Ajay Kumar Shukla Vs Arvind Rai (Supreme Court of India)
The present case is a case of preparation of seniority list and that too in a situation where the appellants (original writ petitioners) did not even know the marks obtained by them or their proficiency in the examination conducted by the Commission. The challenge was on the ground that the Rules on the preparation of seniority list had not been followed. There were 18 private respondents arrayed to the writ petition. The original petitioners could not have known who all would be affected. They had thus broadly impleaded 18 of such Junior Engineers who could be adversely affected. In matters relating to service jurisprudence, time and again it has been held that it is not essential to implead each and every one who could be affected but if a section of such affected employees is impleaded then the interest of all is represented and protected. In view of the above, it is well settled that impleadment of a few of the affected employees would be sufficient compliance of the principle of joinder of parties and they could defend the interest of all affected persons in their representative capacity. Non-joining of all the parties cannot be held to be fatal.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
1. The present set of appeals preferred by the original writ petitioners (before the High Court) assails the correctness of the judgement and order dated 04.12.2019 passed by Division Bench of the Allahabad High Court in Special Appeal No. 819 of 2019, in between Rajesh Kumar Singh and Another vs. Rajeev Nain Upadhyay and 24 Others whereby the Division Bench allowed the appeal, set aside the judgment and order of the learned Single Judge and dismissed the writ petition.
Background:
2. The appellants, who were working as Junior Engineers in the Department of Minor Irrigation, State of Uttar Pradesh, aggrieved by the final seniority list dated 05.03.2010 challenged the same by way of Writ Petition No. 53123 of 2012, being Rajeev Nain Upadhyay and Others vs. State of Uttar Pradesh and Others. The appellants (Original Writ Petitioners) belong to the Mechanical and Civil Streams whereas Private Respondents are from the Agriculture Stream.
3. Originally when the petition was filed, challenge was only to the seniority list published on 05.03.2010. However, during the pendency of the petition by way of amendment, challenge was also made to the earlier seniority list published on 05.09.2006. The said amendment was allowed. Thus, the reliefs claimed post amendment, read as follows:
“Prayer
Original prayer in the writ petition before the high court:
It is, therefore, most respectfully prayed that this Hon’ble court may be pleased to issue:
i. A writ, order or direction in the nature of certiorari quashing the office order dated 05.03.2010 issued by the Chief Engineer (Minor Irrigation), U.P. Lucknow and the seniority list appended thereto (Annexure 12 to the writ petition).
ii. A writ, order or direction of a suitable nature commanding the respondents to prepare and publish a revised seniority list in conformity with UP Government Servant Seniority Rule 1998 within a period to be specified by this Hon’ble court.
iii. A writ, order or direction of a suitable nature restraining the respondents from taking any action on the basis of impugned office order.
iv. A writ, order or direction in the nature of which this Hon’ble court may deem fit and proper under the circumstances of the case.
v. Award cost to the humble petitioner throughout of the present writ petition.
Prayer added subsequently to the original prayer in writ petition before the High Court:
That the following prayers may be added after prayer no (i) as prayer no. i-a) & i-b)
i-a) Certiorari quashing for the record to quash the seniority list dated 5.9.2006.
i·b) mandamus restraining the respondents from giving any benefits to the respondents on the basis of the seniority list dated 5.9.2006.”
4. The learned Single Judge, vide judgement and order dated 14.05.2019, allowed the writ petition, quashed the seniority lists dated 05.09.2006 and 05.03.2010 and further issued a writ of mandamus directing the respondents to draw a fresh seniority list in accordance with Rule 5 of the Uttar Pradesh Government Servants Seniority Rules, 1991 (for short “Rules 1991”). It was also provided that any promotions made during the pendency of the writ petitions would not be interfered with but would remain subject to the fresh seniority list to be prepared in accordance with Rule 5 of Rules 1991. Learned Single Judge recorded the following findings to arrive at the above conclusions:
a) After examining the relevant rules and also the scheme of determination of the seniority, it was recorded that the existing seniority list would not only be prejudicial to the interest of junior engineers belonging to civil and mechanical branch but would also affect their chances of promotion. It would also be generating heart burn, adversely affecting the administration and working of the entire department. Paragraph 21 of the judgment of learned Single Judge is reproduced below:
“21. The scenario noticed above would not only be prejudicial to the interests of Junior Engineers belonging to Civil· and Mechanical Engineering Stream as it would affect their chances of promotion and generate heart-burning but would adversely affect the requirement of work to be managed by the department also.”
b) The objection taken by the respondents to the original writ petition regarding the petition suffering from delay and laches, was elaborately dealt with. The law on the point was dealt with in abundance and thereafter it was recorded that a delay of three to four years, in a matter relating to seniority dispute would not be fatal. Reliance was placed upon the judgment of Shiba Shankar Mohapatra vs. State of Orissa1. It was held that in the present case, there was no delay or laches.
c) It was also recorded that once there was a serious challenge to the determination of seniority on the ground that the seniority list had been prepared de hors the rules, writ petition was required to be considered on merits.
d) Three different lists were forwarded by the Commission relating to the same selection and therefore, a common inter se merit of the candidates from the three lists ought to have been prepared and accordingly seniority ought to have been fixed.
e) The Competent Authority and the State committed a serious error of law in determining the seniority list merely on the basis of the date of receipt of the three select lists arising out of the same selection. Such an action could neither be supported in law or on facts nor the task of determining seniority be left to such a fortuitous circumstance.
f) The date of dispatch of select list, by no stretch of imagination could be a determining factor for preparing the seniority list. The Competent Authority and the State have acted contrary to the specific provisions contained in Rules 1991. As such their action is arbitrary and also against the constitutional spirit of equal opportunity in matters of public employment.
5. The judgment of the learned Single Judge was assailed by way of intra court appeal registered as Special Appeal No. 819 of 2019. The Division Bench, vide judgment and order dated 04.12.2019, allowed the appeal, set aside the judgment of the learned Single Judge and dismissed the writ petition. This judgment has given rise to the present set of appeals. The Division Bench recorded the following findings to arrive at the above conclusions:
a) There was extraordinary delay on the part of the original writ petitioners in approaching the Court inasmuch as the seniority list of 2006 which had formed the basis of the 2009 seniority list, was not challenged within a reasonable time.
b) The original writ petitioners having not challenged the final seniority list dated 05.09.2006 principally accepted the same as such their claim would be barred by principle of acquiescence.
c) All the affected Junior Engineers having not been impleaded would be fatal on the principle of non-joinder of necessary parties.
d) The appellants having participated in selection/appointment process, later on, cannot challenge the process as such action would be hit by doctrine of estoppel and acquiescence.
e) The learned Single Judge was not right in directing for preparation of the seniority list in accordance with Rule 5 of Rules 1991 as it would be Rule 8 which would be applicable and not Rule 5.
Facts:
6. The factual matrix relevant for adjudication of this set of appeals are:
a) The Chief Engineer, Department of Minor Irrigation send a requisition dated 18.06.1998 to the Uttar Pradesh Public Service Commission (for short “the Commission”) requesting for recruitment of 206 posts of Junior Engineers in the Department of Minor Irrigation. These posts were further divided inter se between agriculture, mechanical and civil streams in the ratio of 50:30:20 respectively.
b) The Commission issued an Advertisement No. 3 of 19981999, inviting applications for the post of Junior Engineers. The examination process was in two tiers; a screening test which was held on 18.10.1998 and after qualifying this screening test, there was an interview to be conducted by the Commission. The result of the screening test was declared on 06.01.1999 and thereafter, interviews were conducted by the Commission from 07.06.1999 to 26.06.1999 with respect to candidates who were holding a Diploma in Agricultural Engineering. Insofar as candidates holding Diploma in Mechanical Engineering were concerned, their interviews were held between 24.06.1999 to 02.07.1999 and lastly for candidates holding Diploma in Civil Engineering, their interviews were held between 07.07.1999 to 22.12.1999. After finalising the results, the Commission forwarded three separate select lists to the Minor Irrigation Department of the State Government, as follows:
i) On 28.09.1999, the select list of candidates pertaining to Agricultural Engineering;
ii) On 06.01.2000, the select list of candidates pertaining to Mechanical Engineering and,
iii) Lastly on 07.11.2000, the select list of candidates pertaining to Civil Engineering.
Note: There is some discrepancy regarding the dates of the three lists being forwarded to the department. The Commission, in its affidavits filed, has given different dates. However, the fact remains that the sequence of sending the lists of three different streams remains the same i.e. Agriculture, Mechanical and Civil in that order. In one of the affidavits, the three dates are 06.01.2000, 27.01.2000 and 07.11.2000 for Agriculture, Mechanical and Civil Junior Engineers. In another affidavit it is 28.09.1999, 06.01.2000 and 07.11.2000 in the same order. Hereinafter we have dealt these dates as 28.09.1999, 06.01.2000 and 07.11.2000 respectively.
c) Based upon the above three select lists forwarded by the Commission, appointment letters were issued on 08.10.2001. The appointment letter clearly indicated that the issue regarding seniority would be decided later on. Pursuant to the appointment letters dated 08.10.2001, the petitioner and private respondents joined.
d) In 2006, a tentative seniority list was published vide office order dated 17.03.2006 with respect to all the Junior Engineers appointed after 01.01.1989. Later on, vide office order dated 05.09.2006, a final seniority list was published. The last sentence of the said office order reads that the seniority of the candidates selected by the Commission has been kept in their serial of merit.
e) The department took a fresh exercise of preparing the seniority list in 2009 as for the first time Rules relating to Junior Engineers of the Minor Irrigation Department were framed. Reference to these Rules would be made a little later.
f) Accordingly, a provisional seniority list was published vide office order dated 29.12.2009 inviting objections. The objections received were considered and vide office order dated 05.03.2010, a final seniority list was published. In the latter part of paragraph 11 of the office order dated 05.03.2010, reference was made that the Commission had sent three separate lists i.e. of Agricultural stream on 28.09.1999, Mechanical stream on 06.01.2000 and Civil stream on 07.11.2000. The department had placed the candidates of the three lists in the same sequence as they were received with their inter se seniority in their respective lists. For example, if there were 30 candidates in the Agricultural stream, all those candidates were placed on top at serial nos. 1 to 30 in the same order as it was received, if 20 candidates were in the Mechanical list then they were placed en bloc in the same serial as received from the Commission from serial nos. 31 to 50 and, if there were 50 in the Civil stream, they were placed below Mechanical with serial numbers 51 to 100 again in the same sequence as forwarded by the Commission.
g) The appellants came to know of this mode of preparation of the seniority list only after the publication of the final list on 05.03.2010 as prior to it they were under the bona fide belief that department had prepared seniority list inter se between all three streams as per the selection and result conveyed by the Commission. They were thus compelled to make representations to correct the seniority list by considering the inter se merit of all the three streams i.e. Agricultural, Mechanical and Civil on the basis of the marks obtained in their examinations and forwarded by the Commission rather than preparing the seniority list in the order of receipt of the select list of the three streams. When no heed was paid to their representations, the appellants approached the High Court by way of Writ Petition No. 53123 of 2012.
h) As already recorded above, the Single Judge allowed the writ petition whereas the Division Bench dismissed the writ petition giving rise to the present set of appeals.
Statutory Provisions: Rules
7. Before we proceed further, a broad outline of the relevant rules applicable for preparation of seniority may be referred to. First and foremost and most relevant is Rules 1991 framed under Article 309 of the Constitution. This was in existence at the time when the selection of the appellants and respondents was made in 1998-1999. Part II of the said Rules deals with the determination of the seniority. Rule 5 thereof provides for seniority where appointments are made only by direct recruitment. The said Rule is reproduced hereunder:
“5. Seniority where appointments by direct recruitment only. – Where according to the service rules appointments are to be made only by the direct recruitment the seniority inter se of the persons appointed on the result of any one selection, shall be the same as it is shown in the merit list prepared by the Commission or the Committee, as the case may be :
Provided that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reasons, shall be final :
Provided further that the persons appointed on the result of a subsequent selection shall be junior to the persons appointed on the result of a previous selection.
Explanation. – Where in the same year, separate selections for regular and emergency recruitment, are made, the selection for regular recruitment shall be deemed to be the previous selection.”
8. A plain reading of the above provision stipulates that inter se seniority of the persons appointed as a result of ONE SELECTION would be on the basis of the merit list prepared by the Commission or the Committee, as the case may be. The Commission means the Uttar Pradesh Public Service Commission and the Committee means the Committee constituted to make selections for appointment. In the present case, it was the Commission which had made the selections.
9. Rule 8 of Rules 1991 provides for preparation of seniority list where appointments were made both by promotion and direct recruitment. The said Rule reads as under:
“8. 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:
Provided that if the appointment order specifies a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases, it will mean of issuance of the order:
Provided further that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons, when vacancy is offered to him the decision of the appointing authority as to the validity of reasons, shall be final.
(2) The seniority inter se of persons appointed on the result of any one selection-
(a) through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be;
(b) by promotion, shall be as determined in accordance with the principles laid down in Rule 6 or Rule 7, as the case may be, according as the promotion are to be made from a single feeding cadre or several feeding cadres.
(3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotees vis-a-vis direct recruits shall be determined in a cyclic order (the first being a promotee) so far as may be, in accordance with the quota prescribed for the two sources.
Illustrations
(1) Where the quota of promotees and direct recruits is in the proportion of 1 : 1 the seniority shall be in the following order-
First … Promotee
Second … Direct recruits
and so on.
(2) Where the said quota is in the proportion of 1 : 3 the seniority shall be in the following order-
First … Promotee
Second … Direct
to recruits
Fourth
Fifth … Promotee
Sixth … Direct
to recruits
eight
and so on:
Provided that-
(i) where appointment from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year or years in which there are vacancies in accordance with the quota;
(ii) where appointments from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments, are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees;
(iii) where, in accordance with the service rules the unfilled vacancies from any source could, in the circumstances mentioned in the relevant service rules be filled from the other source and appointment in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they are appointed against the vacancies of their quota.”
10. The above Rule is pressed into service where a combined list of direct recruits and promotees is to be prepared. However, even this Rule clearly provides in sub-Rule 2(a) that the seniority inter se of persons appointed on the result of any ONE SELECTION through direct recruitment shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be. The language used and the manner provided is identical to Rule 5 where only seniority list of direct recruits is dealt with.
11. Part III of Rules 1991 deals with the preparation of seniority list. According to Rule 9, as soon as after the appointments are made, the appointing authority shall prepare a tentative seniority list, the same would be circulated amongst the persons concerned inviting objections. The appointing authority, after disposing of the objections, would prepare final seniority list. Rule 9 is reproduced hereunder:
“9. Preparation of seniority list. –
(1) As soon as may be after appointments are made to a service, the appointing authority shall prepare a tentative seniority list of the persons appointed substantively to the service in accordance with the provisions of these rules.
(2) The tentative seniority list shall be circulated amongst the persons concerned inviting objections by a notice of reasonable period, which shall not be less than seven days from the date of circulation of the tentative seniority
(3) No objections against the vires or validity of these rules shall be entertainable.
(4) The appointing authority shall after disposing off the objection, by a reasoned order, issue a final seniority list.
(5) It shall not be necessary to prepare a seniority list of the cadre to which appointments are made only by promotion from a single feedings cadre.”
12. In the year 2009, the Uttar Pradesh Minor Irrigation Department Subordinate Engineering Service Rules, 2009 (for short “Rules 2009”) came into force on 16.10.2009 again framed under Article 309 of the Constitution. Part V of Rules 2009 provided for the procedure for recruitment which comprised of Rules 14 to 17. Rule 15(4) provided that the Commission would prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate in the written examination as well as interview and accordingly recommend such number of candidates as they consider fit for appointment. After preparation of the said list, the Commission would forward it to the Appointing Authority. Sub-Rule (5) of the Rule 15 further provides that if recruitment was being made for more than one branch of Engineering then in such case, the Commission would prepare a combined select list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by the candidates in the written examination and interviews accordingly and shall also forward the same list to the Appointing Authority in addition to the list forwarded under Rule 15(4). Rules 14-17 of Rules 2009 are reproduced below: –
“Rule 14 Determination of vacancies
The appointing authority shall determine and intimate to the Commission the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under rule 6.
Rule 15 Procedure for Direct Recruitment
(1) Applications for permission to appear in the competitive exam shall be called by the Commission in the prescribed form published in the advertisement issued by the Commission.
(2) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission.
(3) After the results of the written examination have been received and tabulated, the Commission shall, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories in accordance with rule 6, summon for interview such number of candidates as have come up to standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination.
(4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examinations and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examinations shall be placed higher in the list. If two or more Candidates obtain equal marks in the written examination also, the name of the candidate a senior in age shall be placed higher in the list. The Commission shall forward the list to the appointing authority.
(5) If the recruitment is being made in more than one branch of Engineering as specified in clause (1) of rule 5, then in such the Commission shall also prepare a combined list of candidates in order of the proficiency as disclosed by the aggregate of marks obtained by each candidate in written examination and interview and shall also forward the same to the appointing authority along with the list under sub rule (4)
Rule 16 Procedure for recruitment by promotion
Recruitment by promotion shall be made on the basis of seniority subject to the rejection of unfit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with the Public Service Commission (Procedure) Rules, 1970, as amended from time to time.
Rule 17 Combined Select list
If, in any year of recruitment, appointments are made both by direct recruitment and by promotion, a combined select list shall be prepared by taking the names of the candidates from the relevant lists, in such manner that prescribed percentage is maintained, the first name in the list being of the person appointed by promotion.”Rule 21 Seniority
Seniority of the persons substantively appointed in any category of posts in the service shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules 1991, as amended from time to time.
13. Apart from the above, Rule 21 thereof clearly provided that the seniority of all persons substantively appointed shall be determined as per Rules 1991. Another relevant aspect of the said Rules 2009 was that all the three branches i.e. Agriculture, Civil and Mechanical would together constitute one cadre of Subordinate Engineering Service. Rule 21 is reproduced hereunder:
Rule 21 Seniority
Seniority of the persons substantively appointed in any category of posts in the service shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules 1991, as amended from time to time.
14. Before Rules 2009 of the Minor Irrigation Department, there was another set of Rules framed in 1991 called the Uttar Pradesh Engineering Service (Minor Irrigation Department) Rules, 1991. These Rules dealt with the recruitment of Assistant, Executive, Superintendent and Chief Engineer of the department but not of Junior Engineer. As reference to these Rules has been made in the petition they have been mentioned, but may not be of much relevance.
15. On behalf of the appellants Shri Siddarth Dave, learned senior counsel and Ms Preetika Dwivedi, learned counsel have made submissions. On behalf of the private respondents Shri Gopal Sankaranarayanan, learned senior counsel and Shri Rohit Sthalekar, learned counsel have addressed the Court. Learned counsel for the State of Uttar Pradesh and learned counsel for the Commission have also made their respective submissions.
Appellants’ case:
16. On behalf of the appellants, broadly the submissions made are given below:
a) There is no delay on the part of the appellants in approaching the Court, as they learnt for the first time in 2010 when the final seniority list was published on 05.03.2010 that there were three separate select lists forwarded by the Commission and based upon the date of the receipt of such select list, the seniority list has been prepared, which was contrary to the statutory rules.
b) As the challenge was to the decision-making process in making the seniority list contrary to the 1991 Seniority Rules and Rules 2009, it was submitted that it was not necessary to implead all the affected Engineers. In fact 18 of such affected Engineers were already impleaded in the writ petition and therefore, for all the affected Junior Engineers, their interests were already represented.
c) The second seniority list of 2009-2010 had to be prepared as Rules 2009 had come into force which required drawing up of a fresh seniority list. A fresh seniority list having been published, the earlier seniority list would lose its significance. The challenge to the subsequent seniority list was within reasonable period. As such, the plea of delay raised by the respondents, would not have any substance.
Respondents’ Case:
17. On behalf of the respondents, the submission of learned counsel are:
(a) that the original writ petitioners i.e. appellants had approached the Court with extraordinary delay and therefore, their claim was not entitled to be entertained and the Division Bench of the High Court rightly upheld the said submission.
(b) they sought to justify the judgment of the Division Bench for the same reasons as recorded by the Division Bench;
(c) on merits it is submitted that the seniority list had been prepared in accordance with Rules 1991 and Rules 2009.
(d) there is no violation of any statutory provision in preparation of the seniority lists either of 2006 or 2010.
Discussion:
18. It is an admitted position that there was one selection for the three streams i.e. Agricultural, Mechanical and Civil. It is also an admitted fact that there is one cadre of Junior Engineers in the Minor Irrigation Department and therefore, there has to be one seniority list of Junior Engineers. The written examination conducted by the Commission comprised of two papers, one compulsory for all streams and the second paper of the specific stream of Engineering whether Agricultural, Mechanical or Civil. So, in effect, there was one examination. Thereafter, interviews were conducted. The Commission, in its affidavits dated 07.04.2019 and 13.05.2019 filed before the High Court, had clearly stated that there was one selection for one examination. However, on account of some litigation and stay granted by the High Court the list of the stream of the Civil Engineering was sent much later after about 10 to 11 months. Commission also admitted in its supplementary counter affidavit before the High Court that it had not prepared a combined merit list of all the three streams but had left it for the Appointing Authority to prepare the same. For sake of accuracy, paragraphs 6, 8, 9 and 10 of the supplementary counter affidavit dated 07.04.2019 filed on behalf of the Commission are reproduced below:
“6. That it is noteworthy to state that during the selection process against the vacancies available in the Civil Branch, stay order dated 01.03.2000 was passed by the Lucknow bench of this Hon’ble Court in a writ petition no. l066 of 2000, Siyaram and others versus State of U.P. and others and therefore in compliance of order dated 01.03.2000, recommendation was (sent to the department at a belated stage i.e. on 07 .11.2000.
xxx xxx xxx
8. That since the required educational qualification was different for all three branches, therefore the recruitment was done separately and thereafter the lists/recommendations were sent separately to the department in respect of selected candidates.
9. That it is further submitted that recruitment on the post of junior engineer is done from two main sources i.e. direct recruitment and departmental promotion therefore the inter-se seniority list shall be finalized in accordance with rule 8 of U.P. Government Servant Seniority Rules 1991. Therefore, the seniority list of the petitioners shall be finalized by the minor irrigation department only and there is no role of the answering respondent in preparation of seniority list by the minor irrigation department.
10. That it is further submitted that the preparation and publication of the seniority list of the junior engineers is the job of the concerned department and if any discrepancy occurs, the concerned department can clarify the same.”
19. Further paragraphs 3 to 7 of the second supplementary counter affidavit dated 13.05.2019 filed by the Commission read as under:
“3. That it may be submitted before this Hon’ble Court that on the basis of requisition for recruitment of junior engineers for three branches i.e. Agriculture, civil and Mechanical in ratio of 50:30:20, made by the minor irrigation department, the answering respondent issued advertisement No. 3/1998-99, whereby applications were invited from those candidates having requisite qualification in the relevant trade.
4. That it is categorically mentioned that the process of ‘election for all the three trades i.e. Civil, Mechanical and Agricultural was the same. There was a screening test conducted on 18. 10. 1998 and thereafter the qualified candidates were called for interview as per the rules and regulations.
5. That for the candidates who were called for interview in respect of Agriculture, Civil and Mechanical branch; the recruitment process was proceeded with, an interview was conducted respectively and out of said three1 branches, candidates were selected against the vacancies which were available in Agricultural and Mechanical Branch and select lists were sent to the department on 28.09. 1999 and 06.01.2000 respectively.
6. That it is noteworthy that during the selection process against the vacancies available in the Civil Branch, stay order date 1.03.2000 was passed by the Lucknow bench of this Hon’ble Court in Writ Petition no. l066 of 2000, Siyaram and others versus State of U.P. and others and therefore in compliance of order -dated 01.03.2000 recommendation was sent to the department at a belated stage i.e. on 07.11.2000.
7.That further, the Commission has been able to trace the records of the selection process for all three branches i.e. Original Mark Sheet, Merit list etc. and the Commission is in a position to produce the same before the Hon’ble Court, as and when directed.”
20. The Appointing Authority, in fact, committed an error in the manner in which the seniority list was prepared by placing the three select lists forwarded by the Commission on different dates one after the other en bloc as per the date of receipt of three select lists. It is not the case either of the private respondents, State or the Commission that appointment letters have been issued separately as and when the select lists were received. In fact, the appointment letters of all the three streams were issued in October 2001, after about 10 to 11 months of the receipt of the third list i.e. of the Civil stream in November 2000. Apparently by an oversight, the Appointing Authority failed to prepare the combined seniority list as required under 1991 Seniority Rules, be it Rule 5 or Rule 8 with respect to the selection of the appellants and private-respondents.
21. We may now discuss the law on the point regarding delay in approaching the court and in particular challenge to a seniority list. The learned Single Judge had placed reliance on a judgment of this Court in the case of Shiba Shankar Mohapatra vs. State of Orissa (supra). B.S. Chauhan, J., after considering the question of entertaining the petition despite long standing seniority filed at a belated stage discussed more than a dozen cases on the point including Constitution Bench judgments and ultimately in paragraph 30 observed that a seniority list which remains in existence for more than three to four years unchallenged should not be disturbed. It is also recorded in paragraph 30 that in case someone agitates the issue of seniority beyond period of three to four years he has to explain the delay and laches in approaching the adjudicatory forum by furnishing satisfactory explanation. Paragraph 30 is reproduced below: –
“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, 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.”
22. On the other hand, the Division Bench while shutting out the appellants on the ground of delay relied upon following judgments of this Court.
