Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 472 (GAU)

Hare Krishna Das v. State of Assam

2008-06-27

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. The final gradation list (Annexure-V to the writ petition) published on 19.12.1998 by Director General (Civil Defence) has been challenged by the writ petitioners by this instant writ petition under Article 226 of the Constitution whereby they are made junior to private respondent Nos. 4, 5 and 6 despite their appointment prior to the date of appointment of the private respondents. 2. The case of the respective writ petitioners briefly stated is as under : Petitioner No. 1 was engaged as deployed Wireless Operator of the Civil Defence with effect from 2.5.1982 on daily wage basis till 13.2.1987. Thereafter he was appointed as Civil Defence Wireless Operator by order dated 13.2.1987. He had under gone training and after completion of such training he was allowed to draw the scale at Rs. 470/- to Rs. 800/- per month. By order dated 1.3.2005 he was promoted as Asstt. Dy. Controller (Jr.) by Senior Staff Officer (Civil Defence) in the scale of pay of Rs. 3,580/- to Rs. 8,100/- per month plus other allowances and posted at Panikhaiti, Guwahati vice Sri Jaleswar Deka, Assistant Deputy Controller (Jr.) for short A.D.C. (Jr.) herein after referred to as ADC(Jr.) (Civil Defence) (Jr.) promoted. 3. Petitioner No. 2 after due interview and selection was appointed as Civil Defence Wireless Operator in the scale of pay of Rs. 1,065/- to Rs. 2,095/- per month by an order dated 24.5.1993 and since then he is discharging his duties as such. 4. Petitioner No. 3 and Petitioner No. 4 were appointed as Wireless Operator in the scale of pay of Rs. 1,065/- to Rs. 2,095/- per month by order dated 29.5.1993 and both are discharging their duties as such till date. 5. In the year 1991, Assam Civil Defence (Non-Gazetted) Service Rules came into force, which were notified on 24.10.1991, which subsequently received amendment in the year 1998 in respect of Rule 3, Rule 5, Rule 11, Schedule-II and Schedule-III of the Rules. The cadre of Civil Defence Demonstrator and Civil Defence Wireless Operator have been defined under Rule 3(1) and 3(1)(d) respectively without showing any class there to. In Schedule-II of the Rules, 1991 the scale of pay of Civil Defence Demonstrator and Civil Defence Wireless Operator has been shown separately. Scale of Civil Defence Wireless Operator appears to be less than the scale of Civil Defence Demonstrator. 6. Private respondent Nos. In Schedule-II of the Rules, 1991 the scale of pay of Civil Defence Demonstrator and Civil Defence Wireless Operator has been shown separately. Scale of Civil Defence Wireless Operator appears to be less than the scale of Civil Defence Demonstrator. 6. Private respondent Nos. 4 and 5 were appointed as Civil Defence Demonstrator vide order dated 11.6.1993 and they joined in the service on 14.6.1993 and 16.6.1993 respectively while respondent No. 6 was appointed as Civil Defence Demonstrator on 5.7.1993 who joined on the same day in the service. 7. A common gradation list was prepared and published by the Director General (Civil Defence) on 22.7.1998 wherein seniority position of the petitioners has been shown at Serial Nos. 3, 5, 6 and 7 respectively while the seniority position of the respondents (respondent Nos. 4, 5 and 6) has been shown at Serial Nos. 8, 10 and 11 respectively. It would be appropriate to refer at this stage petitioner No. 1 was promoted as Civil Defence Demonstrator who thereafter joined in the post of 4.8.1987. By amendment of Rule 3, the cadre of Civil Defence Demonstrator and Civil Defence Wireless Operator were amalgamated into one cadre "Cadre-C" wherein it is specifically stated that the incumbents to those post shall be interchangeable, resultantly the scale of pay of Rs. 975/- to Rs. 1,995/- has also been substituted by scale of Rs. 1,065/- to Rs. 2,095/-. After the amendment, the Director General of Civil Defence published a provisional gradation list inviting objections showing the private respondents senior to the petitioners on 19.12.1998. The final gradation list was published being not objected from any corner showing all private respondents (4 to 6) senior to the petitioners. 8. It is averred that the private respondents are far junior to the writ petitioners in regard to initial appointment in their respective post, but they had been illegally shown senior to the petitioners, all being in the same cadre under the amended rules and depriving the petitioners, private respondent Nos. 4, 5 and 6 were promoted as ADC(Jr.) vide orders dated 19.12.1998, 29.12.1998 and 29.12.1998 respectively. Vide order dated 1.3.2005 respondent No. 4 was again promoted to ADC(Sr.). It is claimed by the petitioners that such promotion to a higher grade of the respondents is illegal since they all joined earlier to private respondents in their respective post. 9. 4, 5 and 6 were promoted as ADC(Jr.) vide orders dated 19.12.1998, 29.12.1998 and 29.12.1998 respectively. Vide order dated 1.3.2005 respondent No. 4 was again promoted to ADC(Sr.). It is claimed by the petitioners that such promotion to a higher grade of the respondents is illegal since they all joined earlier to private respondents in their respective post. 9. The petitioners also claimed that the impugned final gradation list was never brought to the knowledge of the petitioners at any point of time not to speak of circulation of the same amongst the concerned employees by the respondent authorities. The petitioners, therefore, were under bonafide belief that since they had no grievance against provisional gradation list dated 22.7.1998 published by Director General (Civil Defence) and Commandant General of Home Guards, Assam, the final gradation list would be prepared per the aforesaid gradation list by the department concerned. Their further claim that before finalization of the provisional gradation list no notice was invited from the petitioners in respect of maintaining inter-se seniority amongst the Civil Defence Demonstrator and Civil Defence Wireless Operator. In view of such fact, the final gradation list is bad and illegal and liable to be set aside and quashed. According to the petitioners the final gradation list ought to have been published taking initial date of appointment in their respective post. The petitioners also claimed that as per Rule 22 of the 1991 Rules, a gradation list is required to be published in every year containing the names of all the members cadre wise in order of seniority giving all particulars required for the purpose. Although the final gradation list was prepared it was not brought to the notice of the petitioners. Further in the subsequent years too it was, per Rule 22 of the 1991 Rules, not published. Thus in respect of preparation and publication of the final gradation list, the petitioners remained in darkness about their inter-se seniority amongst the employees of the same cadre (Cadre-C, under amended Rules). 10. By now, it is also averred that the respondent authorities are now contemplating to promote the private respondents further to a higher post depriving the legitimate promotion of all the petitioners. 10. By now, it is also averred that the respondent authorities are now contemplating to promote the private respondents further to a higher post depriving the legitimate promotion of all the petitioners. The acts and the omissions on the part of the respondent authorities by not bringing the final gradation list to the notice of the petitioners or by publishing the same as required under Rule 22 of the Rules, petitioners are prejudiced; which causes miscarriage of justice. The petitioners, therefore, under the facts and circumstances have prayed this Court to set aside the final gradation list dated 19.12.1998 with a direction to re-fix the inter-se-seniority amongst the petitioners and the respondents recasting the seniority position which find place in the provisional gradation list prepared on 22.7.1998. 11. All the respondents filed affidavit-in-opposition. Respondent Nos. 1, 2 and 3 contended in their affidavit-in-opposition that the gradation list of the Civil Defence Demonstrator and Civil Defence wireless Operator was prepared and published as per order of the Director General (Civil Defence) and per the said order, the employees holding the post of Civil Defence Demonstrator were put over the Civil Defence Wireless Operator since, prior to amendment, the rank of Civil Defence Wireless Operator was lower than the Civil Defence Demonstrator getting lesser pay than the employees of the cadre of Civil Defence Demonstrator, that apart a percentage of post in the cadre of Civil Defence Demonstrator was reserved for promotion from the cadre of Civil Defence Wireless Operator. 12. Respondent Nos. 1, 2 and 3 also contended that basing on those criteria and the order, the provisional gradation list was prepared and the same was brought to the notice of each and every employee of the cadre in order to receive objection, if any. Since no objection was received from any corner, the provisional gradation list was given a final shape which is now under challenge. The respondents above named, therefore, contended that no illegality had been committed by putting all the private respondents above the writ petitioners. Respondent Nos. 4, 5 and 6 also supported the contention of the respondent Nos. 1, 2 and 3 vide their affidavit-in-opposition. 13. Argument at length was heard from the respective counsel for the parties. 14. The respondents above named, therefore, contended that no illegality had been committed by putting all the private respondents above the writ petitioners. Respondent Nos. 4, 5 and 6 also supported the contention of the respondent Nos. 1, 2 and 3 vide their affidavit-in-opposition. 13. Argument at length was heard from the respective counsel for the parties. 14. The sole issue to be determined in this writ petition is whether the writ petitioners can be treated or held as senior to the private respondents in view of the facts situation, rules (1991, Rules and Amended 1989, Rules) and order passed by the Director General (Civil Defence)? 15. There is no dispute at Bar in regard to the appointment of the writ petitioners and the private respondents as well as their date of appointment and joining. Admittedly, writ petitioners were appointed initially as Civil Defence Wireless Operator on different dates while private respondent Nos. 4, 5 and 6, were initially appointed Civil Defence Demonstrator on the different dates. From the scrutiny of the appointment letters of the writ petitioners and the private respondents, it is noticed that the writ petitioners were appointed in their respective post prior to the appointment of the private respondent Nos. 4, 5 and 6. 16. Earlier to 1991 there was no service rules in respect of appointment of the employees in the Civil Defence including the Civil Defence Wireless Operator and Civil Defence Demonstrator. In 1991 Assam Civil Defence (Non-Gazetted) Service Rules came into existence, which later on received an amendment in respect of Rule 3, Rule 5, Rule 11, Schedule-II and Schedule-III of the 1991 Rules, which is now styled as Assam Civil Defence (Non-Gazetted) Service (Amendment) Rules, 1998. This amendment was made to the rules and schedules in exercise of powers conferred by the proviso to Article to 309 of the Constitution. This amended rule was notified on 4th June 1998. 17. On 22.7.1998, a provisional gradation list (common) of the Civil Defence Demonstrator/Civil Defence Wireless Operator was published wherein all the petitioners were placed above the private respondents in seniority position. 18. Before amendment of 1991 Rules, post of Civil Defence Demonstrator and Civil Defence Wireless Operator were put in two different cadres, "Cadre-C" and "Cadre-D" respectively which carried separate scale. But after amendment, both the cadres were amalgamated into a single cadre; "Cadre-C" which carries the same scale of pay. 18. Before amendment of 1991 Rules, post of Civil Defence Demonstrator and Civil Defence Wireless Operator were put in two different cadres, "Cadre-C" and "Cadre-D" respectively which carried separate scale. But after amendment, both the cadres were amalgamated into a single cadre; "Cadre-C" which carries the same scale of pay. Amendment was made and notified on 4th June 1998. The common gradation list where the writ petitioners were put above the private respondents was prepared and published on 22.7.1998, that means, it was prepared after amalgamation of "Cadre-C" and "Cadre-D" under 1991 Rules. It was argued by the learned Counsel for the writ petitioners that in spite of amendment of the Rule 3, the provisional gradation list was prepared and published on 22.7.1998 taking into consideration the respective date of appointment in their respective post. The final gradation list which was under challenge was published overriding the seniority position of the writ petitioners by virtue of an order of the Director General (Civil Defence) which eminated from the decision of the Selection Board held on 7.8.1998, which is against and not in conformity with the Rules and the Schedules of the amended Rules and Rule 20(4)(b) of the Rules 1998. Further it was submitted that in absence of Selection Board's decision, the order of Director General (Civil Defence) dated 26.10.1998 on the basis of which the final gradation list was prepared and published cannot hold good in fixing the inter-se-seniority between the employees of the amalgamated Single cadre (Cadre-C). 19. It was further argued by the learned Counsel for the writ petitioners that when the final gradation list received its shape, the amended Rules were in force and in view of prevalence/enforcement of the rules, the administrative direction could not get preference over the rules or in other words the same could not over ride the Rules (amended) in fixing the inter-se-seniority amongst the employees of "Cadre-C". Rule 2(4)(b), as argued by the learned Counsel, provides the procedure for fixing inter-se seniority among the cadre. Rule 20 of the Rules 1991 did not receive any amendment and, therefore, the provisions for fixing inter-se-seniority amongst the employees of the Cadre is to be guided by this provision. The ratio laid down in the case between Kulwant Kr. Sood v. State of H.P. and Anr. Rule 20 of the Rules 1991 did not receive any amendment and, therefore, the provisions for fixing inter-se-seniority amongst the employees of the Cadre is to be guided by this provision. The ratio laid down in the case between Kulwant Kr. Sood v. State of H.P. and Anr. (2005) JO SCC 670), according to learned Counsel for the writ petitioners, would be not applicable in view of the Rules 1998 and, therefore, the order of Director General (Civil Defence) would have no binding effect in the context of fixing of inter-se-seniority of the employees of the "Cadre-C". Reliance so placed by the counsel for the respondents would be of no use in view of existence of Assam Civil Defence (Non-Gazetted) Service (Amendment) Rules 1998. This court, therefore, see force in the argument advanced by the learned Counsel for the writ petitioners. 20. Challenging the contention of the writ petitioners in the contest of setting aside of the final gradation list published, it was argued by the learned Counsel for the respondents that the final gradation list is not liable to be set aside and quashed in view of the laches and delay on the part of the writ petitioners. Provisional seniority list was published by the respondent authorities on 26.10.1998 while final gradation list was published on 19.12.1998. During the intervening period from publication of common gradation list on 26.10.1998 and the date of promotion of the private respondents to a higher grade ADC(Jr.), the writ petitioners never came forward challenging the final gradation list so prepared and published on 19.12.1998 and only on 27.6.2005, the writ petitioners approached this Court challenging its legality and correctness through this writ petition. In such circumstances, it was argued, by the learned Counsel for the respondents that for such laches and delay, the seniority position of the respondents cannot be challenged by the writ petitioners, they being put in below the private respondents. In support of his contention learned Counsel for the respondents mainly placed reliance in the case between V. Bhaskar Rao and Ors. v. State of A.P. and Ors. (1993) IILLJ 1076 SC and in the case between Prafulla Kumar Swain v. Prakash Chandra Misra and Ors. (1993) Supp (3) SCC 181. 21. In para 10 of the judgment reported in (1993) IILLJ 1076 SC the Hon'ble Apex Court held as under : 10. Mr. v. State of A.P. and Ors. (1993) IILLJ 1076 SC and in the case between Prafulla Kumar Swain v. Prakash Chandra Misra and Ors. (1993) Supp (3) SCC 181. 21. In para 10 of the judgment reported in (1993) IILLJ 1076 SC the Hon'ble Apex Court held as under : 10. Mr. Madhava Reddy then contended that the petitioners were appointed in the year 1981 and since then till the year 1988 twelve seniority lists have been published showing the petitioners below respondents 4 to 16. At no point of time they challenged the seniority lists in the Court. Even when the writ petitions filed by Chalapathi were pending they did not intervene before the High Court. The petitioners, according to Mr. Madhava Reddy, are guilty of gross delay and laches and as such are not entitled to get relief by way of this petition under Article 32 of the Constitution of India. In para 13, 22, 38 and 44 of the judgment reported in 1993 Supp (3) SCC 181 the Hon'ble Supreme Court held as under : 13. As regards the ratio of 2/3rd and 1/3rd between direct recruits and promotees the relevant rule that is applicable is Rule 5(3). That Sub-rule contains a provision: "Save as otherwise decided by Government". If, therefore, it has been otherwise provided by the Government, this ratio of 2/3rd and 1/3rd does not apply. In other words there is overriding power vested in the Government. Hence, the ratio is flexible and contemplates a departure whenever the Government otherwise decides. Here again, the Tribunal has gone wrong. In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra this Court has taken the view that where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. In any event, the placement of respondents 42 to 94 as per Civil List corrected up to 1982 was published in the year 1985 by the State Government. They are the promotees from amongst the various Rangers in subordinate service Class-II as Assistant Conservator of Forests in 1980. This was at a time when the first respondents was undergoing training in Burnihat, Assam. They are the promotees from amongst the various Rangers in subordinate service Class-II as Assistant Conservator of Forests in 1980. This was at a time when the first respondents was undergoing training in Burnihat, Assam. If really therefore, the gradation list was published as early as 1985, there is absolutely no justification for the first respondent to approach in the year 1988. The judgment of the Tribunal has resulted in unsettling the settled matters. For these reasons, it is prayed that the order of the Tribunal may be reserved. 22. While the matter stood thus one of the directly recruited officers (Prakash Chandra Misra, respondent) filed a petition before the Tribunal challenging the seniority. He contended that the promotees who were promoted in the year 1981-82 ought to have been assigned a place lower than him as per recruitment rules. Two main contentions were : 1. His services should be reckoned from the date of recruitment itself and not from the date of actual appointment. Therefore, the exclusion of the period of two years' training for the purposes of reckoning the seniority was illegal. 2. The promotees had been appointed in excess of the quota which the rules had prescribed. There is no specific order of Government providing otherwise. 38. The gradation list has been in operation over several years. We see no reason to unsettle the settle position. In this behalf we draw support from the judgment of this Court In Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra. We may also note that though the same question was before his Court a little before the petition was made by respondent I before the Tribunal, no effort was made by respondent 1 to intervene and place before this Court his point of view. It is inconceivable that he would not have known that the same question was before this Court. 44. There have been laches on the part of the direct recruits in seeking the remedy. When the list was published in 1985 nothing prevented them in approach earlier. This is the point to be put against them. 22. It is inconceivable that he would not have known that the same question was before this Court. 44. There have been laches on the part of the direct recruits in seeking the remedy. When the list was published in 1985 nothing prevented them in approach earlier. This is the point to be put against them. 22. From the law laid down by the Hon'ble Apex Court, it is noticed that if the aggrieved party does not approached the appropriate forum seeking remedy within a reasonable time and sits over the matter merrily for a long period, remedy cannot be sought for on account of laches and delay on the part of the person concerned. Hon'ble Supreme Court in the aforesaid cases (supra) held that on account of laches and delay on the part of the petitioners, the petitioners are not entitled to invoke Article 32 of the Constitution claiming seniority over the respondents. 23. In our present case too though the seniority list was published on 19.12.1998 by the respondent authorities, during the intervening period, the seniority list was not challenged by the writ petitioners nor even after promotion of the private respondents to a higher grade. The writ petitioners sat over the matter for at least seven years from the date of publication of the final gradation list till the date of filling of this present writ petition. 24. It was contended by the respondent Nos. 1, 2 and 3 in their affidavit that after preparation of the provisional gradation list objections were sought/called for from the employees concerned for giving a final shape of the same. Since no objection was ever received from the employees concerned, the final gradation list was prepared and published and on the basis of the seniority, subsequently, the private respondents were promoted to a higher grade. This contention was refuted by the counsel of the petitioners submitting that the claim of circulation of the provisional gradation list among the concerned employees is false and no such attempt was made by the respondent authorities. The final gradation list was prepared without any knowledge/information behind the back of the writ petitioners, which is admittedly a classic example of violation of the natural justice. A reasonable opportunity ought to have been given to the writ petitioners to make a representation against the final gradation list wherein they were put below the private respondents. The final gradation list was prepared without any knowledge/information behind the back of the writ petitioners, which is admittedly a classic example of violation of the natural justice. A reasonable opportunity ought to have been given to the writ petitioners to make a representation against the final gradation list wherein they were put below the private respondents. The claim of the respondent Nos. 1, 2 and 3 that, the gradation list was circulated is totally false. But, if we take the date of publication of the final gradation list and the date of promotion of the private respondents, we would find that during this intervening period, the writ petitioners had the knowledge of publication of the final gradation list, they never approached this Court challenging its legality and correctness. The contention that the writ petitioners did not have any knowledge and the final gradation list was published behind their back is not acceptable in view of the facts appearing in the face of the record. 25. Rule 20(4)(b) provides for fixing of seniority amongst the employees of equivalent post and for fixing such seniority the length of continuous service in the organization is to be counted. Since the gradation list dated 22.7.1998 was prepared and published after amendment of the 1991 Rules, more particularly Rule 3, the length of service ought to have been taken while preparing the final gradation list, both the writ petitioners and the private respondents being fallen in the same cadre, "Cadre-C". But due to laches and delay on the part of the writ petitioners in challenging the impugned final gradation list, the petitioners are not entitled to invoke Article 226 of the Constitution. After a long lapse of time, a fact already settled cannot be unsettled, since on the basis of the gradation list the private respondents were given promotion to a next higher grade i.e. ADC(Jr.). In view of the law as declared by the Hon'ble Apex Court, this Court is constrained to dismiss the writ petition. In the result, this writ petition stands dismissed. There is no order as to cost. Petition dismissed.