IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 5447/2008 along with LPA No.106/2009 Reserved on: 6.10.2010 Decided on:26.10. 2010. 1. CWP (T) No. 5447/2008 Suraj Ram Sharma and another. ...Petitioners. Versus State of Himachal Pradesh and others. ... Respondents. 2. D.P. Chandra. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. CWP (T) No. 5447/2008 For the Petitioners : Mr. H.K. Paul, Advocate. For the Respondents : Mr. R.K. Bawa, Advocate General with Mr. J.K. Verma, Dy. A.G. for respondent No.1. Mrs. Ranjana Parmar, Advocate for respondents No. 3 and 5. LPA No. 106/2009 For the Appellant Mr. H.K. Paul, Advocate. Mr. R.K. Bawa, Advocate General with Mr. R.M. Bisht, Dy. A.G. for respondent No.1. Per Justice Rajiv Sharma Since common questions of law and facts are involved in both these cases, the same were taken up together for hearing and are being disposed of by a common judgment. Whether the reporters of the local papers may be allowed to see the Judgment? 2 CWP (T) No.5447/2008 (OA No.2455/1998) 2. Petitioners No.1 and 2 were inducted in Himachal Pradesh Forest Service on 22.12.1983. Petitioners have assailed seniority list issued on 23.9.1998 of Himachal Pradesh Forest Service Officers of Himachal Pradesh Forest Department, as it stood on 1.1.1993. According to the seniority list issued on 23.9.1998, respondents No. 2 to 20 are appearing at Sr. No. 11, 12, 17, 23, 26, 29, 32, 36, 39, 43, 47, 51, 55, 58 and 62, respectively. Petitioners rank junior to these respondents. According to the petitioners, respondent-State has not taken into consideration the instructions issued on 7.2.1986 while issuing the seniority list. Case of the respondents, in a nutshell, is that seniority has been drawn on the basis of instructions issued on 22.12.1959 and according to them the instructions dated 7.2.1986 have been adopted with effect from 7.10.1986. LPA No. 106/2009 3. Appellant was inducted in the Himachal Pradesh Forest Service on 22.12.1983. He has assailed the seniority list issued on 23.9.1998, as it stood on 1.1.1993 by filing OA No. 2545 of 1998 before the erstwhile Himachal Pradesh Administrative Tribunal. The same was transferred to this Court and was assigned CWP (T) No.2163/2008. It was dismissed by the learned Single Judge on 24.4.2009. Appellant-petitioner has assailed the judgment dated 24.4.2009 by present Letters Patent Appeal. Principal grounds to 3 assail the seniority list are the same as taken by the petitioners in CWP (T) No. 5447/2008. 4. Mr. H.K. Paul has strenuously argued that the seniority list of the petitioners was required to be determined on the basis of instructions issued on 7.2.1986. He also contended that training period could not be counted as service for the purpose of seniority. 5. Mr. R.K. Bawa, learned Advocate General appearing for respondent-State and Mrs. Ranjana Parmar appearing for respondents No. 3 to 5 have strenuously argued that the present petition is barred by delay and laches. According to them, the seniority list has been issued strictly as per the instructions issued on 22.12.1959. They have also contended that the instructions dated 7.2.1986 have been adopted by the respondent-State only with effect from 7.10.1986. They also contended that the period of training is required to be counted on the basis of the amendment carried out in the Recruitment and Promotion Rules called ‘the Himachal Pradesh Forest Service (Class-II) Recruitment, Promotion and certain conditions of Service (Third Amendment) Rules, 1986”. 6. Mr. R.K. Bawa, learned Advocate General has also argued that the issue whether the training period is to be counted towards service or seniority is no more res integra in view of the judgment rendered by the Hon’ble Supreme Court in State of Himachal Pradesh vs. J.L. Sharma and another reported in (1998) 1 SCC 727. 4 7. We have heard the learned counsel for the parties and have perused the pleadings carefully. 8. Petitioners were inducted in the Himachal Pradesh Forest Service on 22.12.1983 and appellant in LPA No. 106/2009 was also inducted in Himachal Pradesh Forest Service on 22.12.1983. Private respondents were recruited directly in April, 1985 and they were sent on training in the month of November, 1985 and April, 1986, respectively. 9. Final seniority list of Himachal Pradesh Forest Service, as it stood on 1.1.1987, was published on 5.5.1989. Petitioners have not filed any representation against the same. Thereafter the tentative seniority list was published on 6.3.1993. Petitioners have also not chosen to file any representation against the same. Petitioners have assailed only the final seniority list issued on 23.9.1998. Mr. R.K. Bawa, learned Advocate General and Mrs. Ranjana Parmar have brought to the notice of the Court that private respondents have further been inducted into Indian Forest Services on the basis of seniority assigned. Petitioners have not assailed the consequential orders of promotions whereby the private respondents have been inducted into Indian Forest Services. Petitioners have slept over their rights with effect from 1989 till 1998. Seniority is a civil right. It is settled law by now that promotion/seniority orders should be challenged within a reasonable period of six months to one year. In these circumstances, we cannot unsettle the settled things. 5 10. Their Lordships of the Hon’ble Supreme Court in P.S. Sadasivaswamy vs. State of Tamil Nadu, AIR 1974 SCC 2271 have held that though there is no 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. Their Lordships have further held that 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. Their Lordships have held as under: “2. The main grievance of the appellant is that the 2nd respondent who was junior to him as Assistant Engineer was promoted as Divisional Engineer in 1957 by relaxing the relevant rules regarding the length of service necessary for promotion as Divisional Engineer and that his claim for a similar relaxation was not considered at that time. The learned Judge of the Madras High Court who heard the writ petition was of the view that the relaxation of the rules in favour of the 2nd respondent without considering the appellant's case was arbitrary. In view of the statement on behalf of the Government that such relaxation was given only in the case of overseas scholars, which statement was not controverted, it is not possible to agree with the view of the learned Judge. Be that as it may, if the appellant was aggrieved by it he should have approached the Court even in the year 1957 after the two representations made by him had failed to produce any result. One cannot sleep over the matter and come to the Court questioning that relaxation in the year 1971. There is the further fact that even after respondents 3 and 4 were promoted as Divisional Engineers over the head of the appellant he did not come to the Court questioning it. There was a third opportunity 6 for him to have come to the Court when respondents 2 to 4 were again promoted as Superintending Engineers over the head of the appellant. After fourteen long years because of the tempting prospect of the Chief Engineership he has come to the Court. In effect he wants to unscramble a scrambled egg. It is very difficult for the Government to consider whether any relaxation of the rules should have been made in favour of the appellant in the year 1957. The conditions that were prevalent in 1957 cannot be reproduced now. In any case as the Government had decided as a matter of policy, as they were entitled to do, not to relax the rules in favour of any except overseas scholars it will be wholly pointless to direct them to consider the appellants' case as if nothing had happened after 1957. Not only respondent 2 but also respondents 3 and 4 who were the appellant's juniors became Divisional Engineers in 1957 apparently on the ground that their merits deserved their promotion over the head of the appellant. He did not question it. Nor did he question the promotion of his juniors as Superintending Engineers over his head. He could have come to the Court on every one of these three occasions. 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 that there 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. The petitioner's petition should, therefore have been dismissed in limine. Entertaining such petitions is a waste of time of the court. It clogs the work of the Court and impedes the work of the court in considering legitimate grievances as also its normal work. We consider that the High court was right in dismissing the appellant's petition as well as the appeal.” 7 11. Their Lordships of the Hon’ble Supreme Court in B.S. Bajwa and another versus State of Punjab and others, (1998) 2 SCC 523 have held that the question of seniority should not be reopened in such situations after a lapse of reasonable period because that results in disturbing the settled position which is not justifiable. Their Lordships have held as under: “7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the judgments of the Single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of latches because the grievance made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the order aforesaid persons and the rights inter se had crystalised which ought not to have been re- opened after the lapse of such a long period. At every stage the others were promoted before B.S. Bajwa and B.D.Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition.” 12. Their Lordships of the Hon’ble Supreme Court in H.S. Vankani and others vs. State of Gujarat and Others, (2010) 4 SCC 301 have held that seniority once settled should not be unsettled at the instance of juniors in service. Their Lordships have 8 further held that seniority is a civil right which has an important and vital role to play in one’s service career. Their Lordships have held as under: “38. Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a Government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instills confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of one's junior in service is unsettled, it may generate bitterness, resentment, hostility among the Government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and Government, driving the parties to acute penury. It is well known that salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further it also consumes lot of judicial time from the lowest court to the highest resulting in constant bitterness among parties at the cost of sound administration affecting public interest. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmental action. Legal principles have been reiterated by this Court in Union of India and 9 Another v. S.K. Goel and Others (2007) 14 SCC 641, T.R. Kapoor v. State of Haryana (1989) 4 SCC 71, Bimlesh Tanwar v. State of Haryana, (2003) 5 SCC 604. In view of the settled law the decisions cited by the appellants in G.P. Doval's case (supra), Prabhakar and Others case, G. Deendayalan, R.S. Ajara are not applicable to the facts of the case. 39. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmental action. Legal principles have been reiterated by this Court in Union of India v. S.K. Goel, T.R. Kapoor v. State of Haryana and Bimlesh Tanwar v. State of Haryana. In view of the settled law the decisions cited by the appellants in G.P. Doval case, Prabhakar case, G. Deendayalan and R.S. Ajara are not applicable to the facts of the case.” 13. In the instant case, the petitioners have also not challenged the orders whereby private respondents have been inducted into Indian Forest Service. Petitioners ought to have amended their petitions laying specific challenge to the induction/promotion of the private respondents to Indian Forest Services. 14. Mr. Paul has also argued that the seniority of Himachal Pradesh Forest Service could not be drawn on the basis of instructions issued on 22.12.1959. The seniority list, admittedly, has been drawn on the basis of instructions dated 22.12.1959. It was published on 5.5.1989, as it stood on 1.1.1987. Petitioners have not assailed the same for a period of nine years. There is no merit in the contention of Mr. H.K. Paul that the seniority was to be drawn 10 on the basis of instructions dated 7.2.1986. These instructions were adopted, as per the stand of the respondent-State, on 7.10.1986. Private respondents have been recruited before the cut-off date, i.e. 7.10.1986. They were recruited in Himachal Pradesh Forest Service in April, 1985, November, 1985 and April, 1986, respectively. Thereafter they were sent for training. Rule 2 of the Himachal Pradesh Forest Service (Class-II) Recruitment, Promotion and certain conditions of Service (Third Amendment) Rules, 1986 reads thus: “The candidates selected for training at Forest Research Institute and Colleges, Dehradun or at any other place, shall while undergoing the training be treated as ‘in service’ candidate from the date of joining the Institute. During the period of training, the candidates shall receive pay in the lowest stage of the pay scale of HPFS-II applicable to the service and allowances admissible thereon during the first year and at the second stage of that scale during the second year. Provided that the second increment shall be granted only when a direct recruit has passed the prescribed examination(s) from the concerned Institute/College.” 15. According to the Recruitment and Promotion Rules, quoted hereinabove, the period of training is to be counted for the purpose of seniority. Their Lordships of the Hon’ble Supreme Court in State of Himachal Pradesh vs. J.L. Sharma and another, (1998) 1 SCC 727, while interpreting the rules in question, have held as under: “We are unable to accept the interpretation given by the Tribunal to the amended provisions of column (10) of the Rules to the effect that the training period of direct recruits will be treated only for the purpose of getting pay 11 and not for the purpose of seniority. If really the legislative intent would have been to grant pay to the candidates while on training then it would not have been necessary to indicate that “while undergoing the training be treated as ‘in service’ candidates from the date of joining the Institute”. The Language of Column (10) as amended by the Third Amendment Rules of 1986 is clear and unambiguous and unequivocally indicates that the period of training shall be treated as ‘in service'. We do not find any prohibition or restrictions in the statutory rules prohibiting the 'in Service' period for being counted for the purpose of seniority. This being the position in our considered opinion the Tribunal committed serious error of law in holding that the training period will be treated to be 'in service' only for the purpose of getting pay and not for the purpose of seniority. No such limited interpretation can be given to the express language used in column (10) and on the other hand on giving a full effect the provisions of Column (10) the conclusion is irresistible that the training period will be treated as a part of the service and will necessarily, therefore, be counted for the seniority of the direct recruits.” 16. Mr. H.K. Paul has cited Suraj Parkash Gupta and others versus State of J&K and others, (2000) 7 SCC 561. In this case, their Lordships of the Hon’ble Supreme Court have held the regularization of ad hoc promotees in the posts of Assistant Engineers dehors the rules without consulting Public Service Commission impermissible. Their Lordships have further held that the lethargy and delay on the part of the State Government to ask Public Service Commission to make direct recruitment does not lead to an inference that quota rule had broken down. In the instant case, as noticed above, the process for filling up the posts by way of promotion and direct recruitment was simultaneously initiated. 12 However, there was delay in making the appointment by way of direct recruitment. Moreover, there was no inordinate delay in making the appointment by way of direct recruitment. 17. Mr. H.K. Paul has also relied upon V.P. Shrivastava and others versus State of M.P. and others, (1996) 7 SCC 759 to buttress his submission that the original application preferred by his client was within limitation. In the case in hand, the seniority list of members of Himachal Pradesh Forest Service, as it stood on 1.1.1987, was issued in the year 1989. Thereafter tentative seniority list was issued in the year 1993, which was finalized in the year 1998. In the meantime, further promotions were made and the private respondents were inducted into Indian Forest Services. Petitioners have not made any representation between 1989 till 1998. In view of this position, the judgment cited by Mr. H.K. Paul will not be applicable to the facts and circumstances of this case. 18. There is merit in the contention of Mrs. Ranjana Parmar also that the quota and rota have kept pace with each other. In fact, according to her submission, the process for filling up the posts by way of promotion and direct recruitment was started simultaneously. However, due to administrative reason, the process could not be completed. 19. According to the Recruitment and Promotion Rules, 75% of the vacancies are reserved for promotion and 25% for direct recruitment. Each direct recruit is to rank in seniority below three promotees. This principle was adhered to at the time of framing the 13 impugned seniority list. It is in these circumstances that the seniority was assigned to the direct recruits and promotees in the ratio of 25:75. 20. Accordingly, in view of the discussion made hereinabove, there is no merit in CWP (T) No. 5447/2008 (OA No. 2455/1998) and LPA No. 106/2009 and the same are dismissed. No costs. (Justice Kurian Joseph), Chief Justice. (Justice Rajiv Sharma) Judge. 26.10.2010. *awasthi*