AI Structured Summary
Not yet generated for this judgment
Judgment
Sandeep Sharma, J
Petitioners herein, as well as respondent Nos. 3 to 13 came to be appointed under the Kith and Kin Policy in Himachal Road Transport Corporation (hereinafter, ‘Corporation’) vide office order dated 28.10.1995 (Annexure R-1) and their seniority was drawn as per date of joining. Since the petitioners herein had joined ahead of private respondents Nos. 3 to 13, their names were shown higher in seniority than the private respondents. After, 19 years of drawing of seniority, wherein petitioners were ranked higher than the private respondents, private respondents filed representation to respondent Corporation, praying therein to re-draw the seniority on the ground that they being higher in merit, were required to be placed above the petitioners in the seniority list. Interestingly, respondent-Corporation accepting aforesaid prayer of the respondents, changed the seniority list in the year 2014, thereby placing the petitioners below the private respondents.
Being aggrieved and dissatisfied with the change in seniority list, as detailed above, petitioners approached erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 326 of 2017, which now on account of abolishment of Himachal Pradesh Administrative Tribunal came to be transferred to this Court and has been re-registered as CWPOA No 1403 of 2020, praying therein for following main reliefs:
“(a) That in view of the facts and circumstances as well as submissions made herein above, the humble applicants pry for quashing of impugned Annexure A/1 seniority list dated 16-09-2014 to the extent that respondents No 3 to 13 be placed below applicants with further prayer to restore seniority o applicants as existed on 31-3-2011.
(b) That the promotion order dated 5-1-2015 ANNEXURE /2 may kindly be directed to modify to the extent to place applicants above Respondents No 3 to 13 in the interest of justice.”
Precisely, the grouse of the petitioners, as has been highlighted in the petition and further canvassed by Mr. Narender Sharma, learned counsel for the petitioner is that since the petitioners, after being selected under Kith and Kin Policy, had joined prior to the private respondents, respondent-Corporation had rightly placed them above private respondents in the seniority list. He further submitted that after 19 years, of drawing of seniority list, respondent-Corporation without there being any specific provision in the Rules, changed the seniority list, thereby placing the petitioners below the private respondents on the pretext that they were above in merit.
Mr. Sharma, further submitted that there is nothing on record to suggest that private respondents were above in merit because, no merit was drawn at the time of giving appointment under Kith and Kin Policy. He submitted that since there is no rule governing fixation of seniority framed by the Corporation, especially inter se appointees appointed under Kith and Kin Policy, office Memorandum dated October 9, 1998, issued by Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training is applicable, wherein it has been categorically provided that inter-se seniority of appointees appointed on compassionate grounds shall be fixed with respect to date of their appointment. Date of joining of a person appointed on compassionate grounds shall be treated as date of his/her appointment. Learned counsel for the petitioner further submitted that since the petitioners joined prior in time to the private respondents, they became regular employees ahead of the private respondents, as such, they were rightly placed higher in seniority list than the private respondents in the year 2014, which was subsequently changed unilaterally without affording opportunity of hearing to the petitioner.
Mr. Nishant Khidtta, Advocate appearing for respondents Nos. 4 to 9 argued that there is no illegality inasmuch as drawing of seniority List in the year 2018 is concerned. He submitted that since the petitioners and private respondents were given appointment on compassionate grounds under Kith and Kin Policy, on one date, their seniority could only be determined on the basis of their date of application/ death of employee. He submitted that since respondent Nos. 3 to 13 had applied prior in time for appointment under Kith and Kin Policy and in their cases, employees had died prior to the death of predecessor-in-interest of the petitioners, no illegality can be said to have been committed by respondent - Corporation, while redrawing seniority list in 2014. Mr. Khidtta further argued that the present petition deserves outright rejection being barred by delay and laches. He submitted that seniority list was redrawn in the year 2014, but challenge to same came to be laid after an inordinate delay of 3 years. He submitted that otherwise also at no point of time, any application for condonation of delay came to be field alongwith Original Application as such, delay otherwise cannot be condoned. In support of his aforesaid contention, he placed reliance upon judgment passed by Hon'ble Apex Court in D.C.S. Negi v. Union of India, (2018) 6 SCC 721.
Mr. Vikas Rajput, Advocate appearing for the respondent Corporation (respondents Nos. 1 and 2) fairly admitted that the Corporation inadvertently accepted the representation filed by private respondents, because, admittedly in all the cases, prior to appointment of petitioners and private respondents, seniority was being determined on the basis of date of joining. He further submitted that even after, appointment of the petitioners and private respondents, seniority in the cases of appointees appointed under Kith and Kin Policy is being maintained on the basis of date of joining.
Having heard learned counsel for the parties and perused material available on record this court finds that the petitioners as well as private respondents were given appointment under Kith and Kin Policy on the same date i.e. 28.10.1995. Admittedly, the petitioners joined ahead of private respondents and as such, Corporation reflected their names in seniority list, above the private respondents. It also emerges from record that on the basis of seniority list drawn after petitioners’ appointment, petitioners were given promotion to the post of Junior Assistant in the year 2006. After 19 years of drawing of seniority list, wherein admittedly petitioners were ranked higher than private respondents, Corporation, on the representation made by private respondents that they being higher in merit, ought to have been placed above petitioners in the seniority list, changed the seniority list thereby showing private respondents above the petitioners. Since, nothing could be gathered from reply filed by respondents, with regard to existence of rules, if any, for determining inter se seniority of employees appointed under Kith and Kin Policy, this court specifically called upon Managing Director, Himachal Road Transport Corporation to file a supplementary affidavit vide order dated 17.11.2022.
Pursuant to order dated 17.11.2022, Managing Director, Himachal Road Transport Corporation filed his supplementary affidavit, relevant paras of which are extracted herein below:
“2. That the statutory Provisions for fixing seniority of those recruited on compassionate ground as contained in para 1(vi) of Chapter 25 of hand book of personal matter is as under:-
“Persons appointed on compassionate grounds in a particular year may be placed at the bottom of all the candidates recruited/appointed through direct recruitment, promotion, etc. in that year irrespective of the date of joining of the candidate on compassionate ground.”
That the Himachal Road Transport Corporation assigns the seniority of the Kith & Kin recruits on the basis of above statutory provision.
That only following a join representation of Sh. Gun Parkash & Vijayant Kumar, Jr. Asstt., the Seniority fixed as per statutory provisions circulated as per order dated 21.04.2014 has been wrongly/illegally changed vide order dated 17.09.2014. In latter case, the seniority has been wrongly assigned on the basis of sequence of appointees in order dated 28.10.1995.
That on the basis of record produced before me, It is submitted that barring a single matter as explained in para supra, seniority of those recruited under Kith & Kin policy is being maintained as per statutory provisions contained in Chapter 25 I (vi) of Hand Book of personal matter.”
It has been categorically stated in the aforesaid supplementary affidavit that on the joint representation of Gun Parkash & Vijayant Kumar, Junior Assistants, the seniority fixed as per statutory provisions circulated as per order dated 21.4.2014 has been wrongly/illegally changed vide order dated 17.09.2014. In latter case, the seniority has been wrongly assigned on the basis of sequence of appointees in order dated 28.10.1995.
It is quite apparent from reading of affidavit that the Corporation after having received representation from the private respondents, assigned seniority merely on the basis of sequence of names given in the appointment letter, which admittedly was issued on one date i.e. 28. 10.1995. Since respondents Ns. 3 to 13 were above in list of appointment, they claimed them to be senior and interestingly such prayer of them was accepted by respondent Corporation, as a result of which seniority list circulated in the year 2014 was changed after 19 years, that too without any basis.
Mr. Nishant Khidtta, Advocate appearing for private respondents Nos. 4 to 9, vehemently argued that in letter of appointment names of the appointees were in sequence of merit, because they had applied prior in time and in their cases, employees of the Corporation, against whom they sought appointment on compassionate grounds, had died prior to the dates of deaths of parents of petitioners. However, this court finds no merit in the aforesaid submission made by Mr. Nishant Khidtta, Advocate, for the reason that there is no such rule available on record, suggestive of the fact that inter-se seniority qua appointees appointed under Kith and Kin Policy is to be determined on the basis of date of application or date of employee’s death, against whom they are seeking appointment under Kith and Kin Policy.
Since in the case at hand, petitioners and private respondents Nos. 3 to 13 were given appointment on one date, that too vide one letter/order, seniority inter se them could be determined on the basis of date of their joining, but definitely not on the basis of sequence of names given in the appointment letter.
Though in the reply to the petition, Corporation has admitted that names given in the appointment letter were in order of merit, but as has been taken note herein above, Managing Director Himachal Road Transport Corporation in his supplementary affidavit filed pursuant to order dated 17.11.2022, has categorically stated that inter-se seniority of employees appointed under Kith and Kin Policy could only be fixed on the basis of date of joining.
Learned counsel for the respondent Corporation has not been able to invite attention of this Court, to Rules, if any, suggestive of the fact that in the Corporation, inter-se seniority of employees appointed under Kith and Kin Policy shall be determined on the basis of merit and as such, instructions dated 2,1.1998 issued by Ministry of Personnel, Public Grievances & Pensions, Department of Personnel and Training, Government of India, shall be applicable, which inter-alia provide as under:
“4.8 Seniority of persons appointed on compassionate ground DOP & Ts O.M. No. 14014/6/94-Estt.(D) dated the 9th October, 1998, provides for the Scheme for Compassionate Appointment in Central Government. Para 15 of the said Scheme provide that:
(a) The inter-se seniority of persons appointed on compassionate grounds may be fixed with reference to their date of appointment. Their interpolation with the direct recruits/promotees may also be made with reference to their date of appointment without disturbing the inter-se seniority of direct recruits/promotees.
(b) Date of joining by a person appointed on compassionate grounds shall be treated as the date of his/her regular appointment.
A number of references were received in this Department seeking clarification as to the fixation of seniority of a person appointed on compassionate ground vis-à- vis direct recruits and promotees in a particular cadre. It is observed that while the aforesaid principle has been working fine, there has been difficulty in fixation of seniority when two or more candidates come from direct recruitment/promotion joined the service on different dates. The matter has been reviewed and it has now been decided that the person appointed on compassionate ground in a particular year may be placed at the bottom of all the candidates recruited/ appointed through direct recruitment, promotion etc. in that year, irrespective o the date of joining of the candidate on compassionate ground.”
It has been provided in the above communication that inter-se seniority of persons appointed on compassionate grounds may be fixed with reference to their date of appointment. Their interpolation with the direct recruits/promotees may also be made with reference to their date of appointment without disturbing the inter-se seniority of direct recruits/promotees. It has been stated that date of joining by a person appointed on compassionate grounds shall be treated as the date of his/her regular appointment.
In the case at hand, admittedly, the petitioners joined ahead of the private respondents and as such, they became regular employees ahead of the private respondents. If it is so, petitioners are required to be placed above private respondents in the seniority list.
No doubt ,in the case at hand, petitioners approached court of law, after two year and six months of re- drawing of seniority list and it is also not in dispute, that while filing Original Application before Himachal Pradesh Administrative Tribunal, petitioners did not file any application for condonation of delay but it is not in dispute that Original Application having been filed by the petitioners was not only entertained, but subsequently seniority list laid challenge was also stayed by this court.
No doubt, in D.C.S. Negi v. Union of India, (2018) 6 SCC 721, Hon'ble Apex Court, while taking note of S.21 of the Administrative Tribunals Act, 1985, held that Tribunal shall not entertain petition if any, beyond prescribed period of limitation, which has been provided under S.21, which provides limitation of one year from the date of cause of action. But since on account of abolishment of Himachal Pradesh Administrative Tribunal, case has landed for adjudication before this court, plea of limitation as sought to be raised taking note of S.21 of Administrative Tribunals Act may not be available to private respondents. Admittedly, petition at hand is now being decided by this court, while exercising power under Art. 226 of the Constitution of India where a petition, if any, filed within a reasonable period can be entertained.
Though, there cannot be quarrel with submission of Mr. Nishant Khidtta, Advocate learned counsel for respondents Nos. 4 to 9, that there is delay in laying challenge to seniority list by the petitioners but delay of 3-4 years in laying challenge to seniority list has been held to be reasonable by Hon'ble Apex Court, in Shiba Shankar Mohapatra v. State of Orissa, (2010) 12 SCC 471.
In the aforesaid judgment, Hon'ble Apex Court held 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 laches. However, in seniority disputes, period of 3-4 years has been held to be a reasonable period for challenging the seniority.
Hon'ble Apex Court in the aforesaid judgment further held that in absence of satisfactory explanation for inordinate delay of 8-9 years in laying challenge to validity of seniority and promotion of other employees, under Article 226 of the Constitution, could not be entertained. Hon'ble Apex Court further held that a seniority list, which remains unchallenged for 3-4 years, should not be disturbed, meaning thereby that 3-4 years is a reasonable period for laying challenge to Seniority List and in case, challenge is laid beyond this period, one has to explain delay and laches in approaching court, by furnishing satisfactory explanation. Hon'ble Apex Court has held in judgment supra as under:
“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.
In P.S. Sadasivaswamy v. State of Tamil Nadu AIR 1975 SC 2271, this Court considered the case where the petition was filed after lapse of 14 years challenging the promotion. However, this Court held that aggrieved person must approach the Court expeditiously for relief and it is not permissible to put forward stale claim. The Court observed as under :-
"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."
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 extra ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who standby and allow things to happen and then approach the Court to put forward stale claim and try to unsettle settled matters.
A similar view has been re-iterated by this Court in Smt. Sudama Devi vs. Commissioner & Ors. (1983) 2 SCC 1; State of U.P. vs. Raj Bahadur Singh & Anr. (1998) 8 SCC 685; and Northern Indian Glass Industries vs. Jaswant Singh & Ors. (2003) 1 SCC 335.
In Dinkar Anna Patil & Anr. vs. State of Maharashtra, AIR 1999 SC 152, this Court held that delay and laches in challenging the seniority is always fatal, but in case the party satisfies the Court regarding delay, the case may be considered.
In K.A. Abdul Majeed vs. State of Kerala & Ors. (2001) 6 SCC 292, 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.
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 & Ors. vs. Lt. Governor, Delhi & Ors. AIR 1974 SC 2077; State of Mysore vs. V.K. Kangan & Ors., AIR 1975 SC 2190; Municipal Council, Ahmednagar & Anr. vs Shah Hyder Beig & Ors., AIR 2000 SC 671; Inder Jit Gupta vs. Union of India & Ors. (2001) 6 SCC 637; Shiv Dass vs. Union of India & Ors., AIR 2007 SC 1330; Regional Manager, A.P.SRTC vs. N. Satyanarayana & Ors. (2008) 1 SCC 210; and City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala & Ors. (2009) 1 SCC 168).
Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation.”
In the case at hand, admittedly, seniority list came to be laid challenge by the petitioners after a delay of two years and six months, which can be said to be a ‘reasonable period’, for approaching court of law.
Consequently in view of detailed discussion made supra as well as law taken note herein above, this court finds merit in the petition and same is allowed. Annexure A/1 i.e. seniority list dated 16.9.2104 is quashed and set aside to the extent petitioners have been placed below respondents Nos. 3 to 13 and seniority of the petitioners and respondents Nos. 3 to 13, as it existed on 31.3.2011 is restored. Consequences to follow.
The petition stands disposed of in the afore terms, alongwith all pending applications. Interim directions, if any, stand vacated.