Hon'ble Anil Kumar,J.
(Delivered by Hon'ble Satyendra Singh Chauhan, J.) Heard learned counsel for the petitioners and learned Standing Counsel as well as learned counsel for respondent no.4.
Since common question of law and facts are involved in these writ petitions, therefore, the same are being decided by a common order.
Writ Petition No.1555 (SB) of 2012 was filed challenging the promotion order dated 05.10.2012 passed in favour of respondent no.4.
Facts, in short, are that the petitioner no.1 was initially appointed on the post of Technical Assistant (Sanskrit) after due advertisement and selection from U.P. Public Service Commission, Allahabad vide order dated 29.03.1979. In due course of time, the petitioner no.1 was promoted on the post of Manuscript Officer vide order dated 06.05.1998. Similarly, petitioner no.2 was appointed on the post of Technical Assistant (History) in the State Archives, Department of Culture, U.P., in the similar manner vide order dated 09.07.1990 and he was promoted on the post of Regional Archives Officer vide order dated 29.07.1999. Both the petitioners are continuously working on the said posts since the date of their promotion.
The service Rules pertaining to the selection, appointment and other service conditions of the petitioners were published in the year 1996, which known as 'U.P. State Archives Service Rules, 1996 (for short 'the Rules') by exercising power under proviso to Article 309 of the Constitution of India.
After the death of Sri Javed Niyaz Beg, respondent no.4 being the wife of Sri Javed Niyaz Beg, submitted an application on 23.03.1990 before the Deputy Secretary, Appointment Section of the State Government and requested therein that since her husband was an officer of Provincial Civil Services of 1979 batch and at the time of death i.e. on 25.01.1986, he was posted as Deputy Secretary in Lucknow Development Authority, Lucknow, therefore, she may be given appointment as per her qualification. She also mentioned her qualification in the said application form.
The then Secretary of Appointment Section of the State Government issued a letter dated 28.03.1990 to the Vice Chairman, Allahabad Development Authority, Allahabad and requested therein that since the husband of respondent no.4 had died on 25.01.1986 while he was posted as Deputy Secretary in Lucknow Development Authority, Lucknow, therefore, she may be given appointment under the Dying in Harness Rules, 1974. As the respondent no.4 was residing at Allahabad, therefore, she was given appointment in Allahabad Development Authority, Allahabad vide order dated 04.05.1990 on the post of Junior Clerk.
The respondent no.4 thereafter moved an application on 13.05.1991 before the Appointment Secretary, which was processed in the Government and the Government thereafter, granted relaxation as contemplated under the Dying in Harness Rules, and appointed the respondent no.4 on the post of Assistant Director (Conservation). The respondent no.4 thereafter started functioning on the post in question when in the year 1991, Writ Petition No.5968 (SS) of 1991 was filed challenging the appointment of respondent no.4. The said writ petition was disposed of finally, by means of judgment and order dated 08.02.1994. In the said writ petition, a specific ground was taken regarding the objection raised by the petitioners in the present writ petitions.
The aforesaid writ petition has been disposed of and the appointment of respondent no.4 has attained finality and she continued to discharge her duties on the post in question, when in the year 2011, she was given officiating charge of Deputy Director as well as Director, which was challenged by way of Writ Petition No.348 (SB) of 2012.
The petitioners were fully knowing since the year 1991 that respondent no.4 was working in the department by virtue of her appointment under the Dying in Harness Rules, but they did not challenge the appointment of respondent no.4 at any point of time and it has been submitted by the learned counsel for the petitioners that when the chance of promotion of the petitioners came, then they realized that she was senior to them and as such, they cannot be promoted and so they proceeded to challenge the appointment of respondent no.4 in the year 2012 and also challenged her officiating promotion.
Submission of learned counsel for the petitioners is that the appointment of respondent no.4 was illegal and she could not have been appointed on the post in question under the Dying in Harness Rules. He also submits that the judgment rendered in Writ Petition No.5968 (SS) of 1991 was not in the knowledge of the petitioners and the petitioners did not challenge the appointment of respondent no.4 as they were not going to be promoted at the relevant time, but as and when the chance came in respect of their promotion, then they realized that they cannot be promoted on account of the fact that respondent no.4 was senior to them.
Further submission of learned counsel for the petitioners is that looking to the qualification and the post on which, respondent no.4 was appointed, she was appointed illegally and her appointment was illegal for all purposes. Learned counsel for the petitioners, in support of his submission, has relied upon the judgment of the apex court in the cases of Raiwad Manojkumar Nivruttirao vs. State of Maharashtra and another (2011) 9 SCC 798; and State of Orissa and another vs. Mamata Mohanty (2011) 3 SCC 436.
Learned counsel for respondent no.4 as well as learned Standing Counsel submitted that the appointment of respondent no.4 was initially made in the Allahabad Development Authority, Allahabad on the post of Junior Clerk, but she was not satisfied with the said appointment as various widows of IAS and PCS Officers were appointed on higher posts and so she made a representation to the State Government and thereafter the Government processed the said representation of respondent no.4 and by exercising the power of relaxation as contemplated under the Dying in Harness Rules, proceeded to appoint respondent no.4 on the post of Assistant Director. Learned counsel further submits that the appointment of respondent no.4 cannot be challenged at such a belated stage. The petitioners were very well there in the department at the time of appointment of respondent no.4. The factum of appointment of respondent no.4 was in the knowledge of the petitioners, but they chose to keep quiet till 2012 and they have proceeded to challenge the appointment of respondent no.4 at such a belated stage.
Learned counsel for respondent no.4 has placed reliance upon the judgment of the apex court in the cases of S. Jaffar Sahib vs. Secretary, A.P.P.S.C. And others (1996) 11 SCC 753; K.R. Mudgal and others vs. R.P. Singh and others (1986) 4 SCC 531; and Tridip Kumar Dingal and others vs. State of West Bengal and others (2009) 1 SCC 768.
We have heard learned counsel for the parties and perused the record.
The husband of respondent no.4 was appointed as a PCS Officer in the year 1979 and while in service, he died on 25.01.1986. The State Government thereafter took a decision to appoint respondent no.4 in Allahabad Development Authority, Allahabad on Class-III post, but respondent no.4 was not satisfied with the said appointment and so she made an application to the State Government stating various instances of various officers, whose wives have been appointed on Class-II post and, therefore, she also prayed that she may be given appointment accordingly on any Class-II or equivalent post.
The aforesaid application of respondent no.4 was processed in the Government and the matter was placed before the then Chief Minister, who granted relaxation on 17.09.1991. After grant of relaxation by the Government, the appointment letter was issued in favour of respondent no.4 on 28.09.1991. The appointment of respondent no.4 was thereafter challenged by means of Writ Petition No.5968 (SS) of 1991, which was disposed of vide order dated 08.02.1994. The challenge to the appointment of respondent no.4 stood finalized by means of the aforesaid judgment of the Division Bench of this Court. The petitioner did not choose to challenge the appointment of respondent no.4 and even if they want to challenge the said appointment, then they are estopped in view of the fact that a judgment has already been rendered by a Division Bench of this Court in Writ Petition No.5968 (SS) of 1991 and that has attained finality.
The argument of learned counsel for the petitioners that since the petitioners were not affected at the relevant time, therefore, they did not challenge the appointment of respondent no.4, cannot be accepted as they were very much there in the department and the factum of appointment of respondent no.4 was well within their knowledge and if they wished to challenge the said appointment, they could have done so at an early date, but since 1991, they have been waiting till 2012 and in the year 2012, they have challenged the appointment of respondent no.4 again by means of the present writ petitions.
The principles of constructive res-judicata will apply in the present case. The controversy has been set at rest in the earlier judgment, therefore, the same cannot be reopened by means of these writ petitions. Apart from it, challenge to the appointment and promotion cannot be entertained at such a belated stage.
Learned counsel for the petitioners has placed reliance upon the judgment of the apex court in the case of S. Jaffar Sahib (supra). In Para-4 of the said judgment, the apex court held as under:
"4. The appellant appeared in person in this Court and contended that appointments having been made contrary to the Rules of Reservation, the said appointments are invalid and inoperative. The appellant's right to be appointed was illegally taken away and therefore this Court should annul the appointment of the respondents forthright and direct reconsideration of the appellant's appointment. We are unable to accept this contention at this belated stage. As has been stated earlier the appellant challenged the appointment of the respondents before the Tribunal in the year 1987 and the Tribunal did not interfere with the appointments made in the year 1981 and the said order became final not being challenged in any higher court. The appellant then filed second round of petition in the year 1990 which was rejected by the Tribunal on the ground of laches and the application for review stood dismissed on the ground that there is no error of law apparent on the face of the order which can be reviewed by the Tribunal. On the admitted facts that appointment of respondents to the post of Deputy Collector was made in the year 1981, an application before the Tribunal in the year 1990 could not have been entertained after lapse of 9 years. Then again there is an additional hurdle on the part of the appellant namely affected persons are not made parties to the proceedings. It is too well settled that without impleading a person as a party whose rights would be affected, no court/tribunal can pass any order against him. In the aforesaid premises we find no justification for our interference under Article 136 of the Constitution with the impugned order of the Tribunal. The appeal is accordingly dismissed but in the circumstances there will be no order as to costs."
Similar position was considered in the case of K.R. Mudgal (supra), wherein the seniority was sought to be challenged at a belated stage and the same was refused to be entertained. In Para-7, 8 and 9 of the said judgment, the apex court held as under:
"7. ....................The facts of this case are more or less similar to the facts in R.S. Makashi v. I.M. Menon (1982) 2 SCR 69. In the said decision this Court observed at page 100 of the Reports thus: (SCC p.400, para 30) In these circumstances, we consider that the High Court was wrong in overruling 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, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition insofar 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, AIR 1975 SC 1269 at pages 413-414 of the Reports which are as follows: (SCC p.602, para 9) Although security of service cannot be used as a shield against administrative action for lapses of a public servant, by and large one of the essential requirements of contentment and efficiency in pubic 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."
Dealing with the similar issue, the apex court in the case of Tridip Kumar Dingal (supra), in Paras-59 and 60 observed as under:
"59. We are in respectful agreement with the following observations of this Court in P.S. Sadasivaswamy v. State of T.N. (1975) 1 SCC 152: (SCC p.154, para 2) "2. ..... It is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward stale claims and try to unsettle settled matters."
60. From the facts, it is clear that written examination for the selection of Medical Technologists was taken as early as in August 1995 and list of more than 1000 candidates was published in June 1996. By now more than a decade has passed. The applicants who had never challenged the selection before the Tribunal, before the High Court and before us and have applied for the first time in the present proceedings which were instituted in 2005 by filing impleadment applications have thus accepted the position as prevailed in 1996. Qua them, therefore, the matter can be said to have been "settled". Initiation of proceedings at the instance of those candidates now will "unsettled the settled position".
A person should approach the Court well within time and if he does not come to the Court well within time and at the earliest reasonable possible opportunity and if there is inordinate delay in making the motion for a writ, the Court will be justified in not exercising the discretionary jurisdiction.
The case laws relied upon by the learned counsel for the petitioners are in different context and they could have been taken into consideration provided the petitioners would have approached this Court within reasonable time.
We, therefore, find that on both the counts, either in respect of challenging the seniority or in respect of challenging the appointment, petitioners have failed to approach the Court promptly as contemplated under law and, therefore, their claims at such a belated stage cannot be considered and neither the seniority, which has been settled, can be unsettled at such a belated stage.
Both the writ petitions are devoid of merit and are accordingly dismissed.
Dated: July 29th, 2016 Sachin