# Abdul Rahman Ansari v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1521
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-08
- **Case number:** Civil Misc. Writ Petition No. 55902 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-rahman-ansari-v-state-of-u-p-and-ors-42737
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Service lawseniority-challenged after 7 years-neither
seniority list challenged nor the affected
persons impleaded-consequent to upward
placement of petitioner relief for proper
placement-can not be granted.

Held: Para-18
Even today, neither seniority list has
been challenged and there is no writ of
certiorari
quashing
seniority
list
is
prayed for nor the persons likely to be
affected in case petitioner's name is
directed to move upward in seniority
have been impleaded and therefore, this
writ petition also suffers from the vice of
impleadment of necessary parties.

Case Law discussed:
(1991) 1 UPLBEC 250; AIR 1970 SC 470; AIR
1970 SC 898; AIR 1974 SC 259; AIR 1974 SC
2271; (1998) 8 SCC 685; (2003) 1 SCC 335; AIR
1982 SC 101; AIR 1984 SC 850; AIR 1986 SC
2086; AIR 1988 SC 268; AIR 1999 SC 1510;
(2001) 6 SCC 292; JT 2009(14) SC 298.

## Text

3 All] Abdul Rahman Ansari Vs. State of U.P. and Ors.
1521

24. Let the papers be placed before
Hon'ble the Chief Justice for passing
appropriate orders for referring the matter to a
larger bench to resolve the aforesaid conflict,
and for an authoritative pronouncement on the
issues raised at the earliest.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 55902 of 2013

Abdul Rahman Ansari ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri R.C. Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Service lawseniority-challenged after 7 years-neither
seniority list challenged nor the affected
persons impleaded-consequent to upward
placement of petitioner relief for proper
placement-can not be granted.

Held: Para-18
Even today, neither seniority list has
been challenged and there is no writ of
certiorari
quashing
seniority
list
is
prayed for nor the persons likely to be
affected in case petitioner's name is
directed to move upward in seniority
have been impleaded and therefore, this
writ petition also suffers from the vice of
impleadment of necessary parties.

Case Law discussed:
(1991) 1 UPLBEC 250; AIR 1970 SC 470; AIR
1970 SC 898; AIR 1974 SC 259; AIR 1974 SC
2271; (1998) 8 SCC 685; (2003) 1 SCC 335; AIR
1982 SC 101; AIR 1984 SC 850; AIR 1986 SC
2086; AIR 1988 SC 268; AIR 1999 SC 1510;
(2001) 6 SCC 292; JT 2009(14) SC 298.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri R.C.Singh, learned
counsel for the petitioner and learned
Standing Counsel for the respondents.

2. Admittedly, final seniority list was
published in 2006 wherein petitioner's name
finds place at serial no.95 though, according
to him, that was wrong placement in the
seniority list. Admittedly, he did not
challenge the same throughout and for seven
years, the matter remained unchallenged.

3. It is no doubt true if seniority of two
or more individuals has been determined long
back and a person placed lower in seniority
did not feel aggrieved to challenge the same
within a reasonable time, he shall be non
suited to do so after a long time since it may
result in unsettling so many settled things. It is
said
that
scrambled
eggs
cannot
be
unscrambled after process is complete.
Challenge must come within a reasonable
time. There is a long chain of decisions on this
aspect.

4. A Full Bench of this Court in
Smt. S.K. Chaudhari Vs. Manager,
Committee of Management, Vidyawati
Darbari Girls Inter College, Lookerganj,
Allahabad & others (1991) 1 UPLBEC
250 said that seniority list existing for the
last 15 years would not be quashed after
such a long time. It observed, "The law is
well settled that the Court will not
interfere with a seniority list which had
remained in existence for a long time and
which had become final."

5. In Rabindranath Bose and others
Vs. Union of India and others AIR 1970
1522 INDIAN LAW REPORTS ALLAHABAD SERIES
SC 470 the Court held, "It would be
unjust to deprive the respondents of the
rights which have accrued to them. Each
person ought to be entitled to sit back and
consider
that
his
appointment
and
promotion effected a long time ago would
not be set aside after the lapse of a
number of years."

6. In Tilokchand and Motichand and
others Vs. H.B. Munshi and another AIR
1970 SC 898, the Court held that the rights
which have accrued to others by reason of
delay in filing the petition should not be
allowed to be disturbed unless there is
reasonable explanation for delay. It further
says, "The party claiming Fundamental
Rights must move the Court before other
rights come into existence. The action of
courts cannot harm innocent parties if their
rights emerge by reason of delay on the part
of the person moving the Court."

7. In Ramchandra Shankar Deodhar
and others Vs. State of Maharashtra and
others AIR 1974 SC 259 the Court said that
any claim of seniority at belated stage should
be rejected inasmuch it disturb rights of other
persons regarding seniority, rank and
promotion which have accrued to them
during intervening period.

8. In P. S. Sadasivaswamy Vs. State
of Tamilnadu AIR 1974 SC 2271, the
Court declined to interfere with an order
of promotion made 14 years back. It said,
"A person aggrieved by an order of
promoting a junior over his head should
approach the Court at least within six
months or at the most a year of such
promotion." The Court also said that it is
not a case of lack of power of Court, but it
is consistent with sound policy of public
interest that a person who has not been
vigilant for protection of his rights should
not be allowed to agitate his rights as and
when he finds it convenient irrespective
of length of time. Such a litigant should
not be helped by Court by invoking its
jurisdiction under Article 226 of the
Constitution which is equitable and
discretionary both. To the same effect are
the observations made in State of U.P.
and others Vs. Raj Bahadur Singh and
another (1998) 8 SCC 685, Northern
Indian Glass Industries Vs. Jaswant Singh
and others (2003) 1 SCC 335.

9. In R.S. Makashi Vs. I.M. Menon
and others AIR 1982 SC 101, the Court
held that a dispute regarding seniority can
be denied to be agitated on account of
delay and laches unless a plausible and
adequate explanation is furnished. The
Court relied on its earlier decision in State
of Madhya Pradesh Vs. Bhailal Bhai and
others AIR 1964 SC 1006.

10. In Dayaram Asanand Gursahani
Vs. State of Maharashtra and others AIR
1984 SC 850, the Court said that in
absence of satisfactory explanation of
inordinate delay of nearly nine years on
the part of appellant in questioning the
seniority list, writ petition under Article
226 of the Constitution challenging
validity of seniority and promotion
assigned to other employees cannot be
entertained.

11. In K.R. Mudgal and others Vs.
R.P. Singh and others AIR 1986 SC 2086,
it was observed :

"A Government servant who is
appointed to any post ordinarily should at
least after a period of 3 or 4 years of his
appointment be allowed to attend to the
duties attached to his post peacefully and
without any sense of insecurity. ...
3 All] Abdul Rahman Ansari Vs. State of U.P. and Ors.
1523
Satisfactory service conditions postulate
that there should be no sense of
uncertainty amongst the Government
servants created by the writ petitions filed
after several years as in this case. It is
essential that any one who feels aggrieved
by the seniority assigned to him should
approach the court as early as possible as
otherwise in addition to the creation of a
sense of insecurity in the minds of the
Government servants there would also be
administrative
complications
and
difficulties. Unfortunately in this case
even after nearly 32 years the dispute
regarding the appointment of some of the
respondents to the writ petition is still
lingering
in
this
Court.
In
these
circumstances we consider that the High
Court was wrong in rejecting the
preliminary objection raised on behalf of
the respondents to the writ petition on the
ground of laches."

12. In G.C. Gupta & others Vs. N.K.
Pandey & others AIR 1988 SC 268, the
Court observed:

"...It has been observed that the
attack to the seniority list prepared on the
basis of 1952 rules 15 years after the rules
were promulgated and effect given to the
seniority list prepared on Aug. 1, 1953
should not be allowed because of the
inordinate delay and laches in challenging
the said rule.

30. Similar observations have been
made by this Court in the case of State of
Orissa v. Pyarimohan Samantaray, (1977)
3 SCC 396 : (AIR 1976 SC 2617); State
of M. P. v. Nandial Jaiswal, AIR 1987 SC
251,
Ramanna
Dayaram
Shetty
v.
International Airport Authority of' India,
(1979) 3 SCR 1014 : (AIR 1979 SC
1628), Ashok Kumar v. Collector, Raipur.
AIR 1980 SC 112 : (1980) 1 SCR 491, K. R.
Mudgal v. R. P. Singh, (1986) 4 SCC 531
(AIR 1986 SC 2086) and R. S. Makashi v. I.
M. Menon, (1982) 1 SCC 379 : (AIR 1982
SC 101) where relief was refused on the
ground of laches in moving the Court for
redress of the grievances after lapse of a
period of years after the cause of action
arose. It has been observed in State of M. P.
v. Nandlal Jaiswal (AIR 1987 SC 251 at p.
272) (supra) :-

"Now, it is well settled that the
power of the High Court to issue an
appropriate writ under Art. 226 of the
Constitution' is discretionary and the High
Court in the exercise of its discretion does
not ordinarily assist the tardy and the
indolent or the acquiescent and the
lethargic. If there is inordinate delay on
the part of the petitioner in filing a writ
petition
and
such
delay
is
not
satisfactorily explained, the High Court
may decline to intervene and grant relief
in the exercise of its writ jurisdiction. The
evolution of this rule of laches or delay is
premised upon a number of factors. 'The
High Court does not ordinarily permit a
belated resort to the extraordinary remedy
under the writ jurisdiction because it is
likely to cause confusion and public
inconvenience and bring in its train new
injustices. The rights of third parties may
intervene and if the writ jurisdiction is
exercised on a writ petition filed after
unreasonable delay, it may have the effect
of inflicting not only hardship and
inconvenience but also injustice on third
parties. When the writ jurisdiction of the
High Court is invoked, unexplained delay
coupled with the creation of third party
rights in the meanwhile is an important
factor which always weighs with the High
Court in deciding whether or not to
exercise such jurisdiction."
1524 INDIAN LAW REPORTS ALLAHABAD SERIES

31. In this case the challenge to the
seniority of the appellants which was
determined by order dt. 20th July, 1956
was made in 1973 i.e. after nearly 17
years and they have sought relief for redetermination
of
the
seniority
in
accordance with the provisions of the
aforesaid Service Rules. This cannot be
permitted as it would amount to unjust
deprivation of the rights of the appellants
which had accrued to them in the
meantime. The observation that 'Every
person ought to be entitled to sit back and
consider
that
his
appointment
and
promotion effected a long time ago would
not be set aside after the lapse of a
number of years as made in the above
case (Rabindra Nath Bose v. Union of
India (AIR 1970 SC 470)) will be
applicable to this case." (emphasis added)

13. In B.S. Bajwa & another Vs.
State of Punjab & others AIR 1999 SC
1510, the Court said, "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."

14. K.A. Abdul Majeed Vs. State of
Kerala and others (2001) 6 SCC 292 was
another case where the Court declined to
intervene in such a dispute raised after a long
time.

15. In Shiba Shankar Mohapatra &
others Vs. State of Orissa & others, JT
2009 (14) SC 298, the Apex Court held,
"it is well settled, fence-sitters cannot be
allowed to raise the dispute or challenge
the validity of the order after its
conclusion. No party can claim the relief
as a matter of right as one of the grounds
for refusing relief is that the person
approaching the Court is guilty of delay
and the laches. The Court exercising
public law jurisdiction does not encourage
agitation of stale claims where the right of
third
parties
crystallises
in
the
interregnum."

16. The Court in Shiba Shankar
Mohapatra (supra) further held, "... the
settled legal proposition that emerges is
that once the seniority had been fixed and
it remains in existence for a reasonable
period, any challenge to the same should
not be entertained."

17. As a matter of proposition, I
have no reason to take a different view.
Rather the exposition of law with regard
to self imposed restriction in a belated
dispute is binding on this Court.

18. Even today, neither seniority list
has been challenged and there is no writ
of certiorari quashing seniority list is
prayed for nor the persons likely to be
affected in case petitioner's name is
directed to move upward in seniority have
been impleaded and therefore, this writ
petition also suffers from the vice of
impleadment of necessary parties.

19. It is again contended that in any
case, petitioner's seniority was determined
in 2012 also. Thereafter he moved
representation though his seniority has not
been corrected. Here again question arise
that neither seniority list as such has been
challenged in the writ petition nor the
person likely to be affected has been
impleaded.
3 All] Saurang Vs. State of U.P. and Ors.
1525

20. In absence of challenge to the
seniority list as also for non impleadment
of necessary party, no relief, as sought in
the writ petition, can be granted.

21. Dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.10.2013

BEFORE
THE HON'BLE A.P.SAHI, J.

Civil Misc. Writ Petition No.56738 of 2013

Saurang ..Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajiv Kumar Mishra

Counsel for the Respondents:
C.S.C.,
Sri
S.C.
Verma,
Sri
R.C.
Upadhyaya,Sri Ajay K. Singh, Sri A.N.
Pandey, Nilam Pandey

Constitution of India-Art.-226-Declaration
of title under provisions 122-B(4F) of
U.P.Z.A.L.R.
Act-made
in
favour
of
respondent-petitioner being real brother of
respondent-putting same claim along with
them-filed application for restoration of
proceeding-allowed by SDO-revisional court
taken view that after 11 years can not be
re-opened-but
instead
of
remand
for
consideration of latches touch the merit of
case-held such order without jurisdiction-at
the same time declaration can be sought on
establishment of fact of possession-order
passed
by commissioner quashed-with
liberty to file suit for declaration of his right
petition partly allowed.

Held: Para-11
However, in the present case, it appears
that the petitioner is claiming rights
which is in the nature of a cotenancy on
the
ground
that
he
was
also
in
possession alongwith his brothers. This
becomes a disputed question of fact
which has to be established by leading
evidence, and in the circumstances, this
could not have been done by the method
of a restoration application. However,
the petitioner has a right to establish his
possession by way of filing a suit.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard learned counsel for the
petitioner, Rajiv Kumar Mishra, Sri R.C.
Upadhyay for the Gaon Sabha and the
learned
Standing
Counsel
for
the
respondent nos. 1, 2 and 3. Sri S.C.
Verma for the respondent no. 4 and Sri
Ajay Kumar Singh for the respondent no.
5 and 6 have also been heard.

2. This is an unfortunate dispute
between the real brothers who claim to be
in possession over the disputed land but
the benefits of the possession over the
land have been acknowledged only in
favour of the contesting respondents
hence one of the brothers is aggrieved and
is before this Court under Article 226 of
the Constitution of India praying for
setting
aside
the
revisional
order
impugned
herein
dated
11.9.2013
whereby his claim has been reversed.

3. The facts in brief are that
undisputedly the petitioner and the
respondent no. 4 to 6 are the sons of the
same father. The disputed holding was
being claimed to be in occupation by the
contesting respondents no. 4 and 5 and
subsequently they filed an application for
acknowledging their rights in terms of
Section 122-B(4F) of the U.P. Z.A. &
L.R. Act, 1950. The said claim appears to
have been acknowledged in favour of the
respondent nos. 4 and 5 only vide order
dated 17.6.1995.