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2021 DIGILAW 321 (UTT)

SANTOSH KUMAR MAHENDRA v. STATE OF UTTARAKHAND

2021-06-21

ALOK KUMAR VERMA, RAGHVENDRA SINGH CHAUHAN

body2021
JUDGMENT This writ petition is filed seeking a writ of mandamus directing the respondents to include the name of the petitioner in the tentative seniority list dated 06.07.2009, issued by the Secretary, Higher Education, respondent no.1, and after that he should be promoted, as he was eligible at that time; a writ of mandamus commanding the respondents to pay the arrears of salary to the petitioner for promotional post; and, a writ of mandamus commanding the respondents to revise the pension of the petitioner accordingly. 2. Facts, to the extent necessary, are that the petitioner, resident of Najibabad, District Bijnor (Uttar Pradesh), was appointed to the post of Lecturer Commerce vide appointment letter dated 14.12.1975. He was promoted to the post of Reader in the year, 1988. At the time of the creation of the State of Uttarakhand, he had represented to the Secretary, Higher Education, Government of Uttar Pradesh, Lucknow to change his cadre General/Field to Hill. The respondent no.1 issued a Office Memorandum on 11.06.2001, whereby 31 Lecturers were relieved for State of Uttar Pradesh. The name of the petitioner was at serial no.29. The petitioner was transferred for State of Uttar Pradesh vide letter dated 10.07.2007. He moved a representation dated 20.07.2007 and on the consent of both the State, the Government of Uttar Pradesh had given its consent to change the option of the petitioner for the State of Uttarakhand. From November, 2000 to 30.12.2008, his name was neither included in the seniority list nor promoted, therefore, he moved a representation on 30.12.2008 to the Principal Secretary with a request to include his name in the seniority list of Higher Education Department and to consider his promotion. 3. On 06.07.2009, Higher Education Department issued a tentative seniority list of employees of category “A" and published the same in the newspaper “Amar Ujala" on 07.07.2009. Since the cadre of the petitioner was changed, therefore, his name should be placed at serial no.107 in the tentative seniority list. All Associate Professors, whose name were mentioned at serial no.108 to 118 in the tentative seniority list of the year, 2009, were promoted to the post of Principal in the year, 2009. All these Associate Professors were junior to him. All Associate Professors, whose name were mentioned at serial no.108 to 118 in the tentative seniority list of the year, 2009, were promoted to the post of Principal in the year, 2009. All these Associate Professors were junior to him. Since the respondents did not include the name of the petitioner in the tentative seniority list of the year, 2009 and did not take any action on his representation dated 30.12.2008, he submitted his representations on 08.07.2009 and 09.12.2009. The nomenclature of the post of Reader was changed as Associate Professor in the year, 2009 and the petitioner had completed more than 20 years service as Reader/Associate Professor in the year, 2009, he was entitled for promotion to the post of Professor. But, in spite of repeated request, neither the name of the petitioner was included in the seniority list of Associate Professor nor he was given promotion to the post of Professor. 4. The petitioner has retired from his service on 30.04.2011. The mother of the petitioner was on bed and the petitioner was busy in her treatment, therefore, he could not approach to the Court. The name of one Dr. Dinesh Sharma, Associate Professor, was not included in the seniority list. He had filed a Writ Petition (No.66/2016 (S/B)) before this Court and this Court vide its order dated 03.04.2018, disposed of the said writ petition with the direction to the respondents to decide his representation for inclusion his name in the seniority list dated 14.10.2011. Thereafter, the respondent no.1 included the name of Dr. Dinesh Sharma in the seniority list at serial no.91 Ka and he was promoted to the post of Principal. When it came into the knowledge of the petitioner, he moved a representation to the respondent no.1 on 16.12.2020. 5. Heard the learned counsel for the parties. 6. It is well settled law that the settled seniority should not be unsettled after a lapse of time. 7. In Rabindra Nath Bose and Others vs. Union of India and Others, AIR 1970 SC 470 , the Hon'ble Supreme Court has observed that it will be neither just or equitable to deprive person who have been promoted many years ago, of the rights that have accrued to them regarding their rank and seniority by purporting to conduct a review of promotion after the lapse of many years. 8. 8. In Maloon Lawrence Cecil D' Souza vs. Union of India, AIR 1975 SC 1269 , the Hon'ble Supreme Court has held that the settled seniority cannot be unsettled after a long period. 9. In Shiba Shankar Mohapatra and Others vs. State of Orissa, AIR 2010 SC 706 , the question, whether a belated challenge against the seniority list can be entertained, was considered. The Hon'ble Supreme Court observed, “The question of entertaining the petition disputing the long standing seniority filed at a belated stage is no more res-integra. A Constitution Bench of this Court, in Ram Chandra Shanker Deodhar and Others vs. State of Maharashtra and Others, AIR 1974 SC 259 , considered the effect of delay in challenging the promotions and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotions which have accrued to them during the intervening period." 10. In Union of India and Another vs. S.K. Goel and Others, (2007) 14 SCC 641 , the Hon'ble Supreme Court observed, “…..Since the matter of seniority has been well settled and this Court in a plethora of cases has held that the seniority/promotions granted on the strength of D.P.C. selection should not be unsettled after a lapse of time." 11. In Rajendra Pratap Singh Yadav vs. State of U.P. and Others, (2011) 7 SCC 743 , the Hon'ble Supreme Court has held, “We deem it appropriate to reiterate that in service jurisprudence there is immense sanctity of a final seniority list. The seniority list once published cannot be disturbed at the behest of person who choose not to challenge it for four years. The sanctity of the seniority list must be maintained unless there are very compelling reasons to do so in order to do substantial justice. This is imperative to avoid avoidable litigation and unrest and chaos in the services." 12. Mr. Tapan Singh, the learned counsel appearing for the petitioner, submitted that the petitioner had moved several representations before the concerned authorities and when he realized that the relief would not be forthcoming, he approached this Court. 13. Mere repeated filing of representations could not be sufficient explanation for delay in approaching the Court for grant of relief. 14. Mr. Tapan Singh, the learned counsel appearing for the petitioner, submitted that the petitioner had moved several representations before the concerned authorities and when he realized that the relief would not be forthcoming, he approached this Court. 13. Mere repeated filing of representations could not be sufficient explanation for delay in approaching the Court for grant of relief. 14. In Union of India vs. M.K. Sarkar, (2010) 2 SCC 59 , the Hon'ble Supreme Court observed that a Court or Tribunal, before directing “consideration" of a claim or representation should examine whether the claim or representation is with reference to a “live" issue or whether it is with reference to a “dead" or “stale" issue. If it is with reference to a “dead" or “stale" issue or dispute, the Court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. 15. In view of the above detailed discussions, we are of the considered view that the claim of the petitioner is highly belated and stale and in the light of the law laid down by the Hon'ble Supreme Court, the claim of the petitioner cannot be accepted. Therefore, the writ petition is liable to be dismissed. 16. In the result, the writ petition is dismissed at the admission stage.