HIGH COURT OF UTTARAKHAND, AT NAINITAL Writ Petition No.178 of 2007 (S/B) Trilochan Punetha S/o late Sri Shankar Datt Punetha J.E., PWD, Provisional Division Dehradun … Petitioner Versus Public Service Tribunal Uttarakhand at Dehradun and others … Respondents WITH Writ Petition No.193 of 2007 (S/B) Mohan Chandra Joshi S/o Sri Prem Ballabh Joshi J.E., PWD Provisional Division Nainital … Petitioner Versus Public Service Tribunal Uttarakhand at Dehradun and others … Respondents WITH Writ Petition No.194 of 2007 (S/B) Deep Chandra Tewari S/o Sri Keshav Datt Tewari J.E., PWD, Provisional Division, Nainital … Petitioner Versus Public Service Tribunal Uttarakhand at Dehradun and others … Respondents WITH Writ Petition No.195 of 2007 (S/B) Suresh Chandra Pandey S/o Sri Moti Ram Pandey J.E., PWD Provisional Division Nainital … Petitioner Versus Public Service Tribunal Uttarakhand at Dehradun and others … Respondents WITH Writ Petition No.196 of 2007 (S/B) Chandrasekhar Joshi S/o Sri Nanda Ballabh Joshi J.E., PWD Provisional Division Nainital … Petitioner Versus Public Service Tribunal Uttarakhand at Dehradun and others … Respondents WITH Writ Petition No.197 of 2007 (S/B) Ashok Kumar Naithani S/o Sri Govind Ram Naithani J.E., PWD Provisional Division Dehradun … Petitioner Versus Public Service Tribunal Uttarakhand at Dehradun and others … Respondents WITH Writ Petition No.248 of 2007 (S/B) Bhuvan Chandra Pandey and others … Petitioners Versus Public Service Tribunal Uttarakhand at Dehradun and others … Respondents WITH Writ Petition No.299 of 2007 (S/B) State of Uttarakhand and another … Petitioners Versus Gopal Singh Bisht and others … Respondents WITH Writ Petition No.65 of 2008 (S/S) Rajeev Sharma and others … Petitioners Versus State of Uttarakhand & others … Respondents WITH Civil Contempt Petition No.21 of 2008 Lalit Mohan Tewari S/o Sri Narottam Tewari Serving under the control of Chief Engineer Level Ist P.W.D. Uttarakhand Yamuna Colony Dehradun … Petitioner Versus Utpal Kumar Singh Secretary, PWD, Uttarakhand, Dehradun … Respondent Mr. Alok Singh, Senior Advocate with Mr. Tarun Prakash Singh & Ms. Mamta Joshi, Advocates for the petitioners-Adhoc J.Es. Mr. L. P. Naithani, Advocate General with Mr. J. P. Joshi, Chief Standing Counsel for the State. Mr. S. P. S. Panwar, Addl. Chief Standing Counsel for U.P. Govt. Mr. Sudhandhu Dhulia, Senior Advocate with Mr. R. K. Raizada & Mr. M. C. Pant, Advocates for the Directly Recruited J.Es. Mr. Ashish Joshi, Advocate for Public Service Commission. Mr. Ramji Srivastava, Advocate for the Intervener. Date of Delivery of Judgment : 28th April, 2008 JUDGMENT Coram: Hon. V. K. Gupta, C.J. Hon. J. C. S. Rawat, J. Per:- Hon. J. C. S. Rawat, J. Since there is a common question of law and fact involved in all the petitions, therefore, all these petitions have been heard together and are being disposed of by this common judgment. 2. The main controversy is in between the Adhoc Junior Engineers (hereinafter referred as ‘Adhoc J.Es.’), who were appointed by the State Government pursuant to the advertisement in the year 1983 and were regularized from the date of their initial appointments under the U.P. Regularization of Adhoc Appointments Rules, 1979 on 14.02.1990 and 27.07.1990 and the Directly Recruited Junior Engineers (hereinafter as ‘Direct Recruits’), who were appointed through the Public Service Commission after the regularization of Adhoc J.Es. 3. It is admitted case of the parties that in view of the shortage of Junior Engineers in Hill Districts of the erstwhile State of Uttar Pradesh, the Government of Uttar Pradesh vide order dated 05.05.1982 took a decision to fill up the posts by Ad-hoc appointments and authorized the Head of the Department to proceed with the appointment process. The Engineer-in-Chief, PWD, Lucknow invited applications for the posts of Junior Engineers on Ad- hoc basis for a maximum period of one year vide an advertisement issued and published in the newspapers. The private respondents in claim petition before the Tribunal (Adhoc J.Es.) having applied and gone through the selection process were selected on the posts on Ad- hoc basis. The appointment of Ad-hoc J.Es. were made in the year 1983. In the meanwhile, the Public Service Commission invited applications for 1400 posts of Junior Engineers (1000 posts for plain area and 400 posts for hill area). After going through the selection process, the Public Service Commission recommended the names of claim petitioners (direct recruits) before the Tribunal to the State Government on 15.02.1990. In the meantime, the Ad-hoc J.Es. were regularized under the U.P. Regularization of Ad-hoc Appointments Rules, 1979 on 14.02.1990 and 27.07.1990. The Ad-hoc J.Es. were placed on probation from the date of their initial appointments and they were made permanent and their seniority were also fixed above the direct recruits. The Direct Recruits were appointed by the Government on 27.07.1990. Having considering the different representations, a combined seniority list dated 19.02.1994 was issued by the Government in which the Adhoc J.Es. were shown as senior to the Direct Recruits. Feeling aggrieved from the said seniority list, a Writ Petition No.37269 of 1995 (Dinesh Singh & others Vs. State & others) was preferred before the Allahabad High Court by some Direct Recruits/claim petitioners and the same was disposed of vide order dated 20.12.1995 directing the authorities to decide the representations of the Direct Recruits. When the authorities did not decide the inter-se seniority between the Direct Recruits and the Ad- hoc appointees, another Writ Petition No.27905/1996 was filed before the Allahabad High Court, which was disposed of vide order dated 20.08.1996 directing the authorities to ensure the compliance of the order dated 20.12.1995 passed in W.P. No.37269/1995. In compliance of the Allahabad High Court’s order, the Engineer-in- Chief vide order dated 06.03.1997 decided the representations of the directly recruited J.Es. holding that the Ad-hoc appointees were regularized under Rules 1979 on 14.02.1990 and 27.07.1990, hence, Ad-hoc appointees who were given appointment upto 27.07.1990 shall be senior to Direct Recruits. Feeling aggrieved by the said order, Writ Petition No.15109 of 1997 (New No.5631 of 2001) was preferred before the Allahabad High Court by some of the Direct Recruits and the same was received on transfer to this High Court for its disposal under the U.P. Reorganization Act, 2000. This Court vide order dated 22.06.2006 while disposing of the petition directed the Direct Recruits to approach the Public Service Tribunal. After creation of the State of Uttaranchal (now ‘Uttarakhand’), an inter-se seniority list of Adhoc appointees and Direct Recruits showing the Adhoc J.Es. as senior were issued on 09.01.2002. Feeling aggrieved by seniority list issued in the year 2002 some of the Direct Recruits preferred Writ Petition No.1961/2005 (S/S) which was disposed of directing the authorities to consider their representations. However, some of the Direct Recruits also preferred a Writ Petition No.714 of 2005 (S/S) before this Court and the said petition was transferred to the Public Service Tribunal, Uttarakhand for its disposal vide order dated 09.06.2005. 4. Thereafter, the Direct Recruits filed a claim petition before the Tribunal under section 4 of the Public Service Tribunal Act for seeking the following reliefs:- “(a) to issue order or direction to the respondents quashing seniority list dated 19.02.1994 and 09.04.2002 passed by respondents; (AA) to declare the initial appointment and subsequent regularization and promotion of the private respondents (Adhoc J.Es.) as illegal, de-hors the rules and violative of Article 14 and 16 of the Constitution of India and further to declare the Clause-5 of the Regularization Rules 1979 related to the non-consultation with the Public Service Commission is illegal and violative of the original Rules, 1951; (AAA) to set-aside the impugned order dated 06.03.1997, 02.11.2002, 15.07.2006 and 24.08.2006 (contained in Annexure nos.8-A, 8-AA, 8-C, 8-E and 8-F to the claim petition). Further directions are sought to correct the seniority list dated 09.04.2002 and 15.07.2006 and place the petitioners above the ad-hoc persons and also give the benefit of seniority and service benefits w.e.f. the date of their selection i.e. 06.01.1990 made by the Public Service Commission; (b) to issue an order or direction commanding the respondents to declare the petitioners as senior to adhoc Junior Engineers those were conditionally appointed against substantive posts on 12.12.1990, whereas petitioners were directly selected by the Public Service Commission on 06.01.1990 and appointed on 15.02.1990; (c & d) to issue a direction to respondents to correct the seniority list dated 19.02.1994 and subsequent list of seniority to restrain the adhoc J.E.s not to consider promotion on the basis of final seniority lists dated 19.02.1994 & 09.04.2002.” 5. It has been alleged by the claim petitioners (Direct Recruits) in the claim petition that the private respondents (Adhoc appointees) were appointed by the Government on Adhoc basis only for one year and they could not claim their regularization on such posts. The initial appointments of Adhoc J.Es. were also challenged by the Direct Recruits before the Tribunal by way of amendment in the month of September 2006. It was further alleged that the appointments of the Adhoc J.E.s were illegal and de-hors the Rules. The services of Adhoc J.E.s could not have been regularized under the Rules, 1979. The regularization of the Adhoc J.E.s is also dehors the Rules. The seniority listed issued by the State Government placing the Adhoc regularized J.E.s above the directly recruited candidates appointed through the Commission is violative of the Rules made in this behalf. 6. The written statement was filed on behalf of the State Government alleging therein that the service of those Adhoc J.E.s appointed before 01.10.1986 and completed 3 years of service were only regularized on 14.02.1990 and 27.07.1990 in accordance with the Regularization Rules 1979. It was further alleged that the selection list prepared by the Commission was received on 15.02.1990 and the appointment letters were issued to the Directly Recruits J.E.s by the Government on 27.07.1990 after completing the necessary formalities. 7. The Adhoc J.E.s also filed their separate written statement alleging therein that after completing three years of service as Adhoc employees their services were regularized under U.P. Regularization of Ad-hoc Appointments, Rules 1979 as amended from time to time. It was further stated that the seniority list dated 19.02.1994 has attained the finality and therefore, the claim petition is time barred and the Direct Recruits had no right to challenge seniority list after sixteen years. It was further alleged that the Direct Recruits had never challenged the initial appointment and the subsequent regularization of the Adhoc J.E.s. before September 2006. The Direct Recruits had challenged the initial appointment and the subsequent regularization of Adhoc J.E.s. after a lapse of 22 years and 14 years respectively. The claim petitioners (Direct Recruits) had challenged for the first time the initial appointment and regularization of Adhoc J.E.s by way of amendment in the claim petition in September 2006, therefore, the relief sought before the Tribunal is time barred. 8. After going through the entire record, the learned Tribunal has held that the claim petitioners (Direct Recruits) could not demonstrate before it that any of the Adhoc J.E.s was not qualified on the date of their initial appointments. The Tribunal has further observed that the relief of setting aside the initial appointment and subsequent regularization of Adhoc J.Es. is barred by time. The Direct Recruits never challenged the initial appointment of Adhoc J.Es. and did not seek any direction to quash the appointment of Adhoc J.E.s in Writ Petition No.37269/1995 or in the subsequent petitions filed before the Allahabad High Court. The relief of quashing the initial appointment and subsequent regularization have been incorporated by the Direct Recruits by way of amendment in the claim petition in the month of September 2006 i.e. after a lapse of 22 years of initial appointment and 16 years of the regularization of Adhoc J.Es. The Tribunal did not found it just and appropriate to interfere with the initial appointment and regularization of Adhoc J.Es. after a lapse of time. However, the learned Tribunal further observed that the State Government has violated the Rules while appointing and regularizing the Adhoc J.Es. Hence, the Adhoc J.Es. cannot be treated senior to the Direct Recruits J.Es. 9. After recording the aforesaid findings, the Tribunal partly allowed the claim petition vide impugned judgment and order dated 12.07.2007. All the seniority lists declaring the Ad-hoc J.Es. as senior to directly recruited Junior Engineers (original claim petitioners) were quashed by the Tribunal. The Tribunal further directed that a fresh seniority list be prepared on the basis of its judgment and provisions contained in Rule 5 of Seniority Rule 1991 within four months from the date of judgment. It was further held that the promotions already made need not be recalled, but the claim petitioners – Direct Recruits shall be entitled to all the consequential benefits in future promotion, and shall gain their seniority on promotion in promotional grade according to fresh seniority list. 10. Feeling aggrieved by the impugned judgment, the Adhoc appointees have preferred Writ Petition Nos.178(S/B)2007, 193(S/B)2007, 194(S/B)2007, 195(S/B)2007, 196(S/B)2007 & 197(S/B)2007 for seeking certiorari quashing the impugned judgment. The State has also filed a Writ Petition No.299(S/B)2007 for quashing the impugned judgment and the State is also supporting the claim of the Adhoc J.Es in the matter of their seniority. 11. The Direct Recruits (some of the claim petitioners) have preferred a Writ Petition No.248(S/B)2007 (Bhuvan Chandra Pandey & others Vs. Public Service Tribunal & others) challenging the impugned judgment in so far as the Tribunal had not granted the relief no.‘AA’, by which a direction was sought in the claim petition to cancel the initial appointment and regularization of the Adhoc J.Es. A Civil Contempt Petition No.21 of 2008 (Lalit Mohan Tewari Vs. Utpal Kumar Singh) was filed with the prayer to punish the contemnor for passing the promotion order dated 21.01.2008 committing the disobedience of interim order dated 31.07.2007 passed by this Court in W.P. No.178 of 2007 by which it was directed that no promotions shall be made to the post of Assistant Engineer in the P.W.D. until further orders. The Direct Recruits have also preferred a Writ Petition No.65(S/S)2007 (Rajeev Sharma & others Vs. State of Uttarakhand & others) with the prayer to quash the Office Order dated 21.01.2008 issued by the State Government and to declare the same illegal, contemptuous and against the law. 12. We have heard learned counsel for the parties and perused the record. 13. The Adhoc appointees were appointed pursuant to the Government Order dated 05.05.1982 and they were regularized on 14.02.1990 and 27.07.1990. The Direct Recruits filed a Writ Petition No.37269 of 1995 before the Allahabad High Court for issuance of a writ of mandamus directing the authorities to treat them senior to Adhoc appointees. In that petition, the Direct Recruits had not sought any relief to quash the initial appointment and subsequent regularization of Adhoc J.Es. Thereafter, another Writ Petition No.27905 of 1996 was filed before the Allahabad High Court by the Direct Recruits in which the initial appointment and subsequent regularization of Adhoc J.Es were not challenged. In that petition, the inter-se seniority was challenged by the Direct Recruits. The learned counsel for the Direct Recruits could not demonstrate before us that the direct recruits had challenged the initial appointment and regularization of Adhoc J.Es. prior to the amendment incorporated in the claim petition in the year 2006. Later on, a Writ Petition No.15109 of 1997 was filed before the Allahabad High Court which was re-numbered as ‘5631 of 2001’ in this Court in which the initial appointment and subsequent regularization of Adhoc J.Es were also not challenged by the Direct Recruits. Thereafter, the Direct Recruits also preferred two Writ Petitions Nos.1961(S/S)2005 and 714(S/S)2005 in which the initial appointment and subsequent regularization of Adhoc J.Es were also not challenged. The Direct Recruits sought an amendment in the claim petition for the first time in the month of September 2006 after a lapse of 22 and 16 years of initial appointment and regularization of Adhoc J.Es. respectively. 14. It was contended on behalf of the Adhoc J.Es. that having not chosen to do so and having accepted the initial appointment and the subsequent regularization of Adhoc J.Es., the Direct Recruits cannot challenge it after such a long period. However, the challenge was available on earlier occasions to the direct recruits by way of seeking reliefs for quashing the initial appointment and subsequent regularization of Adhoc J.Es. The Direct Recruits remained silent for a long period. Now, they cannot challenge the initial appointment and the subsequent regularization of Adhoc J.Es at all. Learned counsel for the Direct Recruits contended that if the fundamental right of the Direct Recruits is violated even then they can challenge the said right after an inordinate delay. Learned counsel for the Direct Recruits further contended that the Tribunal has specifically held in its judgment that there were violations of the Rules in the initial appointment as well as in the regularization of Adhoc J.Es., but the Tribunal has erred in not interfering with the initial appointment and the regularization of Adhoc J.Es. 15. It is unequivocally revealed that initially the Direct Recruits were never aggrieved by the initial appointment and subsequent regularization of Adhoc J.Es. It is also evident from the perusal of the record that the initial appointment and regularization were challenged for the first time in the month of September 2006 by way of amendment in the claim petition before the Tribunal. It is evident that the initial appointment as well as the regularization was challenged after a lapse of 22 years and 16 years respectively. Delay or latches is one of the factors which is to be borne in mind while exercising the discretionary powers under Article 226 of the Constitution. If a person is not vigilant of his right and acquiesces with the situation the Court can rightly exercise his power not to entertain his writ petition after a long delay. The Direct Recruits have acquiesced in accepting the appointments and subsequent regularization of Adhoc J.Es for a long period. The Direct Recruits did not challenge the same well within time. If the Direct Recruits would have been vigilant enough, they could have sought the same relief in the earlier writ petitions. Whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court must be slow in granting the relief to the incumbent. In case, the writ petitions after inordinate delay are accepted by the Court and the persons who had been appointed long back and have settled in the services assuming that there is no impediment in their appointments they would be unnecessarily harassed and disturbed after a long gap. If the Court would start to interfere after a long time there would be no certainty in the service and their efficiency would also be disturbed while discharging the official duties. In such cases, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. It is apparent from the impugned judgment of the Tribunal that certain Adhoc J.Es. have been promoted by the State Government. The said fact has not been disputed before us by the learned counsel for the Direct Recruits. The Tribunal has observed that the promotions already made did not require to be recalled by virtue of the judgment of the Tribunal. The Direct Recruits had filed the writ petition in the year 1995 before the Allahabad High Court assuming and accepting the initial appointments of Adhoc J.Es. and regularization to be valid. If there was any infirmity or irregularity in the appointments it should be challenged at the earliest before the Court. The aggrieved persons should be vigilant enough to seek their redresssal by way of filing the writ petition well within time. We are of the view that the learned Tribunal was justified in holding that the claim petition was barred by time and the Tribunal did not find it just and proper to interfere with the initial appointment and subsequent regularization of Adhoc J.Es. The Hon’ble Supreme Court in the case of G. C. Gupta & others Vs. N. K. Pandey & others 1988 (1) SCC 316 has held as follows:- “29. In the instant case, however, I am not inclined to give any relief to the respondents (petitioners in the writ petition) by directing re-determination of the seniority of the respondents as well as the appellants on the ground of unusual laches and delay. Appellants 1 to 4 were confirmed in 1955 and their seniority was determined by Government Order of 20-7-1956. Out of the petitioners of the writ petition, Petitioners 4 and 5 made representations in 1959 against the aforesaid seniority list. Subsequently, Petitioner 6 filed another representation. Petitioners 6, 7 and 4 made their representation in 1959 and Petitioner 6 gave a reminder in June 1965 and April 1970. The other Petitioners 2, 3, 9 and 10 did not make any representation in the matter of seniority. It is only in 1970 that Writ Petition No. 2254 of 1970 was moved challenging the confirmation of Petitioners 1 to 4 (appellants in the instant appeal). This challenge was negatived on the ground of laches and delay. An appeal being Special Appeal No. 287 of 1971 was also dismissed on the ground of laches and delay as regards the confirmation of the appellants was concerned. Of course, it had been observed that the seniority in service of these appellants was not questioned in the said writ petition and the Government would consider the representation made by the petitioners of the writ petition (appellants in the instant appeal) as far back as in 1959, which were pending before the Government. Writ Petition No. 1080 of 1973 which gave rise to the civil appeal was moved in 1973 challenging the determination of seniority of the appellants in the instant appeal. It appears from the affidavit-in-opposition sworn by one of the appellants Shri G.C. Gupta that at the time when the writ petition was moved Appellants 1 to 4 were officiating as Superintending Engineers and Respondents 2 and 3 were officiating as Superintending Engineers but junior to all the four appellants and Respondents 1 and 4 to 12 were then Executive Engineers. At present Appellants 1, 2 and 3 are permanent Superintending Engineers and officiating as Additional Chief Engineers. Appellant 4 is also a permanent Superintending Engineer. At this juncture if the seniority of these appellants vis-à-vis the respondents of this appeal is directed to be determined it will create much administrative difficulties and would amount to depriving the appellants of their valuable rights which have accrued to them. It is pertinent to refer in this connection to the observation made by this Court in the case of Rabindra Nath Bose v. Union of India. It has been observed that the attack to the seniority list prepared on the basis of 1952 Rules 15 years after the Rules were promulgated and effect given to the seniority list prepared on 1-8-1953 should not be allowed because of the inordinate delay and laches in challenging the said rule.” 16. The Hon’ble Supreme Court in the case of K. R. Mudgal & others Vs. R. P. Singh & others 1986 (4) SCC 531 has held as follows:- “2. At the outset it should be stated that it is distressing to see that cases of this kind where the validity of the appointments of the officials who had been appointed more than 32 years ago is questioned are still being agitated in courts of law. A government servant who is appointed to any post ordinarily should at least after a period of 3 or 4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity. It is unfortunate that in this case the officials who are appellants before this Court have been put to the necessity of defending their appointments as well as their seniority