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2014 DIGILAW 708 (GAU)

NIRBHAI KUMAR SINGH GAUTOM v. UNION OF INDIA

2014-07-17

T.VAIPHEI

body2014
Judgment In this writ petition, the petitioner is seeking re-fixation of his seniority in between serial No. 64 and Serial No. 66 of the Gradation List of Commandants as on 1-1-2011 in accordance with the date of his confirmation in his service. 2. Even though the petitioner is purportedly aggrieved by the projection of his date of confirmation as Sub-Inspector, GD, CRPF and claiming seniority position in between Sl. No. 64 and SL. No. 66 of the G-List of Commandants as on 1-1-2011, on critical examination of his pleadings, it becomes apparent that he is trying to do indirectly what he cannot do directly. In my opinion, he is essentially aggrieved by the re-fixation of the Combined Gradation Lists of Sub-Inspectors and Inspectors ordered by the respondent No. 2 by his order contained in his letter dated 3-2-1999. Aggrieved by this re-fixation which had taken place some 13 years before the filing of this writ petition, a series of representations have been filed by him ad nauseam for rectification of the said Combined Gradation List, but it was only in 2012 that he decided to approach this Court. He did not even challenge the said Combined Gradation List nor did he implead the beneficiaries of such Combined Gradation List. In the year 1981, the petitioner applied for the post of Sub-Inspector, General Duty in the Central Reserve Police Force (CRPF) as a General Category candidate. When he was shown to be selected for the post of Head Constable, General Duty, at Serial No. 1 of the select list, he declined to accept the offer of appointment for Head Constable (GD). Subsequently, based on his performance, he was offered the post of Sub-Inspector GD, which he accepted and which he did join on 24-11-1981. Initially, out of the 100 candidates shown to be selected for the post of Sub-Inspector GD in the select list dated 7-9-1981, 88 candidates were selected from the open market and 12 were departmental candidates. Since 12 selected candidates for the post of Sub-Inspector GD declined to join the posts, 10 candidates from the list of Head Constables on the basis of the select list were offered. The last candidate of the General Category candidates in the select list dated 7-9-1981 was at Serial No. 73, namely, one Sri Umesh Singh Sekhawat. Since 12 selected candidates for the post of Sub-Inspector GD declined to join the posts, 10 candidates from the list of Head Constables on the basis of the select list were offered. The last candidate of the General Category candidates in the select list dated 7-9-1981 was at Serial No. 73, namely, one Sri Umesh Singh Sekhawat. The petitioner was the next candidate of the General Category who has been offered the appointment from this select list. 3. Pursuant to the meeting of the DPC held on 3-8-1987, the Commandant, 30th Bn CRPF had published Force Order Part-II dated 29-8-1987 under the authority of the Office Order dated 27-8-1987, whereby the petitioner, along with eight other persons, was declared to be confirmed in the rank of Sub-Inspector/GD with effect from 8-5-1985. He qualified the E-List test Serial No. 8/87, which is essential for promotion from Sub-Inspector to Inspector, but many of his seniors passed E-List No. 11/87 latter than him. By the order dated 28-12-1988, he was promoted in the rank of Inspector/GD and joined the post on 21-1-1989. In the Combined Gradation List of Subedar Major/Inspector dated 12-2-1990, he was placed at Sl. No. 985 thereof. On 7-6-1992, he was declared qualified in SSRC Sl. No. 39 held at ISA Mt. Abu, which is a course mandatory for becoming eligible for promotion to the rank of Assistant Commandant. On 15-9-1993, he was further promoted in the rank of Assistant Commandant of CRPF. 4. The Director-General, CRPF by the order dated 3-2-1999, in order to set right the grievances of persons who were affected in the assignment of seniority in the combined Gradation List of Sub-Inspectors and Inspectors as on 1-11-1990, directed re-assignment of the seniority of the direct appointees Sub-Inspectors appointed vide the select list dated 7-9-1981. While the seniority of the direct appointees was recast by the said order by placing them over and above the departmental candidate, no re-fixation in the seniority position of the petitioner was done even though he was also a direct appointee, which resulted in his losing seniority even amongst his batchmatch. The representation made by him for re-fixation of his seniority did not yield any positive result. In the meantime, by the order dated 18-9-2006, he was further promoted to rank of Second-in-Command, CRPF. The representation made by him for re-fixation of his seniority did not yield any positive result. In the meantime, by the order dated 18-9-2006, he was further promoted to rank of Second-in-Command, CRPF. Ultimately, his representation was acknowledged by the respondents in their communication dated 26-1-2007 by informing him that it was the desire of the competent authority to keep his representations pending till finalization of court case on the same issue filed by Shri S.C. Phogat. When there was no development for over two years or more, he made two representations on different dates to the respondent No. 2 to seek his intervention. Ultimately, the Deputy Inspector General (Esstt) DTe, CRPF vide the communication dated 26-6-2009 informed him that in the absence of relevant records, it was not feasible to take up the issue of re-fixation of his seniority, more so, when correspondences were already weeded out after the prescribed period. It was also re-emphasized therein that since SRCC Sl. No. 38 was conducted in 1991 and the seniority of similarly placed Inspectors was revised during 1999, nothing fruitful would emerge “owing to certain ramification cropped up” (?). At this stage, it may be noted that he was further promoted to the rank of Commandant by the year 2010 by the Signal dated 10-5-2010. 5. In my opinion, without going into the merit of the writ petition, I am inclined to dismiss this writ petition on the ground of laches. In a case somewhat similar to the facts of this case, the Apex Court in S. Sumnyan v. Limi Niri, (2010) 6 SCC 791 , held as follows: “25. Several seniority lists were published thereafter, showing the names of the appellants as senior to respondent 1. A final seniority list of Assistant Engineers (Civil) in Arunachal Pradesh Public Works Department as on 1-3-1999 was published on 15-3-1999 through an Office Memorandum and in the said seniority list also the names of the appellants were shown senior to respondent 1. In the said seniority list also not only the date of their initial appointment in the post of Assistant Engineer was shown but also the date of their confirmation in the grade was also shown which was from the date of their initial appointment. When the aforesaid final seniority list was published, Respondent 1 finally filed a writ petition in 2001 challenging the seniority position given to the appellants. 26. When the aforesaid final seniority list was published, Respondent 1 finally filed a writ petition in 2001 challenging the seniority position given to the appellants. 26. On 2-3-2001, Gazette Notification had also been published which clearly indicates that not only the appellants were confirmed in the post of Assistant Engineer (Civil) but they were confirmed in the post of Executive Engineer (Civil) and at least some of them since been promoted to the post of Superintending Engineer and one of them is at least occupying the post of the Chief Engineer. 27. The respondents in their writ petition had neither challenged the initial appointment order of the appellants appointing them as Assistant Engineers (Civil) on temporary and ad hoc basis under the 1983 Rules, nor had they challenged the subsequent order passed by the Government of Arunachal Pradesh on the recommendation of the Arunachal Pradesh Public Service Commission regularising the services of the appellants as Assistant Engineers from the date of their initial appointment. 28. Not only were these orders not challenged by respondent 1in the writ petition filed by him but the subsequent orders of promotion of these appellants to the post of Executive Engineers and their confirmation in the said post, on the basis of their seniority positions counting the ad hoc period of service, were also not challenged. These orders are therefore, final and binding on all concerned. 29. As noted earlier by us, several seniority lists, although provisional in nature, were published in the meantime, showing that the benefit of ad hoc period had been given to the appellants. But these were never challenged by Respondent 1 and it was only in the year 2001 when some of them were promoted to the post of Superintending Engineer and one of them to the post of Chief Engineer that Respondent 1 filed the aforesaid writ petition. * * * 37. It is, thus, clearly established that Respondent 1 was inducted into government service by a separate mode of recruitment than that of the appellants and therefore, their cases cannot be equated. * * * 37. It is, thus, clearly established that Respondent 1 was inducted into government service by a separate mode of recruitment than that of the appellants and therefore, their cases cannot be equated. The statement of the Government of Arunachal Pradesh that the provisional seniority lists were regularly published by the Public Works Department Secretariat from time to time since 1990, with ample time being given to the incumbents to reply against any anomaly in the seniority list and that Respondent 1 never submitted any representation in that regard is not disputed. Respondent 1 had, therefore, challenged the established seniority position after about 10 years and that too without challenging the basic and fundamental orders of giving the appellants the benefit of regularised service their initial date of appointment as Assistant Engineers.” 6. In the instant case, what is distinguishable from S. Sumnyan case (supra) is that the petitioner did make not one but a series of representations for re-fixation of the Combined Gradation List of 3-2-1999, the first whereof is referable to dated 14-12-2004, but then it is settled law without reference to cases that repeated representations do not extend the cause of action. It cannot be disputed that a number of Sub-Inspectors and Inspectors in the CRPF must have been promoted to the higher posts even up to the rank of Commandant on the basis of the impugned Combined Gradation List, and to place the petitioner between Serial No. 64 and Serial No. 66 in the G-List of Commandants as on 1-1-2011 will be neither fair nor expedient, particularly, when those Commandants below Serial No. 66 are not impleaded as party respondents. Similarly, any interference with the Combined Gradation List or the G-List of Commandants will have the effect of unsettling an already settled position. In the view that I have taken, the issue of the date of confirmation has lost its significance and need not be decided: Court does not decide more than what is necessary. 7. For the reasons stated in the foregoing, this writ petition is hit the principles of laches and is, therefore, not maintainable. Consequently, the writ petition is dismissed but by directing the parties to bear their respective costs.