Sh.Sanjeev Kumar Sharma vs Union Of India & Ors.
2012 Latest Caselaw 863 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            WP(C) No.608/2012

%                       Date of Decision: 08.02.2012

Sh.Sanjeev Kumar Sharma                                    .... Petitioner

                     Through Mr.R.K.Shukla, Advocate


                                Versus

Union of India & Ors.                                  .... Respondents

                     Through Mr.Saquib, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

*

1. The petitioner has sought setting aside of the order dated 24th

October, 2011 holding that the petitioner was found unfit in the

detailed medical examination held in June, 1998 during recruitment to

H.C/C.M examination in 1998 and was found fit only in the subsequent

medical examination in September, 1998 and, therefore, he was issued

appointment letter in the year 1999 instead of 1998 that is by order

dated 3rd February, 1999 and no person junior to the petitioner has

been promoted to the post of SI (CM) and thus rejecting his

representation that he is entitled for seniority from 1998, though an

earlier representation in this respect had been rejected in September,

2008. The petitioner has sought that his seniority be ante dated and his

appointment be treated along with others who were appointed in 1998.

2. This is not denied by the petitioner that the petitioner was

appointed pursuant to order dated 10th March, 1999 to the post of Head

Constable (CM) with effect from 9th March, 1999 in the pay scale of

Rs.3200-85-4900/-.

3. The petitioner has contended that he had appeared in the written

examination in 1998 and pursuant to the written examination held in

1998, a number of other persons were issued appointment letters in

1998 and, therefore, he should also be deemed to have been appointed

along with them.

4. The petitioner has relied on the O.M No.20011/5/90-Estt. (D)

dated 4th November, 1992 of the Department of Personnel and Training

whereby seniority had been delinked from confirmation as per the

directives of the judgments of the Supreme Court and holding that

seniority of a person regularly appointed to a post according to rule

would be determined by the order of merit indicated at the time of initial

appointment and not according to the date of confirmation.

5. The petitioner had been making representation and pursuant to

his representation and the internal office comment dated 4th August,

2008, it was decided on 1st September, 2008 that since the petitioner

was recruited in the year 1999, therefore, the petitioner is not entitled

for the seniority from 1998. While declining the request of the petitioner

to give him seniority from 1998, it was also held that explanation be

called from the petitioner as to why he did not raise this issue at the

relevant time as the seniority is being issued in each year. The relevant

order dated 1st September, 2008 is as under:-

2. With reference to above, it has to inform that force No.3 is recruited in the year 1999 and after 99 the seniority is being issued in each year. Indeed, the seniority of incumbent was not correct, the information should have been given earlier meaning thereby at the exact time, but nine years gap, the incumbent is making request to correct the seniority, highlighted deficiency, which is not correct, because the incumbent has claimed seniority of 1998 which is not correct, because incumbents joined in the year 1999, after completion of 1998, so far as he had stated that he did not commit any mistake to that subject, it has to inform that incumbent was declared medically unfit in the year 1998 and time took place to the medical as well as other proceeding and the proposal for appointment was issued in the year 99. Hence his seniority may not be fixed in the year 1998 at any cost. Explanation be called form incumbents why did not point out this at the relevant time, while seniority is being issued in each year. Besides this the incumbent had not presented any supporting documents to substantiate the facts mentioned in the applicant. While issuing the seniority list it is written that in case any deficiency in the seniority list, to rectify thereto where it is needed same be sent with supporting documents. You are therefore, requested that kindly proceed in terms of above guidelines and the matter be presented along with relevant documents so as to necessary action may be taken.

6. The learned counsel for the respondents who has appeared on

advance notice has contended that petitioner was not appointed in

1998 which is apparent from his letter of recruitment. The case of the

petitioner is not that he was appointed in 1998 and was confirmed in

1999 and therefore, he should be given seniority from 1998.

Consequently, the petitioner cannot rely on the OM dated 4th November,

1992. According to the learned counsel, the said O.M contemplates that

seniority of a person regularly appointed to a post according to rule

would be determined by the order of merit indicated at the time of initial

appointment and not according to the date of confirmation. The learned

counsel for the respondents have also pointed out that the claim of the

petitioner is belated as no cogent reason has been given as to why the

petitioner did not seek change in his seniority from 1998 when he was

appointed in 1999 by the order dated 10th March, 1999 with effect from

9th March, 1999, during 1999 or just thereafter. It is also contended

that the representation of the petitioner had been rejected by order

dated 1st September, 2008 and there was no reason for the petitioner to

keep on making representations thereafter. He contended that the

Court should not permit a belated resort to the extraordinary remedy as

it will cause confusion and it may inflict hardship and injustice to third

parties.

7. This Court has heard the learned counsel for the parties. The

learned counsel for the petitioner is unable to give any cogent reason as

to why the petitioner did not challenge his seniority in 1999 itself when

he was appointed by order dated 10th March, 1999 appointing him from

9th March, 1999. Even no averment is made by the petitioner explaining

the reason for approaching the Court after so much delay and no cogent

reason has been given which will entitle him to antedate his seniority

from 1998 in place of 1999. Merely because the petitioner had been

making representations will not entitle him to seek his remedy almost

after 8 years. While rejecting the claim of the petitioner for seniority

from 1998 by order dated 1st September, 2008 it had been specifically

stated that the petitioner has failed to point out as to why he did not

raise this issue at the relevant time especially as the seniority is issued

in each year.

8. The petitioner has not even disclosed as to when he came to know

about his seniority, rather reliance has been placed on the seniority list

dated 15th January, 2008. There is no denial of the fact by the

petitioner that the seniority list is issued in each year as had been held

in the order dated 1st September, 2008. Since the claim of the petitioner

had already been rejected in 2008, the petitioner ought to have

challenged the said order instead of making another representation

pursuant to which on the basis of the internal office note dated 3rd

August, 2011, the order dated 24th October, 2011 has been passed

which has been challenged by the petitioner in the present writ petition.

Perusal of the writ petition also reveals that the petitioner has not even

challenged the order dated 1st September, 2008 declining to grant

seniority to the petitioner from 1998 on the alleged ground that he had

qualified the written examination in 1998. The learned counsel for the

petitioner is also unable to point out any regulation or rules which

would entitle the petitioner to have his appointment from 1998 despite

the letter of appointment issued to him on 10th March, 1999 appointing

him from 9th March, 1999. This is not disputed by the petitioner that

after qualifying the written examination in 1998 he had been medically

examined and he was found medically unfit and, therefore, he could be

appointed only after qualifying the medical examination subsequently.

The petitioner cannot claim that he is deemed to have been appointed

in 1998. In any case, the petitioner has not satisfactorily explained the

delay in approaching the Court.

9. It has been held in a number of cases by the Supreme Court as

also this Court that stale claims should not be entertained by the

Courts and failure to make out grounds to condone the delay in seeking

remedy in law is sufficient in itself to oust the petitioner. In this

connection, reference can be made to the following precedents:

(i) Rajalakshmiah v. State of Mysore AIR 1967 SC 993

(ii) J.N. Maltiar v. State of Bihar MANU/SC/0382/1973

(iii) C.B.S.E. v. B.R. Uppal and Ors.

MANU/DE/8142/2006

(iv) Savitri Sahni v. Lt. Governor, NCT of Delhi and Ors.

MANU/DE/8673/2006

In Shiv Dass v. Union of India (2007) 9 SCC 274 the Supreme

Court had held at page 277 in paras 8 as under:

"8. ... The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised

after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.

10. For the foregoing reasons and in the facts and circumstances

there is no illegality, irregularity or perversity in the order dated 24th

October, 2011 declining the petitioner seniority from 1998 though the

petitioner was appointed by letter dated 10th March, 1999. The learned

counsel for the petitioner has also failed to point out any perversity or

any ground which will necessitate interference by this Court in exercise

of its jurisdiction under Article 226 of the Constitution of India in the

facts and circumstances of the case. The writ petition is without any

merit and it is, therefore, dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

February 08, 2012 'k'