1. Heard Sri Upendra Nath Mishra, learned Senior Advocate, assisted by Sri Neel Kamal Mishra, learned counsel for the petitioner, Sri Pankaj Kumar Patel, learned Additional Chief Standing Counsel for respondent nos. 1 to 4, Sri Rakesh Kumar Tripathi, learned counsel for respondent no.5 and Sri Chandra Bhushan, learned counsel for respondent no.6.
2. Instant writ petition has been filed by the petitioner praying for the following reliefs:-
"i. Issue a writ, order or direction in nature of certiorari by quashing the impugned order dated 25.03.2017 passed by the opposite party no.3 contained in Annexure No.1 to this writ petition.
ii. Issue a writ, order or direction in nature of mandamus commanding the opposite parties not to implement the impugned order dated 25.03.2017.
iii. Issue any other appropriate writ, order or direction in favour of the petitioner as the Hon'ble Court may deem fit in the circumstances of the case.
iv. Award the cost of the petition to the petitioner."
3. The case set forth by the petitioner is that he was initially appointed on the post of Lecturer (Bio) on adhoc basis on 25.07.1991 on account of a vacancy having arisen due to promotion of one Sri Sripal Mishra, who was working as Bio Teacher. The appointment was made in pursuance to a proposal of the Committee of Management and the same was approved by the District Inspector of Schools vide order dated 13.07.1991. A copy of the appointment order is Annexure-2 to the writ petition while the copy of the approval order is part of Annexure-3 to the writ petition. Subsequently, Sri Sripal Mishra retired and a resolution was passed for regularization of the petitioner on 25.07.1995 by the Committee of Management and the same was sent to the District Inspector of Schools for his approval. After long lapse of time the services of the petitioner were regularized through an order dated 03/30.12.2001 w.e.f. 30.12.2000 by the order issued by the Joint Director of Education, Lucknow. The regularization order was passed under the provisions of Section 33-F of the Uttar Pradesh Secondary Education (Services Selection Board) Act, 1982 (hereinafter referred to as the '1982 Act'). Copy of the order dated 03/30.12.2001 is Annexure-5 to the writ petition. Prior to regularization of the petitioner, private respondent no.5, Sri Jai Ram, was appointed as a Lecturer (English).
4. A seniority list dated 25.07.1997 was issued by the management in which the name of the petitioner finds place at serial no.17 vis-a-vis respondent no.5 whose name finds place at serial no.21. Subsequent thereto, another seniority list dated 02.12.2005 was issued in which the name of the petitioner finds place at serial no.9 vis-a-vis respondent no.5 whose name finds place at serial no.13. The petitioner claims that a seniority list dated 11.12.2006 was issued in which the name of the petitioner finds place at serial no.6 vis-a-vis respondent no.5 whose name finds place at serial no.7. Subsequent thereto, another seniority list dated 08.11.2012 was issued in which the name of the petitioner found place at serial no.5 vis-a-vis respondent no.5 whose name finds place at serial no.8. It is also contended that both the petitioner as well as private respondent no.5 signed the said seniority lists dated 11.12.2006 and 08.11.2012. Copies of the said seniority lists have been filed cumulatively as Annexure-6 to the writ petition. It is claimed that sometimes in the year 2015, respondent no.5 preferred a representation to the official respondents raising a dispute about the assignment of the seniority to the petitioner over respondent no.5 by contending that as the petitioner had been regularized in service as Lecturer through an order dated 03/30.12.2001 w.e.f. 30.12.2000 while respondent no.5 had been appointed as Lecturer (English) on 25.01.1996, as such, he was senior to the petitioner and thus prayed for re-assignment of the seniority. When the official respondents did not do anything in the matter, the private respondent filed Writ Petition No.29967 (SS) of 2016 in re: Jairam vs. State of U.P. and others contending that against the seniority list of teachers for Lecturer grade the petitioner (respondent no.5 herein) had raised objection vide his letter dated 09.09.2015 and the District Inspector of Schools being the competent authority, passed an order dated 19.10.2015 directing the management to modify the seniority list but the directions have not been complied with by the management. The District Inspector of Schools has also written to the Principal to refer the matter for consideration by the Regional Level Committee headed by the Joint Director of Education but he is also sitting over the matter. Considering this, the writ Court vide judgment and order dated 20.12.2016 directed the Committee or whosoever is competent, to consider the issue within specified time provided there is no legal impediment in this regard.
5. It transpires that respondent no.3 called upon the petitioner to submit his reply pertaining to the seniority which was submitted by the petitioner vide his reply dated 07.02.2017, a copy of which is Annexure-7 to the writ petition, whereby various issues had been raised more particularly pertaining to various seniority lists having been issued and respondent no.5 having never objected to the same and thus it was prayed that no such seniority dispute can be agitated by respondent no.5 after such a long lapse of time. It was also contended in the reply that respondent no.5 has failed to raise any dispute or objection to the assignment of the seniority of the petitioner over respondent no.5 for a long period of time and consequently now the respondent no.5 would be precluded from raising such an issue having acquiesced to the seniority of the petitioner over and above respondent no.5 over several years.
6. Subsequent thereto, respondent no.3 vide his order dated 25.03.2017 was of the view that as respondent no.5 has been appointed prior to the petitioner on 25.01.1996 vis-a-vis the petitioner who had been regularized vide order dated 03/30.12.2001 w.e.f. 30.12.2000 as such considering the rules governing the seniority, it is respondent no.5 who is to be assigned seniority over the petitioner and consequently proceeded to fix the seniority of respondent no.5, Sri Jairam, over the petitioner through the impugned order dated 25.03.2017. Being aggrieved with the aforesaid order, present petition has been filed.
7. Sri Upendra Nath Mishra, learned Senior Advocate, argues that once repeatedly seniority lists were issued right since the year 1997 in which the petitioner was assigned seniority over and above private respondent no.5 consequently there was no occasion for respondent no.5 to have preferred his objections against the seniority list in the year 2015 and for the same to have been entertained by the District Inspector of Schools and subsequently under the garb of the order passed by the writ Court, the impugned order re-assigning the seniority and assigning seniority to respondent no.5 over and above the petitioner could not have been passed. It is also contended that the impugned order has been passed on 25.03.2017 i.e. after a period of 20 years from the issue of the first seniority list dated 25.07.1997 and it being a settled proposition of law that long standing seniority should not be allowed to be disturbed after a passage of reasonable period of time. In this regard, reliance has been placed on the judgments of the Apex Court, which are as follows:-
(i) Malcom Lawrence Cecil D'Souza vs. Union of India - (1976) 1 SCC 599;
(ii) K.R. Mudgal vs. R.P. Singh - (1986) 4 SCC 531;
(iii) Shiba Shankar Mohapatra and others vs. State of Orissa and others - (2010) 12 SCC 471, and
(iv) Rajendra Pratap Singh Yadav vs. State of U.P. and others - (2011) 7 SCC 743.
8. Learned Senior Advocate also argues that once the seniority lists were issued in the years 1997, 2005, 2006 and subsequently on 08.11.2012, respondent no.5 not having raised any challenge to the seniority lists of the year 1997, 2005 and 11.12.2006 despite being shown as junior to the petitioner, could not do a volte-face and file his objections against the seniority list dated 08.11.2012 in the year 2015 as the principle of acquiescence and waiver would be applicable. In this regard, reliance has been placed on the judgment of the Apex Court in the case of Cauvery Coffee Traders, Mangalore vs. Hornor Resources (International) Company Limited - (2011) 10 SCC 420.
9. Learned counsel for the petitioner also argues that the objections filed by respondent no.5 in the year 2015 against the seniority list dated 08.11.2012 could not have been entertained by the competent authority inasmuch as Regulation 3(1)(f) of Chapter II of the Regulations of the Intermediate Education Act, 1921 (hereinafter referred to as the '1921 Act') specifically provide that any teacher being aggrieved from the decision of the Committee of Management under sub-clause (e) of the 1921 Act may prefer an appeal to the Inspector within 15 days from the date of communication of such decision to such teacher and that once the seniority list dated 08.11.2012 was issued and respondent no.5 had signed upon the same in acknowledgment of the assignment of the seniority of the petitioner over and above respondent no.5 consequently no such objection could have been entertained by the District Inspector of Schools which were preferred by respondent no.5 in the year 2015 as the mandatory period of 15 days had already lapsed and thus the competent authority proceeded in colourable exercise of power under the garb of the order passed by the writ Court in issuing the order dated 25.03.2017 re-assigning and lowering the seniority of the petitioner vis-a-vis respondent no.5.
10. The further argument is that even if the order of the writ Court dated 20.12.2016 is seen which has been made the basis for re-assigning the seniority of the petitioner vis-a-vis respondent no.5 then the same could not have been made the basis of re-assigning the seniority inasmuch as the writ Court had specifically observed while disposing off the writ petition that in case there is no legal impediment then the issue of seniority be considered by the Committee of Management while the legal impediment, as per Regulation 3(1)(f) of 1921 Act would be non-entertaining of any objections beyond the period of 15 days while the objections were filed by respondent no.5 after almost three years from the date of issue of the seniority list dated 08.11.2012.
11. In this regard, learned counsel for the petitioner contends that even if the writ Court directed the competent authority to decide the objections filed by respondent no.5 or required the Committee of Management to consider the issue of seniority, merely because the issue was decided the same could not allow revival of a dead or stale issue by the competent authority keeping in view the law laid down by the Apex Court in the case of Union of India and others vs. M.K. Sarkar - (2010) 2 SCC 59.
12. Sri Upendra Nath Mishra, learned Senior Advocate, also argues that Regulation 3(2) of 1921 Act provides for revision of the seniority list every year. Further a mandate is there before the Committee of Management in terms of Regulation 3(1) of 1921 Act that the Committee of Management of the Institution shall cause a seniority list of teachers to be prepared in accordance with certain provisions, meaning thereby that once the seniority list is to be revised every year and has to be prepared by the Committee of Management and respondent no.5 having entered service on 25.01.1996 as such he would have been well aware of the seniority list is to be prepared invariably every year and thus once the seniority lists, as have been referred to by the petitioner, were issued and the petitioner was assigned seniority over and above respondent no.5 and no objections were raised by respondent no.5 to the assignment of the seniority of the petitioner over and above respondent no.5 for a period right since 1996 till 2015 as such it would be deemed that respondent no.5 was never aggrieved with the assignment of the seniority of the petitioner over and above respondent no.5 for a long period of 19 years and thus after 19 years no such plea for re-assignment of the seniority can validly be raised.
13. On the other hand, Sri Rakesh Kumar Tripathi, learned counsel appearing for respondent no.5, argues that admittedly the respondent no.5 was appointed on 25.01.1996 as Lecturer (English) while the services of the petitioner had been regularized vide order dated 03/30.12.2001 w.e.f. 30.12.2000 i.e. the date of substantive appointment of the petitioner is subsequent to the respondent no.5 and as such keeping in view Regulation 3(1)(b) of Chapter II of 1921 Act, it is respondent no.5 who would be senior to the petitioner. He argues that considering this aspect of the matter, upon the seniority list dated 08.11.2012 being issued, which the petitioner signed and only then he came to know that the petitioner has been indicated as senior to respondent no.5 and thus being aggrieved the respondent no.5 submitted a representation to the competent authority for correct fixation of the seniority as per Rules but yet when nothing was done in the matter, he was constrained to file Writ Petition No.29967 (SS) of 2016 and this Court vide order dated 20.12.2016 required the Committee or the competent authority to look into the matter pertaining to the grievance of the petitioner (respondent no.5 herein) for seniority. In pursuance thereof and after due opportunity of hearing to both the petitioner as well as respondent no.5 that the order dated 25.03.2017 has been passed by respondent no.3 whereby the seniority of the petitioner has been lowered and respondent no.5 has correctly been assigned the seniority as per the date of substantive appointment over and above the petitioner. He further contends that the said order is fully in consonance with the rules for assignment of the seniority and as such there is no illegality in the same.
14. Sri Tripathi also argues that respondent no.5 always agitated before the competent authority for fixation of the seniority as per law but when no heed was paid by the official respondents it was only then that the writ petition was filed in the year 2016 and that the order passed by the competent authority is perfectly legal and valid in the eyes of law.
15. As regards the delay which has been caused in the respondent no.5 in raising the issue of seniority, Sri Tripathi reiterates his argument that respondent no.5 always agitated for fixation of his seniority as per law and thus the question of delay will not arise. In this regard, Sri Tripathi has placed reliance on the following judgments:-
(i) Shitala Prasad Shukla vs. State of U.P. and others - AIR 1986 SC 1859;
(ii) Joint Director of Education, Azamgarh Mandal and another vs. Udai Raj Vishwakarma and another - 2007 (3) ALJ 33;
(iii) State of Orissa and another vs. Mamata Mohanty - 2011 AIR SCW 1332, and
(iv) An unreported Division Bench judgment of Allahabad High Court in the case of Dr. Anupma Mehrotra vs. The Hon'ble Chancellor Mahatma Jyotiba Phule Rohilkhand University and 9 others in Writ A No.17904 of 2018 decided on 01.08.2019, as affirmed by the Apex Court.
16. Sri Pankaj Patel, learned Additional Chief Standing Counsel has argued that the order re-assigning the seniority to respondent no.5 over and above the petitioner is in accordance with rules and does not call for any interference by this Court.
17. Sri Chandra Bhushan, learned counsel appearing for respondent no.6, has adopted the arguments of Sri Rakesh Kumar Tripathi, learned counsel for respondent no.5.
18. Heard learned counsel for the parties and perused the records.
19. From perusal of the records, it is apparent that the petitioner was initially appointed on the post of Lecturer (Bio) on adhoc basis on 25.07.1991. He has been regularized through an order dated 03/30.12.2001 w.e.f. 30.12.2000 in terms of Section 33-F of 1982 Act. The respondent no.5 had been appointed as Lecturer (English) by the Selection Board on a substantive post on 01.08.1996. Thus, the substantive appointment of the petitioner is 30.12.2000 while that of respondent no.5 is 01.08.1996. Admittedly, the rules governing the seniority namely Regulation 3 of Chapter II of 1921 Act provides that the seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade. For the sake of convenience, Regulation 3 of Chapter II of 1921 Act is reproduced below:-
3. (1) The Committee of Management of every institution shall cause a seniority list of teachers to be prepared in accordance with the following provisions-
(a) The seniority list shall be prepared separately for each grade of teachers whether permanent or temporary, on any substantive post;
(b) Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age;
[(bb) Where two or more teachers working in a grade are promoted to the next higher grade on the same date, their seniority inter se shall be determined on the basis of the length of their service to be reckoned from the date of their substantive appointment in the grade from which they are promoted :
Provided that if such length of service is equal, seniority shall be determined on the basis of age.]
(c) A teacher in a higher grade shall be deemed to be senior to a teacher in the lower grade irrespective of the length of service;
(d) If a teacher who is placed under suspension is reinstated on his original post his original seniority in the grade shall not be affected;
(e) Every dispute about the seniority of the teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision;
[(f) mi[k.M M ds v/khu izcU/k lfefr ds fofu'p; ls O;fFkr dksbZ v/;kid ,slk fofu'p; ,sls v/;kid dks lwfpr fd;s tkus ds fnuakd ls 15 fnu ds Hkhrj lEcfU/kr {ks=h; mi0 f'k{kk funs'kd dks vihy dj ldrk gS] vkSj vihy ij lEcfU/kr i{kksa dks lquokbZ dk volj nsus ds mijkUr mi f'k{kk funs'kd viuk fu.kZ; dkj.k lfgr nsxk] tks vfUre gksxk vkSj izcU/k lfefr }kjk dk;kZfUor fd;k tk;sxkA] [(g) ;fn ,d xzsM+ esa dk;Zjr nks ;k vf/kd v/;kid fdlh ,d gh frfFk ij inksUufr fd, tk,a rks mudh T;s"Brk dk vk/kkj ml xzsM+ dk lsokdky gksxk] ftlesa os dk;Zjr Fks] ijUrq ;fn lsokdky cjkcj gS] rks inksUufr dks n'kk esa vk;q ds vk/kkj ij T;s"Brk fu/kkZfjr dh tk;sxhA (2) The seniority list shall be revised every year and the provisions of Clause (1) shall mutatis mutandis apply to such revision.
20. A perusal of Regulation 3 of Chapter II of 1921 Act would indicate that as per Rule 3(1)(b), seniority of teachers in a grade has to be determined on the basis of their substantive appointment in that grade, meaning thereby that a teacher appointed substantively at an earlier point of time would have a higher seniority vis-a-vis a teacher appointed at a later point of time. Likewise, Regulation 3(2) of Chapter II of 1921 Act provides that the seniority list shall be revised every year and the provisions of Clause (1) shall mutatis mutandis apply to such revision. Regulation 3(1) of Chapter II of 1921 Act requires the Committee of Management of every institution to prepare a seniority list of teachers in accordance with the provisions of Regulation 3 of Chapter II of 1921 Act. Thus, when Regulation 3(2) of Chapter II of 1921 Act is read in accordance with Regulation 3(1) of Chapter II of 1921 Act, it is apparent that a seniority list of teachers has to be prepared every year.
21. Now, the question would be that once as per rules it is date of substantive appointment in a grade which determines the seniority of teachers as to what is the infirmity in the impugned order dated 25.03.2017 passed by respondent no.3 by which the seniority of the petitioner has been re-assigned below the respondent no.5 on the basis of the date of substantive appointment of both, the petitioner and the respondent no.5?
22. The Court consciously uses the word "re-assigned" inasmuch as the seniority lists had been issued by the official respondents on 25.07.1997, 02.12.2005, 11.12.2006 and 08.11.2012, wherein the petitioner has always been assigned the seniority over and above the respondent no.5 i.e. at serial no.17, 9, 6 and 5 vis-a-vis respondent no.5 who was assigned seniority at serial no.21, 13, 7 and 8 respectively. There is another seniority list of the year 2016-2017 at page 33 of the writ petition wherein the petitioner finds place at serial no.3 vis-a-vis respondent no.5 who is figured at serial no.5 and thus with the issue of impugned order dated 25.03.2017 re-assignment of the seniority has taken place.
23. From perusal of the aforesaid, it is apparent that the petitioner has been assigned seniority over and above respondent no.5 since the year 1997 which situation prevailed till the issue of seniority list dated 08.11.2012 and subsequent thereto in the year 2016-2017 (which incidentally has not been argued by either of the parties). The only dispute pertaining to seniority has been raised by respondent no.5 in the year 2015 as would be apparent from perusal of the order passed in Writ Petition No.29967 (SS) of 2016, which was filed by respondent no.5-Jairam. For the sake of convenience, the order dated 20.12.2016 is reproduced below:-
"Heard.
The seniority list of teachers in Lecturer Grade of the respondent educational institution, was issued by the Committee of Management, regarding which the petitioner raised objections vide his letter dated 9.9.2015, whereupon, the D.I.O.S. who is the competent authority to decide the appeal against such seniority list as per relevant regulations on the subject, passed an order dated 19.10.2015 directing the Management to modify the seniority list as per the directions contained therein. The said order was complied by the Management. However, it seems that the petitioner was not satisfied even then and informed the D.I.O.S. accordingly, whereupon, the D.I.O.S. wrote a letter to the Principal to refer the matter alongwith all relevant informations and documents for consideration by the Regional Level Committee headed by the concerned Joint Director.
If the facts as stated are correct, and the matter is pending for consideration before the Regional Level Committee as aforesaid and if there is no legal impediment in this regard, let the same be considered by the said Committee on whosoever is competent, within a period of two months from the date of production of a certified copy of this order.
With the above observations/ directions this with petition is disposed of."
24. From perusal of the aforesaid order, it is apparent that respondent no.5 had contended before the writ Court by filing Writ Petition No.29967 (SS) of 2016 that against the seniority, he had raised his objections vide letter dated 09.09.2015 on which the District Inspector of Schools had passed an order dated 19.10.2015 directing the management to modify the seniority list which order has not been complied with by the management. Thereafter, the District Inspector of Schools had written a letter to the Principal to refer the matter to the Regional Level Committee but to no avail. The writ Court vide order dated 20.12.2016 was of the view that if the facts as stated are correct and if the matter is pending for consideration before the Regional Level Committee and if there is no legal impediment the same was required to be considered by the Committee or whosoever is competent within a specified time. In pursuance thereof, a notice was issued to both the parties and thereafter respondent no.3 has proceeded to re-assign the seniority and placed respondent no.5 over and above the petitioner vide order dated 25.03.2017. Thus, right since 1997 till 2015, respondent no.5 never agitated for assignment of his seniority over and above the petitioner, meaning thereby, the seniority of the petitioner over and above respondent no.5 continued without any dispute for a period of 18 years and long standing seniority was sought to be unsettled by respondent no.5 by submitting his objections in the year 2015, which was unsettled through the impugned order dated 25.03.2017. Here, it would be relevant to mention that in paragraphs 9 and 16 of the counter affidavit filed by respondent no.5, it has been indicated that he was agitating for his seniority since 'early' (long) but no date of such objections or representations are indicated. The only objection indicated in the order of the writ Court dated 20.12.2016, filed by the respondent no.5, is 09.09.2015.
25. In this regard, the Court may consider the law laid down by the Apex Court in the case of K.R. Mudgal (supra) wherein the Apex Court has held as under:-
"7. The respondents in the writ petition raised a preliminary objection to the writ petition stating that the writ petition was liable to be dismissed on the ground of laches. Although the learned Single Judge and the Division Bench have not disposed of the above writ petition on the ground of delay, we feel that in the circumstances of this case the writ petition should have been rejected on the ground of delay alone. The first draft seniority list of the Assistants was issued in the year 1958 and it was duly circulated amongst all the concerned officials. In that list the writ petitioners had been shown below the respondents. No objections were received from the petitioners against the seniority list. Subsequently, the seniority lists were again issued in 1961 and 1965 but again no objections were raised by the writ petitioners, to the seniority list of 1961, but only the petitioner No. 6 in the writ petition represented against the seniority list of 1965. We have already mentioned that the 1968 seniority list in which the writ petitioners had been shown above the respondents had been issued on a misunderstanding of the Office Memorandum of 1959 on the assumption that the 1949 Office Memorandum was not applicable to them. The June 1975 seniority list was prepared having regard to the decision in Ravi Varma's case (supra) and the decision of the High Court of Andhra Pradesh in the writ petitions filed by respondent Nos. 7 and 36 and thus the mistake that had crept into the 1968 list was rectified. Thus the list was finalised in January, 1976. The petitioners who filed the writ petition should have in the ordinary course questioned the principle on the basis of which the seniority lists were being issued from time to time from the year 1958 and the promotions which were being made on the basis of the said lists within a reasonable time. For the first time they filed the writ petition in the High Court in the year 1976 nearly 18 years after the first draft seniority list was published in the year 1958. Satisfactory service conditions postulate that there should be no sense of uncertainty amongst the Government servants created by the writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him should approach the court as early as possible as otherwise in addition to the creation of a sense of insecurity in the minds of the Government servants there would also be administrative complications and difficulties. Unfortunately in this case even after nearly 32 years the dispute regarding the appointement of some of the respondents to the writ petition is still lingering in this Court. In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches. The facts of this case are more or less similar to the facts in R.S. Makashi & Ors.v. I.M. Menon & Ors., [1982] 2 S.C.R. 69. In the said decision this Court observed at page 100 thus:
"In these circumstances, we consider that the High Court was wrong in over-ruling the preliminary objection raised by the respondents before it, that the writ petition should be dismissed on the preliminary ground of delay and laches, inasmuch as it seeks to disrupt the vested rights regarding the seniority, rank and promotions which had accrued to a large number of respondents during the period of eight years that had intervened between the passing of the impugned Resolution and the institution of the writ petition. We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 22, ought to have been rejected by the High Court on the ground of delay and laches and the writ petition in so far as it related to the prayer for quashing the said Government Resolution should have been dismissed."
8. We are in respectful agreement with the above observation.
9. We may also refer here to the weighty observations made by a Constitution Bench of this Court in Malcom Lawrence Cecil D'Souza v. Union of India & Ors., [1975] Supp. S.C.R. 409 at page 413-414 which are as follows:
"Although security of service cannot be used as a shield against administrative action for lapse of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult to doubt to guarantee such security in all its varied aspects. It should at least be possible to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."
10. We feel that in the circumstances of this case, we should not embark upon on and enquiry into the merits of the case and that the writ petition should be dismissed on the ground of laches alone."
26. Likewise, the Apex Court in the case of Shiba Shankar Mohapatra (supra) has held as under:-
"18. 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 Ramchandra Shanker Deodhar & Ors. v. State of Maharashtra & Ors. AIR 1974 SC 259, considered the effect of delay in challenging the promotion 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 promotion which have accrued to them during the intervening period. A party should approach the Court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898, wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under:-
"A party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court."
19. This Court also placed reliance upon its earlier judgment of the Constitution Bench in R.N. Bose v. Union of India & Ors. AIR 1970 SC 470, wherein it has been observed as under:-
"It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be defeated after the number of years."
20. In R.S. Makashi v. I.M. Menon & Ors. AIR 1982 SC 101, this Court considered all aspects of limitation, delay and laches in filing the writ petition in respect of inter se seniority of the employees. The Court referred to its earlier judgment in State of Madhya Pradesh & Anr. v. Bhailal Bhai etc. etc., AIR 1964 SC 1006, wherein it has been observed that the maximum period fixed by the Legislature as the time within which the relief by a suit in a Civil Court must be brought, may ordinarily be taken to be a reasonable standard by which delay in seeking the remedy under Article 226 of the Constitution can be measured. The Court observed as under:-
"We must administer justice in accordance with law and principle of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set-aside after the lapse of a number of years..... The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of 1968... We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the prayer for quashing the said Government resolution, should have been dismissed." (Emphasis added)
21. The issue of challenging the seniority list, which continued to be in existence for a long time, was again considered by this Court in K.R. Mudgal & Ors. v. R.P. Singh & Ors. AIR 1986 SC 2086. The Court held as under:-
"A government servant who is appointed to any post ordinarily should at least after a period of 3-4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity......... Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Government servants created by writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties.... In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches." (Emphasis added)
22. While deciding the case, this Court placed reliance upon its earlier judgment in Malcom Lawrance Cecil D'Souza v. Union of India & Ors. AIR 1975 SC 1269, wherein it had been observed as under:-
"Although security of service cannot be used as a shield against the administrative action for lapse of a public servant, by and large one of the essential requirement of contentment and efficiency in public service is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in a seniority list after having been settled for once should not be liable to be re-opened after lapse of many years in the instance of a party who has itself intervening party chosen to keep quiet. Raking up old matters like seniority after a long time is likely to resort in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time." (Emphasis added)
23. In B.S. Bajwa v. State of Punjab & Ors. AIR 1999 SC 1510, this Court while deciding the similar issue re-iterated the same view, observing as under:-
"It is well settled that in service matters, the question of seniority should not be re-opened in such situations after the lapse of reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This along was sufficient to decline interference under Article 226 and to reject the writ petition". (Emphasis added)
24. In Dayaram Asanand v. State of Maharashtra & Ors. AIR 1984 SC 850, while re-iterating the similar view this Court held that in absence of satisfactory explanation for inordinate delay of 8-9 years in questioning under Article 226 of the Constitution, the validity of the seniority and promotion assigned to other employee could not be entertained.
25. In P.S. Sadasivaswamy v. State of Tamil Nadu AIR 1975 SC 2271, this Court considered the case where the petition was filed after lapse of 14 years challenging the promotion. However, this Court held that aggrieved person must approach the Court expeditiously for relief and it is not permissible to put forward stale claim. The Court observed as under :-
"A person aggrieved by an order promoting a junior over his head should approach the Court at least within 6 months or at the most a year of such promotion."
The Court further observed that it was not that there was any period of limitation for the Courts to exercise their powers under Article 226 nor was it that there could never be a case where the Courts cannot interfere in a matter after certain length of time. It would be a sound and wise exercise of jurisdiction for the Courts to refuse to exercise their extra ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who standby and allow things to happen and then approach the Court to put forward stale claim and try to unsettle settled matters.
26. A similar view has been re-iterated by this Court in Smt. Sudama Devi vs. Commissioner & Ors. (1983) 2 SCC 1; State of U.P. vs. Raj Bahadur Singh & Anr. (1998) 8 SCC 685; and Northern Indian Glass Industries vs. Jaswant Singh & Ors. (2003) 1 SCC 335.
27. In Dinkar Anna Patil & Anr. vs. State of Maharashtra, AIR 1999 SC 152, this Court held that delay and laches in challenging the seniority is always fatal, but in case the party satisfies the Court regarding delay, the case may be considered.
28. In K.A. Abdul Majeed vs. State of Kerala & Ors. (2001) 6 SCC 292, this Court held that seniority assigned to any employee could not be challenged after a lapse of seven years on the ground that his initial appointment had been irregular, though even on merit it was found that seniority of the petitioner therein had correctly been fixed.
29. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (vide Aflatoon & Ors. vs. Lt. Governor, Delhi & Ors. AIR 1974 SC 2077; State of Mysore vs. V.K. Kangan & Ors., AIR 1975 SC 2190; Municipal Council, Ahmednagar & Anr. vs Shah Hyder Beig & Ors., AIR 2000 SC 671; Inder Jit Gupta vs. Union of India & Ors. (2001) 6 SCC 637; Shiv Dass vs. Union of India & Ors., AIR 2007 SC 1330; Regional Manager, A.P.SRTC vs. N. Satyanarayana & Ors. (2008) 1 SCC 210; and City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala & Ors. (2009) 1 SCC 168).
30. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation."
27. Likewise, the Constitution Bench of the Apex Court in the case of Malcom Lawrence Cecil D'Souza (supra) has held as under:-
"8. The matter can also be looked at from another angle. The seniority of the petitioner qua respondents 4 to 26 was determined as long ago as 1956 in accordance with 1952 Rules. The said seniority was reiterated in the seniority list issued in 1958. The present writ petition was filed in 1971. The petitioner, in our opinion, cannot be allowed to challenge the seniority list after lapse of so many years. The fact that a seniority list was issued in 1971 in pursuance of the decision of this Court in Karnik's case (supra) would not clothe the petitioner with a fresh right to challenge, the fixation of his seniority qua respondents 4 to 26 as the seniority list of 1971 merely reflected the seniority of the petitioner qua those respondents as already determined in 1956. Satisfactory service conditions postulate that there should be no sense of uncertainty amongst public servants because of stale claims made after lapse of 14 or 15 years. It is essential that any one who feels aggrieved with an administrative decision affecting one's seniority should act with due diligence and promptitude and not sleep over the matter. No satisfactory explanation has been furnished by the petitioner before us for the inordinate delay-in approaching the court. It is no doubt true that he made a representation against the seniority list issued in 1956 and 1958 but that representation was rejected in 1961. No cogent ground has been shown as to why the petitioner became quiescent and took no diligent steps to obtain redress.
9. Although security of service cannot be used as a shield against administrative action for lapse of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible, to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."
28. Likewise, the Apex Court in the case of Rajendra Pratap Singh Yadav (supra) has held as under:-
"45. 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 chose 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."
29. When the facts of the instant case are tested at the touchstone of law laid down by the Apex Court in the cases of K.R. Mudgal (supra), Shiba Shankar Mohapatra (supra), Malcom Lawrence Cecil D'Souza (supra) and Rajendra Pratap Singh Yadav (supra), the irresistible conclusion is that a long standing seniority should not be disturbed after a reasonable period of time. In the present case, as already indicated above, repeated seniority lists have been issued over a period of 1997 till 2012 and it is only in the year 2015 that respondent no.5 chose to raise his objections against the seniority assigned to the petitioner which validly could not have been entertained by the competent authority at such a belated stage.
30. Another aspect of the matter would be that once the writ Court's order dated 20.12.2016 passed in the case of respondent no.5 required the Committee or the competent authority to look into the matter even then the writ Court had put a caveat of the matter to be considered if there is no legal impediment. The legal impediment, in view of the Court, would be the long passage of time that has lapsed since the issue of the first seniority list in July 1997 wherein the petitioner was assigned the seniority over and above the respondent no.5 till the year 2015 when respondent no.5 chose to raise his objections against the seniority of the petitioner vis-a-vis respondent no.5. In view of this caveat and objections in this regard having been specifically raised by the petitioner in his reply dated 07.02.2017 in reply to the notice dated 19.01.2017 issued by respondent no.3 for the purpose of considering the seniority that respondent no.5 was raising objections against the seniority after 17 years, this aspect of the matter should have been gone into by respondent no.3 while proceeding to re-assign the seniority but strangely this aspect of the matter on the point of delay has conveniently been brushed aside and shoved under the carpet by respondent no.3 by proceeding to pass the order dated 25.03.2017, which itself vitiates the impugned order. Merely because the writ Court required the competent authority or the Committee to look into the matter, the same would not amount to revival of a stale claim of respondent no.5 for re-assignment of the seniority.
31. In this regard, the Apex Court in the case of M.K. Sarkar (supra) has held as under:-
"When a belated representation in regard to a `stale' or `dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the `dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches."
32. Another aspect of the matter would be that once repeatedly seniority lists have been issued by the competent authority assigning seniority to the petitioner over and above respondent no.5 and in terms of Regulation 3(2) read with Regulation 3(1) of Chapter II of 1921 Act, the seniority list was to be prepared and revised every year and in pursuance thereof, repeated seniority lists were issued since the year 1997 in which the petitioner was shown as senior to respondent no.5 and respondent no.5 never agitated about the same right till 2015 then considering the principle of acquiescence and estoppel by conduct, respondent no.5 would be precluded to claim the relief as has been granted to him by means of the impugned order.
33. In this regard, the Court may consider the judgment of the Apex Court in the case of Cauvery Coffee Traders (supra) wherein the Apex Court has held as under:-
"35. Thus, it is evident that the doctrine of election is based on the rule of estoppel- the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had."
34. As regards the judgment cited on behalf of respondent no.5 in the case of Udai Raj Vishwakarma (supra), the same was a case pertaining to the validity of adhoc appointment of the petitioner dehors the rules. In the present case the validity of appointment of neither the petitioner nor respondent no.5 is in dispute and hence the said judgment would not be applicable in the present case.
35. As regards the judgment in the case of Mamta Mohanty (supra), in the said case the Apex Court had held that where an order is bad since its inception it does not get sanctified at a later stage.
In the present case the issue is not pertaining to the correct assignment of the seniority as per rules governing the seniority but the time when such objections should have been raised by respondent no.5. As already indicated above, it is settled proposition of law that claims pertaining to assignment of the seniority should be raised within a reasonable period of time while in the present case the respondent no.5 has raised the claim, despite issue of various seniority lists in the interregnum period, after approximately 18 years and thus the judgment of Mamta Mohanty (supra) would not be applicable in the present case.
36. In the case of Shitala Prasad Shukla (supra), though the dispute was pertaining to seniority and the District Inspector of Schools had held certain persons to be senior to the appellant Shitala Prasad Shukla which order had been affirmed by the High Court yet from the said judgment it nowhere comes out that various seniority lists had been issued and no objections had been raised by the persons claiming seniority over Shitala Prasad Shukla or that the objections were raised belatedly.
In the present case the impugned order has been challenged primarily on the ground of there being gross laches in raising the issue of re-assignment of the seniority after long lapse of time and various seniority lists have been issued and thus even the judgment of Shitala Prasad Shukla (supra) would not be applicable in the present case.
37. As regards unreported judgment of the Division Bench of this Court in the case of Dr. Anupma Mehrotra (supra), suffice to state that from perusal of the said judgment, it is apparent that a tentative list has been issued on 02.04.1996 which was incorrectly issued against which despite the petitioner having submitted his objections a final seniority list was issued on 27.07.1996 and upon the petitioner raising a dispute, no decision was taken. It does not come out that any seniority list had been issued prior to 1996 while in the present case repeated seniority lists have been issued showing the petitioner as senior to respondent no.5. Even the grounds of laches which were raised in the case of Dr. Anupma Mehrotra (supra) were considered by the Division Bench by indicating that the petitioner had raised the dispute of seniority before the competent authority within time while in the present case, as already discussed above, respondent no.5 chose to raise the dispute of his seniority over and above the petitioner after lapse of 18 years from the date of issue of seniority list in the year 1997. Thus, the judgment of Dr. Anupma Mehrotra (supra) would have no applicability in the present case.
38. Keeping in view the aforesaid discussions, the impugned order dated 25.03.2017 cannot be said to be legally sustainable in the eyes of law. Accordingly, the writ petition is allowed. A writ of certiorari is issued quashing the order dated 25.03.2017 passed by respondent no.3, a copy of which is Annexure-1 to the writ petition.
39. Consequences to follow.