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2020 DIGILAW 126 (AP)

K. Moses Ratna Kumar v. State of A. P.

2020-02-17

D.V.S.S.SOMAYAJULU

body2020
JUDGMENT : D.V.S.S. SOMAYAJULU, J. 1. This writ petition is filed for a direction in the nature of Mandamus declaring the proceedings dated 07.02.2019 as illegal, arbitrary etc. Thereafter, I.A. No. 2 of 2019 is filed seeking a prayer to set aside the subsequent proceedings dated 08.03.2019 of the 4th respondent promoting the 6th respondent as Principal for the HIRD Engineering College for women. This application for amendment is allowed. Office is directed to make the necessary amendment. 2. This Court has heard Sri K. Ananda Rao, learned counsel for the petitioner, Government Pleader for School Education, Government Pleader for Higher Education, Sri N. Siva Jyothi and J. Sudheer, learned counsel for the 6th respondent. 3. The essential case set up by the counsel for the petitioner before this Court is that he has been appointed as a lecturer in HIRD Junior College for Women-5th respondent on 26.06.1989. The 6th respondent was also appointed as a Junior Lecturer in English on the very same day i.e. 26.06.1989. Thereafter, both the courses were admitted into grant-in-aid, but the 6th respondent was admitted into grant-in-aid on 26.06.1989, whereas the petitioner was admitted into grant-in-aid on 01.11.1989. Thereafter, petitioner states that he continued to hold the post and discharge his duties to the best of his ability. Later, the post of Principal in the above mentioned college fell vacant. One Smt. K.V.V. Nirmala Kumari was appointed, but due to some legal proceedings etc. the post again fell vacant. Thereafter, steps were being taken to promote someone from the feeder category as the Principal of the college. The petitioner's case is that he is entitled to claim the post of Principal and that since both of them were appointed on the same day as the petitioner is older in age, he has a claim over the post. It is his contention that since both the petitioner and respondent No. 6 were appointed on the same day, the seniority must be fixed with reference to his date of birth or biological age. Therefore, he claims seniority. Petitioner also claims that he made a number of representations to the respondents, but they did not act on the same. The seniority list, which was prepared in the interregnum period is not correct according to the petitioner. Therefore, he claims seniority. Petitioner also claims that he made a number of representations to the respondents, but they did not act on the same. The seniority list, which was prepared in the interregnum period is not correct according to the petitioner. Learned counsel also draws the attention to the memo dated 28.03.2018 by which the services of the petitioner into grant-in-aid were effected from 26.06.1989 notionally. Hence, the sum and substance of the petitioner's case before this Court is that he has necessary seniority and the service to be considered as the Principal. 4. In reply to this, learned counsel for the 3rd respondent and the counsel for the 6th respondent advanced their arguments. The Government Pleader also supported the case of the respondents. The 3rd respondent states very clearly in the counter affidavit that duly constituted selection committee selected the 6th respondent as a Principal by way of transfer from the feeder category. The provisional seniority list is also communicated by the 5th respondent to the concerned junior lecturers. The final seniority list was also prepared on 25.02.2008 by the 5th respondent. It is categorically and clearly mentioned that no objection whatsoever has been received to the final seniority list. Hence, it is submitted that the seniority cannot be disturbed. According to the same, the learned counsel submits that the date of the grant-in-aid has been taken to be the crucial date and the 6th respondent who was admitted into grant-in-aid earlier has been preferred to the post. As mentioned earlier, the 6th respondent was admitted into grant-in-aid on 26.06.1989, whereas petitioner was admitted on 01.11.1989. 5. Counsel for the 4th respondent-Government Pleader for Higher Education also relied upon the counter affidavit filed. His contention essentially is that the petitioner had also slept over his rights. He also points out that the final seniority list was prepared in February, 2008 and challenge to the same is only filed after 27 years. He relies upon an order passed by the Hon'ble high Court of A.P. in WP. No. 16962 of 2015, wherein the learned single Judge held in similar circumstances that seniority has to be reckoned from the date on which the post of the parties were admitted into grant-in-aid and not from the date of original appointment or the date on which their posts were approved. No. 16962 of 2015, wherein the learned single Judge held in similar circumstances that seniority has to be reckoned from the date on which the post of the parties were admitted into grant-in-aid and not from the date of original appointment or the date on which their posts were approved. The learned single Judge held that the crucial date is the date on which they were admitted to grant-in-aid. Therefore, learned Government Pleader for Higher Education argues that apart from the grounds of estoppel and delay, the law is also in support of their stand. 6. Learned counsel for the 6th respondent also argues that the application is clearly hit of the principles of estoppel/delay etc. He points out that as per the settled law on the subject, settled seniority lists should not be disturbed. Learned counsel points out that right from the inception till date, the petitioner was aware of the fact that the 6th respondent is shown as the senior. He relies upon the documents which are filed to show that in February, 2008 itself, the seniority lists were prepared and finalized. He points out that in all these lists, the petitioner was shown as a person after the 6th respondent. Even when the post of the Principal fell vacant in February, 2018, the petitioner did not protest when the 6th respondent was shown as the immediately senior lecturer. Learned counsel also submits that a representation was given by the petitioner, but the same was also rejected by the Management. This reply dated 31.10.2018 by which the representation of the petitioner was rejected is not even challenged as per him. He also argues that there is a clear suppression of fact and in view of the suppression of facts, the petitioner is not entitled to any relief. Learned counsel also points out that the 6th respondent has already joined as Principal and is continuing to discharge her functions. Lastly, relying upon B.S. Bajwa vs. State of Punjab, (1998) 2 SCC 523 , learned counsel argues that a settled seniority list should not be disturbed. In this case also, learned counsel points out that the petitioner was aware that others were being promoted before him, yet he did not make an effort to question the promotions. After considering the facts, the Hon'ble Supreme Court held that the question of seniority should not be reopened in such situations. 7. In this case also, learned counsel points out that the petitioner was aware that others were being promoted before him, yet he did not make an effort to question the promotions. After considering the facts, the Hon'ble Supreme Court held that the question of seniority should not be reopened in such situations. 7. This Court after hearing all the learned counsel appearing for the parties, considering the facts and circumstances of the case, notices that there is sufficient strength in what is stated and argued by the learned counsel for the respondents. The 6th respondent was admitted into grant-in-aid before the petitioner. Therefore, since both of them joined on the same day, the date of grant-in-aid is taken as the crucial date. This position had crystallized in 1989 itself. Even in the year 2008, when the seniority lists were prepared, the petitioner was shown below the 6th respondent. The final seniority list was communicated in February, 2008. The 6th respondent is at S. No. 6, whereas the petitioner is at S. No. 7. As rightly pointed out by the learned counsel for the 6th respondent and the Government Pleader, since then; till the writ was filed in 2019, no action was taken by the petitioner to challenge the same. Even in 2016, the same position continued; as can be seen from the seniority list dated 24.09.2016. 8. Therefore, this Court holds that the petitioner has slept over his right and did not question the fixation of the seniority. The law expects persons to diligently pursue their rights. In the case on hand, it is clear that the petitioner was not at all diligent. The case law cited by the learned counsel for the 6th respondent namely B.S. Bajwa's case (supra), also applies to the facts and circumstances of the case. Apart from this, this Court also notices that there is a rationale basis for holding that respondent No. 6 is a senior. On this ground also the writ petitioner is not entitled to any relief. 9. For all these reasons, this Court holds that the petitioner has not made out a case for interference by this Court. 10. The writ petition is accordingly dismissed. No order as to costs. As a sequel, the miscellaneous applications, if any pending, shall stand closed.