Abdul Rahman Ansari vs State Of U.P.& 4 Ors.
2013 Latest Caselaw 6366 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 55902 of 2013
 

 
Petitioner :- Abdul Rahman Ansari
 
Respondent :- State Of U.P.& 4 Ors.
 
Counsel for Petitioner :- R.C.Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri R.C.Singh, learned counsel for the petitioner and learned Standing Counsel for the respondents.

2. Admittedly, final seniority list was published in 2006 wherein petitioner's name finds place at serial no.95 though, according to him, that was wrong placement in the seniority list. Admittedly, he did not challenge the same throughout and for seven years, the matter remained unchallenged.

3. It is no doubt true if seniority of two or more individuals has been determined long back and a person placed lower in seniority did not feel aggrieved to challenge the same within a reasonable time, he shall be non suited to do so after a long time since it may result in unsettling so many settled things. It is said that scrambled eggs cannot be unscrambled after process is complete. Challenge must come within a reasonable time. There is a long chain of decisions on this aspect.

4. A Full Bench of this Court in Smt. S.K. Chaudhari Vs. Manager, Committee of Management, Vidyawati Darbari Girls Inter College, Lookerganj, Allahabad & others (1991) 1 UPLBEC 250 said that seniority list existing for the last 15 years would not be quashed after such a long time. It observed, "The law is well settled that the Court will not interfere with a seniority list which had remained in existence for a long time and which had become final."

5. In Rabindranath Bose and others Vs. Union of India and others AIR 1970 SC 470 the Court held, "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."

6. In Tilokchand and Motichand and others Vs. H.B. Munshi and another AIR 1970 SC 898, the Court held that the rights which have accrued to others by reason of delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for delay. It further says, "The party claiming Fundamental Rights must move the Court before other rights come into existence. The action of courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court."

7. In Ramchandra Shankar Deodhar and others Vs. State of Maharashtra and others AIR 1974 SC 259 the Court said that any claim of seniority at belated stage should be rejected inasmuch it disturb rights of other persons regarding seniority, rank and promotion which have accrued to them during intervening period.

8. In P. S. Sadasivaswamy Vs. State of Tamilnadu AIR 1974 SC 2271, the Court declined to interfere with an order of promotion made 14 years back. It said, "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." The Court also said that it is not a case of lack of power of Court, but it is consistent with sound policy of public interest that a person who has not been vigilant for protection of his rights should not be allowed to agitate his rights as and when he finds it convenient irrespective of length of time. Such a litigant should not be helped by Court by invoking its jurisdiction under Article 226 of the Constitution which is equitable and discretionary both. To the same effect are the observations made in State of U.P. and others Vs. Raj Bahadur Singh and another (1998) 8 SCC 685, Northern Indian Glass Industries Vs. Jaswant Singh and others (2003) 1 SCC 335.

9. In R.S. Makashi Vs. I.M. Menon and others AIR 1982 SC 101, the Court held that a dispute regarding seniority can be denied to be agitated on account of delay and laches unless a plausible and adequate explanation is furnished. The Court relied on its earlier decision in State of Madhya Pradesh Vs. Bhailal Bhai and others AIR 1964 SC 1006.

10. In Dayaram Asanand Gursahani Vs. State of Maharashtra and others AIR 1984 SC 850, the Court said that in absence of satisfactory explanation of inordinate delay of nearly nine years on the part of appellant in questioning the seniority list, writ petition under Article 226 of the Constitution challenging validity of seniority and promotion assigned to other employees cannot be entertained.

11. In K.R. Mudgal and others Vs. R.P. Singh and others AIR 1986 SC 2086, it was observed :

"A Government servant who is appointed to any post ordinarily should at least after a period of 3 or 4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity. ... Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the Government servants created by the 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 as otherwise in addition to the creation of a sense of insecurity in the minds of the Government servants there would also be administrative complications and difficulties. Unfortunately in this case even after nearly 32 years the dispute regarding the appointment of some of the respondents to the writ petition is still lingering in this Court. 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."

12. In G.C. Gupta & others Vs. N.K. Pandey & others AIR 1988 SC 268, the Court observed:

"...It has been observed that the attack to the seniority list prepared on the basis of 1952 rules 15 years after the rules were promulgated and effect given to the seniority list prepared on Aug. 1, 1953 should not be allowed because of the inordinate delay and laches in challenging the said rule.

30. Similar observations have been made by this Court in the case of State of Orissa v. Pyarimohan Samantaray, (1977) 3 SCC 396 : (AIR 1976 SC 2617); State of M. P. v. Nandial Jaiswal, AIR 1987 SC 251, Ramanna Dayaram Shetty v. International Airport Authority of' India, (1979) 3 SCR 1014 : (AIR 1979 SC 1628), Ashok Kumar v. Collector, Raipur. AIR 1980 SC 112 : (1980) 1 SCR 491, K. R. Mudgal v. R. P. Singh, (1986) 4 SCC 531 (AIR 1986 SC 2086) and R. S. Makashi v. I. M. Menon, (1982) 1 SCC 379 : (AIR 1982 SC 101) where relief was refused on the ground of laches in moving the Court for redress of the grievances after lapse of a period of years after the cause of action arose. It has been observed in State of M. P. v. Nandlal Jaiswal (AIR 1987 SC 251 at p. 272) (supra) :-

"Now, it is well settled that the power of the High Court to issue an appropriate writ under Art. 226 of the Constitution' is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. 'The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction."

31. In this case the challenge to the seniority of the appellants which was determined by order dt. 20th July, 1956 was made in 1973 i.e. after nearly 17 years and they have sought relief for re-determination of the seniority in accordance with the provisions of the aforesaid Service Rules. This cannot be permitted as it would amount to unjust deprivation of the rights of the appellants which had accrued to them in the meantime. The observation that 'Every 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 as made in the above case (Rabindra Nath Bose v. Union of India (AIR 1970 SC 470)) will be applicable to this case." (emphasis added)

13. In B.S. Bajwa & another Vs. State of Punjab & others AIR 1999 SC 1510, the Court said, "It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a 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 alone was sufficient to decline interference under Article 226 and to reject the writ petition."

14. K.A. Abdul Majeed Vs. State of Kerala and others (2001) 6 SCC 292 was another case where the Court declined to intervene in such a dispute raised after a long time.

15. In Shiba Shankar Mohapatra & others Vs. State of Orissa & others, JT 2009 (14) SC 298, the Apex Court held, "it is well settled, fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum."

16. The Court in Shiba Shankar Mohapatra (supra) further held, "... 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."

17. As a matter of proposition, I have no reason to take a different view. Rather the exposition of law with regard to self imposed restriction in a belated dispute is binding on this Court.

18. Even today, neither seniority list has been challenged and there is no writ of certiorari quashing seniority list is prayed for nor the persons likely to be affected in case petitioner's name is directed to move upward in seniority have been impleaded and therefore, this writ petition also suffers from the vice of impleadment of necessary parties.

19. It is again contended that in any case, petitioner's seniority was determined in 2012 also. Thereafter he moved representation though his seniority has not been corrected. Here again question arise that neither seniority list as such has been challenged in the writ petition nor the person likely to be affected has been impleaded.

20. In absence of challenge to the seniority list as also for non impleadment of necessary party, no relief, as sought in the writ petition, can be granted.

21. Dismissed.

Order Date :- 8.10.2013

KA