Punjab-Haryana High Court
Vijay Kumar vs Union Of India And Ors on 22 March, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
216
CWP-6400-2017
Date of Decision: March 22, 2022
Vijay Kumar
....Petitioner
VERSUS
Union of India & others ....Respondents
CORAM: HON'BLE MR. JUSTICE G. S. SANDHAWALIA
HON'BLE MR. JUSTICE VIKAS SURI
Present:- Mr.Jagdeep Jaswal, Advocate, for the petitioner.
Mr.Namit Kumar, Advocate, for respondent Nos.1 to 3.
(The proceedings are being conducted through video
conferencing, as per instructions.)
G.S. SANDHAWALIA, J. (Oral):
The present writ petition, filed under Articles 226/227 of the
Constitution of India is directed against the order dated 16.12.2016
(Annexure P-4) whereby claim of the petitioner for notional seniority
above Neeraj Kumar, respondent No.4 herein, in the cadre of LDC has
been declined by the Tribunal.
The reasoning which has been given by the Tribunal is that
the petitioner was appointed in the year 2011 and therefore, could be
granted seniority from the date of entry in service and the legal notice for
grant of the said benefit was filed on 12.09.2014 and as such notional
seniority could not be granted in view of the facts of the case. It was also
noticed that there was considerable delay as the cause of action had arisen
when the petitioner was appointed i.e. in the year 2011 and the benefit of
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notional seniority came to be agitated only by serving legal notice on
12.09.2014 and therefore, the filing of the Original Application was held
to be delayed and time-barred.
Counsel for the petitioner has vehemently argued that the
petitioner was appointed on compassionate ground on account of death of
his father which had taken place on 12.08.1994 and the father of Neeraj
Kumar had died in the year 2002 and both of them had been placed in the
seniority list for appointment. Petitioner was at Sr.No.3 of the seniority
list in the year 2001, whereas Neeraj Kumar was placed at Sr.No.22. It
was accordingly contended that Neeraj Kumar had been wrongly given
compassionate appointment in 2003 in preference to the petitioner who
was forced to litigate on that account. On an earlier occasion, he had
approached the Tribunal which had, vide order dated 28.11.2008
(Annexure A-2) directed consideration of the case of the petitioner for
compassionate appointment. The said order had been unsuccessfully
challenged by the respondents before the High Court of Jammu &
Kashmir, which was dismissed on 11.03.2011 (Annexure A-3) and
thereafter, SLP was also dismissed on 10.04.2013 (Annexure A-4).
It is submitted that the provisional letter of appointment was
offered on 31.05.2011 (Annexure A-5) subject to the decision of the SLP.
After dismissal of the said SLP, he had agitated his grouse by serving a
legal notice dated 12.09.2014 and thereafter, filed OA in July, 2015. It is
submitted that for no fault of his he cannot be denied the benefit of
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notional seniority and the respondents cannot take advantage on their
own fault.
Mr.Namit Kumar on the other hand has submitted that there
is considerable delay to the extent that after his appointment in the year
2011 which had been offered to him, he never raised the issue of notional
seniority though the SLP was dismissed on 10.04.2013 and only after a
year later in July, 2014 a legal notice was served. It is submitted that the
Tribunal was justified in dismissing the OA on this account also. Apart
from that, it is argued that on an earlier occasion when he approached the
Tribunal, the relief of notional seniority had never been agitated and the
only prayer made was for consideration of the case. It is submitted that
once the relief is not claimed at the first instance, it could not be claimed
in the second round of litigation.
After hearing counsels for the parties we are of the opinion
that there is substance in the argument which has been raised by counsel
for respondent Nos.1 to 3. The factual background has already been
detailed above. On an earlier occasion, when the petitioner approached
the Tribunal it was always open to him to seek the relief for appointment
on compassionate ground and also the fact that he was entitled for
seniority over and above Neeraj Kumar, who had wrongly been appointed
before him though the petitioner was senior to him in the list which was
prepared for compassionate appointment. The said claim was not
agitated in those proceedings and only a simple prayer was made for
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issuance of directions to consider his case for compassionate
appointment. In the considered opinion of this Court, the principles of
Order 2, Rule 2, CPC shall come into play, to the extent that the said
relief was never claimed for in the earlier OA.
It would not be proper to allow the petitioner to agitate for
the same relief, in the second leg of litigation which he had preferred not
to claim at the first instance, after having secured the appointment in the
year 2011. Reliance can be placed upon Union of India & others Vs.
Major S.P.Sharma & others, 2014 (2) SCT 335, wherein it has been
held that sanctity is to be given to finality of judgments and it is not
permissible to reopen the concluded judgments of the Court, as it would
tantamount to an abuse of the process of the Court and would have
adverse affect on the administration of justice.
Reliance can also be placed upon the judgment in State of
Uttranchal & another Vs. Sri Shiv Charan Singh Bhandari & others,
(2013) 12 SCC 179, wherein it has been held that dead issues which have
become time-barred could not be allowed to be opened up merely on the
basis of compliance of directions, which cannot extend the limitation and
would not give a fresh cause of action.
As noticed above, the cause of action has arisen way-back in
2003 on appointment of Neeraj Kumar and the earlier OA had been filed
in the year 2007, which was disposed of on 20.11.2008. At that point
of time, the writ petitioner had chosen not to agitate for his grievance of
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benefit of notional seniority and in such circumstances, allowing the said
benefit now would amount to opening up "Pandora's Box", as not only
interests of one Neeraj Kumar would be involved but also a large number
of persons appointed between Neeraj Kumar and the petitioner.
Admittedly, those persons re not party to the present litigation and any
order passed in their absence would also seriously jeopardize their rights
and interests.
Accordingly, in view of the above discussion, finding no
merit in the present writ petition, same is hereby dismissed.
(G. S. SANDHAWALIA)
JUDGE
(VIKAS SURI)
JUDGE
March 22, 2022
sailesh
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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