CW 2644/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.2644/2008 Kamlesh K. Sharma Versus Jaipur Vidyut Vitran Nigam Ltd. & (3) Ors. Date of Order ::: 16/05/08 Hon'ble Mr. Justice Ajay Rastogi Mr. Shiv C.Gupta, for petitioner Mr. SP Sharma, for respondent JVVNL Mr. Alok Sharma ) Mr. Ashok Bansal ) for private respondents Instant petition has been filed questioning final seniority list dt.29/05/07 (Ann.10) of Asstt. Engineer (Civil) and seeking his consideration for promotion to the post of Executive Engineer, which is going to fall vacant on the retirement on 31/05/08. Petitioner is a Degree holder and joined service as Junior Engineer Gr.I on 01/03/84 and promoted on ad hoc basis as Assistant Engineer (Civil) vide order dt.21/08/93 (Ann.5) whereas respondents No.2 to 4 (Rajaram Meena, Satya Narain Verma, & Kalyan Singh) being diploma holders were appointed as Junior Engineer Gr.II prior to petitioner on 14/06/83 and all of them were promoted as Assistant Engineer (Civil) vide common order dt.21/08/93 (Ann.5). At relevant point of time, petitioners & private respondents, both were members and working under Rajasthan State Electricity Board, CW 2644/08 //2// which on account of policy decision taken by State Government, was bifurcated into five Companies; and they became members of Jaipur Vidyut Vitran Nigam Limited on its constitution in the year 2000 – as a result whereof, considering their appointment as Assistant Engineer (Civil), tentative seniority list (Ann.R.1/1) was published on 02/03/01 and after taking note of objections, it was finalised vide seniority list dt.30/05/01 (Ann.R.1/2) wherein petitioner was shown junior to respondent 2 to 4. From the record, it appears that final seniority list was further circulated on 19/02/04 (Ann.R.1/3) with no change in placement of petitioner qua respondents 2-4. Thereafter seniority list (Ann.7) was again circulated on 16/04/07, which was finalised vide seniority list dt.29/05/07 (Ann.10) upon rejection of his objection (Ann.8) vide order dt.14/08/07 (Ann.9), thereby placement of petitioner qua respondents 2-4 remained unchanged of being junior to private respondents in all the final seniority lists published time and again. It appears that vacancy in the cadre of Executive Engineer is likely to fall vacant on retirement of one incumbent on 31/05/08, which has constrained the petitioner to file this petition questioning his placement in seniority CW 2644/08 //3// lists of Assistant Engineer (Civil) and so also seeking consideration for promotion claiming himself senior qua respondents 2-4. Counsel for petitioner laid much stress that despite petitioner being degree holder, the then RSEB had not considered his candidature for promotion to the post of Assistant Engineer (Civil) having fallen vacant in the year 1990-91 when respondents 2-4 were not even eligible on their having not completed seven years' service on feeder post of Junior Engineer Gr.II being diploma holder, but also not falling within zone for consideration for promotion, and once petitioner being degree holder became eligible for promotion against vacancy year 1991-92, in absence of regular DPC held, prejudice has seriously been caused to him and as a result whereof, ad hoc promotion to the post of Assistant Engineer accorded in subsequent year vide order dt.21/08/93 (Ann.5) which has been made the basis for determining seniority as being reiterated in seniority lists published time & again, causing him serious prejudice. Counsel further submits that once seniority lists after 2001 & 2004 have further been circulated by publishing tentative seniority list(Ann.7) on 16/04/07 taking note of objections of incumbents aggrieved and finalising it vide CW 2644/08 //4// seniority list dt.29/05/07 (Ann.10), as a result whereof, in fact right & cause of action has now accrued to him and since seniority being taken into consideration for further promotion to a higher post, as such he has rightly questioned seniority list now circulated placing him junior to respondents 2-4. Counsel further submits that respondent JVVNL has failed to determine year-wise vacancy which is a condition precedent while making appointment or promotion under Regulations, 1962, thereby respondents 2-4 have marched over him; in such circumstances, very placement in seniority of petitioner deserves to be set aside and he must be placed senior qua respondents 2-4. Respondent JVVNL in its reply has raised preliminary objection that after taking note of objections, seniority list stood published way back on 30/05/01 (Ann.R.1/2) immediately upon formation of JVVNL in the year 2000, which was very well within the notice of petitioner, to which no grievance was ever raised by him and that apart, it was further circulated on 19/02/04 (Ann.R.1/3) wherein his placement qua respondents 2-4 also remained unchanged; and subsequent publication of seniority list on 16/04/07 (Ann.7) & finalisation (Ann.10) on 29/05/07 is a mere reiteration of earlier seniority lists, which CW 2644/08 //5// does not give him a fresh cause of action, which in fact had accrued to petitioner way back upon publication of seniority list on 30/05/01 (Ann.R.1/2); as such delay is certainly fatal particularly when right has been accrued to those who once placed senior & higher in seniority qua petitioner way back in May, 2001. In support, Counsel placed reliance upon decision of Apex Court in State of Punjab Vs. Balkaran Singh (2006 (12) SCC 709). As regards merits, Counsel for JVVNL submits that there is no specific provision under Regulations, 1962 which may provide determination of seniority inter se among degree holder & diploma holder engineers; and since the then RSEB was unbundled into five Cos., thereafter there is no record available with them; as such date of their first appointment was taken note of for determination of seniority and accordingly final seniority list was published way back on 30/05/01 (Ann.R.1/2). In support, Counsel also placed reliance upon decision of Apex Court in Direct Recruitment Class II Engg. Officers Assoc. Vs. State of Maharastra (1990(2) SCC 715), wherein Apex Court in para 47 laid down certain guidelines for determination of seniority. Counsel for JVVNL further submits that CW 2644/08 //6// seniority is the basis for making promotion to the post of Executive Engineer which is next higher post in the cadre under Regulations, 1962 and once seniority list stood finalised way back on 30/05/01 (Ann.R.1/2) – more than seven years have now rolled by, if it is now interfered with at such belated stage, there will be no finality to the seniority once assigned and normally not to be disturbed; and the delay in such matters certainly is fatal, otherwise there should be no end of disputes to the seniority which attained finality for all times to come, out of which promotions are made of eligible candidates, who can certainly be considered for promotion. Counsel for private respondents while supporting submissions made on behalf of JVVNL submits that seniority was assigned way back on 30/05/01 (Ann.R.1/2) when their rights have accrued against vacancy likely to fall vacant, for which petitioner cannot be permitted to agitate after almost seven years of their placement in seniority duly finalized vide lists published in between years 2001 & 2004 (Ann.R.1/1 to 1/3), which too have not yet been questioned; as such reiteration of seniority in the year 2007 (Ann.7 & 10) will not give a fresh cause of action for assailing the same by way of instant petition after almost seven years. CW 2644/08 //7// I have considered contentions of both the parties, and with their assistance, examined material on record. This fact remained uncontroverted that seniority of petitioner qua respondents 2-4 stood finalised of Assistant Engineers way back on 30/05/01 (Ann.R.1/2) besides further publication of seniority list on 19/02/04 (Ann.R.1/3). It is not the case of petitioner that he was not aware of final seniority list duly published by respondent JVVNL on two different occasions and certainly it has been noticed & considered by respondent JVVNL for making further promotion to the post of Executive Engineer. It goes without saying that seniority list is published for promotion to the post of Executive Engineer which is a next post in the hierarchy under Regulations, 1962 – in accordance with which, eligibility and other conditions are being consider for promotion. For reasons known to him, despite well within his notice of placing him junior in seniority qua respondents 2-4 in list published on 30/05/01 (Ann.R.1/2) further published on 19/02/04 (Ann.R.1/3), petitioner failed to assail it at any point of time even at later stage in instant petition, as well – in absence whereof, in the opinion of this Court, once seniority stood finalized in May, 2001, mere further CW 2644/08 //8// circulation at a later stage either vide lists dt.19/02/04 (Ann.R.1/3) or dt.29/05/07 (Ann.10) will not give him a fresh cause of action; and in fact, cause of action qua his placement in seniority of Assistant Engineer, if aggrieved, had accrued to the petitioner way back on 30/05/01 while final seniority list (Ann.R.1/2) was published; subsequent publication is a mere reiteration certainly accruing rights in favour of persons named therein and delay certainly will result in unsettling the settled position and seniority of officers has to be considered for promotion to the post of Executive Engineer under the Regulations. This Court finds substance that if petitioner is permitted to assail the seniority list of May, 2001 after a lapse of seven years while final seniority list has been made known to all concerned, whereby right has accrued and vested to them upon their entitlement for promotion, as such their seniority cannot now be unsettled. In PS Sadasivaswamy Vs. State of Tamil Nadu (1975(1) SCC 152), Apex Court observed ad infra: “... A person aggrieved by an order of promoting a junior over his bead should approach the Court at least within six months or at the most a year of such promotion. It is not CW 2644/08 //9// thatthere is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.” In State of Punjab Vs. Balkaran Singh (supra) Apex Court observed ad infra: “22. According to us, the suit is also barred by acquiescence and estoppel. No one in a service can sleep over the question of seniority for more than 12 years and then come to court seeking a relief which will upset the seniority of a number of persons who had been shown as seniors in the respective seniority lists. Therefore, on the face of it, a declaratory relief that will have the effect of altering a twelve year-old and a nine year-old seniority list could not have been granted by the courts below.” Submission of Counsel for petitioner that cause of action, when it has been noticed for promotion, has now accrued; as observed (supra), is of no substance. Further submission made by Counsel for petitioner that since determination of year wise CW 2644/08 //10// vacancy had never taken place under Regulations, 1962 – in the absence whereof, regular DPC had never convened at its due time, thereby adhoc promotions to the post of Assistant Engineer were accorded vide order dt.21/08/93 (Ann.5) which has caused him prejudice, in the opinion of this Court has no substance for the reason that the petitioner for good reasons known failed to assail either adhoc promotions or non- determination of year-wise vacancy for consideration of regular promotion for alleged vacancy years 1990-91 or 1991-92, in any of proceedings, till date, and since then much water has flown over by now; if at all aggrieved, he had an opportunity to question at relevant point of time but after a lapse of 17 years, he cannot now be permitted to raise at such belated stage. Thus their settled position cannot now be unsettled after a lapse of years. This Court does not find any merit to interfere with final seniority list, impugned, which is a reiteration of earlier published seniority, after seven years on any of premises as sought for by petitioner. Consequently, writ petition fails and is hereby dismissed. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.10/2644CW08-1605snrt.doc