Court No. - 33
Case :- WRIT - A No. - 11126 of 2021 Petitioner :- Yogendra Malik And Another Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Alok Mishra,Abhishek Mishra Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against the seniority list determined by the State on 17.08.2020, whereby the previous seniority list finalised on 22.08.2005 has been modified in terms of the orders passed by this Court.
Records reveal that seniority list of Assistant Registrar Cooperative Societies was finalised on 22.08.2005 by granting the benefit of seniority from the date of substantive appointment. Some of the persons apparently felt aggrieved by such determination and wanted their ad-hoc services also to be counted for the purposes. The matter ultimately was brought before Lucknow Bench of this Court in S. B. No. 479 of 2007 and the Division Bench relying upon the proposition of law canvased on behalf of the petitioners therein proceeded to hold as under:-
"We are informed that in the meanwhile the private respondents alongwith others had gained the further promotions to the next higher post on the basis of seniority list impugned prepared in 2005, therefore, on the event of interference with the seniority list impugned, that too at this stage, the interest of the private respondents as well as the other persons who are at par, but have not been impleaded in the writ petition, have also to be looked into.
This Court as well as the Hon'ble Supreme Court had given the verdict in the matter of dispute of inter se seniority of Cooperative Inspectors Group-I and had held that the officiating period shall be counted for determination of seniority, tough it is a matter of determination of inter se seniority of Assistant Registers, yet since the same very principle shall apply in case of determination of inter se seniority of Assistant Registrars also, we hasten to hold that in view of the law laid down by the Hon'ble Supreme Court in Direct Recruit Class II Engineering Officers' Association (Supra), the petitioners' officiating period on the post of Assistant Registrars had to be counted for determination of inter se seniority of directly recruited employees as well as promotees. The seniority Rules 1991 had come into force after the petitioners' promotion in the officiating capacity and after framing of Rules they continued as such uninterruptedly and ultimately had been regularized in 2002, therefore, it would not be appropriate to ignore their officiating service with regard to determine the inter se seniority of the Assistant Registrars.
Regard being had to the aforesaid submissions, we are of the view that the State- respondents had failed to appreciate the facts as well as law, which are relevant to this matter, correctly and had proceeded to determine the seniority by counting the petitioners' period of service from the date of their regular appointment i.e. 30 December 2002. The petitioners had raised objection against the tentative seniority list dated 9 April 2003, but the respondents did not appreciate their objections correctly. Therefore, we hereby quash the order dated 22 August 2005, issued by the Principal Secretary, Cooperative Department of the State Government rejecting the petitioners' objection against the seniority list dated 22.7.2005 of the Assistant Registrars Cooperative Societies as well as the seniority list dated 22.8.2005 of the Assistant Registrars, Cooperative Societies issued by the State Government and allow the writ petition with the following directions:-
(1) The State Government shall prepare a fresh seniority list of the Assistant Registrars by inclusion of petitioners' officiating service of Assistant Registrars since 1987 and 1989 respectively. Since both the petitioners had retired, they are made entitled to get the consequential benefits of service.
(2) This fact cannot be ignored that in the meanwhile some persons, who were appointed by way of direct recruitment to the post of Assistant Registrar would have also been given the promotions to the next higher post but in the result of this order there is likelihood of their reversion, therefore, at this stage we feel it appropriate to protect their present status of posting by providing that if their promotions on the higher post would exceed from the sanctioned strength, in the result of fresh determination of seniority, they shall be permitted to continue by creating the supernumerary post of such numbers as are required till the substantive posts are available for them.
(3) The State Government shall proceed to undergo the exercise of preparation of the seniority list as per direction of this Court and consider the promotion of the Assistant Registrars to the next higher posts on the event of vacancy. The same exercise shall be adopted for promotion to the next higher post to the level of Additional Registrar of the Cooperative Department.
(4) The State Government shall initiate the process for determination of seniority accordingly within fifteen days from the date of communication of this order and prepare a fresh seniority list within next two months. Thereafter within next fifteen days the consequential benefits including the promotion to the higher posts as well as payment of arrears, shall be provided.
With the aforesaid directions the writ petition stands allowed. There shall be no order as to costs."
The aforesaid Division Bench judgment dated 08.07.2016 was put to challenge in Special Leave Petition (Civil) No. 28738 of 2016, but the appeal was ultimately dismissed leaving the question of law open for consideration. It is pursuant to the above adjudication that the petitioners also have raised a grievance relying upon the earlier adjudication made by the Division Bench.
Sri Alok Mishra, learned counsel for the petitioners states that petitioners are identically placed and, therefore, their seniority ought to be reckoned by including the ad-hoc services rendered to the Department and a discriminatory treatment vis-a-vis the petitioners would be wholly arbitrary.
Learned Standing Counsel on the other hand submits that such claim ought not to be entertained now particularly when petitioners never raised any objection to the seniority list finalised on 22.08.2005.
Law is settled that long standing seniority ought not to be lightly interfered by the Courts. In the present case the seniority list was determined in the year 2005. Thought petitioners had raised similar objections then but no challenge was laid by them to the seniority list after its determination on 22.08.2005. It was the petitioners in S.B. No. 479 of 2007 who alone felt aggrieved and their petitions have been allowed. The consequential seniority, therefore, has been determined only for those persons. The judgment of the Division Bench was clearly a judgment in personam and cannot be construed as a judgment in rem so as to extend benefit of Division Bench direction to persons other than those who had approached the Court at that stage.
Law is otherwise settled that those who are fence sitters and allow the grass to grow cannot subsequently approach the Court only because relief was granted to those who have made a timely challenge. The seniority list otherwise was finalised in 2005. After sixteen years of the determination of the seniority this Court would not be justified in reopening the issues merely because relief has been granted to similarly placed persons who made a timely challenge. Writ petition accordingly suffers from latches and the petitioners having acquiesced to the seniority list determined on 22.08.2005 are estopped from raising a challenge now.
The contention that the entire seniority has been revisited by the State Government vide order impugned is noticed only to be rejected inasmuch as the perusal of the impugned order would go to show that seniority of all other persons has been kept intact and merely the petitioners, who had approached this Court earlier, have been granted the benefit of inclusion of ad- hoc services in their seniority and, therefore, order impugned merely modifies the previous seniority dated 22.08.2005. This order cannot be said to be an order redetermining the seniority determined earlier on 22.08.2005 itself. The impugned order merely modifies the seniority to carry out the directions of the Division Bench as affirmed by the Supreme Court and nothing beyond it. The direction of the High Court for issuing a fresh seniority was in the context of relief granted to the writ petitioners only as is clear from the tenor and content of the order itself.
Writ petition is, accordingly, dismissed.
Order Date :- 29.10.2021 Abhishek Singh