Sushil Kumar Dwivedi vs State Of U.P.Through Prin. Secy. ...
2016 Latest Caselaw 2722 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
RESERVED
 
Court No. 24
 

 
Writ Petition No. 1542 (S/B) of 2011
 

 
Sushil Kumar Dwivedi 				...................	Petitioner
 
Versus
 
State of U.P. and others 				....................	Respondents
 

 
along with
 
Writ Petition No. 2058 (S/B) of 2011
 

 
State of Uttar Pradesh and others 		....................	Petitioners
 
Versus
 
Satish Kumar Tripathi and others 		...................	Respondents
 

 
********
 
Hon'ble Dr. Devendra Kumar Arora, J.

Hon'ble Dr. Vijay Laxmi, J.

1. Heard Mr. Upendra Nath Mishra, learned Counsel for the petitioner-Sushil Kumar Dwivedi, learned Standing Counsel for the State and Mr. R.D. Shahi, assisted by Mr. O.P. Tiwari, learned Counsel for the contesting respondent-Satish Kumar Tripathi.

2. Sushil Kumar Dwivedi has approached this Court by filing writ petition No. 1542 (S/B) of 2011, whereas State authorities have preferred writ petition No. 2058 (S/B) of 2011, challenging the judgment and order dated 27.6.2012 passed in Claim Petition No. 656 of 1998 :Satish Kumar Tripathi Vs. State of U.P. & others by the State Public Services Tribunal, Lucknow (hereinafter referred to as the "Tribunal"), whereby the Tribunal, while allowing the claim petition preferred by respondent-Satish Kumar Tripathi, set-aside the final seniority list dated 22/23.7.1990 for the post of Routine Grade Clerk/Assistant Accountant of District Treasury, Unnao, and appellate order dated 9.10.1997, directed the State authorities for consideration of the appointment of the claimant-Satish Kumar Tripathi for the post of Treasury Clerk w.e.f. 7.11.1986 after modifying the gradation list/seniority list dated 23.7.1990 and issue appointment order after placing claimant/ private respondent over and above to the writ petitioner-Sushil Kumar Dwivedi with all consequential service benefits.

3. Since common question of facts and law are involved in the above-captioned writ petitions, therefore, they are being decided by a common order.

4. Shorn off unnecessary details, the facts of the case are as under :

The ministerial cadre of every District Treasury is divided into two separate cadres; firstly known as Cash Cadre, which deals with cash; and secondly Accounts Cadre, which deals with preparation of bills and maintenance of accounts. The appointment of these two cadres were made through District Selection Committee constituted under the provisions of Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985.

5. In the year 1985, a Selection Committee was constituted for making appointment on the post of Class-III in various ministerial offices in District Unnao including various offices at Block levels of District Unnao. On receipt of names of suitable candidates from the Employment Exchange, interview for the post of Routine Grade Clerk, Accounts Clerk and Typist etc. of various offices of District Unnao were held w.e.f. 19.12.1985 to 21.12.1985 by a duly constituted District Selection Committees presided over by the District Magistrate. Thereafter, a select list including waiting list was prepared on 21.12.1985.

6. In the waiting list so prepared on 21.12.1985, the name of claimant-Satish Kumar Tripathi was placed at serial No. 1, whereas name of writ petitioner-Sushil Kumar Dwivedi was at serial No. 2. In the meantime, a vacancy on the post of Extra Money Tester in the cash cadre on a temporary basis arose, whereupon the State directed to make appointment on the said post on daily wage basis. Accordingly, the Treasury Officer, Unnao, sent requisition for names of suitable candidates for appointment on the said post from the District Employment Officer. On the requisition of Treasury Officer, Unnao, the District Employment Officer had sent the name of claimant-Satish Kumar Tripathi, who was at serial No.1 in the waiting list dated 21.12.1985 for appointment on the post of Extra Money Tester. Thereupon, on 4.11.1986, the Treasury Officer, Unnao recommended the name of claimant-Satish Kumar Tripathi for appointment on the post of Extra Money Tester to the District Magistrate, Unnao, who, in turn, issued appointment letter to the claimant-Satish Kumar Tripathi on 4.11.1986. On receipt of the said appointment letter, the claimant-Satish Kumar Tripathi joined on the post of Extra Money Tester on the same day i.e. 4.11.1986.

7. On 7.11.1986, another requisition to provide names of the suitable candidates for appointment on a substantive post of Treasury Clerk in different cadres was sent by the Treasury Officer, Unnao to the District Employment Officer, Unnao with a request to send names of suitable candidates from the select list/waiting list, so prepared by the District Selection Committee. On receipt of the same, the District Employment Officer, Unnao, recommended the name of writ petitioner-Sushil Kumar Dwivedi, who was at serial No.1 in the waiting list after joining of claimant-Satish Kumar Tripathi for the post of Extra Money Tester. Thereafter, the Treasury Officer, on obtaining permission from the appointing authority i.e. District Magistrate on 12.11.1986, appointed the writ petitioner-Sushil Kumar Dwivedi on the post of Treasury Clerk. In pursuance to the appointment letter, the writ petitioner submitted his joining on the substantive post of Treasury Clerk in Accounts Cadre on 2.12.1986 and since then, he is working on the post of Treasury Clerk in District Treasury, Unnao.

8. In the meantime, on 17.2.1987, a post of Posting Clerk/Assistant Shyaha Navis was created in accounts cadre. On coming to know about the creation of the said post, claimant-Satish Kumar Tripathi made a representation to the District Magistrate, Unnao, requesting therein to adjust/appoint him against a newly created post of Posting Clerk/Assistant Shyaha Navis in the Accounts Cadre. The request of claimant-Satish Kumar Tripathi was accepted by the District Magistrate, Unnao on 21.3.1987. Thereafter, on 23.4.1987, the claimant was offered appointment on the post of Assistant Shyaha Navis in Accounts Cadre, which was accepted by the claimant and, accordingly, he joined on the said post on 24.4.1987.

9. On 23.7.1990, a final seniority list for the post of Accounts Clerk was issued by the District Treasury, Unnao, wherein name of writ petitioner-Sushil Kumar Dwivedi was placed at serial No. 23 by reckoning the date of his joining in the accounts cadre as 2.12.1986 and the name of claimant-Satish Kumar Tripathi was at serial No.24 by reckoning the date of his joining in the accounts cadre on 24.4.1987. Not being satisfied with the final seniority list, claimant-Satish Kumar Tripathi moved a representation, claiming seniority over and above the writ petitioner-Sushil Kumar Dwivedi. The District Magistrate, Unnao, vide order dated 22/23.12.1992, rejected the representation of the claimant inter alia on the grounds that claimant entered into the Accounts Cadre only on 24.4.1987, whereas writ petitioner-Sushil Kumar Dwivedi had entered into the Accounts Cadre on 2.12.1986, therefore, seniority between the writ petitioner and claimant has rightly been determined.

10. Being dis-satisfied with the order dated 22/23.12.1992, the claimant has approached the Commissioner, Lucknow Division, Lucknow by filing an appeal. During pendency of the appeal, claimant-Satish Kumar Tripathi has approached this Court by means of writ petition No. 4305 (S/S) 1997 : Satish Kumar Tripathi Vs. Commissioner, Lucknow Division, Lucknow and others. This Court, vide judgment and order dated 1.8.1997, on appreciating the fact that appeal of the claimant/private respondent is pending disposal, dismissed the writ petition in limine and directed the Commissioner, Lucknow Division, Lucknow to make an earnest endeavour to decide the appeal of the claimant/private respondent, expeditiously, if possible, within a period of three months.

11. In pursuance of the order dated 1.8.1997, the appeal/representation of the claimant/private respondent was considered and rejected by the Commissioner, Lucknow Division, Lucknow vide order dated 9.10.1997, stating therein that the writ petitioner was substantively appointed in the accounts cadre on 2.12.1986, whereas the claimant/private respondent, after willing to join the Cash Cadre, had made efforts to join the Accounts Cadre by way of transfer of his services, but he was substantively appointed in Accounts Cadre only on 24.4.1987, therefore, his seniority in the Accounts Cadre can be reckoned only with effect from the date of joining the Accounts Cadre, which is 24.4.1987 and not from any prior date.

12. Feeling aggrieved by the order dated 22/23.12.1992 passed on the claimant's representation by the District Magistrate, Unnao, gradation list/seniority list dated 23.7.1990 and appellate order dated 9.10.1997, the claimant/private respondent has approached the State Public Services Tribunal by filing Claim Petition No. 656 of 1998 : Satish Kumar Tripathi Vs. Commissioner, Lucknow Division, Lucknow and others. The Tribunal, after hearing the parties and perusal of the records, vide judgment and order dated 27.6.2011, allowed the claim petition and quashed the order dated 22/23.12.1992 passed by the District Magistrate, Unnao and appellate order dated 9.10.1997. It has been directed that on considering the appointment of the claimant-Satish Kumar Tripathi for the post of Treasury Clerk w.e.f. 7.11.1986 and on modifying the gradation list/seniority list dated 23.7.1990, an order for appointment be issued, placing claimant/private respondent over and above to the writ petitioner-Sushil Kumar Dwivedi with all consequential service benefits.

Hence the instant writ petition.

13. Challenging the judgment and order dated 27.6.2011 passed by the Tribunal, Mr. Upendra Nath Mishra, learned Counsel for the writ petitioner has submitted that the seniority of a person working in a cadre can be settled only with effect from the date of his substantive appointment. He further submitted that the appointment of the claimant/private respondent on the post of Assistant Shyayha Navis dated 23.4.1987 was made by the Treasury Officer of District Unnao initially under stop gap arrangement, but since the approval of the appointing authority i.e. District Magistrate, Unnao, was already given for engagement of the claimant on the post of Posting Clerk on 21.3.1987 itself, therefore, a regular appointment order was issued by the Treasury Officer on 1.5.1987, wherein it was clearly mentioned that the claimant/private respondent was being given regular appointment on the post of Assistant Shyaha Navis/Posting Clerk equal to the Accounts Clerk and it was also mentioned in the said letter that his appointment shall be made with effect from the date of his joining, which was 24.4.1987. Thus, since the claimant/private respondent had already joined on the aforesaid post of Assistant Shyaha Navis/Accounts Clerk on 24.4.1987 itself, therefore, the regular appointment of the claimant in the Accounts Cadre of the District Treasury, Unnao can be considered to be effective only from 24.4.1987 itself and not any date prior to that.

14. Submission of the learned Counsel for the petitioner is that the Tribunal, while allowing the claim petition, has erred in not considering the fact that as a result of selection held by the District Selection Committee in December, 1985, the claimant/private respondent, who was at serial No.1 in the select list, was firstly given appointment in ''Cash Cadre' on daily wage basis and, later on, the claimant had switched over his cadre from ''Cash Cadre' to ''Accounts Cadre', where he was given appointment on 24.4.1987 and, therefore, in the seniority list of Accounts Cadre, he was rightly given seniority from the date of his substantive appointment in the Accounts Cadre i.e. 24.4.1987, which was the date when the claimant/private respondent was first born in the Accounts Cadre. Thus, the placement in the said final seniority list dated 23.7.1990 cannot be allowed to be altered after 21 years, especially when the writ petitioner was also given promotion to the next higher post of Accountant in the meantime, which was also not challenged by the claimant.

15. Further submission of the learned Counsel for the petitioner is that though the Tribunal has no power or authority under the Public Services Tribunal's Act to condone the delay in filing the claim petition beyond the statutory period of one year but even then, the Tribunal has also erred in law in condoning the delay in filing of the claim petition in 1998 i.e. after about 12 years from the date of appointment of the writ petitioner.

16. To strengthen his arguments, Mr. Mishra has placed reliance upon the judgments of the Apex Court in Malcom Lawrence Cecil D'Souza Vs. Union of India and others : 1976 (1) SCC 599, Shiba Shankar Mohapatra and others Vs. State of Orissa and others: 2010 (12) SCC 471, Rajendra Pratap Singh Yadav and others Vs. State of Uttar Pradesh and others: 2011 (7) SCC 743, Amarjeet Singh and others Vs. Devi Ratan and others: 2010 (1) SCC 417, Union of India and others Vs Deo Narain and others 2008 (10) SCC 84 and the judgment of the Division Bench of this Court in Abdul Shamim Vs. State of U.P. and others, decided on 5.4.2013 (Review Petition No. 203 of 2010) and Karan Kumar Yadav Vs. U.P. State Public Services Tribunal and others : 2008 (2) AWC 1987 (L.B.).

17. Learned Standing Counsel appearing on behalf of petitioners of writ petition No. 2058 (S/B) of 2011 has submitted that though the issuance of the appointment order to its employees primarily falls in the domain of the executive and, therefore, no such direction for appointment should normally be issued by the Court of law, but the Tribunal, vide impugned order, gave direction to the State authorities to issue appointment order in favour of the claimant/respondent on the post of Treasury Clerk w.e.f. 7.11.1986. Thus, the said direction of changing the date of substantive appointment of the claimant/respondent in the Accounts Cadre of District Treasury, Unnao from 24.4.1987 to 7.11.986 is absolutely errorneous and legally untenable.

18. Further submission of the learned Standing Counsel is that the said waiting list was only relevant till the claimant/respondent and writ petitioner were given appointments but after both of them have accepted their appointment in two different cadres i.e. "Cash Cadre" and "Accounts Cadre" of District Treasury, Unnao, the said waiting list has lost its relevance and the same cannot be pressed into service for the purposes of offering backdated appointment to the claimant from 7.11.1986 so as to make him senior to the writ petitioner and that too after lapse of 21 long years. Therefore, the impugned judgment is not tenable in the eyes of law and is liable to be set-aside.

19. Supporting the impugned judgment passed by the Tribunal and refuting the submissions of the learned Counsel for the writ petitioner, Mr. R.D. Shahi, learned Counsel for the claimant/respondent has submitted that for the purpose of direct recruitment of ministerial staff in the subordinate Government Offices of the district, a Selection Committee under the chairmanship of District Magistrate, Unnao was constituted. The Selection Committee had prepared select list and waiting list, whereby eight candidates were given regular appointment for Clerk Grade, whereas four candidates were kept in waiting list. The name of the claimant/respondent was placed at serial No. 1 in the waiting list and the name of the writ petitioner was at serial No. 2 in the waiting list. The Treasury Officer, Unnao, vide letter dated 18.10.1986 requested the District Employment Officer to send the name of the suitable candidate for the post of Extra Money Tester in cash branch (daily wage) and in pursuance to the said letter, the District Employment Officer vide his letter dated 27.10.1986, sent the name of claimant/private respondent. Thereafter, the Treasury Officer, vide its letter dated 4.11.1986, issued the appointment order in favour of the claimant/respondent and on the same date i.e. 4.11.1986, claimant/respondent submitted his joining.

20. Further submission of Mr. R.D. Shahi, learned Counsel for the claimant/respondent is that after joining of claimant/ respondent on the post of Extra Money Tester, the Treasury Officer, vide its letter dated 7.11.1986, requested the District Employment Officer to send name of another candidate for appointment on the post of Treasury Clerk. In response, the District Employment Officer, vide letter dated 7.11.1986, sent the name of the writ petitioner for the said post. Accordingly, the writ petitioner was appointed by the District Magistrate on 12.11.1986 and he joined on the post in question on 2.12.1986. Thereafter, the claimant/respondent was given appointment as Assistant Syaha Navis at Sub-Treasury, Tehsil Hasanganj on 23.4.1987. After joining on the post of Assistant Syaha Navis, the claimant/respondent moved a representation against the appointment of writ petitioner on the ground that the appointment of writ petitioner is not in accordance with the order of select list so prepared by the duly constituted Selection Committee.

21. Mr. Shahi has contended that on 23.7.1990, provisional seniority list was issued by the Treasury Officer, Unnao without considering the plea raised in the representation of the claimant/respondent, wherein the name of the writ petitioner was placed at serial No. 23, whereas the name of the claimant/private respondent was at serial No. 24. Subsequently, the claimant/respondent has submitted a representation dated 16.8.1990 against the seniority list dated 23.7.1990, which was rejected by the District Magistrate, Unnao vide order dated 22/23.12.1992, against which, a departmental appeal was preferred by the claimant/respondent before the Commissioner, Lucknow Division, Lucknow.

22. It has been stated by Mr. Shahi that the said appeal was kept pending and, therefore, the claimant/respondent has approached this Court by filing writ petition No. 4305 (S/S) of 1997. This Court, vide order dated 1.8.1997, while dismissing the writ petition, directed the Commissioner, Lucknow Division, Lucknow to decide the appeal within three months. Thereafter, the said departmental appeal was rejected vide order dated 9.10.1997. Feeling aggrieved, the claimant/respondent had approached the Tribunal by filing claim petition No. 656 of 1998. The Tribunal, after considering the pleadings and relevant rules, has rightly allowed the claim application of claimant/respondent vide judgment and order dated 27.6.2011, directing the State authorities to amend the seniority list dated 23.7.1990 and thereafter place the claimant/respondent over and above to the writ petitioner.

23. Submission of Mr. Shahi is that seniority list dated 23.7.1990 issued by the Treasury Officer, Unnao was provisional and not final and on coming to know about the seniority, the claimant/respondent moved representation to the competent authority. Therefore, the assertion of the writ petitioner that the claimant/respondent has never raised any objection from 1987 to 1990, is wrong. He further submitted that if any wrong procedure is adopted by the appointing authority for appointment, then, the candidate, who was at the top in the select list, cannot be deprived of his right. Therefore, the Tribunal has rightly held that the claimant/private respondent is senior to the writ petitioner and accordingly, allowed the claim petition. Thus, there is no illegality and infirmity in the impugned judgment of the Tribunal.

24. We have heard learned Counsel for the parties and perused the record.

25. The admitted facts involved in the above-captioned writ petitions are that the ministerial cadre of the District Treasury is divided into two separate cadres, namely, ''Cash Cadre', which deals with cash, and ''Accounts Cadre', which deals with preparation of bills and maintenance of accounts. The appointments on the ministerial post in the aforesaid two cadres were made through a District Selection Committee constituted under the provisions of Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 for appointments on Class-III post of various ministerial offices in District Unnao.

26. In order to make appointment on the post of Routine Grade Clerk, Accounts Clerk and other ministerial staff of various offices of district Unnao, a District Selection Committee under the chairmanship of District Magistrate, Unnao was constituted. The said Committee, after calling the names of the suitable candidates from the Employment Exchange and taking interviews of the suitable candidates, had issued a select list and waiting list on 21.12.1985. In the waiting list, the name of claimant/ respondent was at serial No.1 and the name of writ petitioner was at serial No.2. In the year 1986, a vacancy arose on a temporary post of "Extra Money Tester" in the Cash Cadre of District Treasury, Unnao, on which a direction was issued by the State Government to make appointment on daily wage basis. Consequently, the Treasury Officer, Unnao, vide letter dated 18.10.1986, sent a requisition to the District Employment Officer to send the name of a suitable candidate for appointment on the aforesaid temporary post of "Extra Money Tester" in cash cadre. In pursuance of the letter dated 18.10.1986, the District Employment Officer had sent the name of claimant/respondent for appointment on the aforesaid temporary post of "Extra Money Tester". Thereafter, the Treasury Officer, Unnao, recommended the name of the claimant/respondent to the District Magistrate, Unnao, who, in turn, approved the said recommendation on 4.11.1986. On being offered the said appointment, the claimant/respondent had readily accepted the aforesaid temporary post of "Extra Money Tester" and he joined on the said post on the same day i.e. 4.11.986.

27. After joining of claimant/respondent on temporary post of Extra Money Tester (daily wage basis), the Treasury Officer, Unnao had sent another requisition for appointment on a substantive post of Treasury Clerk in a different cadre on 7.11.1986 to the District Employment Officer. Since the writ petitioner was placed at serial No.2 in the select list and first candidate of list had already accepted appointment in another cadre, therefore, the name of the writ petitioner was recommended by the District Employment Officer. Thereafter, on permission being granted by the District Magistrate, Unnao, writ petitioner was appointed on a substantive post of Treasury Clerk on 2.12.1986. Subsequently, on 17.2.1987, a post of Posting Clerk/Assistant Shyaha Navis was created in the accounts cadre. On coming to know about the aforesaid post, the claimant/respondent made a representation to the District Magistrate for his adjustment against a newly created post of Posting Clerk/Assistant Shyaha Navis in the Accounts Cadre. The District Magistrate, vide order dated 21.3.1987, approved/permitted the claimant/ respondent for fresh appointment on newly created post i.e. Posting Clerk/Assistant Shyayha Navis. In pursuance thereof, the claimant/respondent had joined on newly created post on 24.4.1987.

28. According to the claimant/respondent, as he was placed at serial No.1 in the waiting list and the name of writ petitioner was at serial No. 2, therefore, on joining in the accounts cadre on 24.4.1987, his name has wrongly been placed in the seniority below the name writ petitioner. The case of the writ petitioner is that since he has been given appointment on the substantive post of Treasury Clerk in Accounts Cadre and he joined on the said post on 2.12.1986, therefore, his seniority ought to be reckoned from the date of his joining in the accounts cadre and not from the waiting list as the same was not in existence after joining of the writ petitioner on the substantive post of Treasury Clerk in Accounts Cadre.

29. From perusal of pleadings on record, one thing is clear that writ petitioner-Sushil Kumar Dwivedi was appointed and joined on the substantive post of Treasury Clerk in Accounts Cadre on 2.12.1986, whereas claimant/private respondent was appointed and joined on the newly created post in Accounts Cadre on 24.4.1987. Accordingly, final seniority list was prepared and issued on 23.7.1990.

30. In Malcom Lawrance (supra), the Apex Court has held that 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 at the instance of a party who has during the intervening period chosen to keep quiet. The Apex Court has further held that raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties.

31. In Shiba Shankar Mohapatra (supra), the Apex Court has held that once seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. On appreciating the ratio laid down in K.R. Mudgal V. R.P. Singh: 1986 (4) SCC 531 that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed, the Apex Court has held that three to four years is a reasonable period of 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.

32. In Rajendra Pratap Singh Yadav (supra), the Apex Court has held that in service jurisprudence, there is immense sanctity of a final seniority list. The seniority list once published cannot be disturbed at the behest of a person who chose not to challenge it for four years. The sanctity of the seniority list must be maintained unless there are very compelling reasons to do so in order to do substantial justice. This is imperative to avoid avoidable litigation and unrest and chaos in the services.

33. From the aforesaid legal preposition, it is crystal clear that final seniority list cannot be disturbed after 3-4 years at the behest of a person who chose not to challenge it.

34. In the present case, it is an admitted position that claimant-respondent has raised no objection between 24.4.1987 (when the claimant/private respondent joined on the newly created post) to 23.7.1990 (when final seniority list was issued). Surprisingly, against the final seniority list dated 23.7.1990, the claimant/ respondent has raised objection on 26.2.1991 by giving a representation and when the representation was rejected, he preferred appeal before the Commissioner, Lucknow Division, Lucknow. It is pertinent to point out that proper course available to the petitioner after circulation of final seniority list, was to approach the appropriate forum as available under law. Instead, the petitioner first filed representation and then filed the appeal without there being any provision of filing representation and appeal, which of course is a creation by the statute.

35. In Amarjeet Singh (supra), the Apex Court has held that an officer cannot be granted seniority prior to his birth in the cadre adversely affecting the seniority of other officers who had been appointed prior to them. The latecomers to the regular stream cannot steal a march over the early arrivals in the regular queue.

36. In Deo Narain (supra), the Apex Court has held that if an employee is transferred from one department to another department on compassionate ground, he would be placed at the bottom of the seniority in the transferee department. Hence, at the time of his transfer in the transferee department, all employees in the same cadre who were very much serving at that time would be shown above such transferee employee and in such combined seniority list, the transferred employee would be shown as junior most.

37. On considering the aforesaid legal proposition in the present facts and circumstances of the case, admittedly, the claimant/respondent was given fresh appointment on newly created post and he joined as such on 24.4.1987. At that relevant time, writ petitioner was working as he was given appointment and joined on substantive post of Treasury Clerk in accounts cadre much earlier i.e. on 2.12.1986. Therefore, the claimant/private respondent is a latecomer as he joined accounts cadre on 24.4.1987.

38. In Abdul Shamim (supra) and Karan Kumar (Supra), a Division Bench of this Court has held that the Tribunal has no power to condone the delay under Section 4 of the U.P. Public Services Tribunal Act, 1976. In the present case, admittedly, on 6.4.1998, claimant/respondent had filed the claim petition No. 656 of 1998, challenging the order dated 22/23.12.1992, gradation list/seniority list dated 23.7.1990 and appellate order dated 9.10.1997. Thus, the claim petition was barred by limitation and, therefore, the Tribunal erred in entertaining the claim petition.

39. For the reasons aforesaid, the Tribunal has erred in allowing the claim petition as the findings recorded by the Tribunal are perverse and contrary to settled position of law.

40. Accordingly, both the writ petitions are allowed. The impugned judgment and order dated 27.6.2011 passed by the Tribunal is hereby set-aside. Consequent to follow.

41. There is no order as to costs.

Order Date : 18 May, 2016

Ajit/-