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2023 DIGILAW 234 (UTT)

Pratap Singh Rawat v. State of Uttarakhand

2023-03-23

ALOK KUMAR VERMA, VIPIN SANGHI

body2023
JUDGMENT : (Vipin Sanghi, J.) 1. This special appeal is directed against the judgment dated 12.04.2017, rendered by the learned Single Judge in Writ Petition (S/S) No.32 of 2017, preferred by respondent no.4 herein. 2. The appellants were not impleaded as party respondents in the writ petition. They preferred this appeal along with an application to seek leave to appeal, which was granted by this Court on 20.11.2018. 3. Respondent no.4, along with others, participated in a selection process for recruitment against four posts of Registration Clerk. He was ranked at Sl. No.3 in the merit list. The candidate at Sl. No.1 was offered appointment. Thereafter, there was a ban imposed on fresh appointments, which was lifted after 9-10 months. However, neither the person at Sl. No.2, namely Mr. P.S. Jeena, nor respondent no.4 was offered appointment. Mr. P.S. Jeena approached the Allahabad High Court by filing Writ Petition No.19337 of 1990, which was allowed by the Allahabad High Court on 08.03.1999 with a direction to the respondent-authorities to grant him appointment. Consequently, he was appointed w.e.f. 23.12.1989. 4. Thereafter, respondent no.4 also approached the Allahabad High Court by filing Writ Petition No.22418 of 2000. The same was transferred to this Court, and decided on 31.03.2006, and as a consequence of the said decision, respondent no.4 was offered appointment on the post of Registration Clerk vide appointment order dated 17.05.2006. The appointment order stated that the appointment was effective on the date of appointment. 5. Appellant no.1 was appointed as Registration Clerk on 18.04.1991, and appellant no.2 was appointed as Registration Clerk on 26.08.2004- upon promotion. The Registration Department issued a final seniority list on 16.12.2009, which has been filed along with the present special appeal by the appellants. In the said seniority list, the names of the appellants have been shown at Sl. No.37 and 39 respectively, whereas the name of respondent no.4 has been shown at Sl. No.52, and his date of appointment as 23.05.2006. Respondent no.4, admittedly, did not raise any objection to the said final seniority list. 6. It appears that a revised seniority list was sought to be prepared by the Department on 07.04.2016. Respondent no.4 objected to the same, and sought re-fixation of his seniority from the date on which Mr. Jeena was shown as appointed. The respondent-Department finalized the seniority list on 14.12.2016. Thereafter, objections of respondent no.4 were also rejected on 14.12.2016. 6. It appears that a revised seniority list was sought to be prepared by the Department on 07.04.2016. Respondent no.4 objected to the same, and sought re-fixation of his seniority from the date on which Mr. Jeena was shown as appointed. The respondent-Department finalized the seniority list on 14.12.2016. Thereafter, objections of respondent no.4 were also rejected on 14.12.2016. Consequently, respondent no.4 preferred the writ petition in the year 2017, wherein the impugned order has been passed by the learned Single Judge. The operative direction issued by the learned Single Judge, reads as follows:- “Accordingly, the writ petition is allowed. Impugned order dated 14.12.2016, Annexure No.5 and Government Order dated 05.12.2016 Annexure No.6 are quashed and set-aside. Respondent no.2 is directed to grant all benefits to the petitioner as granted to Mr. L.M. Rawat, who was at SL. No.1 in the select list and appointed on 30.12.1989. The petitioner would be deemed to be appointed in the year 1989 for all intents and purposes.” 7. The submission of Mr. Bahuguna, learned counsel for the appellants is that respondent no.4 did not assail the final seniority list dated 16.12.2009, wherein the appellants were shown senior to him. He raised the challenge, for the first time before this Court, in the year 2017, i.e. nearly 8 years after the issuance of the final seniority list dated 16.12.2009, and he sought re-fixation of his date of appointment for grant of benefits, after 11 years of his appointment. 8. Mr. Bahuguna submits that the impugned order, which has the effect of disturbing the settled seniority list, wherein the appellants were shown senior, was passed without impleading the affected persons, including the appellants. He further submits that the settled seniority could not have been unsettled after such prolonged delay at the instance of respondent no.4. 9. On the other hand, the submission of Mr. Vashisth, learned Senior Counsel for respondent no.4 is that respondent no.4 had been agitating his rights even before his appointment, before the Allahabad High Court, inasmuch, as he preferred Civil Writ Petition No.16138 of 1991, as he was denied appointment, despite his selection. That writ petition was tagged with a batch of writ petitions regarding regularization, and was disposed of in terms of the said batch. 10. That writ petition was tagged with a batch of writ petitions regarding regularization, and was disposed of in terms of the said batch. 10. In any event, in pursuance of the order passed by the Allahabad High Court, respondent no.4 preferred his representation, which was rejected, and again challenged before the Allahabad High Court. The writ petition was transferred to this Court upon creation of the High Court of Uttarakhand, and registered as Writ Petition No.263 of 2001(S/S), which was decided on 31.03.2006, and as a consequence of the said decision, respondent no.4 was granted appointment on 17.05.2006, and confirmed on 10.05.2010. It is, therefore, argued that there was no delay on the part of respondent no.4 in approaching the Court. 11. We cannot agree with this submission of Mr. Vashisth for the reason, that the earlier round of litigation undertaken by respondent no.4 was in relation to his appointment after his selection, which was not granted to him on account of the ban imposed on recruitments. The cause of action for claiming ante-date appointment, or ante-date seniority, arose on the date when respondent no.4 was actually appointed on 17.05.2006, since his appointment order did not grant him any actual or notional benefits from an earlier date. Therefore, the filing of earlier writ petitions by respondent no.4 is of no relevance to examine, whether he had acted with reasonable dispatch. 12. It is argued by Mr. Vashisth, that respondent no.4 did not challenge the final seniority list dated 16.12.2009, since he was shown as “temporary”. This submission is neither here, nor there. In fact, he could have challenged the fixation of his seniority, qua his seniors- including the appellants herein, apart from challenging his status being shown as “temporary”. Respondent no.4, however, accepted the final seniority list dated 16.12.2009, and started taking claims for ante-date seniority and other benefits- from the date when Mr. Jeena was shown as appointed, only upon raising his objections to the seniority list sought to be revised in the year 2016. 13. Even at that stage, it appears that respondent no.4 did not pin pointedly seek re-fixation of his seniority above those, who were appointed in the meantime, i.e. between the date of notional appointment of Mr. Jeena, and his own date of appointment. 14. It is well settled that seniority, once settled, cannot be unsettled after a prolonged delay. 13. Even at that stage, it appears that respondent no.4 did not pin pointedly seek re-fixation of his seniority above those, who were appointed in the meantime, i.e. between the date of notional appointment of Mr. Jeena, and his own date of appointment. 14. It is well settled that seniority, once settled, cannot be unsettled after a prolonged delay. Respondent no.4 should have approached the Court to seek re-fixation of his seniority soon after his appointment on 17.05.2006, since he became aware of the fact that he was not granted actual or notional seniority from an earlier date, on the date of his appointment. Respondent no.4, therefore, appears to have accepted the fact that he was inducted into service only on 17.05.2006, and his seniority would began to run from the date of his appointment. This inference is fortified by the fact that he did not challenge the final seniority list dated 16.12.2009. Merely because, years later, the Department sought to revise the seniority list in the year 2016, that did not give respondent no.4 the right to rake up the issue with regard to fixation of his seniority for the first time and claim seniority on the basis of notional appointment of Mr. Jeena on 23.12.1989. 15. In the aforesaid circumstances, we are of the view that the impugned judgment needs to be clarified. We, accordingly, clarify that respondent no.4 shall be entitled to all notional benefits, such as re-fixation of pay, and counting of his service from 23.12.1989 for the purpose of fixation of his pension- upon retirement. However, in the final seniority list, respondent no.4 shall be assigned seniority position on the basis of his date of appointment as 17.05.2006. 16. The special appeal is disposed of in the aforesaid terms. 17. Pending application, if any, also stands disposed of.