Delhi High Court
Maheshwar Nath vs All India Institute Of Medical ... on 22 July, 2016
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Dated: 22nd July, 2016
+ W.P.(C) 6320/2016 and C.M.No.25934/2016
MAHESHWAR NATH ..... Petitioner
Through: Mr.Rajeshwar Singh, Advocate.
versus
ALL INDIA INSTITUTE OF MEDICAL SCIENCES & ANR
..... Respondents
Through: Mr.R.K.Gupta, Adv.for R-1/AIIMS.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S.MEHTA
G.S.SISTANI, J. (ORAL)
1. Challenge in the present writ petition is to the order dated 17.02.2014
of the Central Administrative Tribunal (in short the „Tribunal‟), by means of
which MA No. 3476/2012 and the OA No. 3962/2012 have been dismissed
on the ground of delay of about 17 years.
2. The facts of the matter very briefly stated are that the petitioner was
employed as a Lower Division Clerk (LDC) with the respondent no. 1 since
11.11.1985. The respondent was charge-sheeted in 1990 under Rule 19 of
the CCS (CCA) Rules, 1965 which ultimately culminated in the imposing of
a punishment of censure in 1995. In the meanwhile, the respondents had held
two Departmental Promotion Committees (DPC)in the year 1994 for
promotion to the post of Upper Division Clerk (UDC), in which, the name of
the petitioner was not considered. Finally in 1995, the petitioner was
promoted to the post of UDC after clearing a UDC Exam. The petitioner was
mainly aggrieved by the fact that 17 persons, who were promoted as a
consequence of the DPCs, were higher in the seniority list than the
petitioner; while they were juniors previously.
3. The petitioner approached this Hon‟ble Court in W.P.(C) 4512/1996,
which was disposed of with a direction to the respondents to consider the
seniority of the petitioner herein. Pursuant to the order, on 15.02.1997, the
respondents decided the representation of the petitioner and held that the
seniority list had been correctly fixed. The said seniority list was challenged
before the Tribunal in O.A. No. 3962/2012. The petitioner contended before
the Tribunal that the delay was occasioned owing to the pendency of a writ
before this Court, being W.P. (C) 5652/2000. The said writ was later
transferred to the Tribunal in 2009 and marked as T.A. No. 295/2009 and
was finally decided on 20.11.2009. The petitioner contends that he further
sought the relief by means of another O.A. being O.A. No. 1295/2011 and
consequent review of the same marked as R.A. No. 136/2011. The said O.A.
has not been annexed and the order annexed of the review application does
not disclose the actual controversy of the case. The petitioner finally filed the
MA No. 3476/2012 and the OA No. 3962/2012 in 2012.
4. The Tribunal noted that the O.A. and M.A. were filed after a delay of
about 17 years challenging the seniority list finalized in the year 1997.
Further the Tribunal has also noted that no specific grounds have been stated
with respect to the petitioners claim for seniority and that the parties likely to
be affected by the change in seniority have not been impleaded as parties. It
also noted, in respect of T.A. No. 295/2009 that the same pertains to
promotion and not seniority and consequently, fails to explain the delay on
the part of the petitioner/ applicant therein.
5. It is settled law that if an employee is aggrived by the seniority
assigned to him, he should agitate the matter expeditiously. A seniority list
which remains undisturbed for 3 - 4 years, should not be disturbed. Any
challenge to the same can only be entertained by courts in case, the delay is
satisfactorily explained. In this regard, we are fortified by the observations of
the Supreme Court in K. R. Mudgal and Ors. v. R.P. Singh and Ors., AIR
1986 SC 2086:
"A government servant who is appointed to any post ordinarily
should at least after a period of 3-4 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 shall be no sense of uncertainty amongst the
Government servants created by 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 otherwise in addition to creation of
sense of insecurity in the mind of Government servants, there
shall also be administrative complication and difficulties.... 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."
(Emphasis Supplied)
6. Further in B. S. Bajwa and Anr. v. State of Punjab and Ors., AIR
1999 SC 1510, the Supreme Court, noting a delay of 12 years in challenging
the seniority list, made the following observations:
"7. Having heard both sides we are satisfied that the writ petition
was wrongly entertained and allowed by the Single Judge and,
therefore, the judgments of the Single Judge and the Division
Bench have both to be set aside. The undisputed facts appearing
from the record are alone sufficient to dismiss the writ petition on
the ground of latches because the grievance made by B.S. Bajwa
and B.D. Gupta only in 1984 which was long after they had
entered the department in 1971-72. During this entire period of
more than a decade they were all along treated as junior to the
other aforesaid persons and the rights inter se had crystalised
which ought not to have been re-opened after the lapse of such a
long period. At every stage the others were promoted before B.S
Bajwa and B.D. Gupta and this position was known to B.S. Bajwa
and B.D. Gupta right from the beginning as found by the Division
Bench itself. 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."
(Emphasis Supplied)
7. The Supreme Court has summarized the law on delay in challenging
the seniority in Shiba Shankar Mohapatra and Ors. v. State of Orissa and
Ors., (2010) 12 SCC 471 as follows:
"29. Thus, in view of the above, 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. In K.R. Mudgal (supra), this Court has
laid down, in crystal clear words that a seniority list which
remains in existence for 3 to 4 years unchallenged, should not be
disturbed. Thus, 3-4 years is a reasonable period for 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."
(Emphasis Supplied)
8. We find no infirmity in the order passed by the Tribunal as the
seniority list was finalized as far back in the year 1997 and in the year 2016,
any order passed may affect the seniority of persons who are in service
or the persons who may have retired, especially when such persons are not
impleaded as parties/ respondents.
9. Therefore, we find no merit in the present writ petition which is
accordingly dismissed.
G.S.SISTANI
(JUDGE)
I.S.MEHTA
(JUDGE)
JULY 22, 2016
'dc'
