IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T)No. 2844 of 2008. Date of decision: 29.10.2009 Naresh Kumar Sharma & ors. …. Petitioners Versus HPMC & ors. .... Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the petitioners: Ms.Salochana Kaundal, Advocate vice Mr.O.P.Thakur, Advocate. For the respondents: Sh.Shrawan Dogra, Advocate for respondent No.1. _____________________________________________________ Deepak Gupta, J.(Oral) The petitioners herein had filed Original Application No.2393 of 1995 before the erstwhile State Administrative Tribunal. Since the Tribunal stands abolished vide notification issued by the Central Government, the case has been transferred to this Court in terms of the Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008. The matter has, therefore, been taken up by this Court and now registered as CWP(T) No.2844 of 2008. 2 The claim of the petitioners is that they alongwith respondents No.2 to 5 were appointed as Operators (Main Plant) in the HPMC during one selection process on 20th September, 1980. According to the petitioners, as per the bye laws of the Corporation, seniority of persons appointed by one selection had to be fixed keeping in view the age of the appointees. The older in age was to rank higher in the seniority. According to the averments made in the application, the HPMC issued a tentative seniority list of Operators (Main Plant) in the year 1983 and objections were invited thereto but the petitioners alleged that this communication was never received by them. Similarly they alleged that the final seniority list issued in the year 1983 was never circulated to them. According to the petitioners, they came to know about the seniority given to the private respondents only in the year 1988 when they made a representation which was admittedly rejected on 24th October, 1988. It is also not disputed that one of the petitioners, i.e., petitioner No.4 had filed a suit in the court of the learned Sub Judge, Solan challenging the seniority list assigning seniority to respondents No.2 to 5 which suit was returned to him on 3 the ground that the civil court lacked jurisdiction in view of the provisions of the Administrative Tribunals Act as applicable to the State of Himachal Pradesh. According to the petitioners, cause of action arose on 10.10.1995 when respondent No.2 was promoted as Foreman and superseded the petitioners. The case of the respondents is that in the letter of appointment itself, it was clearly mentioned that the seniority of the selected persons would be determined in order of merit as determined at the time of interview. According to the respondents, the seniority has been determined strictly in accordance with the said stipulation. It is further contended that the petition is highly belated since the petitioners never challenged the stipulation in the letter of appointment nor they challenged the seniority list finalized in the year 1983. It is lastly contended that admittedly the petitioners were aware about the alleged injustice caused to them and, therefore, they should have filed objections under the provisions of the Administrative Tribunals Act, 1985 within one year of the letter dated 24.10.1988 whereby their representation was rejected. 4 I have heard Ms.Salochana Kaundal, learned vice counsel for the petitioners and Sh.Shrawan Dogra, learned counsel for the respondents. Ms.Kaundal has relied upon the observations of the Apex Court in Kuldip Chand Vs. Union of India, 1995 (5) SCC 680. On the other hand, Sh.Shrawan Dogra has drawn my attention to the law laid down by the Constitution Bench of Apex Court in S.S.Rathore Vs. State of Madhya Pradesh, AIR 1990 (77) Supreme Court 10 wherein it has been clearly held that the limitation for filing an Original Application in terms of the Administrative Tribunals Act is only one year from the date of rejection of the representation. In Secretary to Government of India and others Vs. Shivram Mahadu Gaikwad, 1995 Supp(3) SCC 231 and Ramesh Chand Sharma Vs.Udham Singh Kamal and others AIR 1999(86) Supreme Court 3837, the Supreme Court has clearly held that if no explanation for condoning the delay is given then the Court has no jurisdiction to condone the delay. The present writ petition is in fact a transferred writ petition and the Original Application filed by the petitioners is under consideration. Therefore, limitation has to be considered in light of the Administrative Tribunals Act. 5 It would be pertinent to mention here that condition No.7 of the letter of appointment reads as follows:- “His/Her seniority will be determined in order of merit as per his/her merit in the interview irrespective of the date of his/her joining in this corporation.” This portion of the letter of appointment clearly informed the petitioners that their seniority as Operators (Main Plant) would be determined as per their merit in the interview irrespective of the date of their joining the Corporation. Thus they were aware of the fact at the time of joining that the Corporation had decided to determine their seniority on the basis of their merit in the interview. No doubt the bye laws of the Corporation provide that in case of direct recruitment when persons are appointed on the same date, the older in age must rank senior to the younger. Therefore, there is some discrepancy between the condition in the letter of appointment and the bye laws of the Corporation. But on the other hand, this fact cannot be denied that this inconsistency was known to the petitioners. 6 The petitioners alleged that when the tentative seniority list was circulated in the year 1983 and objections were invited thereto, the same was not circulated to them and, therefore, they were not in a position to file objections to the same. The respondents in their reply have stated that the seniority list was reviewed by the petitioners but they did not file representation to the same. The Corporation has taken a specific plea that the tentative seniority list was made available to the petitioners. This is a disputed question of fact. It cannot be decided in writ proceedings. However, when a party approaches the Court after twelve years then no record will be available to disprove or prove its allegations. It virtually becomes impossible for the respondents to disprove such an allegation when it is made at such a belated stage. However, assuming for the sake of arguments that the tentative seniority list was not supplied to the petitioners, the fact remains that the petitioners were aware of the seniority list and made a representation against the same on 18th October, 1988. This representation was rejected on 24th October, 1988 on the ground that the petitioners had never made a 7 representation against the original seniority list circulated in the year 1983. The relevant portion of the letter dated 24th October, 1988 rejecting the representation of the petitioners reads as under:- “In this regard, your attention is invited to Head office Letter No.1-36/77-hpmc-13504 dated 8/22 July, 1983 vide which seniority list of Operators has been circulated with the instruction that objection if any be sent to head office by 7th August, 1983 failing which the seniority will be considered final. No representation against the seniority list as circulated vide above referred letter was received within stipulated time. Therefore, it will not be possible to re-determine the seniority of operators at this stage. It is also made clear to you that the representation submitted by you is against the provisions of corporation’s bye-laws according to which no joint representation can be made.” If the petitioners were aggrieved by this portion of the order, they should have filed proceedings within the period of limitation prescribed by law, i.e., one year from the date of this letter being conveyed to them. But they did not do so. It obviously means that they accepted the version of the respondent-Corporation that they had 8 made no representation despite being aware of the tentative seniority list circulated in the year 1983. It would also be pertinent to mention here that another representation made by the petitioners was also rejected on 2nd March, 1989 on similar grounds. Thereafter, one of the petitioners, i.e., petitioner No.4 filed a suit in the court of Sub Judge, Solan which according to the petitioners was returned to him for want of jurisdiction in the year 1988. The present Original Application out of which this writ petition arises was filed in the year 1995. No explanation has been given as to what petitioners were doing from the year 1988 to 1995. The contention of the petitioners that they were only aggrieved after the promotion of respondent No.2 cannot be accepted. It is not only respondent No.2 who has been arrayed as respondent but respondents No.3 to 5 who were not promoted at the time when the original application was filed have also been impleaded as respondents. Even with regard to respondent No.2, the only ground of challenge is that his seniority has not been determined in accordance with the bye laws. Once the claim of the petitioners for grant of seniority had been rejected, they should have approached the Court within 9 a period of limitation prescribed by law and in any event within a reasonable time. Having not done so, their writ petition has to be rejected on the ground that the well settled position cannot be unsettled after such a long period of time. The Original Application filed by the petitioners was barred by limitation and even the transfer writ petition is hit by the principles of delay and latches. The same is accordingly rejected. No order as to costs. October 29, 2009 ( Deepak Gupta) (m) Judge