Suresh Chandra Agarwal vs Rajya Sabha Secretariat ...
2000 Latest Caselaw 823 Del

ORDER

M.S.A. Siddiqui, J.

1. By this petition under Article 226 of the Constitution, the petitioner seeks quashing of the appointment of respondents 2 and 3 to the post of Under Secretary and for a direction to respondent No.1 to consider the petitioner for promotion to the post of Under Secretary.

2. The petitioner was appointed as an Assistant in the Rajya Sabha Secretariat (for short 'the Secretariat') on 30th March, 1973 and was confirmed on the said post w.e.f. 13th December, 1976. He was placed below Mr. Tapan Das Gupta and Mr. Hukum Singh, who were at serial Nos. 1 and 2 respectively in the Gradation list of the Secretariat notified on 1st February, 1972. Mr. Hukum Singh retired from service in July, 1974. Resultantly, the petitioner was placed below Mr. Tapan Das Gupta. Pursuant to the recommendations of the First Parliamentary Pay Committee, the Secretariat was reorganized on functional basis w.e.f. 1st December, 1974 and three services, namely (i) Legislative Service, (ii) Executive and Administrative Service and (iii) Printing, Publication and Distribution Service were created. These services were treated as separate entities for the purpose of promotion, recruitment and seniority. All the personnel borne on the strength of the Secretariat, as on 1st December, 1974 were allocated to different services according to the nature of work handled by them. Upon reorganisation of the Secretariat, the petitioner was placed in the Executive and Administrative Wing. Out of 60 posts of Assistants, 41 posts including five Committee Assistants were upgraded as Legislative Committee Assistants/Executive Assistants. On 17th April, 1978, the petitioner was promoted to the grade of Senior Assistant on completion of five years of service as Assistant. In 1976, a competitive examination limited to the staff of the Secretariat, was held to fill up posts of Senior Assistants in the legislative wing. Respondents No. 2 to 6, who were declared successful in the said examination, were appointed as Senior Assistants w.e.f. March 1977. The aforesaid reorganisation of the Secretariat did not last long and by the order dated 13th June, 1980 of the Chairman of the Rajya Sabha, the three services created earlier were merged into a single united service to be known as the Legislative, Executive and Administrative service. On 13th April, 1984 the Chairman of the Rajya Sabha issued a circular directing that in future confirmations and promotions in the said service will be made on the basis of seniority of officers as it obtained before the division of the Secretariat on 1st December, 1974, subject to such necessary changes due to service wise confirmations, which shall be taken into account irrespective of any promotions made in the three distinctive services between 1st December, 1974 and the actual date of merger, i.e., 10th June, 1980.

3. The petitioner's main grievance is that his seniority had not been fixed in accordance with the aforesaid circular dated 13th April, 1984 and respondents No. 2 to 6, who were junior to him, had been placed above him in the seniority list. Being aggrieved by the wrong fixation of his seniority, the petitioner submitted a representation to the Secretary General, Rajya Sabha, which was rejected vide orders dated 30th November, 1992. According to the petitioner, the respondent No.1 had unjustifiably superseded him and promoted the respondents 2 and 3 to the posts of Under Secretary and thus their promotions are liable to be quashed.

4. In reply to the writ petition, a counteraffidavit has been filed by Shri Vanaja N.Sarna, Director (Administration) of the Secretariat on behalf of respondent No.1. The case of the respondent No.1, as disclosed in that affidavit, is that after reorganisation of the Secretariat, a new cadre of Senior Assistants in the payscale of Rs. 550-900 in between the grades of Assistants (Rs. 425-800) and Section Officer (Rs. 650-1200) was created in pursuance of the recommendations of the Parliamentary Pay Committee. The new recruitment rules, framed on the basis of the said committee's recommendations, provided for (i) 100% direct recruitment for the post of Senior Assistants (Rs. 550-900) in the legislative Wing of the service and 100% promotion as the mode of recruitment in the grade of Senior Assistants in the executive and administrative wings of the service. Upon reorganisation of the Section w.e.f. 1st December, 1974, the petitioner opted for being posted as an Assistant in the Executive and Administrative Wing of the Secretariat and on 17th April, 1978, he was promoted to the post of Senior Assistant (Rs.550-900). In 1976, a competitive examination, limited to the staff of Secretariat, was held to fill up the posts of Senior Assistants (Rs. 550-900) in the Legislative Wing of the Secretariat. Respondents 2 to 6, who fulfillled the eligibility criteria prescribed under the Recruitment Rules, qualified in the said departmental examination and were appointed to the post of Senior Assistants in March, 1977. The petitioner did not appear in the departmental examination. Thus, the respondents No. 2 to 6 were duly appointed to the post of Senior Assistants in March 1977 whereas the petitioner was promoted to the post of Senior Assistant on 17th April, 1978. Consequently, the petitioner became junior to the respondents 2 to 6, who were appointed to the post of Senior Assistants by direct recruitment and so the petitioner's claim of seniority over the respondents No. 2 to 6 is not sustainable. According to respondent No.1, the petitioner's seniority, as shown in the seniority list dated 1st April, 1985, is based upon the date of his promotion in the grade of Senior Assistant, and he, therefore, cannot be permitted to unsettle the settled position at this distance of time.

5. Learned counsel for the respondent No.1 has raised a preliminary objection regarding maintainability of the petition on the ground of laches and delay. We may point out here that there is no period of limitation prescribed by any law for filing a petition under Article 226 of the Constitution. It is in fact doubtful whether any such period of limitation can be prescribed by any law. In every case, it would have to be decided on the facts and circumstances, whether the petitioner is guilty of laches and delay. However, it is well settled that this Court in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution does not ordinarily assist the tardy, acquiescent or lethargic petitioner. The evolution of this rule of delay and laches is premised upon a number of factors. In service matters, the High Court does not permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to unsettle the settled matters and bring in its train new injustices. We do not think it necessary to burden this judgment with reference to various decisions of the Apex Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is illegal. We may only mention in the passing the decision of the Apex Court in P.S. Sadasiva swamy Vs. State of Tamil Nadu, , where it was held that it would be a sound and wise exercise of discretion for the High Court to refuse to exercise its extraordinary jurisdiction under Article 226 in the case of persons who do not approach it expeditiously for relief and who standby and allow things to happen and then approach the Court to put forward stale claim and try to unsettle settled matters.

6. It is beyond the pale of controversy that the petitioner and the respondents No. 2, 3, 4 and 6 were appointed as Assistants in the Secretariat on the dates mentioned below:

      "Names                   Dates from which appointed
     Sh. S.C. Agarwal              30.3.1973
     Sh. Shamsher Singh (R-4)      28.9.1974
     Sh. Tapan Chatterjee (R-3)    5.10.1974
     Sh. G.C. Miglani (R-6)        21.10.1974
     Smt. Vandana Garg (R-2)       1.09.1975"

 

7. On 1st September, 1975, the respondent No. 2 was appointed in the Secretariat as lower division clerk. It is also undisputed that on 1st December, 1974, the Secretariat was reorganized on functional basis and the following three services were created in pursuance of the recommendations of the Parliamentary Pay Committee:

(i) Legislative Service;

(ii) Executive and Administrative Service;

(iii) Printing, Publication and Distribution Service.

8. It is also undisputed that the petitioner opted for Executive and Administrative Wing of the secretariat. In 1977, five vacancies arose for the posts of Senior Assistants in the legislative wing of the Secretariat and it was decided to fill up the said vacancies by holding a departmental examination. The petitioner did not appear in the said department examina tion but the respondents 2 to 6, who cleared the departmental test, were appointed as Senior Assistants in the Legislative Wing on the dates mentioned below:-

      "Name                    Date from which appointed
     1. Ms. Vandana Gupta          1.3.1977
     2. Sh. Tapan Chatterjee       2.3.1977
     3. Sh. Shamsher Singh         4.3.1977
     4. Sh. Syed Ausaf Hussain     5.3.1977
     5. Sh. G.C. Miglani           7.3.1977"

 

9. The petitioner was promoted as Senior Assistant on 17th April, 1978. Thus, respondents No. 2 to 6 became senior to the petitioner because they were appointed as Senior Assistants much before the promotion of the petitioner as Senior Assistant. The petitioner did not come to the Court questioning the appointment of respondents 2 to 6 as Senior Assistants. Thereafter, on 13th June, 1980, the Secretariat was once again reorganized by the Chairman of the Rajya Sabha to correct the promotional imbalances and the three wings of the services were merged into a single unified service. After reunification of the service, the combined seniority list was notified on 1st April, 1985 wherein the petitioner's name appeared below respondents No. 2 to 6. If the petitioner was aggrieved by the said seniority list, he should have approached the Court in the year 1985. But the petitioner did not come to the Court questioning the said seniority list. There was a third opportunity for him to have come to the Court when respondents No. 2 to 6 were confirmed over the head of the petitioner vide notification dated 8th November, 1989. There was a fourth opportunity for him to come to the Court when respondents No. 2 to 6 were placed in the seniority list notified in 1991 over the head of the petitioner. One cannot sleep over the matter and come to the court questioning the seniority of the respondents No. 2 to 6 after a lapse of sixteen long years. The petitioner has since been superannuated and the respondents 2 to 6 have been promoted and they have been working on the promoted posts for nearly seven years by then and have also acquired right to seniority on the basis of such promotion and they cannot be deprived of the said right at this distance of time. By the present petition, the petitioner wants to unscramble a scrambled egg. The aforesaid long delay is sufficient evidence of laches on the part of the petitioner. Consequently, the present petition is liable to be dismissed on the ground of delay and laches.

10. Even on merit, the petitioner's claim of seniority is not sustainable. Clause 3 of the Rajya Sabha Secretariat (Methods of Recruitment and Qualifications for Appointment) Order, 1974 (For short 'the Order') provides that the recruitment to a post or class of posts mentioned in column 1 of the Schedule shall be made by the method or methods and in the manner specified in the corresponding entry in column 3 of the Schedule, and where more than one such method has been so specified. the proportion of vacancies to be filled by each method shall be such as is specified in the corresponding entry in column 2 of the Schedule. The entry relevant in the Schedule for purposes of disposal of the present petition is as under :-

"The Schedule

The Legislative, Executive and Administrative Service:-

 Post Proportion of                 Method of recruitment  Remarks
     vacancies to                  and qualifications
     be filled by                  for appointment
     Promotion  Deputation Direct
               or transfer recruitment
5. Senior 50%  ...         50%     For promotion
Assistant
                                   By selection from the
                                   grade of Assistant 
                                   with a minimum of 
                                   five years' service 
                                   in the grade (s)."
                                   For direct recruitment
                                
                                   Through open 
                                   competition from 
                                   amongst candidates 
                                   possessing Master's 
                                   Degree or Bachelor's
                                   Degree in Law:
                                   Provided that if a 
                                   person has been in 
                                   service in the Secretariat 
                                   or in the Pay and Accounts 
                                   Office on the Ist 
                                   December, 1974, and
                                   possesses qualifications 
                                   prescribed above, he may
                                   be permitted to appear 
                                   in the competitive test held
                                   for the purpose."

 

11. The aforesaid entry in the said Schedule makes it clear that 50% of vacancies in the grade of Senior Assistants are to be filled by promotion and 50% by direct recruitment. In this context, a reference to clause 7 of the order has become indispensable, which is as under:-

   "7. Direct recruitment._ Where the method of direct recruitment    has been prescribed in the Schedule in the case of a post or    class of posts_
 

   (a) the selection shall be made by a test from among persons who    possess the qualifications and satisfy the conditions prescribed    by or under this Order for appointment thereto; 
 

   (b) the SecretaryGeneral shall determine whether the test to be    held under clause (a) of this paragraph shall be written, oral or    both; 
 

   (c) the standard of the written test to be held under this paragraph shall be such as the SecretaryGeneral may, from time to    time, by order, prescribe; 
 

   (d) the SecretaryGeneral may, if he so considers necessary,    prescribe by order any condition regarding experience, age or    physical standard to be fulfillled by the candidates or any class    of candidates, for eligibility for direct recruitment to such    post or class of posts in addition to the requirements as to the    qualifications for appointment prescribed by or under this Order;    and
 

   (e) subject to availability of suitable candidates belonging to    the Scheduled Castes or Scheduled Tribes possessing the qualifications prescribed for appointment thereto, due regard shall be    paid to the rules relating to reservation of posts for members of    such Castes or Tribes in the Central Secretariat."    

12. In the instant case, it is an admitted position that in 1977, five vacancies arose for the post of Senior Assistants and the Secretary General of the Secretariat decided to fill up the said vacancies by direct recruitment. The petitioner could have appeared in the departmental examination for being appointed to the post of Senior Assistant but he did not appear in the said examination. The respondents No. 2 to 6, who cleared the said departmental examination, were appointed as Senior Assistants in accordance with clause 7 of the order. On the contrary, the petitioner was promoted to the post of Senior Assistant on 17th April, 1978 in accordance with Clause 6 of the order. Clause 6 of the order is as under:-

   "6. Promotion._(1) Where the method of recruitment by promotion    has been prescribed in the Schedule_
 

   (a) it shall be made by selection on merit, irrespective of    seniority in service; 
 

   (b) for purposes of selection under clause (a) of this subparagraph, merit in relation to an officer, shall include_
 

   (i) his performance at a test, whether oral or written or both,    if such a test is ordered by the appointing authority to be held    for the purpose of such selection; 
 

   (ii) the reports on his work and conduct by his superior officers; 
 

   (iii) the enthusiasm shown by him in the various activities of    the Secretariat; 
 

   (iv) his academic qualifications; 
 

   (v) his previous experience of the particular type of work which    he will be required to perform, if selected; and 
 

   (vi) any other requirement which the appointing authority may lay    down for eligibility for such promotion; and 
 

   (c) all officers eligible for promotion to a particular grade    shall be considered together and not in the order in which they    are shown in the Schedule: 
 

   Provided that where the number of officers eligible for consideration is large, the appointing authority may lay down further    criteria, e.g. length of service, academic qualifications etc. in    order to reduce the number of officers to be considered to a    reasonable figure visavis the number of vacancies to be filled    as a result of such consideration: 
 

   Provided further that subject to availability of suitable candidates belonging to the Scheduled Castes or Scheduled Tribes    possessing the qualifications prescribed for appointment, due    regard shall be paid to the orders issued by the Central Government from time to time relating to promotion of such candidates    by 'selection'. 
 

   (2) For the purpose of calculating the length of service put in    by an officer in a grade(s), in cases where a minimum period of    service has been prescribed for promotion to the next higher    grade(s), the service rendered by the officer concerned before    the reorganisation of the Secretariat on the Ist day of December,    1974, in the corresponding post(s)/grade(s) in the Secretariat,    may also be taken into account. 
 

   *Explanation I._For the removal of doubts it is hereby declared    that for the purposes of this subparagraph for promotion to the    post/grade of Legislative Officer, Protocol Officer, Executive    Officer and Committee Officer, the service rendered by an officer    in the post/grade of Senior Assistant and Assistant before the    reorganisation of the Secretariat on the Ist day of December,    1974, may be taken into account and in making such promotion the    seniority of the officer in the grade of Assistant before such    reorganisation shall be taken into consideration in accordance    with the relevant Order in force before such reorganisation and    in conformity with the practice followed in the Secretariat    before such reorganisation. 
 

   Explanation II._Where for promotion to a post, a minimum service    in a particular grade or grades from which promotion is to be    made, has been prescribed, the service rendered by an officer in    the corresponding grade or grades in the Pay and Accounts Office,    Rajya Sabha, immediately prior to its merger with the Secretariat    with effect from Ist March, 1984, shall also be taken into account in computing the requisite service. 
 

   (3) The SecretaryGeneral may, in exceptional cases, relax the    period of service prescribed for promotion to a higher grade."   
 

13. In this context, reference may also be made to the order dated 15th January, 1958 made by the Chairman Rajya Sabha for regulation of seniority of the officers of the Secretariat, which is as under:-

'RAJYA SABHA SECRETARIAT O R D E R

Subject:- Regulation of seniority of officers of the Rajya Sabha Secretariat.

In exercise of the powers conferred by rule 9 of the Rajya Sabha Secretariat (Recruitment and Conditions of Service) Rules, 1957, the Chairman hereby directs that the seniority of officers in the Secretariat shall be determined in accordance with the following provisions, namely:-

Seniority of officers

1. (1) Subject to the provisions of subparagraphs (2) and (3), the seniority of an officer in a particular grade in the Secretariat shall, unless the Chairman on good and reasonable grounds otherwise directs, be determined on the basis of the length of his continuous service in the grade from the date of his joining a post in that grade in the Secretariat, whether his appointment to that grade is by direct recruitment or by promotion or by transfer or deputation from a post or service in connection with the affairs of the Union or of a State.

(2) The services rendered by an officer in a post in a particular grade in the Secretariat shall, unless the Chairman otherwise directs, count for seniority in a post in an equivalent grade in the Secretariat.

(3) In the case of officers appointed to posts in a grade on the results of a competitive examination conducted by the Secretariat, their seniority inter se shall, notwithstanding anything contained in the foregoing subparagraphs, be determined in the order of their position in the examination if they join their duties within one month from the date of the offer of appointment, and the seniority of such officers who join their duties after the expiry of the said period of one month shall, unless the Secretary on good and reasonable grounds otherwise directs, be determined from the date of the respective dates of so joining, irrespective of their position in the examination or their previous service, if any, in a post in an equivalent grade in the Secretariat.

Explanation_ The question as to which of the posts are for the purposes of this paragraph to be treated as posts in an equivalent grade shall be determined by the Secretary, by order, from time to time.

Seniority of permanent officers:

   2(1) Permanent officers in a grade in the Secretariat shall rank    higher than the temporary or officiating officers in that grade. 
 

   (2). If the length of service of two or more officers for the    purpose of determination of their seniority in a grade be the    same, their seniority inter se shall be fixed on the basis of the    total length of their service in this Secretariat, but where    their total length of such service is also the same, the orders    of the Secretary shall be obtained for determining their seniority. 
 

   Gradation List
 

   3.(1) A gradation List consisting of officers borne on each grade    and arranged in the order of seniority in accordance with the    provisions of this order shall be prepared. 
 

   (2) Such list shall be prepared in such form and at such intervals as the Secretary may from time to time by order prescribed. 
 

14. Learned counsel for the petitioner contended that the petitioner joined the Secretariat on 30th March, 1973 as an Assistant and the respondents 2, 4, 5 and 6 were appointed later in the same grade, and so the petitioner, on the basis of total length of service, is entitled to claim seniority over the said respondents in accordance with Clause 2(2) of the afore quoted order. He further contended that since the respondents No. 2 to 6 were promoted to the post of Senior Assistants, the petitioner's seniority over the respondents No. 2 to 6 remains intact by virtue of the explanation 1 of Clause 6 of the Order. In our opinion, this arguments suffers from two fallacies. In the first place, there is a confusion under lying this argument between promotion and direct recruitment. The second fallacy underlying the learned counsel's argument is that he fails to take into account the basic distinction between a permanent and temporary employee. As mentioned earlier, in the month of March, 1977 the respondents No. 2 to 6 were appointed to the posts of Senior Assistant by direct recruitment in accordance with Clause 7 of the order, whereas the petitioner was promoted to the post of Senior Assistant on 17th April, 1978 in accordance with clause 6 of the order. Explanation 1 to Clause 6 provides that for promotion to the post/grade of Legislative Officer Protocol Officer, Executive Officer and Committee Officer, the service rendered by an officer in the post/grade of Senior Assistant and Assistant before the reorganisation of the Secretariat on 1st December, 1974 may be taken into account and in making such promotion the seniority of the officer in the grade of Assistant before such reorganisation shall be taken into consideration in accordance with the relevant order in force before such reorganisation. This explanation does not regulate the inter se seniority between a promotee and a direct recruit. It has to be borne in mind that the petitioner and respondents No. 2 to 6 were appointed to the post of Senior Assistants by two different modes prescribed by Clauses 6 and 7 of the Order. Consequently, the explanation 1 to Clause 6 of the order does not help the petitioner to claim seniority over the respondents No. 2 to 6, who were appointed by direct recruitment.

15. Similarly, Clause 2(2) of the order dated 15th January, 1958 also does not help the petitioner to claim seniority over respondents No. 2 to 6. Clause 2 of the said order deals with the seniority of permanent officers of the Secretariat. SubClause (2) of the said Clause provides that if the length of service of two or more officers for the purpose of determination of their seniority in a grade be the same, their seniority inter se shall be fixed on the basis of the total length of their service in the Secretariat. As demonstrated earlier, the respondents No. 2 to 6 were directly recruited for the posts of Senior Assistants in the month of March, 1977 and the petitioner was promoted to the said post on 17th April, 1978. That being so, the length of service of the respondents 2 to 6 and the petitioner in the grade of Senior Assistant was not the same. Consequently, the petitioner cannot claim seniority over the respondents No. 2 to 6.

16. For the reasons, the petition must fail and is dismissed but keeping in view the entire circumstances, we direct the parties to bear their own costs.