of a Lower Division

Assistant (LDA) working in the Assam Secretariat. Needless to say that loss of seniority of a Government servant with consequent lofts of

promotional prospects, higher pay and emoluments is a matter of serious consequence to him.

The facts lie in a narrow compass. The Petitioner, like some of his other colleagues, was appointed as a typist in the secretariat in 1964. His

service was regularised by the Assam Public Service Commission in 1967. Rule 8(2) of the Assam Secretariat Subordinate Service Rules, 1963,

for short the Rules, visualised reservation of 10% posts of LDA for typists having four years'' experience. The Petitioner, therefore, became eligible

in 1971 to be considered for appointment to the post of LDA. It, however, so happened that the provision for aforesaid reservation was not given

effect to by the appointing authority. The matter was taken up the Assam Secretariat Typists Association and after a number of representations to

the Government, it was agreed upon to give affect to the provision contained in Rule 8(2) of the Rules. It was also consented that the backlog as

well shall be cleared up. The backlog for the period from 1963 to 1976 was found to be 63. The Petitioner was one of the typists to be appointed

in 1977 pursuant to the aforesaid policy decision. After promotion was given, representations were made to treat the Petitioner to have been

promoted with effect from the date on which his promotion had fallen due. To put it differently, the Petitioner wanted his promotion with

retrospective effect at least for the purpose of seniority. On approaches being made to Respondent No. 5 (Under Secretary to the Government of

Assam, Personnel (B) Department), assurance were being given that the matter was in process and seniority would be fixed shortly.

Representations were then made by the Petitioner to the Governor as well as Chief Secretary to the Government of Assam. This was in the year

1982. Getting no relief, an appeal was preferred before the learned Assam Administrative Tribunal in 1983. By the impugned judgment the learned

Tribunal has rejected the claim of the Petitioner. Feeling aggrieved, this petition has been filed.

The first point which needs to be gone into is whether the petition merits to be rejected on the ground of laches. It has been contended by Shri

Chaliba appearing for the Respondents that the petition merits to be dismissed of the ground of delay alone. It has been submitted that the

Petitioner was promoted in the year 1977. He first made individual grievance as regards the question of seniority in the year 1982 by filing

representations before the Governor and the Chief Secretary and approached the learned Tribunal in 1983 though it had come to be constituted in

1977 itself. Shri Homchoudhuri has urged that as the Petitioner comes from a lower echelon appropriate relief may not be denied to him on the

ground of delay inasmuch there is no inviolable rule that whenever there is delay the Court must necessarily refuse to entertain the petition as stated

in Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and Others, which has pointed out that the rule which says that a

''Court may not enquire into a belated or state claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. It

was also pointed out in this decision that a Court which is assigned the role of sentinel on the qui viva for protection of the fundamental rights (as is

this Court) cannot easily allow itself to be persuaded to refuse relief solely on the jenune ground of laches, delay or the like. On the stength of

Haryana State Electricity Board Vs. State of Punjab and Haryana and Others, ; G.P. Doval and Others Vs. Chief Secretary, Government of U.P.

and Others, and Arun Kumar Chatterjee Vs. South Eastern Railway and Others, it is urged that as the Petitioner was making representation from

time to time and as no reply bad been received by him, the present id not a fit case where petitions should be rejected on the ground of delay. It is

brought to our notice that in Arun Kumar (supra) the delay was of about 8 years in approaching the Court making grievance about the seniority list,

but the same was not regarded as fatal as the Petitioner had been denied his due seniority because of administrative error to take care of which the

Railway Board had issued a circular desiring re-fixation of seniority. In G.P. Doval (supra), a provisional seniority list was challenged after 12

years. As the department had not finalised the list for 12 years, and as no reply had been given to the representations made against the seniority,

and as the Petitioner belonged to lower echelon of service, the petition was not thrown out on the ground of delay.

We have, however, noted some decisions of the Apes Court, to wit, K.V. Raja Lakshmi v. State of Mysore AIR 1967 SC 973AIR 1967 SC

973 ; Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, State of Orissa v. T. Samantraj AIR 1976 SC 1617 and State of

Orissa v. Arun Kumar AIR 1976 SC 1629 , which have held that making of repealed presentations would not be adequate explanation to take

care of delay in all cases. In K.R. Mudgal and Others Vs. R.P. Singh and Others, a petition challenging inter (sic)e seniority after about 18 years of

issuance of the first seniority list was held liable to be dismissed on the ground of laches.

It would thus seem that no hard and fast rule caw be laid down by referring to the number of years after which a writ petition of the present

nature merits to be dismissed on the ground of delay; much would depend upon the facts and circumstances of each case. If there be inordinate

unexplained delay, a petition may have to be dismissed, on the ground of aches, more so, if the same is likely to upset promotion which might have

taken place in the interregnum. From the fact of the present case we are not satisfied if the petition merits to be thrown out on the sole ground of

delay, we have taken his view having noted that the Petitioner, after having succeeded in getting his promotion, was in constant touch with the

authorities on the question of placing him appropriately in he seniority list. Initial approaches were informal and to Respondent No. 5, Failing to get

relief from him, higher authorities were approached in writing. Shri Chaliha has however draw. our attention to the minutes of discussion held on

2.7.87 between the Chief Secretary to the Government of Assam and the Secretary, Typists Association in para 4 of which it has been stated that

the Association was explained that retrospective effect would not be given as many complications would arise. we shall deal with the complications

later, but at this stage we may say that as the Petitioner comes from a lower echelon and as he had taken up the matter of his seniority soon after is

promotion as an LDA, first informally and then in writing, we do not think if we would be justified in rejecting the petition on the ground of delay

alone. May we state here that the Respondents have filed no counter in the case denying any of the averments made by the Petitioner.

This takes us to the question whether the entertainment of the grievance of the Petitioner at this stage would cause such complications because

of which his prayer is to be rejected. The learned Tribunal has referred in this connection to Rule 8(2) of the Rule and pointed out that the

appointment of the typists to the post of Lower Division Assistant has to be on the, basis of selection. It was then stated that under Rule 12 of the

Rules, a Selection Committee, which has to decide the matter by examining the character rolls and personal files of the candidates, has to ""take into

consideration the seniority and merit of the candidates and prepare separate lists of names in order of preference...."" After referring to these

requirements of the Rules, the learned Tribunal stated that to select typists for the post of Lower Division Assistant a merit list shall have to be

prepared afresh for each of the years from 1963 to 1976 in such a process the inter se rankings are liable to change annually and may not coincide

with the rankings followed by the Government in filling up the backlog in the year 1977. This was the first complication mentioned by the learned

Tribunal. It was thereafter pointed out that there was another complication1 which was that for quite a few years from 1963 the cadres of the

Secretariat typists and LDAs relating to the old State of Assam were bifurcated into the present state of Assam and Meghalaya. But any

retrospective exercise from 1963, will have to be taken into consideration the position vis-a-vis the non-bifurcated cadres. These difficulties would

render, according to the learned Tribunal, it virtually impossible to determine with any fair precision which particular typist deemed to have been

actually entitled to the LDA''s post in any particular year. Finalty, the learned Tribunal felt that it would not be possible to ignore the fact that

reopening of this matter would mean this after a long period of 20 years to 7 years the seniority of about 200 direct recruits and other LDAs from

1963 till 1976 shall have to be re-determined.

We have duly considered these complications and difficulties pointed out by the learned Tribunals There cannot be two opinions that if we were

to order re-determination of seniority of all the 63 typists who came to be; appointed in 1977, the task would be ''virtually impossible'' for the

reasons pointed out by the learned Tribunal. We, however, think that the afore-said difficulties would not arise if we confide ourselves, as we have

to do, to the case of the Petitioner at hand. In so far he is concerned all that would be required to be done is to find out on the basis of his

character rolls and personal file in which year he had really became fit for, promotion according to the Selection Committee which is required to

decide such cases. If his retrospective promotion is to relate back, say to 1972 or 1973, all that shall have to be done is to find out the date from

which his promotion under the Rules shall be come effective, and thereafter fix his seniority in accordance with law. We would think that this should

pot be an impossible exercise. As to consideration of the position from 1963 vis-a-vis non-bifurcated cadres of which reference has been made by

the learned Tribunal, we may say that as per section 64 of the North-Eastrn Areas (Reorganisation) Act, 1971, only those service holders of the

existing State of Assam become permanent employees of the State of Meghalaya in respect of whom allocation agreement have been made. We

do not know if any such (agreement has been made with respect to the LDAs with whom A are concerned, and if so, relating to how many of

them. To dispel any doubt in this regard, we would make it clear that the inter se seniority of the Petitioner shall be considered a relation to the,

LDAs who have been retained in the present State of Assam. Theo, the seniority of about 500 direct recruits and other LDAs appointed from

1963 to 1977 shall Dot be required to be reopened wholehog in as much as it would be enough to fit in the Petitioner in the seniority list of the year

for which he is found fit whereafter he shall be placed, accordingly in the future lists. It has to be pointed out in this connection that She Petitioner

was denied promotion prior to 1977 though ho had become entitled to be considered for the same in 1971 not because of any fault or lapse on his

part, but because the appointing authorities did not implement the provisions required to be followed in this regard. For the lapses of the

authorities, for which we do not find any explanation on record, we do not think if we would be justified in penalising the Petitioner. Let us,

however, make it clear that if any of the LDAs found junior to the Petitioner as per recast seniority list has already been promoted, the same would

not be effected in any way because of the order passed in this, petition. We also make it clear that on the basis of higher seniority which the

Petitioner might earn as a result of the order passed in this case he would not claim higher seniority in the post to which he might be promoted

earlier than be would have otherwise been We also say that the benefit of this order shall be available to the Petitioner alone. We are not

expressing any view regarding those typists who have not yet, approached this Court by sleeping over the matter.

In view of all above, we allow this petition, set aside the impugned order of learned Tribunal and direct the Respondents to consider as to when

the Petitioner would have been promoted as LDA keeping in view the requirements of Rule 8(2) and 12 of the Rules and thereafter to fix his

seniority accordingly, if required. If in implementing this order, the respondents would find any insurmountable difficulty, it shall open to them to

approach this Court for modification and/or alteration of this order.