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2016 DIGILAW 237 (UTT)

Sher Singh Rawat v. State of Uttarakhand

2016-06-02

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. 1. The issues raised in this batch of appeals being common, we are disposing of the same by this common judgment. 2. Heard the learned counsel for the parties on the Delay Condonation Applications. After hearing, we are of the view that the delay should be condoned. Accordingly, the delay will stand condoned and the Delay Condonation Applications will stand allowed. 3. The Applications seeking exemption from production of certified copy are also allowed. 4. Heard Mr. Amar Shukla, learned counsel appearing for the appellant, and Ms. Puja Banga, learned Brief Holder appearing for the State, on merits. 5. Appellants are the writ petitioners in this batch of special appeals. They have approached this Court seeking the following reliefs (WPSB No. 734 of 2015): “(i) Issue a writ order or direction in the nature of mandamus directing the respondents to fix the seniority of the petitioner from 01.01.1986 in view of judgment passed by Hon’ble Court in writ petition no. 932 (M/B) 2005 order dated 08.03.2007 passed in Review application no. 83 of 2007 and order dated 14.02.2011 passed by the Hon’ble Supreme Court in SLP No. CC-1120-1121 of 2011 State of Uttaranchal and others Vs. Uttarakhand Shikshak Sangh and others and in compliance of government order dated 04.04.2013, 21.11.2006 and issued by the respondent no. 1. (ii) Issue a writ order or direction in the nature of mandamus directing the respondents to grant the benefit of seniority, arrears etc. to the petitioner from the date of dying CT Cadre.” 6. In brief, the facts, which may not be in dispute, appear to be as follows: i. In the undivided State of Uttar Pradesh, the teachers, who would take classes for 6th, 7th & 8th, were being appointed as Assistant Teachers (CT Grade); for classes 9th & 10th, the designation was Assistant Teacher (LT Grade); and, still further, the teachers taking classes for 11th & 12th were designated as Lecturers. By order dated 19.02.1991, CT Grade was declared as dying cadre w.e.f. 01.01.1986. By Annexure No. 3 order dated 09.01.1992, the Government provided that this will be done on completion of 10 years’ service. Appellants, who were appointed as Assistant Teachers (CT Grade) were also merged in the LT Grade. By order dated 19.02.1991, CT Grade was declared as dying cadre w.e.f. 01.01.1986. By Annexure No. 3 order dated 09.01.1992, the Government provided that this will be done on completion of 10 years’ service. Appellants, who were appointed as Assistant Teachers (CT Grade) were also merged in the LT Grade. By Annexure No. 4 order dated 03.06.2005 issued by the newly created State of Uttarakhand, the Government relaxed the period of statutory service in the CT Grade and decided that the teachers, who were working in non-government aided secondary schools in CT Grade and have completed five years’ satisfactory service as on 19.02.1991, will be merged in the LT Grade. According to the appellants, that was subjected to challenge and Annexure No. 5 judgment of this Court was rendered, wherein the Court observed that there was no need to issue the Government Order. Annexure No. 6 is the judgment passed in the Review Petition filed by the State Government. The said judgment reads as follows: “Heard learned counsel for the petitioner and learned standing counsel for the State/ applicant and perused the record. This review application has been filed for reviewing the order dated 01.12.2006 passed by this Court. We have perused the grounds stated in the accompanying affidavit of the application. We do not find any good ground to review the said order. It is clarified that in our judgment, we have held that the Government order dated 3.6.2005 is of no use but it does not mean that we have quashed the said government order. It is in supplemental to the earlier Government Order and not in derogation thereof. As such, the Respondents No. 5 to 9 are entitled to be paid the LT Grade with effect from the declaration of CT Grade as a dying cadre. The review application is rejected accordingly.” ii. The SLP filed against the same was rejected vide Annexure No. 7. According to the appellants, respondent No. 1 directed respondent No. 2 to ensure compliance of the order of the Apex Court by Annexure No. 8. It is stated that respondent No. 2 suggested the Government that, if the orders of the High Court and the Supreme Court are implemented and LT Grade is given to the Government teachers, it will cost Rs. 3.30 crores and Rs. 1.92 crores if LT Grade is given to non aided schools. It is stated that respondent No. 2 suggested the Government that, if the orders of the High Court and the Supreme Court are implemented and LT Grade is given to the Government teachers, it will cost Rs. 3.30 crores and Rs. 1.92 crores if LT Grade is given to non aided schools. A suggestion was made that a review be filed. There is reference to Annexure No. 10 letter dated 05.06.2012 written by the District Education Officer, Champawat, to indicate that there will be no burden on the Government in district Champawat. It is, further, stated that it is the duty of the Government to give benefit of fixation of seniority and arrears to LT Grade teachers from the date of dying cadre. It is, despite making representations and not eliciting the desired response, that the appellants filed the writ petitions seeking the benefit. 7. After exchange of pleadings, the matter was heard by the learned Single Judge. The learned Single Judge entered the following findings: Appellants have not been vigilant in approaching the court; nothing was shown before the court that the appellants have made any effort before the Education Authorities for correction of their date of merger subsequent to the order of Allahabad High Court (Lucknow Bench); and there is undeniable delay at the hands of the appellants. The court also took note of the fact that the relief sought by the appellants may, ultimately, unsettle the settled seniority list between the teachers such as the appellants, who stood merged from the CT Grade to LT Grade and the Assistant Teachers, who were directly appointed as LT Grade in Government service, particularly those, who were appointed in between 19.02.1991 to 19.02.1996; some of them have always been treated as seniors to the appellants and they would become their juniors; those directly appointed LT Grade teachers are also not before the court; and no effort has been made by the appellants to implead such teachers or their association in the writ petitions. Thereafter, the court, however, took note of the directions issued by the Allahabad High Court and disposed of the writ petitions in the following manner: “17. Thereafter, the court, however, took note of the directions issued by the Allahabad High Court and disposed of the writ petitions in the following manner: “17. In view of the above, the writ petitions stand disposed with a direction to the State Government that since the Government Order dated 09.01.1992, which prescribed ten years of service as CT Grade teacher has already been quashed by the High Court of Judicature of Allahabad (Lucknow Bench) and the requirement is now only of five years of satisfactory service in CT Grade teacher to merge them to LT Grade Teacher on 19.02.1991. All the petitioners shall be treated to be Assistant Teachers (LT Grade) w.e.f. 19.02.1991 or as and when they completed five years of satisfactory service in the CT Grade. 18. All the same, it is clarified that this determination shall not affect in any manner the settled seniority of the Assistant Teachers (LT Grade) whose services stood merged from CT Grade to LT Grade (such as the petitioners) vis-a-vis the directly appointed Assistant Teachers (LT Grade) who are so far always shown to be senior to the petitioners. They shall continue to remain senior to the petitioners, as they have been shown senior to them all along, and this order would not affect their seniority against the petitioners or similarly situated persons. 19. It is further made clear that this benefit, which has been granted to the petitioners, will only be a notional benefit, particularly in view of the fact that the petitioners approached this Court belatedly. In other words, they shall not be given any financial benefits, except what may come to them at the time of calculation of their post retirement benefits and pension, and for continuity of their service.” 8. It is feeling aggrieved that the appellants are before us. 9. The learned counsel for the appellants would submit that the learned Single Judge was not justified in denying the benefit of seniority and also promotion on the basis of the directions, which were issued by the Allahabad High Court and which were, in fact, followed by him; that is to say, after finding that the appellants are entitled to be merged in the LT Grade from 19.02.1991 or from the date they have completed five years, the learned Single Judge should not have denied the benefit of seniority and promotion to the appellants. It was, in fact, submitted that the appellants were ready to implead the affected persons and, even before us, the learned counsel for the appellants would submit that, granted an opportunity, the appellants will bring on board the affected parties. 10. There is no period of limitation for a writ petition. Therefore, the question whether a case should be dismissed on the ground of delay is, essentially, decided on the principle of laches. A day’s delay can be fatal; whereas, several years’ delay may be explained by an applicant in the facts of the case. More importantly, the issue of laches must be resolved with reference to the impact of the grant of relief on others, who are not before the court; that is to say, there may be cases, where, by the grant of the relief, no third party rights would be affected and it may be a matter between the petitioner and the respondent alone. A case in point would be the grant of relief to a person in a case, where there is a recurring cause of action. It will be open to a court to mould the relief by bearing in mind the effect of delay on the past. But, in this case, what is pressed before us is the relief relating to rights to seniority and, therefore, the consequential right to promotion to the next higher post. Appellants, as already noted, were appointed as Assistant Teachers (CT Grade). Under the earlier Rules, the appellants were entitled to be promoted to the next higher cadre, namely, Assistant Teacher (LT Grade). The next higher post is the post of Lecturer. There is no dispute that from the post of Assistant Teacher (CT Grade), there were two methods of appointment; one by promotion and the other by way of direct recruitment. 30 per cent posts were reserved for persons from CT Grade to be promoted as LT Grade. The other source of recruitment was direct recruitment (50 per cent by way of direct recruitment and 20 per cent was reserved for persons, who were teaching in Primary, namely, classes 1 to 5). 11. As noted by the learned Single Judge, appellants were actually merged in the LT Grade, apparently, following the order, which was impugned in 1992 in the Allahabad High Court, on completion of 10 years. 11. As noted by the learned Single Judge, appellants were actually merged in the LT Grade, apparently, following the order, which was impugned in 1992 in the Allahabad High Court, on completion of 10 years. The learned Single Judge has thought it fit to grant the benefit, which was due to them on the basis of the general mandamus issued by the Allahabad High Court. But, when it came to the aspect of seniority and promotion, the learned Single Judge took care to mould the relief by protecting the interest of the persons, who were always treated as senior to the appellants and who were, apparently, appointed to the LT Grade from other sources. 12. As already noted, there is a long delay in the appellants’ approaching this Court. They were merged in the LT Grade on completion of 10 years. If this is in violation of the order of the Allahabad High Court, they immediately had a cause of action to approach the court. They have not challenged the orders by which they were merged in the LT Grade on completion of 10 years. It is after a long time, relying on the judgment of this Court in Writ Petition (M/B) No. 932 of 2005 and on the basis of representations, which they made, that they have approached this Court. Nearly 15 years have gone by after the date of the judgment by the Allahabad High Court. The grant of any relief by way of seniority would, undoubtedly, affect the rights of others. Not only would it be afflicted by the vice of laches; but, the further insuperable obstacle in the path of the appellants is the non-joinder of the affected parties. Therefore, we would think that the learned Single Judge has granted the benefit even though it was found, in fact, that there was delay on the part of the appellants in approaching this Court. Even in the matter of grant of financial benefits, the learned Single Judge has ordered that the benefits under the judgment will be taken into consideration at the time of retirement. Even in the matter of grant of financial benefits, the learned Single Judge has ordered that the benefits under the judgment will be taken into consideration at the time of retirement. We would think that this is a clear case, where the grant of the relief of seniority and the consequential promotion has been rightly declined by the learned Single Judge, as it is well settled that, when a person seeks to impugn a seniority, insofar as it would affect the rights of others, he is expected to approach the Court without any delay. In this case, there is an enormous delay and that disentitles the appellants from the grant of relief. 13. Even though an oral submission is made at the time of hearing by the learned counsel for the appellants that, given an opportunity, they will implead the affected parties, but, even in the appeals, there is no application to implead the affected parties. 14. We, accordingly, see no merit in these appeals. Consequently, the appeals will stand dismissed without any order as to costs.