1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R CIVIL WRIT No. 2038 of 1996 ASHOK KUMAR JAIN V/S STATE & ORS. Date of Order : 29.10.2009 PRESENT HON'BLE SHRI N P GUPTA,J. Mr. PP CHAUDHARY, for the appellant / petitioner Mr. MAHENDRA CHOUDHARY for Mr. RL JANGID, AAG, Mr. MS SINGHVI assisted by Mr. AKHILESH RAJPUROHIT, for the respondent BY THE COURT : The petitioner has filed the present writ petition interalia claiming the following reliefs:- “a/ it may kindly be declared that the petitioner is senior to the respondents No.2 to 5 and the impugned orders Annx.P/8 to Annexure-P/13 may kindly be ordered to be corrected. b/ the respondents may kindly be directed to assign seniority to the petitioner as per rule 28 of the Rules, 1954 on the post of the Assistant Engineer as the same is in the next below i.e. above the names of the respondents No. 2 to 5. He may be assigned seniority over and above the respondents No. 2 to 5 with all consequential benefits and reliefs as if he was never denied the same. c/ in case during the pendency of the writ petition if 2 further promotions are made then the petitioner's seniority may be ordered to be treated over and above the respondents No. 2 to 5, and he may be accorded promotion accordingly. d/ any other appropriate writ, order or direction which is found just and proper may kindly be passed in favour of the petitioner. e/ the costs of the writ petition may kindly be awarded to the petitioner.” Necessary factual background, as alleged in the petition is, that the petitioner after acquiring necessary qualification got registered with the Department of Man Power. The Urban Improvement Trust called certain names for appointment on the post of Junior Engineer, in response whereto list of candidates was sent by the Department to the Trust, which included name of the petitioner. It is alleged that merit list was prepared, and appointments were made on the basis of the merit. The copy of the appointment order dt. 24.9.1973 has been submitted as Annexure-1, which was to be effective from the date of joining, and the petitioner joined on 28.9.1973 in the forenoon. It is then alleged, that the persons who were selected were given appointment individually, and before appointing each of the candidate a combined merit list was prepared, wherein the petitioner was shown at S.No.4, whereas the private respondents no. 4, 3 and 2 were shown at S.No.11, 16 and 18, respectively. Though therein name of private respondent no. 5 was not shown, but there was subsequent list, in which he was shown at S. No. 11. It was alleged that accordingly all the private respondents ranked 3 junior to him. The further case of the petitioner is, that since then he is continuing, and is presently working as Superintending Engineer. The private respondents are alleged to have joined subsequently, i.e. in the afternoon of 28.9.1973, 29.9.1973 and 31.10.1973. It is alleged that the petitioner was further promoted as Assistant Engineer vide order dt. 6.5.1976, being Annexure-2, wherein his name appeared at S.No. 3, and it was recited, that the seniority shall be determined by the Government separately. The seniority list was issued on 29.6.1983, wherein the petitioner was shown at S.No. 16, to which he filed objections. The seniority list is produced as Annexure-3. According to the petitioner it was not prepared in accordance with law, as the petitioner was shown below the names of private respondents, therefore, the petitioner submitted representation, being Annexure-4. Thereupon the State Government issued a letter dt. 16.12.1989, being Annexure-5, to all those persons who were likely to be affected, and it was stated that the seniority is to be determined on the basis of the merit, and the letter proposed the petitioner to be placed at S.No. 12, while the private respondents were proposed to be placed at S.No. 13, 14, 15 and 17 respectively. This letter has been produced as Annexure-6. Then, an opportunity was also said to have been given. However, no final order was passed. Thereupon the petitioner served a notice for demand of justice on 29.4.1991, and then filed a writ petition before this Court being S.B. Civil Writ Petition No. 3130/1991 which was disposed of on 2.12.1991, with a direction to the State to dispose of the representation within three months. Thereafter representation was submitted 4 by the petitioner on 13.12.1991. Thereupon the petitioner received communication dt. 29.11.1991, conveying that the seniority list dt. 29.6.1983 requires no change, and the representation was rejected. Thereafter the petitioner filed yet another Writ Petition being S.B. Civil Writ Petition No. 984/1992, which was decided by this Court on 6.9.1993, observing that appointment on the post of Assistant Engineers vide order dt. 6.5.1976 were fresh appointments, and was not a case of promotion, therefore, they were not given promotion, and were promoted against direct recruitment quota. They were not substantively appointed, therefore, their case for appointment to the post of Assistant Engineer could not be considered as per Rule 24A(3), and when the petitioner was appointed afresh, his seniority should be determined on the post of Assistant Engineer, which was determined by the respondents, on the basis of their dates of births, which cannot be said to arbitrary and unjust. It was alleged that the copy of the judgment shall be kept ready. Case of the petitioner, however, is that the Government issued an order dt. 3.9.1994, whereby the posts, which were available for direct recruitment in 1976 were converted into promotional quota, and the same was reviewed in D.P.C. on 6.9.1994, therefore, all the earlier orders were reviewed, and the order dt. 21.9.1994 was issued, promoting the petitioner with other persons to the post of Assistant Engineers. This has been produced as Annexure-8. It is from this point of time, that according to the petitioner trouble starts. In this order the name of the petitioner was shown at S.No. 6, and consequent order assigning final seniority was also issued on the same date, being Annexure-9. According to 5 the petitioner, in case of promotion, seniority as existed in the next below cadre as on Junior Engineer is required to be maintained. Then as consequential to Annexure-8 and 9, when further promotions were granted to the post of Executive Engineer, therein also the petitioner is shown below the private respondents, which is produced as Annexure-10. Then consequent seniority list of Executive Engineers was issued on 23.9.1994, being Annexure-11, and further promotion orders were passed on 29.9.1994, effecting promotion to the post of Superintending Engineer (Annexure-12), and a seniority list of Superintending Engineer was also issued on the same date, being Annexure-13. In these circumstances in Annexure-12 and 13 the petitioner's name has been shown below that of private respondents, only because in Annexure-8 his name was placed below. In such circumstances, the petitioner submitted representation Annexure-14, and also requested for assigning the seniority, by assigning as was available on the next below grade, but to no good. Then, notice for demand of justice was sent, and getting no response the present writ petition has been filed. It may be noticed that the case of the petitioner is, that seniority on the post of Junior Engineer, on which he was initially appointed, was required to be maintained on the basis of marks obtained in the qualifying examination; Apart from the fact, that even if it were to be reckoned from the date of joining, the petitioner had joined at the earliest, and therefore, taken from any stand point, he is senior. It is on the basis of above factual averments, that the petitioner 6 claims the reliefs as quoted above. Reply to the writ petition has been filed by the State, while another set of reply has been filed by the private respondent no. 2. The State respondent has raised preliminary objection, that in Writ Petition No. 3130/1991 the petitioner had challenged the seniority list finalised on 29.6.1983, claiming him to have been wrongly shown junior to the private respondents, which writ petition was decided on 2.12.1991, while before passing that order, the representation had already been decided on 29.11.1991, to the effect, that the seniority list dt. 29.6.1983 does not require any change, which fact was informed to the petitioner. Then, he filed second writ petition being Writ Petition No. 984/1992, and another writ petition was filed by private respondent Mahavir Singh, being Writ Petition No. 1449/92, also claiming seniority. Both these writ petitions were decided by common order dt. 6.9.1993, and while dismissing both the writ petitions, the Hon'ble Court held the petitioner guilty of inordinate delay and latches, and found the writs requiring to be dismissed on that ground alone. However, merits were also considered, and on merits also, the writ petitions were dismissed. Against that special appeals were filed, which too were dismissed on 16.5.1994, and 27.7.1994. Thus, the matter of seniority acquired finality, and cannot be agitated over again by the fresh writ petition. Then, para-wise reply was also submitted, reiterating that the matter has already acquired finality, consequent upon the earlier judgments. Then it was pleaded, that at the time of making appointment of the 7 petitioner to the post of Assistant Engineer against direct recruitment quota, he did not have requisite experience for promotion, later on the State Government considered the matter, on the ground, that due to grant of stay dt. 19.10.1977, in Writ Petition No. 330/77, Bhagwat Singh Vs. State, no appointments could be made, as such, vacancies were filled by promotion, and vacancies which were filled by direct recruitment quota were treated as vacancies against promotion quota, by granting relaxation, and accordingly the petitioner's earlier appointment was regularised on the same post, and the seniority of the petitioner was not effected. It was maintained, that the vacancies of direct recruitment were converted into promotional quota, but the seniority list prepared on 29.6.1983 was maintained, against which the petitioner has no cause of action, as the same has already been upheld by this Court. In the reply submitted by the private respondent also preliminary objection has been taken, about the matter being barred by res-judicata, in view of the judgment dt. 6.9.1993, as the claim of the petitioner for seniority has already been rejected by this Court. It was also high lighted, that the writ petition earlier was dismissed on the ground of delay as well. Another objection about availability of alternative remedy of appeal before the Service Appellate Tribunal was also taken, by alleging that the limitation for such appeal had already expired, and he cannot maintain the writ petition by circumventing the remedy. Then, the present writ petition was also alleged to be suffering from latches. Then, para-wise reply was also submitted, and it was contended, that different candidates acquired qualification 8 from different colleges, and the petitioner wants to mislead this Court by stating, that the selections were made, and appointments were given on the basis of merit list prepared, while in fact no such merit list was prepared, and no selections took place for making appointment on the post of Junior Engineer. It was also contended, that the petitioner is wrong in contending to be senior to the private respondents. It was contended, that the finding has been recorded in the earlier judgment dt. 6.9.1993, by positively holding, that the petitioner was not eligible for promotion, as he was not possessing the requisite experience on the post of Junior Engineer after regular selection, and even from the date of ad-hoc appointment he does not have requisite experience. Then, it was contended that annexure-3 is a final seniority list, and objections filed against it were rejected. It was then contended that the challenge to Annexure-3 in the earlier writ petition was negatived also on the ground of delay, and that having become final, attempt on the part of the petitioner to contend, that seniority list Annexure-3 was not correctly drawn, amounts to lowering the authority of the court, and amounts to interference in the administration of justice, and thus he is guilty of committing criminal contempt. The letter dt. 16.12.1989 was alleged to be successful step on the part of petitioner in managing to obtain such letter. Then, it is contended, that the petitioner has tried to mislead this Court by not producing the complete copy of the judgment dt. 6.9.1993, wherein it was held, that seniority could not be determined on the basis of the examinations conducted by the different universities, and no selection took place to the post of Junior Engineer, nor any merit list was prepared. Copy of that judgment has been 9 produced as Annexure R 2/2. It was then contended, that it was open to the State to have passed the order dt. 3.9.1994 and 21.9.1994, and that, even if it is treated to be case of promotion, the present respondent is not entitled to rank senior, interalia for the reasons, that no merit list was prepared for making appointment on the post of Junior Engineer, no selections were held, and therefore the seniority determined on the basis of date of birth was upheld by this Court. Resultantly no cause arose to the petitioner by a fresh order, so as to reopen the challenge, which has failed, and which failure attained finality. It was contended to be misleading to contend, that the seniority list should be in the order, in which the candidates have been placed in the merit list, so prepared. No selections were ever conducted, and therefore, the claim for seniority is baseless. Copy of the Division Bench judgment has been produced as Annexure R 2/4. Various other grounds have been taken. It may be observed here, that consequent upon the peremptory order passed by this Court on 26.3.2004, the writ petition against respondent no. 4 already stood dismissed, as noticed by the Registry on 9.7.2004. Be that as it may. Arguing the writ petition it was contended by the learned counsel for the petitioner, that the petitioner was appointed on the post of Junior Engineer by calling name from the Man Power Department, and seniority is to be assigned on the basis of marks obtained in the examination. Of course, earlier writ petition was filed but then the case of the respondents all through was, that the appointment of the concerned parties (petitioner and private respondent no. 2 to 10 5) on the post of Assistant Engineer was not by way of promotion, but by way of direct recruitment, and therefore, in the earlier decision Annexure R 2/2, the matter was considered from that stand point, and it was found, that seniority has rightly been assigned. However, it is thereafter only, that as appears in Annexure-8, that the State Government vide order dt. 3.9.1994 converted the posts of direct recruitment to promotion quota, and the parties were said to be promoted vide Annexure-8, and since in the matter of direct recruitment, the seniority of the person, on the post which was earlier held by the incumbent, does not have any relevance, while in the case of promotion, by virtue of Rule 28, the seniority in the next below grade is to be maintained, therefore, on the post being converted into promotion, the petitioner is entitled to agitate the controversy about the seniority on the post of Junior Engineer, and the judgment dt. 6.9.1993 cannot be said to be res-judicata. It was also submitted, that since the order Annexure-8 has been passed on 21.9.1994 only, against which the petitioner submitted representation on 9.3.1995, then notice for demand of justice was served on 27.3.1996, and the writ petition was filed soon thereafter on 21.5.1996, it cannot be said that the writ petitioner is guilty of latches or delay. It was also submitted, that vide Annexures 9 to 13 the parties have been promoted upto the post of Superintending Engineer, but then in Annexure-13, the petitioner has been promoted against the vacancies of the year 1994-95, while the private respondent has been promoted against the vacancy of 93-94, which has further resulted into consequence, that by now the private respondent no. 2 has been promoted as Chief Engineer on 29.2.2004, the private respondent no. 3 has been promoted on 13.2.2005, while the petitioner and private 11 respondent no. 5 have been promoted as late as on 25.5.2009 only, and thus the petitioner is entitled to maintain the challenge to the seniority list. On the other hand Mr. Singhvi, learned counsel for the private respondents, referred to and relied upon the judgment of Hon'ble Supreme court in V. Bhakser Rao Vs. State of A.P. reported in (1993) 3 SCC-307, to press into service the contention of res-judicata. It was also submitted that the order Annexure-8 is wholly unwarranted, and rather the State Government could not convert the posts of direct recruitment quota into promotional quota, as no such power is vested in the State Government under the Rules, and since such conversion and consequent promotion is made substantial basis of the present writ petition, by making prayer, by way of counter writ petition, it has been prayed, that Annexure-8 be quashed. Learned counsel also relied upon the two judgments in K.P. Mudgal Vs. R.P. Singh reported in (1986) 4 SCC-531, and B.S. Bajwa Vs. State of Punjab reported in 1998(1) Supreme- 217, to support the stand that the petitioner is guilty of delay and latches, and to contend, that at this hour this court should not feel inclined to interfere in favour of the petitioner. I have considered the submissions, and have gone through the record. At the outset it may be noticed that filing of the earlier writ petitions, and the decision rendered, being Annexure R 2/2 are not in dispute. Obvious consequence is, that the seniority as assigned to the petitioner on the post 12 of Assistant Engineer vide order Annexure-2 dt. 6.5.1976 did become final. The bone of contention is, that the petitioner was appointed on the post of Assistant Engineer, though it was alleged by the petitioner to be a case of promotion, but in the earlier writ petition the contention raised by the respondents was, that it was a case of direct recruitment on the post of Assistant Engineer, and this Court considered the assignment of seniority, treating it to be a case of direct recruitment, in which event the question of seniority on the next below post (Junior Engineer) was found to be not having any relevance. However, subsequently vide Annexure-8, the appointment, contended earlier to be by way of direct recruitment, has been converted to appointment by promotion, in which event Rule 28 comes in, requiring the seniority in the next below grade to be maintained, and therefore, the petitioner is entitled to re-agitate the controversy, and this Court is required to go into it. Another facet of the contention is, that in the next below grade, being Junior Engineer, since the appointment was made by calling name from Man Power Department, the seniority on that post is to be determined on the basis of marks obtained by the respective candidate in qualifying examination, and that a merit list was prepared, wherein the petitioner ranked senior, therefore the petitioner is entitled to rank senior. Of course the other facet has also been submitted, that even otherwise the appointment order was issued individually, and they were to be effective from the date of joining, and if considered from the point of joining also, the petitioner joined at the earliest qua the private respondents, and therefore also the petitioner 13 ranks senior in the next below grade; While according to the respondent, the question of seniority had been decided once for all vide Annexure R 2/2, and that Annexure-8 is wholly unwarranted document, as the State Government could not convert the post of direct recruitment quota into promotional quota, as no such power is vested in the State, and since Annexure-8 is the biggest plank of the petitioner, it is also sought to be challenged by making a prayer in the nature of counter writ. At the same time the grounds of delay and the other reasons assigned for upholding seniority, and negativing challenge of the petitioner, were again pressed into service. In my view, a look at Annexure R 2/2, rather a bare reading thereof would show, that apart from the fact that the writ petition was dismissed on the ground of delay, even while examining the claim of the petitioner on merits also, it was clearly held at internal page-10 as under:- “The case of the petitioners is that they were appointed as Junior Engineers and their merit were fixed on the basis of the marks obtained by them in the B.E. Degree Examination and their seniority fixed in the cadre of Junior Engineers should have been maintained. The question that requires consideration, therefore, is whether the marks obtained in the B.E. Examination from different institutions can form a basis for fixing the relative merit and the seniority ? It is not in dispute that the petitioners and the respondents passed their B.E. Examinations from different Institutions and, therefore, the marks obtained by them cannot make a basis for fixing the merit because different Institutions have different standards of judging the merit of the students. Some Institutions may be very liberal in giving marks while the others may be strict enough, and, therefore, the marks obtained by the petitioners and other persons in their B.E. Examination from different Institutions, cannot form a basis for judging the relative merit of the candidates. It would be wholly unjust to grant seniority on the basis of the marks obtained by the petitioners and the respondents in the concerned examinations.” Since admittedly this judgment was appealed against, 14 and was not interfered with, this is a finding inter parties, and therefore, it is now not open to the petitioner to contend, that in the cadre of Junior Engineer, his seniority was required to be determined on the basis of the marks obtained in the relevant qualifying examination. Then, coming to the remaining merits of the matter, true it is that in case of direct recruitment, seniority in the cadre in which the person was earlier appointed, is not of any relevance in determining seniority, while in case of promotion, seniority inter se of the persons selected on the basis of seniority cum merit, and on the basis of merit, in the same selection, is to be the same as in the next below grade. It is also true, that the judgment Annexure R 2/2 was rendered, accepting the contention of the State, that appointment vide present Annexure-2 was a direct recruitment, and not promotion, and it is also true, that as recited in Annexure-8 vacancies were converted into promotion quota vide order dt. 3.9.1994, and therefore, the petitioner and private respondents were regularised/selected on the post of Assistant Engineer. The question then is, as to what is the benefit available to the petitioner on that count, and as to whether the petitioner can claim seniority on the basis of the alleged claim of seniority on the post of Junior Engineer. In my view, the answer is to be in the negative. In the first place it may be observed, that it is not shown that any seniority list was prepared for the post of 15 Junior Engineer, which might have shown the petitioner to be senior. Of course, in the writ petition it is alleged that merit list was prepared, but then that fact has been disputed. Apart from the fact that above quoted portion of Annexure R 2/2 clearly holds, that the merit on the basis of marks obtained in the qualifying examination cannot be a ground of seniority. It is in this background, that the question arises, as to whether the petitioner is entitled to claim seniority. As appears from Annexure R 2/2, this ground