Hon'ble Virendra Kumar-II,J.
(1) Heard Mr. Suraj Narain Srivastava, learned Counsel for the petitioner, Mr. Shatroghan Chaudhary, learned Additional Chief Standing Counsel and Mr. S.C. Yadava, learned Counsel for the opposite party No.5 and Mr. Ashok Shukla, learned Counsel for the Commission.
(2) The petitioner has approached this Court under Article 226 of the Constitution of India, challenging the judgment and order dated 7.8.2015 passed by the State Public Services Tribunal, Lucknow (hereinafter referred to as ''the Tribunal') in Claim Petition No. 1986 of 2012 (Rakesh Awasthi Vs. State of U.P. and others) whereby the Tribunal has dismissed the Claim Petition preferred by the petitioner for re-determining the seniority. The petitioner has also challenged the order dated 12.12.2012 passed by the Principal Secretary, Industrial Department, Lucknow (opposite party No.1), whereby the petitioner's representation with regard to determination of seniority has been rejected.
(3) According to the petitioner, after due selection and recommendation of the Public Service Commission, he was appointed on a substantive post of Printing Overseer through direct recruitment on 21.9.1993 under the Director, Printing and Stationary, U.P., Allahabad. On completion of satisfactory services of two year, his services were confirmed w.e.f. 21.9.1995 vide order dated 30.9.2000. On 17.12.1999, the Director, Printing and Stationary, U.P., Allahabad, issued a joint seniority list of Printing Overseers, who were appointed directly or through promotion. In the said seniority list, the name of the petitioner was mentioned at serial No. 2 being only direct recruitee and rest of the persons in the seniority list were promotee.
(4) It has been stated that the next promotion of the petitioner was to be made on the post of Assistant Director and for this post, the petitioner was eligible when vacancy for the post of Assistant Director occurred in the year 1996-97, but no departmental promotion committee was constituted till 30.6.2003. In the meantime, selection through direct recruitment for the post of Assistant Director (regular) took place and one Sri Suresh Chandra Tyagi (opposite party No.5) was appointed on 1.11.1999. Subsequently, the case of the petitioner was recommended by the Public Service Commission vide its letter dated 25.6.2003 and in pursuance thereof, he was promoted as Assistant Director by the Director, Printing and Stationary, U.P., Allahabad vide order dated 2.7.2003 against the vacancy caused in the year 1996-97 w.e.f. date of joining on the promoted post.
(5) According to the petitioner, after about five years of his promotion, opposite party No.2-the Director, Printing & Stationery, Allahabad, vide order dated 19.1.2008, circulated a tentative seniority list, wherein the name of the petitioner was placed below opposite party No.5 (Sri Suresh Chandra Tyagi). Therefore, the petitioner raised objection to the said seniority list, stating therein that he was promoted against the vacancy occurred in the year 1996-97 but was promoted w.e.f. 2.7.2003 due to departmental lapse and, as such, he is entitled for notional promotion w.e.f. 1996-1997, therefore, the seniority list be corrected. According to the petitioner, when no heed was paid by the department, the petitioner preferred a Writ Petition No. 989 (S/B) of 2012 [ Rakesh Awasthi Vs. State of U.P. and others] which was disposed of finally vide judgment and order dated 3.9.2012 with a direction to the Principal Secretary, Industrial Department, Government of Uttar Pradesh to decide the petitioner's representation in accordance with law.
(6) In compliance of the judgment and order dated 3.9.2012, referred to above, the opposite party No.1 examined the claim of the petitioner but found no substance in it and accordingly rejected the representation of the petitioner vide order dated 12.12.2012. Feeling aggrieved, the petitioner approached the Tribunal by filing a Claim Petition No. 1986 of 2012, which was dismissed vide judgment and order dated 7.8.2015. Aggrieved by the rejection order dated 7.8.2015, the instant writ petition has been filed by the petitioner.
(7) Submission of the learned Counsel for the petitioner is that the petitioner was confirmed on the post of Printing Overseer w.e.f. 21.9.1995, whereas opposite party No.5-Suresh Chandra Tyagi was appointed on the post of Assistant Director (Printing) on 11.10.1999 and the petitioner was promoted on the post of Assistant Director (Printing) on 2.7.2003 against the vacancy of year 1996-97. Therefore, the petitioner ought to have been placed above opposite party No.5 in the seniority list dated 19.1.2008. His submission is that delay in convening the departmental promotion committee being an administrative lapse, promoters cannot be made to suffer for no fault on their part as has been held by the Apex Court in P.N. Prem Chandra Vs. State of Kerala : 2004 (1) SCC 245. He has submitted that in the case of the petitioner, the petitioner has wrongly been placed below opposite party No.5 in the seniority list in an arbitrary manner. His submission is that for the delay in promoting the petitioner against the vacancy pertaining to the year 1996-97, the petitioner is not responsible. Thus, the petitioner is entitled to be given retrospective promotion of Assistant Director (Printing) w.e.f. 1996-97 and be placed above opposite party No.5 in the seniority list dated 19.1.2008.
(8) Elaborating his submission, learned Counsel for the petitioner has submitted that the opposite party No.1, 2 and the Tribunal has failed to appreciate correctly the effect and application of sub-rule 9 (a) of Rule 5, sub-Rule 2 of Rule 5 and Rule 17 of the U.P. Government Press and Allied Establishment (Gazetted Officer) Service Rules, 1981 (in short, "Rule, 1981) along with sub-rule 3 of Rule 8 of U.P. Government Servants Seniority Rules, 1991 as well as Government Order dated 25.6.1984 as none of these rules give power to the department to make list of eligibility of probable candidates year-wise for promotion in such a way, which results in denying correct placement of direct vis-a-vis promotee candidates in the seniority list. His submission is that opposite party No.1 and the Tribunal while rejecting the claim of the petitioner has failed to appreciate the fact that there is no legal impediment in granting notional promotion from the date when quota was due and granting seniority accordingly. Therefore, the impugned orders are liable to be quashed.
(9) To strengthen his submission, learned Counsel for the petitioner has placed reliance upon State of Uttar Pradesh and others Vs. G.P. Swami : AIR 1993 SC 1740, Union of India and others Vs. N.R. Banerjee and others : (1997) 9 SCC 287, Dhanpal Singh Vs. State of U.P. and another : 2005 (23) LCD 173, Ram Chandra Bhati Vs. State of U.P. and others : 2014 (2) UPLBEC 1441.
(10) Per contra, learned Counsel for the opposite party No.5 has submitted that since the petitioner has neither challenged the seniority list dated 19.1.2008 of the cadre either before the Tribunal or before this Court, therefore, the opposite party No.5 is not the necessary party in the present writ petition and the writ petition is liable to be dismissed on this ground alone.
(11) Further submission of the learned Counsel for the opposite party No.5 is that the opposite party No.5 was duly selected by the Commission for the post of Assistant Director (Printing). Vide order dated 11.10.1999, the Director, Printing and Stationary, U.P., Allahabad had issued appointment order in favour of the opposite party No.5 for the said post. The Director, Printing and Stationery, U.P., Allahabad Vide Office Memorandum No. Stha.Nide.-1-305A. Adhi Varg/2014 dated 30.06.2014, issued a tentative seniority list of the cadre of the Assistant Director (Printing) and invited objections. After due process, vide order dated 12.12.2014, the Director, Printing & Stationary, U.P., Allahabad, has issued a final seniority list of the post of Assistant Directors, duly selected through direct recruitment by the Commission. His submission is that from perusal of the final seniority list dated 12.12.2014, it is clear that the name of the opposite party No.5 is shown at serial no.4, whereas the name of the petitioner finds place at serial No.5. At point No.5, the date of appointment of the opposite party No.5 has been mentioned as 1.11.1999 (direct recruitment), whereas the date of appointment of the petitioner has been mentioned as 2.7.2003 (promotee).
(12) Counsel for the opposite party No.5 has submitted that the seniority list dated 12.12.2014 was published subject to the decision of writ petition No. 5239 (S/S) of 2009 : Ajay Kumar and others Vs. State of U.P. others, Claim Petition No. 1986 of 2012 : Rakesh Awasthi Vs. State of U.P. and others. Surprisingly, the petitioner has not challenged the final seniority list dated 12.12.2014. Thereafter, vide notification/appointment order dated 2.9.2015, the Principal Secretary, Industrial Development Department, State of U.P., has promoted the opposite party No.5 and three others Assistant Directors to the post of Deputy Director (Printing) in the pay-band-3, Pay-Scale 15600-39100 (Grade Pay 6600). In compliance of the aforesaid order dated 2.9.2015, the opposite party No.5 had joined on the post of Deputy Director and is working at Lucknow. His submission is that the Tribunal has considered the claim of the petitioner and decided the issue raised by the petitioner in its correct prospective. Therefore, there is no illegality or infirmity in the impugned judgment of the Tribunal and the writ petition is liable to be dismissed.
(13) Mr. Shatroghan Chaudhary, learned Additional Chief Standing Counsel, appearing on behalf of the State has submitted that initially the petitioner was appointed on a substantive post of ''Printing Overseer' on 21.9.1993. The service condition of the ''Printing Overseer' is governed by ''Uttar Pradesh Printing and Stationary Technical Service Rules, 1995' (In short, ''Rules, 1995'). The petitioner was confirmed on the post of ''Printing Overseer' vide order dated 30.9.2000 w.e.f. 21.9.1995 under Rules, 1995. His submission is that Rule 9 (a) (i) Rules, 1981 provides for recruitment on the post of ''Assistant Director (Printing)' by promotion in consultation with the Commission from amongst such permanent ''Head Readers', ''Administrative Assistant', ''Printing Overseers' who possess at least High School Examination of the U.P. Board of High School and Intermediate Education or an examination recognized equivalent thereto. Rule 9 (a) (ii) of Rules, 1981 provides for recruitment on the post of ''Assistant Director (Printing)' by direct recruitment through the Commission.
(14) So far as the grievance of the petitioner regarding placement of opposite party No.5 is concerned, learned Standing Counsel has submitted that opposite party No.5 is a Scheduled Caste Candidate and was selected through direct recruitment, as provided under 9 (a) (ii) of Rules, 1981, on the reserved post of ''Assistant Director (Printing)', by the Commission on 11.10.1999 i.e. much before the petitioner, who was confirmed on his substantive post of the ''Printing Overseer' under Rules, 1995 vide order dated 30.9.2000 and was promoted on the post of Assistant Director (Printing) on 2.7.2003 under Rules, 1981. For promotion of ''Printing Overseer' and ''Head Reader' on the post of ''Assistant Director (Printing)', under Rules, 1981, the Department of Printing and Stationary, after confirming the concerned persons, holding the post on probation in their respective cadre, has prepared joint eligibility list of the ''Printing Overseer' and ''Head Reader' and sent the same, vide order dated 1.10.2000, to the Commission to consider the candidature for promotions on the post of ''Assistant Director (Printing)' under the provisions of 1981 Rules. Thereafter, in pursuance of the recommendations of the Commission, four incumbents, including the petitioner, were promoted to the post of ''Assistant Director (Printing)', from the date of issuance of the order dated 2.7.2003.
(15) Learned Counsel for the State has submitted that at the time of promotion i.e. on 2.7.2003, the petitioner never disputed the said order, accepted the same and took the charge as ''Assistant Director (Printing)'. A final seniority list of Assistant Director in the Department of Printing and Stationary was published vide Office Order dated 5.6.1998. Thereafter, many incumbents came in the cadre by way of direct recruitment as well as by promotion, accordingly, the said seniority list was again circulated vide office order dated 19.1.2008. His submission is that it is for the first time, the petitioner came with a dispute, which in fact can be said to have arisen in the year 2003. The petitioner moved a representation dated 13.3.2008 before the concerned authority who fixed the place, time and date i.e. 2.4.2008 to hear the grievance of the petitioner on which date the petitioner appeared and was heard by the concerned authority. Thereafter, the petitioner again moved a representation dated 3.4.2008 claiming therein notional promotion from the year 1996-1997 when the post of Assistant Director, in the cadre under Rules, 1981 was vacant and claimed seniority above opposite party No.5. Subsequently, the petitioner has filed writ petition No. 989 (S/B) of 2012, which was disposed of finally vide order dated 3.9.2012 with the direction to the concerned authority to decide the representation dated 3.8.2010 of the petitioner. Thereafter, the petitioner's representation was decided by detailed and reasoned order dated 12.12.2012. The petitioner has challenged the said order dated 12.12.2012 in claim petition No. 1986 of 2012 before the Tribunal. The Tribunal, after hearing both the parties, has recorded its findings and after being satisfied that the petitioner has no legal ground in support of his claim/grievance, has dismissed the claim petition vide impugned order dated 7.8.2016.
(16) In these backgrounds, learned Counsel for the State has submitted that the Tribunal has passed the impugned order in a right perspective and there is no illegality or infirmity in the impugned order and the writ petition is liable to be dismissed.
(17) We have heard learned Counsel for the parties and gone through the record.
(18) There is no dispute to the fact that the State government has framed the Uttar Pradesh Government Press and Allied Establishments (Gazetted Officers) Service Rules, 1981 [ in short referred to as the "1981 Rules"] regulating recruitment and conditions of service of persons appointed to the Uttar Pradesh Government Press and Allied Establishments (Gazetted Officers) Service. Part III of the 1981 Rules deals with the Recruitment and Rule 5 lays down the procedure to be followed for recruitment to the various categories of posts in the service. Rule 5(9)(i) prescribes the procedure to be followed for appointment to the post of Assistant Superintendent (Printing) [ now known as Assistant Director (Printing)] and says that recruitment on the post of ''Assistant Director (Printing)' by promotion in consultation of the Commission from amongst such permanent ''Head Readers', ''Administrative Assistant', ''Printing Overseers' who possess at least High School Examination of the U.P. Board of High School and Intermediate Education or an examination recognized equivalent thereto.
(19) Sub-clause 3 of the aforesaid Rule says that where promotion to any category of posts is provided from more than the source, a combined seniority list shall be prepared on the basis of the date of continuous appointment on the post from which promotion is to be made so that the inter se seniority of persons in any cadre shall not be disturbed if the date of appointment is the same the person older in age shall be placed first.
(20) Here it is relevant to point out that Rule 8 of the Uttar Pradesh Government Servants Seniority Rules, 1991 talks about the fixing of the seniority where appointments are made by promotion and by direct recruitment as well. Relevant part of the Rule 8 reads as under:-
Seniority where appointments by promotion and direct recruitment. (1) Where according to the service rules appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub-rules, be determined from the date of the order of their substantive appointments, and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order.
(21) At this juncture, it would be useful to refer some of the cases, in which it has been held that it is not proper to unsettle the settled seniority or allowing to rake up old matters like seniority after a long time as it would likely to result in administrative complications and difficulties. The issue of challenging the seniority list, which continued to be in existence for a long time, was considered by the Hon'ble Supreme Court in K.R. Mudgal & Ors. v. R.P. Singh & Ors. AIR 1986 SC 2086. The Hon'ble Supreme 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 above case, Hon'ble Supreme 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 R.S. Makashi v. I.M. Menon & Ors. AIR 1982 SC 101, the Hon'ble Supreme Court considered all aspects of limitation, delay and laches in filing the writ petition in respect of inter se seniority of the employees. The Hon'ble Supreme Court referred to its earlier judgment in State of Madhya Pradesh & Anr. v. Bhailal Bhai, 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) (24) In B.S. Bajwa v. State of Punjab & Ors. AIR 1999 SC 1510, the Hon'ble Supreme Court while deciding the similar issue re-iterated the view expressed earlier by 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) (25) Thus, it is well settled principle in 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 crystallizes 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).
(26) In K.R. Mudgal (supra), the Hon'ble Supreme Court has laid down, in explicit terms 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) Thus, in view of the above, the settled legal proposition that emerges is that once the seniority has been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. There is no dispute to the fact that the final seniority list has been acted upon and persons have been promoted on next higher post way back in the year 2015. In these circumstances, case laws relied upon by the petitioner are of no avail to him as the facts of the case are entirely different.
(28) It is important to note that in the instant case, the petitioner accepted the promotion on the post of Assistant Director from 2.7.2003 and failed to make any protest for his promotion from the date when the vacancy occurred. Thus, the cause of action for the first time arose in the year 2003 but petitioner remained idle for five long years and raised the dispute on 13.3.2008 claiming his notional seniority from the year 1996-97 when the post of Assistant Director in the cadre is said to have fallen vacant, which is not permissible under law.
(29) It is also relevant to mention that the petitioner has neither challenged the final seniority list dated 19.1.2008 as also another seniority list dated 12.12.2014 issued by the Director, Printing and Stationary for the post of Assistant Directors. It may be noted, as averred above, that acting upon the said seniority list, four candidates have been promoted to the post of Deputy Director (Printing) vide order dated 2.9.2015.
(30) Thus, the Tribunal has rightly dismissed the claim petition of the petitioner. Accordingly, we do not find any illegality and infirmity in the impugned orders and the writ petition is hereby dismissed. Costs easy.
Order Date: 24 April, 2018 Ajit/MH [Virendra Kumar-II,J.] [Devendra Kumar Arora,J.]