Neutral Citation Number 2022/DHC/005268
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: November 09, 2022
Pronounced on: December 02, 2022
+ W.P.(C) 3567/2014
AJAY KUMAR AWASTHI & ORS. ..... Petitioners
Through: Mr. Shankar Raju, Mr. O. P.
Aggrawal, Mr. Nilansh Gaur and
Mr. Sansar Kumar, Advocates
Versus
UNION OF INDIA & ORS. .... Respondents
Through: Mr.Vikram Jetly, CGSC with Ms.
Shreya Jetly, Advocate with SI
Harendra Singh
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MR. JUSTICE SAURABH BANERJEE
JUDGMENT
SAURABH BANERJEE, J.
1. As per petitioners, the „Sashastra Seema Bal‟ 1, earlier known as „Special Service Bureau,‟ was raised under the Cabinet Secretariat for guarding the bordering states of India right after the Indo-China War of 1962. As per the then procedure, the seniority of the lower ranking personnel was being fixed at the Battalion level to accord promotions.
2. Pursuant to the recommendation of the 5th Central Pay Commission2, accepted by the Government of India, the Ministry of Home Affairs3 vide order No. 27012/1/97-PC Cell/PF.1 dated 10.10.1997, abolished the
1 Hereinafter referred to as "SSB"
2
Hereinafter referred to as "CPC"
3
Hereinafter referred to as "MHA"
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rank(s) of Lance Naik and Naik and merged them with the rank(s) of Constable and Head Constable respectively in all the Central Police Organizations, including the SSB. As such, the Central Industrial Security Force4 carried out the necessary modifications in its Recruitment Rules to exclude the rank of Lance Naik and Naik.
3. Thereafter, vide order No.1/2/2011-EA.I-133 dated 15.01.2001, the Cabinet Secretariat, Government of India permanently transferred SSB (then „Special Service Bureau‟) to MHA and assigned it the new role as the border guarding force on the Indo-Nepal border and the Indo-Bhutan border. Petitioners submit that though the seniority list was to be drawn up on centralized basis under MHA but no such inter-se seniority list was drawn up, hence, all actions regarding promotion continued arbitrarily.
4. Thereafter, the Director General, SSB vide Memorandum No.1/7/2002/SSB/E-II/1599-1650 dated 30.05.2002, issued certain guidelines regarding procedure to be followed with regard to fixation of inter-se seniority and regulation of promotion of Non-Gazetted personnel, in the rank of Constable, Lance Naik, Naik, Head Constable and Inspector of SSB. The relevant extract whereof are reproduced as under:-
"CONSTABLES
2. Seniority of Constables will be maintained at unit level in accordance with Rule 8 of CRPF Act and Rules 1955. The following criteria for fixation of seniority will be adopted :-
a) Seniority will be determined from the date of appointment.
b) If the date of appointment of two or more persons happens to be the same, senior in age will be placed over others.
3. In order to regulate promotion of Constables for higher ranks the promotion will be affected by Force Hqrs.
4
Hereinafter referred to as "CISF"
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4. The cut off date will be decided by the Force Hqrs, which will be circulated to the FHQs and personnel eligible on the cut off date, would be eligible for promotion subject to acquiring all the eligible/conditions for promotion.
5. Since, the promotion will only be ordered by Force Hqrs, the inter Bn transfers will have no effect on seniority and therefore personnel on their posting to the units will maintain their seniority and will be placed at appropriate serial number on joining the new units.
L/NK/Naik/ Head Constable
6. The following will be applicable:-
a) The seniority of L/NK, Naik and HCs will be maintained at Force Hqrs.
b) The Inter-se-seniority of these ranks should be prepared on the basis of holding the rank continuously in the respective Battalions.
c) In case two or more persons are promoted on the same date the seniority of the feeder cadre will be taken into consideration.
Seniority between personnel promoted to higher rank and a person recruited direct to the same rank may be taken from the date of appointment to that rank subject to the condition that, if both were appointed on the same date, the promotee shall be senior.
The promotions will be regulated by Force Hqr. The cut off date shall be intimated to the I.Gs of FHQ for affecting promotion subject to the conditions that the persons being considered for promotion have acquired the eligibility conditions
In order to regulate promotion, a cut off as mentioned in Para(s) above also be followed. Promotions thus will be controlled at the Force Hqr. Level.
On transfer of above mentioned ranks from one Bn to another Battalion, they carry their seniority and they should be placed at appropriate place in the seniority list."
5. Learned counsel for the petitioners submitted that in case of Constables, the rules applicable to the Central Reserve Police Force5 were to be applicable to SSB. Accordingly, the length of service from the date
5 Hereinafter referred to as "CRPF"
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of appointment/confirmation would be the basis of seniority in the case of Constables and for all other ranks, the same would be maintained by HQs of SSB. In any event, after abolishing the rank of Lance Naik and Naik in all para-military forces and transfer of SSB under the administrative control of MHA, to maintain uniformity, SSB was also to abolish the rank of Lance Naik and Naik and merge them with the rank(s) of Constable and Head Constable respectively. Learned counsel for the petitioners further contended that the lack of requisite changes in SSB resulted in delay and supersession of seniority of petitioners as they suffered stagnation and continued on the posts of Lance Naik and Naik as late as till 2004.
6. It was further submitted that since the SSB Act came into effect only from 01.08.2009 after its enactment in 2007, there was no statute to govern officers like the petitioners herein from 2001 to 2007. Placing reliance upon Rule 8 (f) of the CRPF Rules, 1995, learned counsel for the petitioners contended that all those recruited as Constables were to take the seniority from the date of their appointment/confirmation, however, the respondents neither incorporated nor followed the same. Further, as the criteria for granting promotion is seniority-cum-fitness, there was no reason for not promoting petitioners and instead, wrongly, promoting their juniors. During that period, the SSB chose certain juniors of petitioners and extended undue promotions to them ahead of the rightly deserving petitioners. Resultantly, juniors of petitioners, though appointed after a substantial period of time from that of the petitioners, have been granted as many as three successive promotions rendering the petitioners to be their juniors.
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7. Further, relying upon Vinod Goel v. High Court of Delhi6, learned counsel for the petitioners submitted that the petitioners claim seniority on the basis of continuous length of service as Constable and Head Constable by contending that whatever promotions and benefits are extended to juniors, have to be ipso facto extended to their seniors like the petitioners herein as well. It was contended that it was on 16.05.2011, when the SSB irregularly promoted as many as 163 Head Constables barring the petitioners to the rank of Sub-Inspector, the petitioners directly sent an undated representation to SSB against the said list challenging the inter se seniority of HC/GD for the year 2010-11. Thereafter, the Recruitment Rules, 2011 for the rank of Assistant Sub- Inspector (GD) in SSB were enacted. In fact, various changes were made with the introduction of the post of ASI/GD from September 2011, wherein, instead of finalizing the seniority of the personnel, a new order was proposed by which HC/GD was to be first promoted to the rank of ASI/GD and then to the rank of SI/GD.
8. Due to the above existing anomaly, petitioners in their representations and legal notice dated 25.11.2013, pointed out to the respondents the immediate need to finalize inter-se seniority in respect of Constable (GD); to finalize the seniority of other Non-Gazetted ranks on the basis of the finalized seniority list of constables created on centralized basis based on date of appointment/confirmation; to treat all the then prevailing seniority lists as provisional/ad-hoc and review all the promotions made by various DPCs after issuance of final inter-se seniority list; in such review, if the junior is found senior then to assign the said senior the date of notional seniority from the date when the junior has assumed the higher post on promotion; circulate the final provisional
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seniority list every year for all ranks. However, as the petitioners did not receive any satisfactory response from the respondents to their legal notice, they were constrained to file the present writ petition seeking the following reliefs:-
"a) Issue a Writ of Mandamus in the nature of an order and direction to the Respondent to prepare on centralized basis, the seniority list of all Non-Gazetted ranks of SSB, including is particular. Constables from their respective dates of appointment/confirmation as the case may be;
b) To issue a writ in the nature of mandamus, directing that all promotions made earlier i.e. prior to the finalization and assigning of the seniority position in the proper order, would be treated as provisional till their all seniors get the same level of promotions and consequential fixation of the seniority of the seniors in the promoted posts;
c) To issue a writ of mandamus in the nature of direction to the respondent, in the alternative, for holding DPCs/Review DPCs as the case may be for removing the anomaly by promoting the seniors, from the same date on which their juniors were promoted, and subsequently giving notional seniority to the affected persons;
d) To issue the directions to the respondent to hereinafter not make any further regular promotion, unless and until the final proper inter-se- seniority has been drawn up;
e) Requiring SSB HQrs to call for the records of nominal roll of all battalions of SSB, for scrutinizing the said records, so as to assess the actual position to be assigned as the correct seniority to each person from date of appointment/confirmation and to set up a High Power Committee to submit report on time-bound basis, copy whereof be also circulated for objections and after finalization, be placed on record of this Hon'ble Court;
e-1) the respondent is requiring to award/release/fixed the pay consequently on their actual date of entitlement of promotion and also the arrears being accrued thereto may also be paid to the petitioners since they are not at fault and should not be made looser for administrative negligence and lapses;
f) Award the costs of the petition to the petitioners;"
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9. In support of above contentions, learned counsel for petitioners, placing reliance upon B.S. Mathur v. Union of India7, L. Chandrakishore Singh v. State of Manipur8, N.D. Mitra (Dr) v. Union of India9, Nirmal Kumar Choudhary v. State of Bihar10 and Sudhir Kumar Atrey v. Union of India11, contended that the essential requirement while considering matters of seniority of personnel like the petitioners is the continuous length of service put in by them from the date of their respective appointment/confirmation. Placing reliance upon State of Haryana v. Rameshwar Dass12, Ajay Kumar Shukla v. Arvind Rai13, Union of India v. Manpreet Singh Poonam 14, and B.S. Jaswal v. Union of India15, learned counsel for the petitioners submitted that another relevant factor while considering matters of seniority is the date of appointment of employees/personnel and an incumbent has to be appointed as per Rules and delay in approaching the Court in such matters is not fatal.
10. Per contra, the respondents in their counter affidavit, though admitted that the SSB came under the administrative control of MHA and was transferred from Cabinet Secretariat on 15.01.2001, but stated that before such transfer, the seniority of Constables/GD for promotion to the rank of Lance Naik/GD, Naik/GD and Head Constable/GD were maintained at Unit/Group Centre level (now Battalion), Seniority of SI(GD) was maintained at Divisional Level (now Frontier HQ) and Seniority of Inspector/GD were maintained at Force HQ. The
7 (2008) 10 SCC 271 8 (1999) 8 SCC 287 9 (1994) 4 SCC 474 10 1988 Supp SCC 107 11 (2022) 1 SCC 352 12 (2009) 7 SCC 400 13 2021 SCC OnLine SC 1195 14 (2022) 6 SCC 105 15 2015 SCC OnLine Del 13724 Signature Not Verified W.P.(C) 3567/2014 Page 7 of 27 Digitally Signed By:BABLOO SHAH Signing Date:02.12.2022 17:38:58 Neutral Citation Number 2022/DHC/005268
respondents claim that the seniority/promotion of Constable/GD of SSB was decentralised up to 31.03.2004 i.e., separate seniority lists were being maintained by each Unit, which became centralised with effect from 01.04.2003 in pursuance of letter No. 2/11/2002/SSB-EI/-755 dated 17.02.2003, which directed the creation of a centralised seniority list to come into effect from 01.04.2003. It was submitted by learned counsel for the respondents that upon transfer of SSB to MHA, the seniority of all ranks/cadres was maintained on a Central basis, on the basis of record provided by their respective Battalion/Unit, in terms of the Memorandum dated 30.05.2002. It was submitted that after finalization of seniority in terms of the said Memorandum with effect from 01.04.2003, the same was circulated amongst all field formations, but no representation against such finalization of seniority was received from the petitioners, and as such, the petitioners have now approached this Court after a lapse of more than twelve years. It is, thus, the contention of the learned counsel for the respondents that the present writ petition is barred by gross delay and latches, as the inter-se seniority of the personnel in SSB has been centralized since 2003, during which period the petitioners were aware of the seniority lists being circulated yearly, and yet they did not raise any grievance thereto. In support of the above submissions, learned counsel for the respondents has placed reliance upon H.S. Vankani v. State of Gujarat16 and Karnataka Power Corpn. Ltd. v. K. Thangappan17.
11. It was further submitted by learned counsel for the respondents that as per applicable policy of Cabinet Secretariat, local people were enrolled in the Units and deployed in Group Centre / Circles Office within the
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jurisdiction of their native place. As such, the strength of each Unit was sanctioned to cater the operational areas earmarked for each Unit on its need basis and further posting of the personnel of decentralised cadre was ordered in public interest to other Units only after obtaining an undertaking from the concerned personnel foregoing his seniority/promotion, TA/DA, joining time, lien with previous unit etc. While SSB was under the control of Cabinet Secretariat, it remained deployed within the earmarked areas and as per the then applicable government policies, Seniority/Promotion of CT(GD) to HC(GD) was maintained at Unit level before being centralised w.e.f. 01.04.2003. It was submitted that owing to the new set-up wherein new Units were created, some personnel, who were junior to the petitioners, and who had joined their service in these new Units, were benefitted in promotion in these other Units as the vacancies in these new Units were more and as their seniority in the new Units was re-casted afresh.
12. Learned counsel for the respondents submitted that though various personnel, including the petitioners herein, who were deployed locally, were offered to join the new Units, however, they refused to do so and instead chose to remain in the Units in their native areas, resulting in them losing the benefit of promotion as availed by the personnel in these new Units. Learned counsel for the respondents contended that when Constables of these new Units were promoted to the rank of Lance Naik, Naik, Head Constable (GD), no personnel of other Group Centres, including the petitioners, had raised this issue of centralised/ inter-se seniority and promotion, even though they were well conversant with the policy/instructions in vogue at that time. Resultantly, as per learned counsel for respondents, the claim for seniority by the petitioners cannot
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be accepted at this belated stage as they voluntarily chose to remain in their native areas instead of relocating themselves.
13. Learned counsel for the respondents further submitted that, admittedly, when the rank of Lance Naik and Naik were abolished and merged with the rank of Constable and Head Constable respectively vide order dt. 10.10.1997, the SSB was under the control of the Cabinet Secretariat. As such, the same could not be given effect to as it was necessary to retain the said ranks in view of the nature and duties of SSB. Further, pursuant to the 6th CPC, the Recruitment Rules were revised and modified in 2009 and the ranks of Lance Naik and Naik were finally abolished at par with the other para-military forces under MHA. Thus, no arbitrary promotions and favours were granted. Instead, all promotions were carried out within the ambit of the rules and regulations governing SSB at the relevant time.
14. This Court has heard the arguments addressed by learned counsel for the parties at length and has also carefully perused all the relevant documents on record as well as taken into consideration all the cited judgements.
15. A perusal of the record shows that though SSB (then „Special Service Bureau‟) was raised under the Cabinet Secretariat, it was thence transferred to the MHA but as the transition was still in progress, two separate seniority lists of all ranks/cadres were being maintained by the SSB at two different levels, one as per the earlier Unit/Group Centre level(now Battalion) and another at the Central level, albeit for the same post, for the time being as a stop gap arrangement, to bring about a smooth transition so that neither the SSB nor any of the personnel including the petitioners herein suffer. So much so, prior to coming out with the centralised common seniority list for all the personnel including
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the petitioners, the SSB even offered them to select and choose the best option/promotional avenue according to them, however, the petitioners never opted for the same and in fact they neither denied nor questioned the said acts of SSB.
16. The case of the petitioners before us is based upon simpliciter calculation of seniority from the date of their respective appointments on the lowest rank, that of Constable. According to us, the MHA and the SSB were well within their rights to take appropriate steps to exercise their power and discretion to proceed for a smooth and effortless transition in the best possible manner, also being in the best interest of all concerned. We say so, as there were no governing rules at that point of time for filling such gaps and lacuna. Interestingly, another governing factor for us to applaud the acts of the respondents is that it never amended or called for any change in the new recruitment rules at that time. This Court cannot lose sight of the ground reality that the present writ petition is concerned with two different set of rules being followed at the same time, albeit, for the same post. We find that there is nothing wrong in the acts of the respondents as it was in the interest of all concerned, the MHA, the SSB and the personnel, including the petitioners herein. Moreover, we find that the same has been followed as a past practice and such acts have not only been recognized but also upheld by the Hon‟ble Supreme Court of India.
17. Reliance is placed upon Guman Singh v. State of Rajasthan18, wherein it has been held as under:-
"39. Then the question is whether Government is competent to issue the said Circular and whether the Circular in any manner affects the discretion and powers of the Committee functioning
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under the statutory rules. The position is clear, as laid down by this Court in Sant Ram Sharma v. State of Rajasthan:
"It is true that the Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."
40. Having due regard to the principles stated above, we will now examine the scope and contents of the Circular. The Circular contains administrative instructions and it does not profess to lay down anything else. The Government have issued those instructions "for the guidance of all selection/promotion committee and appointing authorities mentioned in the Statutory Service Rules. These administrative instructions and the Statutory Service Rules should together be taken as a complete code on the subject"."
18. Similarly, reliance is also placed upon State of Haryana v. Shamsher Jang Bahadur19, wherein it has been held as under:-
"7. It may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the Secretariat. The first question arising for decision is whether the Government was competent to add by means of administrative instructions to the qualifications prescribed under the Rules framed under Article
309. The High Court and the courts below have come to the conclusion that the Government was incompetent to do so. This Court has ruled in Sant Ram Shama v. State of Rajasthan [(1968) 1 SCR 111] that while the Government cannot amend or supersede the statutory rules by administrative instructions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. Hence we have to see whether the instructions with which we are concerned, so far as relate to the clerks in the Secretariat amend or they alter the conditions of service prescribed by the rules framed under Article 309.
Undoubtedly the instructions issued by the Government add to those qualifications. By adding to the qualifications already prescribed by the rules, the Government has really altered the existing conditions of service. The instructions issued by the Government undoubtedly affects the promotion of concerned officials and therefore they relate to their conditions of service. The Government is not competent to alter the rules framed under Article 309 by means of administrative instructions. We are unable
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to agree with the contention of the State that by issuing the instructions in question, the Government had merely filled up a gap in the rules. The rules can be implemented without any difficulty. We see no gap in the rules."
19. Generally, the normal rule of taking into consideration the seniority within the same cadre is based on the placement of order of merit. But in the present case, the same would not apply as the centralised common seniority list was prepared at a Pan India level at a much subsequent stage, when the petitioners had lost out on the option of choosing otherwise and be part thereof. Furthermore, though the initial date of appointment may be a valid consideration for determining the seniority intra-cadre, however, the same would also not be applicable to the facts of the present case for the reasons enumerated above. In fact, till the making of the centralised seniority list with effect from 01.04.2003, in the present case, the petitioners like the other personnel were not part of the same line formation as they were moving parallelly. We are afraid, in the facts of the present case, the petitioners cannot be granted notional seniority.
20. In our view, though the post and rank of the petitioners and other similarly placed persons in the SSB were same, however, because there was a clear distinction between the two sets of personnel operating, i.e., on Unit/Group Centre (Now Battalion) level basis and Central level basis, the case of the petitioners cannot be the same and they cannot derive their seniority post-merger into the centralised seniority list. The petitioners cannot claim benefit of something which they themselves had foregone after selecting otherwise and more so whence they were not even borne in the cadre. The entry level and the date of entry of personnel like the petitioners are both subsequent to those who had opted and were already a part of the common seniority list much prior to that. The petitioners
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cannot even seek parity with them. It is settled law that personnel like petitioners cannot be granted retrospective seniority from a time/date whence they were not borne in the cadre. Reliance is placed upon Sudhir Kumar Atrey (supra) wherein while dealing with similar facts and issues, it has been held as under:-
"8. Since the 1971 Rules were silent in determining seniority inter se of the candidates selected in their respective Command at the stage when a combined all-India seniority list is to be prepared and for determination of seniority, reliance was placed on the DoPT OM dated 3-7-1986 which broadly examined the determination of seniority between the direct recruits and promotees, seniority of transferees, seniority of special type of cases, as adverted to.
11. Admittedly, the different Commands carried out separate selections and published its select panel in the year 1983, the normal principle of adjudging seniority in their respective intra- Command can be on the basis of placement in the order of merit, but this principle may not apply when the separate selections are held by the respective Command and later a combined inter se seniority list at the headquarters is to be prepared at all-India level is not meted out in OM dated 3-7-1986.
17. We are also of the view that in the matter of adjudging seniority of the candidates selected in one and the same selection, placement in the order of merit can be adopted as a principle for determination of seniority but where the selections are held separately by different recruiting authorities, the principle of initial date of appointment/continuous officiation may be the valid principle to be considered for adjudging inter se seniority of the officers in the absence of any rule or guidelines in determining seniority to the contrary.
18. Adverting to the facts of the instant case when all the five Commands have initiated the process of selection independently at the same time pursuant to the directives of the Engineer-in-Chief, Army Headquarters dated 9-12-1982 while adjudging their combined inter se seniority list, the principle of initial date of appointment/continuous officiation may be the valid principle to be considered for determination of inter se seniority in the absence of any rule or guidelines to the contrary keeping in view the principles laid down by the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339] .
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20. The appointment of individual which was made at a later stage after five years from the select panel notified on 29-6-1983 in the Western Command cannot be countenanced by this Court but in the peculiar circumstances, we are not inclined to open the dead issue at this stage, but as a matter of caution, we would like to observe that the authorities must be held accountable for their arbitrary action and save the institution from uncalled for litigation."
21. Reliance is further placed upon Manpreet Singh Poonam (supra), wherein it has been held as under:-
"18. A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post are specifically prescribed under the rules, which also mandate the clearance through a selection process. It is also to be borne in mind that when we deal with a case of promotion, there can never be a parity between two separate sets of rules. In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules.
21. Similarly, this Court in Ganga Vishan Gujrati v. State of Rajasthan [Ganga Vishan Gujrati v. State of Rajasthan, (2019) 16 SCC 28 : (2021) 1 SCC (L&S) 403] has held that : (SCC pp. 52-53, para 45)
45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L&S) 339] . The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath [State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 : 1991 SCC (L&S) 1070] and State of Uttaranchal v. Dinesh Kumar Sharma [State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594] . In Pawan Pratap Singh v. Reevan Singh [Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] , this Court revisited the precedents on the subject and observed :
(Pawan Pratap Singh case [Lift Irrigation Corpn. Ltd. v. Pravat Kiran Mohanty, (1991) 2 SCC 295 : 1991 SCC (L&S) 472] , SCC pp. 281-82, para 45) Signature Not Verified W.P.(C) 3567/2014 Page 15 of 27 Digitally Signed By:BABLOO SHAH Signing Date:02.12.2022 17:38:58 Neutral Citation Number 2022/DHC/005268
„45. ... (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.‟
This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao [P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693 : (2014) 1 SCC (L&S) 690] ."
22. Reliance is further placed upon B.S. Jaswal (supra), wherein it has been held as under:-
"17. In this case, all officers - the petitioners and the contesting respondents, i.e. the fourth to the eleventh respondents, were directly recruited as Asst. Commandant, by the SSB. That public employer did not have its independent rules; those of the CRPF were made applicable. The inter se seniority of directly recruited Assistant Commandants in the CRPF was regulated by Rule 8(b). It undoubtedly required that the performance during the selection (direct recruitment process) i.e. the merit position in the UPSC selection and the performance during the training had to be given equal weightage. Now it is a matter of record that two seniority lists were drawn by SSB after the appointment of the petitioners and the contesting respondents: the first on 30.03.1995, and the second, on 17.04.2000. The petitioners were promoted later as Dy.
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Commandant (2004); 2IC (2007) and as Commandant (2010). At none of these points in time did the contesting respondents- (who are the petitioners' colleagues and were appointed along with them in 1993) complain that their position in the gradation list was wrongly assigned. The said respondents do not refer to any representation, to the authorities articulating any grievance that their seniority was wrongly determined, without giving effect to the rule, or that they should have been shown as senior to the petitioners. In other words, the seniority position of the two sets of officers in this proceeding was settled about 15 years ago, without any dispute on anyone's part.
20. All the above facts, in the opinion of the court clearly establish that whatever be the rule position about the determination of seniority, SSB never interpreted the norms to mean that the performance of direct recruit Asst. Commandants during the training period had to be taken into consideration and given due weightage; possibly this was because the SSB never had its own recruitment and promotion rules and had merely adopted those of the CRPF. Whatever be the position, this was never objected to by the contesting respondents, ever; nor did their representation or objection - or indeed any court litigation initiated at their behest or at the behest of any other 1993 direct recruit - result in the re- drawing of the seniority list. It is from these admitted facts that the court has to consider the petitioners' submission that the seniority position having been settled over 15-20 years ago, cannot now be disturbed-also given that the parties have been promoted to three positions above the post to which they were recruited. It is also significant that the order of the Himachal Pradesh High Court did not discuss any facts or direct that the SSB had to revise the seniority in a particular manner-it did not return any finding that the existing seniority list was in any way irregular or flawed. The context of the directions was a demand by a subsequent direct recruit to finalize the seniority list.
26. In view of the above discussion, it is held that the respondent SSB acted arbitrarily to the extent that it revised the petitioners' seniority so as to adversely affect them, vis-à-vis other direct recruits of the 1993 batch, in reflecting their positions in the impugned list of 25.11.2011. The SSB is therefore, directed to revise the said list and ensure that the pre-existing position (so far as the inter se seniority of the direct recruits of the same batch to which the petitioners belong) is maintained. At the same time, it is clarified that the court has not pronounced upon the inter se seniority of direct recruit Asst. Commandants of later batches. The SSB shall carry out the necessary corrections and issue the revised final seniority list, within eight weeks from today. The writ petition is allowed in the above terms, without order as to costs."
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23. Reliance is further placed upon Ganga Vishan Gujrati v. State of Rajasthan20, wherein it has been held as under:-
"45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade......"
24. We feel it is imperative for this Court to see the past history involving, amongst others, the then prevalent circumstances, the organization, the transition which led to the non-inclusion of the names of the petitioners in the centralised seniority list after the names of earlier personnel who were originally borne in the cadre as they were a part thereof since inception and since they chose to move ahead after giving an undertaking to that effect. As enumerated hereinabove, the facts of the present case reveal that the present case is not such where there could have been or there was a common seniority list amongst the personnel like the petitioners.
25. This Court, taking note of the conduct of the respondents at the then prevalent situation, has no hesitation in holding that there could hardly have been any fault on part of the respondents as that was one of the only, if not the best, recourse available to the respondents . As such, there was no discrimination or arbitrariness done by them at any stage as personnel like the petitioners were given due opportunities to opt out from the already existing list. Having chosen not to do so, the petitioners can neither cry foul nor raise their voice belatedly at this stage when it is extremely difficult to unwind the clock.
26. In any event, looking into the present case from the point of view of delay and latches, according to us, there has been a substantial delay on
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the part of the petitioners resulting in the centralised seniority list being in existence over a substantial period of time, which it is now too late to be disturbed. Disturbing the list at this belated stage will have serious repercussions and will definitely create an imbalance in the SSB and those similarly situated personnel like the petitioners herein. Such a practise has been deprecated and abhorred by the Courts in a long line of precedents, save and except in the rarest of the rare cases where there are some exceptional and egregious circumstances giving rise to any such untimely or belated interference. Though the centralised list had been made long back with effect from 01.04.2003, the petitioners raised their grievances only after the seniority lists of the HC/GD were released by the respondents in 2011 and 2012, with no explanation as to why they did not take any steps during this period. In such a case, the petitioners cannot take, much less, be allowed to derive undue benefit of their own carelessness and wrongdoings after having closed the door of chance/change offered to them at the very inception.
27. This Court is well aware of the general urgency involved in service matters, like the present one, involving promotion and seniority list, and it is for this reason that it is very essential for the one suffering or who believes that he is suffering to approach the Court at the very initial stages, or within a reasonable time period, without any delay. The same is relevant as such an overhaul will have an adverse impact upon the overall seniority of the batch, rank, cadre. In the hindsight, it is highly difficult for a Court to pass order(s) having retrospective effect, leading to an overhaul and serious adverse implications of disturbing the overall seniority list, more so, as it is the unwritten principle of law that „delay defeats justice‟. It has been held in a catena of judgments that such parties ought to approach the Courts within a reasonable time. In the present
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case, the petitioners were negligent to first deny the proposal offered to them, then letting the seniority list being drawn, only to file a representation as belatedly as in 2011, which itself is doubtful as there is no supporting proof thereof, followed by a legal notice dated 25.11.2013, which again itself was highly belated.
28. Reliance is placed upon Union of India v. Chaman Rana21 wherein it has been held as under:-
"9. As far back as in P.S. Sadasivaswamy v. State of T.N. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22] , considering a claim for promotion belated by 14 years, this Court had observed that a period of six months or at the utmost a year would be reasonable time to approach a court against denial of promotion and that it would be a sound and wise exercise of discretion not to entertain such claims by persons who tried to unsettle the settled matters, which only clog the work of the court impeding it in considering genuine grievances within time in the following words: (SCC p. 154, para 2)
"2. ... 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. It is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the court. It clogs the work of the court and impedes the work of the court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal."
10. Mere repeated filing of representations could not be sufficient explanation for delay in approaching the Court for grant of relief, was considered in Gandhinagar Motor Transport
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Society v. Kasbekar [Gandhinagar Motor Transport Society v. Kasbekar, 1953 SCC OnLine Bom 64 : AIR 1954 Bom 202] , by Chagla, C.J. observing as follows: (SCC OnLine Bom : AIR p. 203, para 2)
"2. ... Now, we have had occasion to point out that the only delay which this Court will excuse in presenting a petition is the delay which is caused by the petitioner pursuing a legal remedy which is given to him. In this particular case the petitioner did not pursue a legal remedy. The remedy he pursued was extra-legal or extra-judicial. Once the final decision of the Government is given, a representation is merely an appeal for mercy or indulgence, but it is not pursuing a remedy which the law gave to the petitioner. ..."
11. The appellant, in its counter-affidavit before the High Court, had specifically taken the objection that the claim was highly belated, and that any direction for a retrospective consideration would have a destabilising effect in unsettling the settled position which would lead to complete chaos apart from other administrative consequences. The High Court failed to consider the objection. In Union of India v. M.K. Sarkar [Union of India v. M.K. Sarkar, (2010) 2 SCC 59 : (2010) 1 SCC (L&S) 1126] , this Court observed as follows: (SCC p. 66, para 16)
"16. A court or tribunal, before directing "consideration" of a claim or representation should examine whether the claim or representation is with reference to a "live" issue or whether it is with reference to a "dead" or "stale" issue. If it is with reference to a "dead" or "stale" issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. ...""
29. Moreover, the petitioners in the present case have not actually denied that they were offered the option to accept/choose to be a part of the Central list from the already existing Unit List, having better promotional aspects prior to the finalization of the centralised seniority list by the SSB and further they have been unable to give any explanation or plausible reason for their not accepting/choosing the offer extended onto them prior thereto. Thus, the alleged challenge to the common seniority list, being without any such explanation or plausible reason, is belated and hit by gross delay and latches, for which this Court cannot come to the rescue of the petitioners. In view of the fact that the same Signature Not Verified W.P.(C) 3567/2014 Page 21 of 27 Digitally Signed By:BABLOO SHAH Signing Date:02.12.2022 17:38:58 Neutral Citation Number 2022/DHC/005268
cannot come to any assistance of the petitioners in the wake of the aforesaid finding that there was no common seniority list for the petitioners and other personnel; and as the petitioners themselves opted not to exercise the option of giving the requisite undertaking and relocating for better promotional opportunities prior to the preparation of the centralised seniority list; and as the present writ petition is hit by delay and latches, the order dated 04.07.2014 passed by this Court whereby it was directed that any promotions made to the non-Gazetted posts upto the rank of Inspector(GD) during the pendency of the present petition shall be subject to the outcome of the petition., will not come to any aid of the petitioners.
30. Reliance is placed upon Shiba Shankar Mohapatra v. State of Orissa22, wherein it has been held as under:-
"17. One must not lose sight that seniority and eligibility for promotion are two different concepts altogether. Explaining the difference between the two, this Court in R. Prabha Devi v. Govt. of India [(1988) 2 SCC 233 : 1988 SCC (L&S) 475 : (1988) 7 ATC 63] held as under: (SCC pp. 241-42, para 15)
"15. The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. ... When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can override it in the matter of promotion to the next higher post. ...
22
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When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment. There is no law which lays down that a senior in service would automatically be eligible for promotion. Seniority by itself does not outweigh experience."
Thus, in view of the above we are of the opinion that in absence of any statutory rules, the executive instructions for fixing the inter se seniority of two wings of the Sub-Inspectors could have been issued by the State Government. Admittedly, no such executive instruction has ever been issued. The letters issued by the government departments, being merely opinion of the departments could not be conferred status of the executive instructions.
18. The question of entertaining the petition disputing the long- standing seniority filed at a belated stage is no more res integra. A Constitution Bench of this Court, in Ramchandra Shankar Deodhar v. State of Maharashtra [(1974) 1 SCC 317 : 1974 SCC (L&S) 137] considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. A party should approach the court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110] , wherein it has been observed that the principle on which the court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under: (Tilokchand case [(1969) 1 SCC 110] , SCC p. 115, para 7)
"7. ... 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."
XXXXXXXX
23. In B.S. Bajwa v. State of Punjab [(1998) 2 SCC 523 : 1998 SCC (L&S) 611] this Court while deciding the similar issue reiterated the same view, observing as under: (SCC p. 526, para 7)
"7. ... It is well settled that in service matters the question of seniority should not be reopened in such situations after the lapse of a reasonable period because that results in disturbing
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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."
24. In Dayaram A. Gursahani v. State of Maharashtra [(1984) 3 SCC 36 : 1984 SCC (L&S) 341] , while reiterating the similar view this Court held that in absence of satisfactory explanation for inordinate delay of 8-9 years in questioning under Article 226 of the Constitution, the validity of the seniority and promotion assigned to other employee could not be entertained.
25. In P.S. Sadasivaswamy v. State of T.N. [(1975) 1 SCC 152 : 1975 SCC (L&S) 22] this Court considered the case where the petition was filed after a lapse of fourteen years challenging the promotion. However, this Court held that the aggrieved person must approach the Court expeditiously for relief and it is not permissible to put forward stale claim. The Court observed as under: (SCC p. 154, para 2)
"2. ... A person aggrieved by an order 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 further observed that it was not that there was any period of limitation for the courts to exercise their powers under Article 226 nor was it that there could never be a case where the courts cannot interfere in a matter after certain length of time. It would be a sound and wise exercise of jurisdiction for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward stale claim and try to unsettle settled matters.
28. In K.A. Abdul Majeed v. State of Kerala [(2001) 6 SCC 292 : 2000 SCC (L&S) 955] this Court held that seniority assigned to any employee could not be challenged after a lapse of seven years on the ground that his initial appointment had been irregular, though even on merit it was found that seniority of the petitioner therein had correctly been fixed.
29. It is settled law that 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. (Vide Aflatoon v. Lt. Governor of Delhi [(1975) 4 SCC 285 : AIR
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1974 SC 2077] ; State of Mysore v. V.K. Kangan [(1976) 2 SCC 895 : AIR 1975 SC 2190] ; Municipal Council, Ahmednagar v. Shah Hyder Beig [(2000) 2 SCC 48] ; Inder Jit Gupta v. Union of India [(2001) 6 SCC 637 : 2001 SCC (L&S) 1083] ; Shiv Dass v. Union of India [(2007) 9 SCC 274 : (2007) 2 SCC (L&S) 395] ; A.P. SRTC v. N. Satyanarayana [(2008) 1 SCC 210 : (2008) 1 SCC (L&S) 161] and City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala [(2009) 1 SCC 168] ).
30. 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, 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."
31. Reliance is also placed upon H.S. Vankani(supra) wherein it has been held as under:-
"39. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmental action. Legal principles have been reiterated by this Court in Union of India v. S.K. Goel [(2007) 14 SCC 641 : (2009) 1 SCC (L&S) 873] , T.R. Kapoor v. State of Haryana [(1989) 4 SCC 71 : 1989 SCC (L&S) 636 : (1989) 11 ATC 844] and Bimlesh Tanwar v. State of Haryana [(2003) 5 SCC 604 : 2003 SCC (L&S) 737] ......"
32. Reliance is also placed upon Karnataka Power Corpn. Ltd.(supra), wherein it has been held as under:-
"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970
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SC 769] . Of course, the discretion has to be exercised judicially and reasonably.
9. It was stated in State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251] that the High Court in 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 and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. 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."
33. In view of the aforesaid cited judgements, the judgements relied upon by the counsel for the petitioners are of no avail. On the contrary, it is clearly borne out that the petitioners by first voluntarily opting not to be a part of the then newly constituted Central list and then by showing laxity on their part, silently stood on the sidelines without raising their voices at the appropriate stage/time, they are thereby guilty of derailing themselves by not latching onto the then available chance. For the above reasons, representations made by the petitioners herein can hardly be of any assistance to them as the seniority list could not have been disturbed in any event.
34. Seeing the factual matrix, especially the background involved, at this stage, it would be highly inappropriate for this Court to unsettle the existing position as it would then lead to numerous complexities and give rise to a new chapter altogether, which will be highly complex and tardy
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in the present scenario. For these reasons detailed hereinabove, the petitioners herein are not entitled to the reliefs sought for.
35. Accordingly, in view of the aforesaid factual position and settled law, the present petition is dismissed alongwith the pending applications, if any, leaving the parties to bear their own costs.
(SAURABH BANERJEE) JUDGE
(SURESH KUMAR KAIT) JUDGE DECEMBER 02, 2022 rr
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