Civil Writ Petition No.3602 CAT of 2010 (O&M) v. Central Administrative Tribunal, Chandigarh Bench, Sector 17, Chandigarh

CORAM:- HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Banni Thomas, Advocate, for the petitioners. Mr.P.S.Dhaliwal, Advocate, for the respondent(s). Mr.P.S.Dhaliwal, Advocate, for Mr.V.K.Sharma, Advocate. A.N.JINDAL, J: ***** This order shall dispose of Civil Writ Petition Nos.3602, 3603, 3604, 3614, 3626 and 3631-CAT of 2010. Union of India, while invoking the powers under Articles 226/227 of the Constitution of India, has challenged the order dated

26.02.2009 (Annexure P-4), passed by Central Administrative Tribunal, Chandigarh Bench, Chandigarh, (for short 'The Tribunal') whereby original applications filed by respondents namely Bhim Singh, Mukesh Chand, Roop Singh, Anil Kumar, Smt. Yogesh Kumari and Smt. Chetanya Prabha (shown as respondent No.2 respectively in aforesaid six petitions) were disposed of with the direction that the promotions already made were not to be disturbed. However, they would cast a fresh seniority, ab-initio, strictly on the basis of inter-se merit of the candidates as determined by the Staff Selection Commission in the year 1986 within two months. The seniority list would be finalized after hearing the objections if any and the said Civil Writ Petition No.3602 CAT of 2010 (O&M) 3 seniority list is to come into operation for all intents and purposes including promotions to be made in future. The petitioners-respondents shall also draw up a list of affected persons, who may have suffered on account of the earlier seniority and they would be compensated in near future either by stepping up their pay at par with their juniors or by grant of promotions to the higher posts wherever permissible. The aforesaid respondents appeared in the all India Competitive Examination for the posts of Lower Division Clerks, held by Staff Selection Commission on 28.09.1986. The zone-wise result of Punjab, Haryana and Chandigarh was published on 11.07.1987. Some of the candidates, lower in merit, joined earlier whereas some of them, higher in merit, were given appointment orders later, thus, their seniority in the cadre of the clerks was fixed with reference to the date of joining whereas it should have been fixed with reference to the inter-se merit determined by the Staff Selection Commission, irrespective of the date of joining of each candidate. The said seniority list was circulated vide Office Order No.Admn.1/220 dated

22.02.1988 (Annexure R-1). Vide said order, the officials were also provided opportunity to file the objections within 15 days of the circulation of the order and it had also been clarified that in case no objection is received within the said period, the seniority so fixed was to be treated as final. The petitioners have further set out that applicant with rank No.SLY 406 was amongst the 10 candidates sponsored in the 3rd batch wherein the names of the candidates were mentioned rank-wise. Accordingly, the seniority of the applicant was fixed as per the rank assigned to him in the list of the candidates sponsored by the Staff Selection Commission in the 3rd batch by maintaining inter-se seniority. It was further added that the Civil Writ Petition No.3602 CAT of 2010 (O&M) 4 seniority so fixed remained unchallenged for about 20 years. The officials, so appointed have joined inter-se seniority vide aforesaid office Order dated

22.02.1988 (Annexure R-1). They had also been given promotions to the higher posts. Now it does not lie in their mouth to say that seniority list was incorrect. Any re-fixation of seniority at this belated stage will not only open the Pandora's box but would also result in plethora of suits being filed by the officials, who will likely to be affected by such re-fixation of seniority. As regards the promotion of Anil Kumar Pilani, it was clarified that his seniority was re-affixed on the basis of date of confirmation and not because of the rank assigned to him by the Staff Selection Commission. Arguments heard. There is no denying a fact that the matter pertains to the year 1986. The respondents had cleared the examination and seniority list was circulated vide order dated 22.02.1988. No objection whatsoever has been raised by the respondents to the said seniority list and they have been enjoying promotion to the higher posts on the basis of the said list.

In the office order dated 22.02.1988 (Annexure R-1), it is clearly mentioned that in case the officials had any objection to the seniority list they should bring it to the notice within 15 days of the circulation of the order and in case no objection is received within the said period, the seniority so fixed, would be treated as final. However, the respondents did not bother to raise any objection. Now after a period of 20 years, any re- fixation would complicate the matters resulting in demotions of various officials. The respondents were earlier promoted to the next higher post of accountant as per seniority assigned to them and thereafter to the post of senior accountant when the seniority reaffixed in the cadre of accountants and in clerks cadre, as such, the cases suffer from delay and laches. The Civil Writ Petition No.3602 CAT of 2010 (O&M) 5 matter with regard to delayed claim concerning seniority was examined in the case Rabindranath Bose and others versus The Union of India and others 1970 (1) Supreme Court Cases 84 wherein pra 31 and 32, it was observed as under:- “31.

But in so far as the attack is based on the 1952 Seniority Rules, it must fail on another ground. The ground being that this petition under Article 32 of the Constitution has been brought about fifteen years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Learned counsel for the petitioners says that this Court has no discretion and cannot dismiss the petition under Article 32 on the ground that it has been brought after inordinate delay. We are unable to accept this contention. This Court by majority in M/s Tilokchand Moti Chand's case and Others v. H.B. Munshi and Others held that delay can be fatal in certain circumstances. We may mention that in Laxmanappa Hanumantappa Jamkhandi v. The Union of India & Another, Mahajan, C.J., observed as follows : “From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September, 1952 more than two years before this petition was presented in this Court.

The assessment orders under the Income-tax Act itself were made against the petitioner in November, 1953. In these circumstances, we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. It was held by this Court in Ramjilal v. Income tax Officer, Mohindergarh that as there is a special provision in Article 265 of the Constitution that no tax shall be levied or collected except by authority of law, clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax Civil Writ Petition No.3602 CAT of 2010 (O&M) 6 and inasmuch as the right conferred by Article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under Article 32. In view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen, it would not be just and proper to diret the issue of any of the writs the issue of which is discretionary with the Court.” (emphasis supplied).” “32.

The learned counsel for the petitioners strongly urges that the decision of this Court in M/s Tilokchand Motichand's Case (supra) needs review. But after carefully considering the matter, we are of the view that no relief should be given to petitioners who, without any reasonable explanation, approach this Court under Article 32 of the Constitution after inordinate delay. The highest Court in this land has been given original jurisdiction to entertain petitions under Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay.” Similar view was taken by the Apex Court in case Y.Ramamohan and others versus Government of India and others (2001) 10 Supreme Court Cases, 537 wherein it was observed as under:- “Before us, four authorities of this Court have been cited in support of the contention that the application ought not to have been rejected on the ground of laches only.

But in each and every case, what has been noticed is that the question whether the discretion of the Court or the Tribunal should be exercised for condoning the laches would depend upon the facts and Civil Writ Petition No.3602 CAT of 2010 (O&M) 7 circumstances of each case. In the case in hand, when the Tribunal itself has recorded a finding in the earlier case that the gradation list had been duly communicated in the year 1983, we must assume that the applicants knew of the gradation list assigning them the year of allotment as 1976, in 1983, and, therefore, the so-called representation filed by the appellants to the Central Government after disposal of the earlier application filed by the direct recruits is nothing but a subterfuge to get a period of fresh limitation. This method adopted by the appellants disentitles them to any relief. That apart, the gradation list of the year 1983 allotting 1976 as the year of allotment to the appellants has almost settled the seniority list, which need not be disturbed after this length of time.” The legal and factual position being such as has been shown above, it would not be appropriate to unsettle the seniority already settled at such a belated stage.

Whenever any person approach Court it must furnish some plausible explanation of delay and laches. The impugned order passed by the Tribunal does not met legal requirement and thus, it is liable to be set aside. Resultantly, we hereby accept these petitions, set aside the impugned order and keep our reservations to disturb the seniority list finished long ago, in the year 1988, after such a long pause. (M.M.KUMAR) JUDGE (A.N.JINDAL) JUDGE

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