THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.5800 OF 2007 DATED DECEMBER, 2010 BETWEEN Chennuri Guru Murthy … Petitioner And The General Manager, District Co-operative Central Bank, Khammam District, Khamma. And Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.5800 OF 2007 O R D E R The petitioner, a Manager in the District Co-operative Central Bank Limited, Khammam, when he instituted this case, sought re- fixation of his seniority in the cadre of Manager (Category-III) notionally and to consider his case for promotion as Assistant General Manager (Category-II), duly following the rule of reservation, against the second roster point reserved for Scheduled Caste. The petitioner was appointed as a Manager in the respondent Bank under proceedings dated 07.08.1984. He belongs to a Scheduled Caste. At the time of his recruitment four other Managers were also appointed, three belonging to O.C. and one belonging to B.C. category. The contention of the petitioner is that as per the roster points applicable to the vacancies in which they were appointed he should have been placed at the second position, against the roster point applicable to Scheduled Caste, even in terms of seniority. The inter se seniority list of Managers (Category-III) as on 31.10.1991 communicated under Memo dated 30.08.1997 however showed his name at Sl.No.29 instead of at Sl.No.26, in terms of the said roster point. As those who were appointed against roster points 3, 4 and 5, impleaded herein as respondents 5, 6 and 7, were shown above him and were also granted promotion earlier, the petitioner filed the present case. He claimed preferential promotion to the post of Assistant General Manager under G.O.Ms.No.5, Social Welfare (ROR) Department, dated 14.02.2003, as he was a Scheduled Caste candidate. The respondent Bank stated in its counter that in accordance with the rules contained in G.O.Ms.No.55, Food and Agriculture (Co- op.) IV Department, dated 01.02.1977, framed under Section 116-B of the Andhra Pradesh Co-operative Societies Act, 1964, it had followed the rule of reservation in making appointments and accordingly, the petitioner had been recruited as a Manager in the year 1984. The Bank stated that out of the five vacancies which were filled up, one post was reserved for S.C., one for B.C. and the remaining three were kept open for O.Cs. The petitioner was appointed against the Scheduled Caste roster point. The Bank however pointed out that the petitioner was labouring under a misconception that the roster point against which he was appointed would also determine his seniority. The Bank stated that the seniority was prepared on the basis of merit in the selection and therefore the petitioner’s claim was without merit. As regards his claim for preferential promotion under G.O.Ms.No.5 dated 14.02.2003, the Bank stated that the said G.O. had no applicability to the present case as the total cadre strength of Assistant General Managers in its service was only three and the rule of reservation contemplated under the said G.O. required a minimum cadre strength of five. As regards his claim for re-fixation of seniority, the Bank pointed out that the final seniority list had been issued on 30.08.1997 but the petitioner failed to challenge the same for ten years. The Bank therefore asserted that it was not open to the petitioner to unsettle the settled seniority which had existed for the past several years. Sri P.Ratnam, learned counsel for the petitioner, stated that his client had thereafter been granted promotion as Assistant General Manager on 18.04.2009. It is his contention, however, that the petitioner would be entitled to notional promotion with effect from the date on which respondents 5 and 6 were promoted. The learned counsel contended that the respondent Bank ought to have followed the roster point reservation in fixing the seniority and its action to the contrary could not be sustained notwithstanding the lapse of ten years. According to the learned counsel, the final seniority list would be non est and therefore, the aspect of delay could not be held against his client. Sri Polavarapu Srinivas, learned counsel for the respondent Bank, argued that the delay on the part of the petitioner in raising a dispute with regard to his seniority would be fatal to his claim. The learned counsel pointed out that the tentative seniority list was published on 13.11.1996 calling for objections, if any. The petitioner is said to have submitted his objections on 27.11.1996 wherein he stated that as he was older amongst the persons appointed as Managers in the year 1984, he should have been shown to be senior. Under Memo dated 27.08.1997, this objection was rejected by the Bank and thereafter, the final seniority list dated 30.08.1997 was published. In the light of these facts, the learned counsel for the respondent Bank contended that the petitioner could not be permitted to raise the issue of seniority at this belated stage and unsettle the settled seniority. As regards the petitioner’s claim for preferential promotion under G.O.Ms.No.5 dated 14.02.2003, the learned counsel reiterated the stand put forth in the counter. Respondents 5 and 7 filed separate counters adopting the same stand as was taken by the Bank. The facts aforestated clearly demonstrate that the petitioner slept over the issue in spite of having suffered the rejection of his objection and the publication of the final seniority list as long back as in the year 1997. The question is whether this delay would be fatal to the maintainability of the present case. This Court is not inclined to accept the contention of the learned counsel for the petitioner that the seniority list dated 30.08.1997 is non est and a nullity in the eyes of law. It is not demonstrated that the same was without jurisdiction or that there are any other defects therein which would render it void ab initio. Mere fixation of the seniority incorrectly, even if true, would not render the seniority list a nullity. More than three decades ago, the Supreme Court in MALCOM LAWRENCE CECIL D’SOUZA V/s. UNION OF INDIA[1] observed: “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 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.” The same principle was reiterated in SHIBA SHANKAR MOHAPATRA V/s. STATE OF ORISSA[2] a n d H.S.VANKANI V/s. STATE OF GUJARAT[3]. Sri P.Ratnam, learned counsel, however sought to rely on the Judgment of the Supreme Court in RAMCHANDRA SHANKAR DEODHAR V/s. STATE OF MAHARASHTRA[4], wherein the Supreme Court held that where the claim was for enforcement of the fundamental right of equal opportunity under Article 16, the Court would not easily allow itself to be persuaded to refuse relief solely on the ground of laches, delay or the like. The learned counsel submitted that the petitioner’s right to seek appointment and seniority in terms of Article 16 of the Constitution, being a fundamental right, was infringed by the action of the respondent Bank and therefore the aforestated Judgment would come to his rescue, notwithstanding the delay. However, as pointed out by the Supreme Court in BIMLESH TA N WA R V/s. STATE OF HARYANA[5], seniority is not a fundamental right. It is merely a civil right. Therefore, the aforestated Judgment does not have the effect of overriding the established tenet of law that settled seniority cannot be unsettled after a long lapse of time. It is also to be noticed that in the aforestated Judgment, the Supreme Court held that seniority cannot be fixed in terms of the roster points. Thus, even on merits the petitioner’s case does not warrant consideration. The reliance placed by the learned counsel on the Judgments of the Supreme Court in R.K.SABHARWAL V/s. STATE OF PUNJAB[6] and SUBHASH CHANDRA V/s. DELHI SUBORDINATE SERVICES SELECTION BOARD[7] is of no avail to him as these Judgments did not deal with the aspect of seniority in terms of the reservation roster points. Viewed thus, the petitioner, having slept over the matter all these years, cannot seek to reopen the issue of his seniority settled under the final seniority list dated 30.08.1997 at this belated stage. His claim for preferential promotion under G.O.Ms.No.5 dated 14.02.2003 is also equally untenable as the said G.O. had no application to the cadre of Assistant General Managers in the respondent Bank. The Writ Petition is devoid of merit and is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs. ---------------------------- SANJAY KUMAR, J. _______ DECEMBER, 2010. PGS [1] AIR 1975 SC 1269 [2] 2010 AIR SCW 348 [3] 2010 (3) SCJ 700 [4] (1974) 1 SCC 317 [5] (2003) 5 SCC 604 [6] AIR 1995 SC 1371 [7] 2009 (6) SCJ 381