Anuradha Singh vs State Of Uttarakhand And Others
2023 Latest Caselaw 3508 UK

Uttarakhand High Court

Anuradha Singh vs State Of Uttarakhand And Others on 6 December, 2023

Author: Manoj Kumar Tiwari

Bench: Manoj Kumar Tiwari

       IN THE HIGH COURT OF UTTARAKHAND AT
                     NAINITAL


  THE ACTING CHIEF JUSTICE SHRI MANOJ KUMAR TIWARI

                                    AND

              JUSTICE SHRI VIVEK BHARTI SHARMA


              WRIT PETITION (S/B) NO.45 OF 2022

                         06TH DECEMBER, 2023


Anuradha Singh                                            ...... Petitioner

                                    Vs.

State of Uttarakhand and Others                         ...... Respondents

Counsel for the petitioner           :    Mr. Jitendra Chaudhary, learned
                                          counsel.

Counsel for the State                : Mr. J. C. Pande, learned Standing
                                       Counsel for the State.
Counsel for respondent no. 2         : Mr. B. D. Upadhyay, learned Senior
                                       Counsel assisted by Mr. Tushar
                                       Upadhyay
Counsel for Respondent Nos. 4 & 5    : Dr. Kartikey Hari Gupta, learned
                                       counsel.


                                    With

              WRIT PETITION (S/B) NO.44 OF 2022



Sarita Kumar                                              ...... Petitioner

                                    Vs.

State of Uttarakhand and Others                         ...... Respondents

Counsel for the petitioner           :    Mr. Jitendra Chaudhary, learned
                                          counsel.

Counsel for the State                :    Mr. J. C. Pande, learned Standing
                                          Counsel for the State.

Counsel for Respondent Nos. 4 & 5    : Dr. Kartikey Hari Gupta, learned
                                       counsel.

Counsel for Respondent No. 6         :    Mr. Sushil Kumar, learned counsel
 JUDGMENT:

(per the Acting Chief Justice Shri Manoj Kumar Tiwari)

Since common question of law and facts are involved in these petitions, therefore, they are being heard and decided together. However for the sake of brevity, facts of Writ Petition (S/B) No. 44 of 2022 alone are being considered and discussed.

2. By means of this writ petition, petitioner has prayed for following substantive reliefs:-

i. To issue a writ, order or direction in the nature of certiorari, calling for the original record and pleased to quash the impugned ex-parte order dated 10.08.2020 along with amended seniority list dated 10.08.2020 (Annexure No. 6) issued by the respondent no. 2 i.e. Dr. Rekha Khare Officiating Principal MKP (PG) College Dehradun District Dehradun and restore old long standing seniority lists in which the petitioner had been shown senior to the respondent no. 6.

ii. Issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to the effect that they shall issue revised seniority list of 2020 declaring therein the petitioner senior to the private respondent no. 6.

3. Petitioner was appointed as Lecturer on ad hoc basis in M.K.P. (P.G.) College, Dehradun, in the year 1985. Her services were regularized by Director, Higher Education in the year 1992. M.K.P. (P.G.) College is a Government aided college, which

was earlier affiliated to a State University, namely H.N.B. Garhwal University. After conversion of the said University as a Central University, concerned college is affiliated with H.N.B. Garhwal Central University.

4. According to the petitioner, in the year 2003, a seniority list was prepared by the competent authority in the aforesaid college, in which petitioner was placed above respondent No. 6. Thereafter, in 2004, the inter se seniority position between petitioner and respondent No. 6 was reiterated. Petitioner has challenged the seniority list issued by Officiating Principal of the aforesaid college on 10.08.2020, whereby the inter se seniority of petitioner and respondent No. 6 has been reversed. It is contended that the seniority lists issued in 2003 and 2004 were never challenged by respondent No. 6 before appellate / judicial forum, therefore, the Officiating Principal of the college could not have altered the seniority position of the petitioner qua respondent No. 6. The seniority list prepared in 2020 is challenged also on the ground that it has unsettled long standing inter se seniority position amongst teachers of M.K.P. (P.G.) College, which is not permissible.

5. Per contra, learned counsel appearing for respondent No. 6 submits that seniority list issued in the years 2003 and 2004 were only tentative, therefore, the Officiating Principal was well within her right to issue fresh seniority list in 2020. Thus,

according to learned counsel, the impugned seniority list does not call for any interference.

6. Perusal of the impugned seniority list dated 10.08.2020 reveals that inter-se seniority of teachers of M.K.P. (PG) College, Dehradun was revised pursuant to a letter issued by Director, Higher Education, on 07.11.2003.

7. It is not in dispute that the seniority lists issued in 2003 and 2004 were holding the field till 2020, and promotions of faculty members in the aforesaid college were made based on ranking of teachers in the said list. Thus, the earlier seniority list has to be treated as final for all practical purposes, even if the word "final" is missing in such list.

8. Learned counsel for the parties admit that respondent No. 2, Dr. Rekha Khare, Officiating Principal, who issued impugned seniority list, herself claimed promotion to the post of Principal, based on seniority list issued in 2003. Thus, the argument that the list issued in 2003 was only tentative, cannot be accepted.

9. Hon'ble Supreme Court in the case of Shiba Shankar Mohapatra v. State of Orissa, 2010 (12) SCC 471, held that long standing seniority cannot be challenged in a court of law. Paragraph nos.18 to 24 of the said judgment are extracted hereunder:

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 Shanker Deodhar & Ors. v. State of Maharashtra & Ors. AIR 1974 SC 259, 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, AIR 1970 SC 898, 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:-

"A party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court."

19. This Court also placed reliance upon its earlier judgment of the Constitution Bench in R.N. Bose v. Union of India & Ors. AIR 1970 SC 470, wherein it has been observed as under:-

"It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be defeated after the number of years."

20. In R.S. Makashi v. I.M. Menon & Ors. AIR 1982 SC 101, this Court considered all aspects of limitation, delay and laches in filing the writ petition in respect of inter se seniority of the employees. The Court referred to its earlier judgment in State of Madhya Pradesh & Anr. v. Bhailal Bhai etc. etc., AIR 1964 SC 1006, wherein it has been observed that the maximum period fixed by the Legislature as the time within which the relief by a suit in a Civil Court must be brought, may ordinarily be taken to be a reasonable standard by which delay in seeking the remedy under Article 226 of the Constitution can be measured. The Court observed as under:-

"We must administer justice in accordance with law and principle of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set-aside after the lapse of a number of years..... The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of 1968... We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the prayer for quashing the said Government resolution, should have been dismissed."

21. The issue of challenging the seniority list, which continued to be in existence for a long time, was again considered by this Court in K.R. Mudgal & Ors. v. R.P. Singh & Ors. AIR 1986 SC 2086. The Court 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 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."

22. While deciding the case, this Court placed reliance upon its earlier judgment in Malcom Lawrance Cecil D'Souza v. Union of India & Ors. 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 requirement 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 such matters should be given a quietus after lapse of some time."

23. In B.S. Bajwa v. State of Punjab & Ors. AIR 1999 SC 1510, this 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"

24. In Dayaram Asanand v. State of Maharashtra & Ors. AIR 1984 SC 850, while re-iterating 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."

10. In the present case, the Officiating Principal of the college has disturbed the settled seniority position of teachers, that too without intervention of any court or Tribunal. Seniority is a statutory right of every University / State employee. Once the competent authority prepares and finalises a seniority list, then he becomes functus officio and, therefore,

he cannot tinker in the seniority list. The only remedy available to a person aggrieved by such seniority list is to approach the appellate authority or a judicial forum. In the present case, the seniority list of 2003 was not challenged by respondent No. 6 before any higher authority, and the Principal, on her own, revised the seniority list, which is impermissible.

11. Teachers of affiliated colleges have remedy of filing appeal against seniority list before the Vice- Chancellor of the H.N.B. Garhwal Central University under the First Statute of the said University. However, no such appeal was filed by respondent No.

6. Thus, the said seniority list became final.

12. Learned counsel for the respondent contended that the seniority list issued in 2003 was flawed, as wrong criteria was adopted for determining seniority. It is further contended that date of joining of a teacher after ad hoc appointment was taken as a criteria, while seniority has to be reckoned only from the date of order of substantive appointment, therefore, the Officiating Principal was justified in revising the seniority list in 2020.

13. The said contention raised on behalf of the respondent cannot be accepted. If wrong criteria was adopted for determining seniority, then anyone who felt aggrieved by such seniority list had the remedy of filing appeal. In the present case, the seniority list of 2003 was never questioned before appellate

authority. Thus, the said seniority list became final, and remained in existence for nearly two decades. Such a long standing seniority list would not have been revised only on the representation of the aggrieved person. Review is creature of Statute and in the absence of enabling provision, no statutory authority can review his decision.

14. Thus, the impugned seniority list cannot be sustained in the eyes of law. Accordingly, the impugned order dated 10.08.2020 is set aside. Both the writ petitions stands allowed.

15. Consequently, all pending applications in both the petitions, also stand disposed of.

___________________ MANOJ KUMAR TIWARI, ACJ.

___________________ VIVEK BHARTI SHARMA, J.

Dated: 6th DECEMBER, 2023 Negi