9. Paragraphs 34, 35, 47 and 50 may be reproduced here-under,
for convenience:
"34. After coming of Rules 2009, fresh exercise was undertaken for
preparation of seniority list. A tentative list was notified by the Office Order
dated 29.12.2009. This Office Order mentions that the seniority list has to
be prepared according to 1991 Rules. While dealing with the finalization of
this tentative list, vide office order dated 05.03.2010, we find reference to
disposal of an objection by Mahesh Chand Bagani and Mahesh Kumar in
which they had apparently sought clarification regarding the requisition
send to the Commission and other related aspects. In paragraph 11 of the
Office Order, it is mentioned that the Commission had forwarded the three
lists of the Agriculture, Mechanical and Civil streams separately on
06.01.2000, 27.01.2000 and 07.11.2000 respectively. It further mentioned
that it was in that sequence i.e. the date of receiving that the combined
seniority was assessed. Thus, again the seniority list was finalized in the
same sequence as the three lists have been received and in that order. It is
thereafter that the representations were made that the seniority list of the
direct recruits of 2001 was wrongly prepared contrary to the Rules,
however, when no action was taken, Rajiv Nain Upadhyay and fourteen
others approached the High Court by way of W.P. No.53123 of 2012 in
October 2012 which was within a period of two to two and half years and
till such time they had been pursuing their representation after office order
dated 05.03.2010. From the above facts, it is clear that in the first
contingency or in the second contingency, the appellants cannot be found at
fault. The Division Bench committed an error in holding that the claim
lodged by the appellant suffered from delay and laches.
35. The plea to defend the seniority list prepared contrary to the
statutory provisions on the ground of delay would be a difficult proposition.
Apart from the submission of the appellants that there is no delay as they
came to know of the three separate lists only in March, 2010, even if it is
assumed that there was some delay and a fresh seniority list was being
prepared in 2009-2010 again contrary to the provisions of statutory rules,
such seniority list cannot be sustained or defended on the ground of delay of
five years.
*** *** ***
"47. The present case is a case of preparation of seniority list and
that too in a situation where the appellants (original writ petitioners) did
not even know the marks obtained by them or their proficiency in the
examination conducted by the Commission. The challenge was on the
ground that the Rules on the preparation of seniority list had not been
followed. There were 18 private respondents arrayed to the writ petition.
The original petitioners could not have known who all would be affected.
They had thus broadly impleaded 18 of such Junior Engineers who could be
adversely affected. In matters relating to service jurisprudence, time and
again it has been held that it is not essential to implead each and every one
who could be affected but if a section of such affected employees is
impleaded then the interest of all is represented and protected. In view of
the above, it is well settled that impleadment of a few of the affected
employees would be sufficient compliance of the principle of joinder of
parties and they could defend the interest of all affected persons in their
representative capacity. Non-joining of all the parties cannot be held to be
fatal."
*** *** ***
"50. Further, the Division Bench in paragraphs 51, 52, 53
proceeded to deal with the delay stating it to be 11 years, the basis for
calculation of 11 years was that the seniority list of 2006 was challenged by
way of amendment by the appellants in the year 2017 and therefore there
was a delay of 11 years. This discussion by Division Bench also cannot be
sustained. The first seniority list was prepared in 2006. It was not disclosed
as to how the seniority list has been prepared by treating the three separate
lists independently on their merits but not as a result of combined merit of
the three lists. It was only in 2010 that the appellants came to know of the
fallacy and soon thereafter they challenged the seniority list of 2010. Even
if, they did not challenge the seniority list of 2006, 2010 seniority list could
always be revisited, reviewed and prepared afresh, if the same was quashed.
The appellants could not have been at any loss even if they had not
challenged the 2006 seniority list."
10. Apart from the aforesaid paragraphs, I also have taken note of
the background facts of the case, for convenience. In the case of Ajay
Kumar Shukla (supra), the appellants/writ petitioners, who were working as
Junior Engineers under the department of Minor Irrigation, State of Uttar
Pradesh, aggrieved by the final seniority list dated 05.03.2010 challenged the
same in the year 2012 by way of Writ Petition No.53123/2012, being Rajiv
Nain Upadhyay & Ors. Vs. State of Uttar Pradesh & Ors. The
appellants/writ petitioners belong to the Mechanical and Civil streams
whereas the private respondents are from the Agriculture stream. Originally,
the appellants/writ petitioners prayed for a direction to quash the final
seniority list of the appellants/writ petitioners along with the private
respondents issued under the Office Order dated 05.03.2010 by the Chief
Engineer [Minor Irrigation], Uttar Pradesh, Lucknow. However, later on, by
way of amendment, the appellants/writ petitioners sought for issuance of a
direction to quash the seniority list dated 05.09.2006. The writ petition filed
by the appellants before the Allahabad High Court was allowed by learned
Single Judge. However, learned Division Bench in an intra-court appeal set
aside the judgment and order passed by learned single Judge on one of the
grounds that the writ petition was badly suffered from delay and laches,
since according to Division Bench, the appellants/writ petitioners challenged
the seniority list dated 05.09.2006 after 11 years. The matter was carried out
to Supreme Court by way of filing a Special Leave Petition and the Hon'ble
Supreme Court while dealing with the Civil Appeal in respect of delay and
laches, held that the conclusion arrived at by the Division Bench could not
be sustained for the reason that, though, the first seniority list was prepared
in 2006, it was not disclosed as to how the seniority list had been prepared
by treating the three separate lists independently on their merits but not as a
result of combined merit of the three lists. It was only in 2010 that the
appellants came to know of the fallacy and soon thereafter they challenged
the seniority list of 2010. It was further observed by the Supreme Court that
even if, the appellants/writ petitioners did not challenge the seniority list of
2006, 2010 seniority list could always be revisited, reviewed and prepared
afresh, if the same was quashed and the appellants could have been at any
loss even if they had not challenged the 2006 seniority list. Furthermore, one
of the important aspects that came into consideration by Hon'ble Supreme
Court in Ajay Kumar Shukla (supra) is that a tentative seniority list was
notified by the Office Order dated 29.12.2009.While dealing with the
finalization of this tentative list, vide Office Order dated 05.03.2010 it was
found that the authorities concerned disposed of an objection raised by two
of the appellants/writ petitioners. Thereafter, the seniority list was finalized
despite representations were made alleging that the seniority list of direct
recruits of 2001 was wrongly prepared contrary to the rules. However, two
of the affected engineers filed a writ petition in October 2012 [WP(C)
No.53123/2012] within a period of two to two-and-a-half years of the office
order dated March 5, 2010, during which time they had been persistently
pursuing their representations.
11. From the above facts, the Hon'ble Supreme Court did not find
any fault on the part of the appellants/writ petitioners and accordingly, held
that the Division Bench of the Allahabad High Court committed an error in
holding that the claim lodged by the appellants/writ petitioners suffered from
delay and laches.
12. On perusal of paragraph 47 of the case of Ajay Kumar Shukla
(supra), in my opinion, it is not relevant since the said paragraph deals with
the impleadment of necessary parties, which matter is not a question to the
facts of the instant case.
13. Dr. Bharadwaj, learned counsel for the petitioner also has cited
a decision of this Court passed in WP(C) No.45 of 2019 along with other
writ petition, titled as Sri Jash Paul Debbarma Vs. State of Tripura & Ors.
On perusal of the said judgment, I find that the facts of Jash
Paul (supra) are quite distinguishable from the facts of the instant case.
Further, in the case of Jash Paul (supra), the seniority position was not
challenged after more than 18 years as it is apparent in the case in hand.
14. Having considered the facts of the case of Ajay Kumar Shukla
(supra), in the opinion of this Court, the facts of the instant case is clearly
distinguishable from the facts of the case of Ajay Kumar Shukla (supra). In
the case at hand, the petitioner was well aware of the Rules of 1988
containing the provision for preparation of seniority of the officers of all
Grades. So, the Rules of 1988 were known to the petitioner from the date of
his entry into service under the State-respondents.
15. Relevant to this case is Rule 29 of the Rules, 1988 which
governs the determination of seniority between the petitioner and the private
respondent. The pertinent part is reproduced here-under, for convenience, in
extenso:
"29.SENIORITY:
The Governor shall prepare a list of members of the Service
arranged in order of seniority as determined in the manner specified
below:-
(1) In the case of persons appointed on direct recruitment or by
selection under rule 5, seniority in the Service shall be determined by
the order in which appointments are made to the service:
Provided that:
(a) Persons recruited on the results of qualifying written
examination in any year shall be ranked inter se in the
order of merit in which they are placed according to merit
in the result of the final examination of the State Forest
Service Course (Diploma Course in Forestry), those
recruited on the basis of an earlier examination being
ranked senior to those recruited on the basis of the later
final examination of the State Forest Service Course
(Diploma Course in Forestry).
(b) The relative seniority inter se of the persons recruited by
selection shall be determined on the basis of order in which
their names are arranged in the list prepared under rule 15.
*** *** ***"
16. The petitioner has relied upon the proviso (a) to Rule 29(1) and
according to him, after his induction in the IFS Cadre he started inquiry
about the marks obtained by all the Grade-II officers who were appointed
along with him as Grade-II officer being their service conditions were
governed by the Rules of 1988 through RTI Act. Only thereafter, he came to
know that the respondent no.4 secured less marks than that of him in the
final examination of the State Forest Service Course (Diploma Course in
Forestry).
17. Having found thus, the petitioner submitted his representation
to the respondents on 21.07.2019 [Annexure-4 to the writ petition] to correct
the seniority list that was finalized and published in the year 2005 which was
rejected by the State-respondents under order dated 2nd January, 2020
[Annexure-5 to the writ petition]. Thereafter, the petitioner approached
learned CAT at Gauhati, where, as I stated earlier, the Original Application
was dismissed on the ground that the learned CAT had no jurisdiction to
decide the case since the petitioner had no grievance against the Union of
India and its concerned department. The learned CAT had given him a
liberty to approach the appropriate forum, if so advised. Hence, this writ
petition.
18. As I said earlier, in the present case, I find that the petitioner
joined Tripura Forest Service cadre as Grade-II officer in the year 2002
along with other officers of the same Grade. Tentative seniority list was
published by the respondents inviting objections or to submit representations
if there was any grievance of the officers concerned. To reiterate, the
petitioner was well aware of the Rules of 1988 governing the seniority of
Grade-II officers. The petitioner never raised any objection and the draft
tentative seniority list was finally published. Following the said seniority
list, the petitioner along with another were promoted to TFS Grade-I on
10.01.2013. Again, the petitioner was inducted to the IFS cadre on
30.11.2017 in the light of the final seniority list published in the year 2013
and 2017. So, the seniority list concerning the petitioner along with other
Grade-II and Grade-I officers were finally published on three occasions but
the petitioner had never raised any objection. He started inquiry in the year
2018 after his induction as IFS cadre under the Union of India and
thereafter, when he found that he secured higher marks than that of the
private respondent no.4, he submitted representation to the competent
authority of the Government of Tripura asking to invoke the provision
mentioned in proviso (a) to Rule 29(1) of the Rules of 1988 and further
revise and re-fix his seniority position.
19. Keeping in mind the facts and circumstances of the case of Ajay
Kumar Shukla (supra) and the principles laid down therein by Hon'ble
Supreme Court, I am of the opinion that in the present case the petitioner
could have raised his objection in the year 2005 itself. In the present case,
the petitioner accepted his seniority position as stepping stone for his
subsequent promotion to the IFS cadre. Had there been any doubt in the
mind of the petitioner regarding his seniority position that was settled in the
year 2005 and re-settled in the year 2013, and further confirmed in the year
2017, the petitioner could have enquired as regards the marks obtained by
him and other officers who joined with him as Grade-II Forest Officers
under the respondents-Govt. of Tripura. But he never made any endeavour to
make an inquiry about the marks obtained not only by him but also the other
officers. In the year 2018, when he already has been inducted in the IFS
cadre, he suddenly woke up from the slumber and approached learned CAT
which was dismissed due to lack of jurisdiction. Thereafter, in the year 2024,
the present writ petition has been filed. In the opinion of this Court, the
present writ petition badly suffers from the doctrine of delay and laches. It is
settled proposition of law that settled position of seniority should not be un-
settled at a belated stage. The present writ petition has been filed after more
than a decade to say more specifically, after more than 18 years since first
seniority of the petitioner and the private respondent along with other
officers was first settled in the year 2005.
20. That apart, the petitioner is no-longer an employee/officer of
the State-respondents as he has already been inducted in IFS cadre in the
year 2017 following the final seniority list published in the year 2017 in
continuation of the final seniority list published in the year 2005 and
subsequently in the year 2013. I have meticulously gone through some
decisions of the Hon'ble Apex Court relevant to the subject in issue, which
may be discussed here-under:
21. In K.R. Mudgal & Ors. V. R.P.Singh & Ors. reported in AIR
1986 SC 2086, it was held as under:
"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 anyone 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."
21.1 In Malcom Lawrance Cecil D'Souza V. Union of India & Ors.
reported in AIR 1975 SC 1269, wherein it had been observed as under:-
"Although security of service cannot be used as a shield
against the administrative action for lapse of a public servant, by and
large one of the essential requirements of contentment and efficiency in
public service is a feeling of security. It is difficult no doubt to guarantee
such security in all its varied aspects, it should at least be possible to
ensure that matters like one's position in a seniority list after having been
settled for once should not be liable to be re-opened after lapse of many
years in the instance of a party who has itself intervening party chosen to
keep quiet. Raking up old matters like seniority after a long time is likely
to resort in administrative complications and difficulties. It would,
therefore, appear to be in the interest of smoothness and efficiency of
service that matters should be given a quietus after lapse of some time."
21.2 In B.S. Bajwa & Anr. V. State of Punjab & Ors., reported in
(1988) 2 SCC 523, the Hon'ble Supreme Court while deciding the similar
issue re-iterated the same view, observing as under:-
"It is well settled that in service matters, the question of
seniority should not be re-opened in such situations after the lapse of
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 along was sufficient to decline
interference under Article 226 and to reject the writ petition."
21.3 In Dayaram Asanand V. State of Maharashtra & Ors.,
reported in AIR 1984 SC 850, while re-iterating the similar view the Apex
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.
21.4 In P.S. Sadasivaswamy V. State of Tamil Nadu, reported in
AIR 1974 SC 2271, the Apex Court considered the case where the petition
was filed after lapse of 14 years challenging the promotion. However, it was
held that aggrieved person must approach the Court expeditiously for relief
and it is not permissible to put forward stale claim. The Court that - a person
aggrieved by an order promoting a junior over his head should approach
the Court at least within 6 months or at the most a year of such promotion.
22. The law on the subject is well-settled and finds expression in
Union of India Vs. A. Durairaj, reported in (2010) 14
SCC 389. It would be profitable to refer to the following observations made
by the Supreme Court:
"13. It is well settled that anyone who feels aggrieved by non-
promotion or non-selection should approach the Court/Tribunal as
early as possible. If a person having a justifiable grievance allows the
matter to become stale and approaches the Court/Tribunal belatedly,
grant of any relief on the basis of such belated application would
lead to serious administrative complications to the employer and
difficulties to the other employees as it will upset the settled position
regarding seniority and promotions which has been granted to others
over the years. Further, where a claim is raised beyond a decade or
two from the date of cause of action, the employer will be at a great
disadvantage to effectively contest or counter the claim, as the officers
who dealt with the matter and/or the relevant records relating to the
matter may no longer be available. Therefore, even if no period of
limitation is prescribed, any belated challenge would be liable to be
dismissed on the ground of delay and laches."
23. Applying the principle in B.S. Bajwa (supra), coupled with the
principles laid down in the judgments referred to here-in-above, in A.
Durairaj, it is clear that the petitioner's claim to recast seniority list has
become stale after long 18 years. The petitioner was aware of the rule from
the day he entered into service but never raised any objections and ever, he
never expressed in grievance. To say it otherwise, questioning seniority
position when he was in service under the Government of Tripura as State
cadre three un-opposed seniority lists were published, solidifying the
existing order.
24. To make matters more complex, the petitioner is no longer
serving under the State Government and has been inducted into the IFS
cadre, which falls under the Indian Forest Service Rules and not under the
Rules of 1988 prevalent in the State of Tripura. In the opinion of this Court,
the petitioner sleeping over the matter for such long time has lost his right to
invoke writ jurisdiction of the Court.
25. Keeping in view of aforesaid analysis on settled position in law,
in my opinion, the instant writ petition is badly hit by the doctrine of delay
and laches, having been filed after a lapse of more than 18 years without any
explanation and that too, after being inducted to IFS cadre in the year 2017.
26. For the reasons recorded and discussed here-in-above, I find no
merit in the present writ petition and accordingly, the same is dismissed.
However, there shall be no order to costs.
JUDGE
sanjay
SANJAY GHOSH Date: 2025.03.19 14:46:11 +05'30'
