C.W.P No. 16172 of 2001 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 16`172 of 2001 Date of decision : December 04, 2008 Inderjit Singh, ...... Petitioner through Mr.Rajiv Atma Ram, Sr Advocate with Ms. Deepeka, Advocate v. The Haryana Urban Development Authority & others, ...... Respondents through Mr.R.K.Malik, Sr. Advocate with Mr.Vishal, Advocate Mr.Puneet Gupta, Advocate for HUDA CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J The petitioner joined as Assistant Draftsman in the office of the Executive Engineer, HUDA Division Rohtak on 1.9.1988. On 22.9.1988, respondent No.1 circulated tentative seniority list of Assistant Draftsmen in which the petitioner was shown senior to respondents No.3 and 4. Objections to the tentative seniority list were invited within 30 days. A notice dated 12.4.2001 was served upon the petitioner to the effect that respondents No.3 and 4 had given representations for refixation of seniority and he was asked to show cause against the same. The petitioner filed reply dated 10.5.2001. Thereafter on 21.8.2001, the petitioner was promoted as Head Draftsman Grade-II on the basis of the tentative seniority C.W.P No. 16172 of 2001 ::2:: list (supra). Vide the impugned order dated 3.10.2001, the petitioner's seniority was refixed below the private respondents leading the petitioner to prefer the instant writ petition. It is the stand of learned counsel for the petitioner that the impugned order having been passed after 13 years of the circulation of the seniority list and that too after the petitioner had been further promoted was illegal, and a non-speaking order. Learned counsel relies upon B.S.Bajwa and another vs State of Punjab and others, AIR 1999 SC 1510, wherein the Hon'ble Supreme Court held as follows :- “7......... During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystallized (emphasis supplied), 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.Kapoor and this position was known to B.S.Bajwa and B.D.Kapoor 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.” Learned counsel for the petitioner has further relied upon a C.W.P No. 16172 of 2001 ::3:: Division Bench judgment of this Court rendered in CWP No.19050 of 1996, S.N.Gandhi vs State of Punjab on 19.12.1996. In the said case, the petitioner therein was proceeded against departmentally and was exonerated of major charges by the Inquiry Officer. However, the punishing authority dis-agreed and gave a dissenting note to which the petitioner therein filed a detailed reply raising various grounds as to the validity of the findings of the Inquiry Officer. However, the said reply was rejected by a non-speaking order. This Court held as follows :- “ We have heard the learned counsel for the parties. It is not necessary to go into the points raised by the petitioner as we are of the view that the writ petition is liable to succeed on the short point that the impugned order dated 7.10.1996 (Annexure P.11) is not speaking order. It is by now well-settled that once a show cause notice is issued and certain points are raised by the delinquent officer in reply to the show cause notice. Not only those points have to be noticed but those points are to be dealt with by giving reasons as to how the Officer dealing with these points does not find favour with the same. It will be seen from the extract of the impugned order that nothing has been mentioned as to what were the real objections raised by the petitioner and how there was no force in the same. (emphasis supplied). Consequently, we allow this writ petition on the aforesaid ground and quash the order dated 7.10.1996 (Annexure P.11) and consequential orders, reducing the C.W.P No. 16172 of 2001 ::4:: petitioner in rank. However, it will be open to the respondents to pass fresh orders in accordance with law. A copy of this order duly attested by the Special Secretary of the Court be given to the counsel for the parties.” Counsel for respondents No.3 and 4 has countered by urging that admittedly the private respondents were senior to the petitioner having been promoted and joined as Assistant Draftsmen on 17.8.1988, whereas the petitioner had joined as a direct recruit on 1.9.1988. It is further argued that admittedly the tentative seniority list was neither ever got noted from the respondents nor was it finalized and that as soon as they came to know that the petitioner was being considered for promotion above them, they moved representations and later, legal notice dated 19.2.2001 protesting against wrong fixation of the petitioner's seniority without any notice to them as well as the action to consider him for promotion on the basis of that wrong seniority. He further argued that in these circumstances the action of refixation of the seniority of the petitioner below the private respondents after issuance of notice cannot be faulted and that the decision in B.S.Bajwa and another's case (supra) is distinguishable for the simple reason that in the said case it was the final seniority list which was sought to be disturbed by the petitioners therein after a long time by way of a petition before the High Court which was dismissed. He relied upon Ram Dhari Laura vs Chaudhary Charan Singh Haryana Agricultural University Hissar, 1998(1) RSJ 183, wherein a Division Bench of this Court repelled the similar argument as is being raised by the petitioner herein, in the following words:- C.W.P No. 16172 of 2001 ::5:: “ Shri R.K.Malik, learned counsel for respondent 4 then contended that the petitioner should be non-suited on the ground of laches. It was urged that the provisional seniority list was circulated in the year 1982 for inviting objections and since the petitioner did not file any objections and the same was finalised in the year 1983, it should not be allowed to be challenged in the year 1997. Here again we are not inclined to accept the contention of the learned counsel. The petitioner filed a representation in the year 1995 stating therein that the provisional seniority list did not reach him and, therefore, he could not file his objections. He claimed seniority over respondent 4 on the ground of age as well. The Vice-Chancellor could have rejected the same on the ground of delay but he did not do so. He accepted the representation and declared the petitioner senior after considering the reply filed by respondent 4. Respondent 4 then filed a representation which was accepted by the Board of Management and he was declared senior on 1.7.1997. In these circumstances, it cannot be said that there has been any delay on the part of the petitioner so as to non-suit him at this stage.” As regards the argument that the impugned order was a non- speaking order, it is only to be noticed to be rejected. In the show cause notice, issued to the petitioner, it was clearly pointed out that the private respondents had joined as Assistant Draftsmen prior to the petitioner. In the C.W.P No. 16172 of 2001 ::6:: reply filed thereto the petitioner did not deny this but only relied upon the ground of delay and an asinine argument that he had been appointed by direct recruitment while the private respondents had been promoted. Apart from this, it was admitted before this Court that the petitioner as well as the private respondents are all now working as Head Draftsmen. Keeping in view the straightforward facts that the petitioner was admittedly junior to the private respondents as well as the fact that the tentative seniority list was neither got noted from the private respondents nor finalized, and the fact that the petitioner and the private respondents are all now working as Head Draftsmen, no rights can be said to have crystallized in favour of the petitioner, as noticed by the Hon'ble Supreme Court in B.S.Bajwa and another's case (supra). Further, the argument of counsel for the petitioner that the impugned order did not consider point- wise the pleas of the petitioner cannot be accepted. Article 226 of the Constitution can only be used to advance the cause of substantial justice and not to obstruct it. The judgment of this Court in S.N.Gandhi's case (supra) would not apply since there the cause of substantial justice was not thwarted as would be the case in the present circumstances. Consequently, finding no merit, this writ petition is dismissed with no order as to costs. ( AJAY TEWARI ) December 04, 2008. JUDGE `kk'