# Prafulla Kumar Mishra v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 810
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-13
- **Case number:** Service Single No. 8702 of 2017
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prafulla-kumar-mishra-v-state-of-u-p-ors-47313
- **Pages:** 18

## Headnote

A. Service Law - Education - Seniority -
Regulations of the Intermediate Education
Act, 1921- Regulation 3(1), 3(2) of
Chapter II; Uttar Pradesh Secondary
Education (Services Selection Board) Act,
1982- Section 33-F - Long standing
seniority should not be allowed to be
disturbed after a passage of reasonable
period of time. (Para 7)

Petitioner was initially appointed on the post of
Lecturer (Bio) on ad hoc basis on 25.07.1991.
He has been regularized through an order dated
03/30.12.2001 w.e.f. 30.12.2000 in terms of S.
33-F of 1982 Act. The respondent No. 5 had
been appointed as Lecturer (English) by the
Selection Board on a substantive post on
01.08.1996. Thus, the substantive appointment
of the petitioner is 30.12.2000 while that of
respondent No. 5 is 01.08.1996. Admittedly, the
rules governing the seniority namely Regulation
3 of Chapter II of 1921 Act provides that the
seniority of teachers in a grade shall be
determined on the basis of their substantive
appointment in that grade. (Para 19)

Right since 1997 till 2015, respondent No. 5
never agitated for assignment of his seniority
over and above the petitioner, meaning thereby,
the seniority of the petitioner over and above
respondent No. 5 continued without any dispute
for a period of 18 years and long standing
seniority was sought to be unsettled by
respondent No. 5 by submitting his objections in
the year 2015, which was unsettled through the
impugned order dated 25.03.2017. It has been
indicated that respondent no. 5 was agitating
for his seniority since long but no date of such
objections or representations are indicated. The
only objection indicated in the order of the writ
Court dated 20.12.2016, filed by the respondent
No. 5, is 09.09.2015. (Para 15, 23, 24)

A long standing seniority should not be
disturbed after a reasonable period of time. In
the present case, repeated seniority lists have
been issued over a period of 1997 till 2012 and
it is only in the year 2015 that respondent No. 5
chose to raise his objections against the
seniority assigned to the petitioner which validly
could not have been entertained by the
competent authority at such a belated stage.
(Para 29)

B. Principle of acquiescence and waiver -
Once the seniority lists were issued in the years
1997,
2005,
2006
and
subsequently
on
08.11.2012, respondent No. 5 not having raised
any challenge to the seniority lists of the year
1997, 2005 and 11.12.2006 despite being
shown as junior to the petitioner, could not do a
volte-face and file his objections against the
seniority list dated 08.11.2012 in the year 2015.
(Para 8)

Once repeatedly seniority lists have been issued
since 1997 by the competent authority assigning
seniority to the petitioner over and above
8 All. Prafulla Kumar Mishra Vs. State of U.P. & Ors.
811
respondent No. 5 and in terms of Regulation
3(2) read with Regulation 3(1) of Chapter II of
1921 Act, the seniority list was prepared and
revised every year and respondent No. 5 never
agitated about the same right till 2015 then
considering the principle of acquiescence and
estoppel by conduct, respondent No. 5 would be
precluded to claim the relief as has been
granted to him by means of the impugned
order. (Para 20, 32)

Doctrine of estoppel by election - A
person may be precluded by his actions
or conduct or silence when it is his
duty to speak, from asserting a right
which he otherwise would have had.
(Para 33)

C.
Merely
because
the
writ
Court
required the competent authority or the
Committee to look into the matter, the
same would not amount to revival of a
stale claim of respondent No. 5 for reassignment of the seniority. (Para 11,
30)

When a belated representation in regard to a
'stale' or 'dead' issue/dispute is considered
and decided, in compliance with a direction by
the Court/Tribunal to do so, the date of such
decision cannot be considered as furnishing a
fresh cause of action for reviving the 'dead'
issue or time-barred dispute. The issue of
l

## Text

_Characters 0–39,822 of 62,018. This is a partial read: ask again with offset=39822 for what follows._

810 INDIAN LAW REPORTS ALLAHABAD SERIES
completed, was not maintainable even
otherwise.

41. For the reasons stated above, we
allow the special appeals and set aside the
impugned judgement and order dated
26.3.2021 passed by the learned Single
Judge and dismiss the writ petitions filed
by respondents.
----------
(2021)08ILR A810
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.08.2021

BEFORE

THE HON'BLE ABDUL MOIN, J.

Service Single No. 8702 of 2017

Prafulla Kumar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Israr Ahmad Ansari, Girish Kumar Pandey,
Nirankar Nath Jaiswal, Prashant Jaiswal,
Sharad Pathak

Counsel for the Respondents:
C.S.C., Chandra Bhushan, Rakesh Kumar
Tripathi

A. Service Law - Education - Seniority -
Regulations of the Intermediate Education
Act, 1921- Regulation 3(1), 3(2) of
Chapter II; Uttar Pradesh Secondary
Education (Services Selection Board) Act,
1982- Section 33-F - Long standing
seniority should not be allowed to be
disturbed after a passage of reasonable
period of time. (Para 7)

Petitioner was initially appointed on the post of
Lecturer (Bio) on ad hoc basis on 25.07.1991.
He has been regularized through an order dated
03/30.12.2001 w.e.f. 30.12.2000 in terms of S.
33-F of 1982 Act. The respondent No. 5 had
been appointed as Lecturer (English) by the
Selection Board on a substantive post on
01.08.1996. Thus, the substantive appointment
of the petitioner is 30.12.2000 while that of
respondent No. 5 is 01.08.1996. Admittedly, the
rules governing the seniority namely Regulation
3 of Chapter II of 1921 Act provides that the
seniority of teachers in a grade shall be
determined on the basis of their substantive
appointment in that grade. (Para 19)

Right since 1997 till 2015, respondent No. 5
never agitated for assignment of his seniority
over and above the petitioner, meaning thereby,
the seniority of the petitioner over and above
respondent No. 5 continued without any dispute
for a period of 18 years and long standing
seniority was sought to be unsettled by
respondent No. 5 by submitting his objections in
the year 2015, which was unsettled through the
impugned order dated 25.03.2017. It has been
indicated that respondent no. 5 was agitating
for his seniority since long but no date of such
objections or representations are indicated. The
only objection indicated in the order of the writ
Court dated 20.12.2016, filed by the respondent
No. 5, is 09.09.2015. (Para 15, 23, 24)

A long standing seniority should not be
disturbed after a reasonable period of time. In
the present case, repeated seniority lists have
been issued over a period of 1997 till 2012 and
it is only in the year 2015 that respondent No. 5
chose to raise his objections against the
seniority assigned to the petitioner which validly
could not have been entertained by the
competent authority at such a belated stage.
(Para 29)

B. Principle of acquiescence and waiver -
Once the seniority lists were issued in the years
1997,
2005,
2006
and
subsequently
on
08.11.2012, respondent No. 5 not having raised
any challenge to the seniority lists of the year
1997, 2005 and 11.12.2006 despite being
shown as junior to the petitioner, could not do a
volte-face and file his objections against the
seniority list dated 08.11.2012 in the year 2015.
(Para 8)

Once repeatedly seniority lists have been issued
since 1997 by the competent authority assigning
seniority to the petitioner over and above
8 All. Prafulla Kumar Mishra Vs. State of U.P. & Ors.
811
respondent No. 5 and in terms of Regulation
3(2) read with Regulation 3(1) of Chapter II of
1921 Act, the seniority list was prepared and
revised every year and respondent No. 5 never
agitated about the same right till 2015 then
considering the principle of acquiescence and
estoppel by conduct, respondent No. 5 would be
precluded to claim the relief as has been
granted to him by means of the impugned
order. (Para 20, 32)

Doctrine of estoppel by election - A
person may be precluded by his actions
or conduct or silence when it is his
duty to speak, from asserting a right
which he otherwise would have had.
(Para 33)

C.
Merely
because
the
writ
Court
required the competent authority or the
Committee to look into the matter, the
same would not amount to revival of a
stale claim of respondent No. 5 for reassignment of the seniority. (Para 11,
30)

When a belated representation in regard to a
'stale' or 'dead' issue/dispute is considered
and decided, in compliance with a direction by
the Court/Tribunal to do so, the date of such
decision cannot be considered as furnishing a
fresh cause of action for reviving the 'dead'
issue or time-barred dispute. The issue of
limitation or delay and laches should be
considered with reference to the original
cause of action and not with reference to the
date on which an order is passed in
compliance with a Court's direction. Neither a
Court's direction to consider a representation
issued without examining the merits, nor a
decision given in compliance with such
direction, will extend the limitation, or erase
the delay and laches. (Para 31)

Writ petition allowed. (E-3)

Precedent followed:

1. Malcom Lawrence Cecil D'Souza Vs U.O.I.,
(1976) 1 SCC 599 (Para 7)

2. K.R. Mudgal Vs R.P. Singh, (1986) 4 SCC 531
(Para 7)
3. Shiba Shankar Mohapatra & ors. Vs St. of
Oris. & ors., (2010) 12 SCC 471 (Para 7)

4. Rajendra Pratap Singh Yadav Vs St. of U.P. &
ors., (2011) 7 SCC 743 (Para 7)

5. Cauvery Coffee Traders, Mangalore Vs.
Hornor Resources (International) Co. Ltd.,
(2011) 10 SCC 420 (Para 8)

6. U.O.I. & ors. Vs M.K. Sarkar, (2010) 2 SCC 59
(Para 11)

Precedent distinguished:

1. St. of Oris. & anr. Vs Mamata Mohanty, 2011
AIR SCW 1332 (Para 15)

2. Joint Director of Education, Azamgarh Mandal
& anr. Vs Udai Raj Vishwakarma & anr., 2007
(3) ALJ 33 (Para 15)

3. Shitala Prasad Shukla Vs St. of U.P. & ors.,
AIR 1986 SC 1859 (Para 15)

4. Dr. Anupama Mehrotra Vs The Hon'ble
Chancellor Mahatma Jyotiba Phule Rohilkhand
University & ors., Writ A No. 17904 of 2018,
decided on 01.08.2019 (Para 15)

Present
petition
assails
order
dated
25.03.2017 by which the seniority of the
petitioner has been re-assigned below the
respondent no. 5.

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Sri Upendra Nath Mishra,
learned Senior Advocate, assisted by Sri
Neel Kamal Mishra, learned counsel for the
petitioner, Sri Pankaj Kumar Patel, learned
Additional Chief Standing Counsel for
respondent nos. 1 to 4, Sri Rakesh Kumar
Tripathi, learned counsel for respondent
no.5 and Sri Chandra Bhushan, learned
counsel for respondent no.6.

2. Instant writ petition has been filed
by the petitioner praying for the following
reliefs:-
812 INDIAN LAW REPORTS ALLAHABAD SERIES

"i. Issue a writ, order or direction
in nature of certiorari by quashing the
impugned order dated 25.03.2017 passed
by the opposite party no.3 contained in
Annexure No.1 to this writ petition.

ii. Issue a writ, order or direction
in nature of mandamus commanding the
opposite parties not to implement the
impugned order dated 25.03.2017.

iii. Issue any other appropriate
writ, order or direction in favour of the
petitioner as the Hon'ble Court may deem
fit in the circumstances of the case.

iv. Award the cost of the petition
to the petitioner."

3. The case set forth by the petitioner
is that he was initially appointed on the
post of Lecturer (Bio) on adhoc basis on
25.07.1991 on account of a vacancy having
arisen due to promotion of one Sri Sripal
Mishra, who was working as Bio Teacher.
The appointment was made in pursuance to
a
proposal
of
the
Committee
of
Management and the same was approved
by the District Inspector of Schools vide
order dated 13.07.1991. A copy of the
appointment order is Annexure-2 to the
writ petition while the copy of the approval
order is part of Annexure-3 to the writ
petition. Subsequently, Sri Sripal Mishra
retired and a resolution was passed for
regularization
of
the
petitioner
on
25.07.1995
by
the
Committee
of
Management and the same was sent to the
District Inspector of Schools for his
approval. After long lapse of time the
services of the petitioner were regularized
through an order dated 03/30.12.2001
w.e.f. 30.12.2000 by the order issued by the
Joint Director of Education, Lucknow. The
regularization order was passed under the
provisions of Section 33-F of the Uttar
Pradesh Secondary Education (Services
Selection Board) Act, 1982 (hereinafter
referred to as the '1982 Act'). Copy of the
order dated 03/30.12.2001 is Annexure-5 to
the writ petition. Prior to regularization of
the petitioner, private respondent no.5, Sri
Jai Ram, was appointed as a Lecturer
(English).

4. A seniority list dated 25.07.1997
was issued by the management in which the
name of the petitioner finds place at serial
no.17 vis-a-vis respondent no.5 whose
name
finds
place
at
serial
no.21.
Subsequent thereto, another seniority list
dated 02.12.2005 was issued in which the
name of the petitioner finds place at serial
no.9 vis-a-vis respondent no.5 whose name
finds place at serial no.13. The petitioner
claims that a seniority list dated 11.12.2006
was issued in which the name of the
petitioner finds place at serial no.6 vis-a-vis
respondent no.5 whose name finds place at
serial no.7. Subsequent thereto, another
seniority list dated 08.11.2012 was issued
in which the name of the petitioner found
place at serial no.5 vis-a-vis respondent
no.5 whose name finds place at serial no.8.
It is also contended that both the petitioner
as well as private respondent no.5 signed
the said seniority lists dated 11.12.2006 and
08.11.2012. Copies of the said seniority
lists have been filed cumulatively as
Annexure-6 to the writ petition. It is
claimed that sometimes in the year 2015,
respondent no.5 preferred a representation
to the official respondents raising a dispute
about the assignment of the seniority to the
petitioner
over
respondent
no.5
by
contending that as the petitioner had been
regularized in service as Lecturer through
an
order
dated
03/30.12.2001
w.e.f.
30.12.2000 while respondent no.5 had been
appointed
as
Lecturer
(English)
on
25.01.1996, as such, he was senior to the
petitioner
and
thus
prayed
for
reassignment of the seniority. When the
8 All. Prafulla Kumar Mishra Vs. State of U.P. & Ors.
813
official respondents did not do anything in
the matter, the private respondent filed Writ
Petition No.29967 (SS) of 2016 in re:
Jairam vs. State of U.P. and others
contending that against the seniority list of
teachers for Lecturer grade the petitioner
(respondent
no.5
herein)
had
raised
objection vide his letter dated 09.09.2015
and the District Inspector of Schools being
the competent authority, passed an order
dated 19.10.2015 directing the management
to modify the seniority list but the
directions have not been complied with by
the management. The District Inspector of
Schools has also written to the Principal to
refer the matter for consideration by the
Regional Level Committee headed by the
Joint Director of Education but he is also
sitting over the matter. Considering this,
the writ Court vide judgment and order
dated 20.12.2016 directed the Committee
or whosoever is competent, to consider the
issue within specified time provided there
is no legal impediment in this regard.

5. It transpires that respondent no.3
called upon the petitioner to submit his
reply pertaining to the seniority which was
submitted by the petitioner vide his reply
dated 07.02.2017, a copy of which is
Annexure-7 to the writ petition, whereby
various issues had been raised more
particularly pertaining to various seniority
lists having been issued and respondent
no.5 having never objected to the same and
thus it was prayed that no such seniority
dispute can be agitated by respondent no.5
after such a long lapse of time. It was also
contended in the reply that respondent no.5
has failed to raise any dispute or objection
to the assignment of the seniority of the
petitioner over respondent no.5 for a long
period of time and consequently now the
respondent no.5 would be precluded from
raising such an issue having acquiesced to
the seniority of the petitioner over and
above respondent no.5 over several years.

6. Subsequent thereto, respondent
no.3 vide his order dated 25.03.2017 was of
the view that as respondent no.5 has been
appointed prior to the petitioner on
25.01.1996 vis-a-vis the petitioner who had
been
regularized
vide
order
dated
03/30.12.2001 w.e.f. 30.12.2000 as such
considering
the
rules
governing
the
seniority, it is respondent no.5 who is to be
assigned seniority over the petitioner and
consequently proceeded to fix the seniority
of respondent no.5, Sri Jairam, over the
petitioner through the impugned order
dated 25.03.2017. Being aggrieved with the
aforesaid order, present petition has been
filed.

7. Sri Upendra Nath Mishra, learned
Senior
Advocate,
argues
that
once
repeatedly seniority lists were issued right
since the year 1997 in which the petitioner
was assigned seniority over and above
private respondent no.5 consequently there
was no occasion for respondent no.5 to
have preferred his objections against the
seniority list in the year 2015 and for the
same to have been entertained by the
District
Inspector
of
Schools
and
subsequently under the garb of the order
passed by the writ Court, the impugned
order
re-assigning
the
seniority
and
assigning seniority to respondent no.5 over
and above the petitioner could not have
been passed. It is also contended that the
impugned order has been passed on
25.03.2017 i.e. after a period of 20 years
from the issue of the first seniority list
dated 25.07.1997 and it being a settled
proposition of law that long standing
seniority should not be allowed to be
disturbed after a passage of reasonable
period of time. In this regard, reliance has
814 INDIAN LAW REPORTS ALLAHABAD SERIES
been placed on the judgments of the Apex
Court, which are as follows:-

(i) Malcom Lawrence Cecil
D'Souza vs. Union of India - (1976) 1
SCC 599;

(ii) K.R. Mudgal vs. R.P. Singh
- (1986) 4 SCC 531;

(iii) Shiba Shankar Mohapatra
and others vs. State of Orissa and others
- (2010) 12 SCC 471, and

(iv) Rajendra Pratap Singh
Yadav vs. State of U.P. and others -
(2011) 7 SCC 743.

8. Learned Senior Advocate also
argues that once the seniority lists were
issued in the years 1997, 2005, 2006 and
subsequently on 08.11.2012, respondent
no.5 not having raised any challenge to the
seniority lists of the year 1997, 2005 and
11.12.2006 despite being shown as junior
to the petitioner, could not do a volte-face
and file his objections against the seniority
list dated 08.11.2012 in the year 2015 as
the principle of acquiescence and waiver
would be applicable. In this regard, reliance
has been placed on the judgment of the
Apex Court in the case of Cauvery Coffee
Traders,
Mangalore
vs.
Hornor
Resources
(International)
Company
Limited - (2011) 10 SCC 420.

9. Learned counsel for the petitioner
also argues that the objections filed by
respondent no.5 in the year 2015 against
the seniority list dated 08.11.2012 could
not have been entertained by the competent
authority inasmuch as Regulation 3(1)(f) of
Chapter II of the Regulations of the
Intermediate
Education
Act,
1921
(hereinafter referred to as the '1921 Act')
specifically provide that any teacher being
aggrieved from the decision of the
Committee of Management under subclause (e) of the 1921 Act may prefer an
appeal to the Inspector within 15 days from
the date of communication of such decision
to such teacher and that once the seniority
list dated 08.11.2012 was issued and
respondent no.5 had signed upon the same
in acknowledgment of the assignment of
the seniority of the petitioner over and
above respondent no.5 consequently no
such objection could have been entertained
by the District Inspector of Schools which
were preferred by respondent no.5 in the
year 2015 as the mandatory period of 15
days had already lapsed and thus the
competent
authority
proceeded
in
colourable exercise of power under the
garb of the order passed by the writ Court
in issuing the order dated 25.03.2017 reassigning and lowering the seniority of the
petitioner vis-a-vis respondent no.5.

10. The further argument is that even
if the order of the writ Court dated
20.12.2016 is seen which has been made
the basis for re-assigning the seniority of
the petitioner vis-a-vis respondent no.5
then the same could not have been made
the basis of re-assigning the seniority
inasmuch as the writ Court had specifically
observed while disposing off the writ
petition that in case there is no legal
impediment then the issue of seniority be
considered
by
the
Committee
of
Management while the legal impediment,
as per Regulation 3(1)(f) of 1921 Act
would
be
non-entertaining
of
any
objections beyond the period of 15 days
while
the
objections
were
filed
by
respondent no.5 after almost three years
from the date of issue of the seniority list
dated 08.11.2012.

11. In this regard, learned counsel for
the petitioner contends that even if the writ
Court directed the competent authority to
8 All. Prafulla Kumar Mishra Vs. State of U.P. & Ors.
815
decide the objections filed by respondent
no.5 or required the Committee of
Management to consider the issue of
seniority, merely because the issue was
decided the same could not allow revival of
a dead or stale issue by the competent
authority keeping in view the law laid
down by the Apex Court in the case of
Union of India and others vs. M.K.
Sarkar - (2010) 2 SCC 59.

12. Sri Upendra Nath Mishra,
learned Senior Advocate, also argues that
Regulation 3(2) of 1921 Act provides for
revision of the seniority list every year.
Further a mandate is there before the
Committee of Management in terms of
Regulation 3(1) of 1921 Act that the
Committee
of
Management
of
the
Institution shall cause a seniority list of
teachers to be prepared in accordance
with certain provisions, meaning thereby
that once the seniority list is to be revised
every year and has to be prepared by the
Committee
of
Management
and
respondent no.5 having entered service
on 25.01.1996 as such he would have
been well aware of the seniority list is to
be prepared invariably every year and
thus once the seniority lists, as have been
referred to by the petitioner, were issued
and the petitioner was assigned seniority
over and above respondent no.5 and no
objections were raised by respondent no.5
to the assignment of the seniority of the
petitioner over and above respondent no.5
for a period right since 1996 till 2015 as
such it would be deemed that respondent
no.5 was never aggrieved with the
assignment of the seniority of the
petitioner over and above respondent no.5
for a long period of 19 years and thus
after 19 years no such plea for reassignment of the seniority can validly be
raised.

13. On the other hand, Sri Rakesh
Kumar Tripathi, learned counsel appearing
for respondent no.5, argues that admittedly
the respondent no.5 was appointed on
25.01.1996 as Lecturer (English) while the
services of the petitioner had been
regularized vide order dated 03/30.12.2001
w.e.f.
30.12.2000
i.e.
the
date
of
substantive appointment of the petitioner is
subsequent to the respondent no.5 and as
such keeping in view Regulation 3(1)(b) of
Chapter II of 1921 Act, it is respondent
no.5 who would be senior to the petitioner.
He argues that considering this aspect of
the matter, upon the seniority list dated
08.11.2012
being
issued,
which
the
petitioner signed and only then he came to
know that the petitioner has been indicated
as senior to respondent no.5 and thus being
aggrieved the respondent no.5 submitted a
representation to the competent authority
for correct fixation of the seniority as per
Rules but yet when nothing was done in the
matter, he was constrained to file Writ
Petition No.29967 (SS) of 2016 and this
Court vide order dated 20.12.2016 required
the Committee or the competent authority
to look into the matter pertaining to the
grievance of the petitioner (respondent no.5
herein) for seniority. In pursuance thereof
and after due opportunity of hearing to both
the petitioner as well as respondent no.5
that the order dated 25.03.2017 has been
passed by respondent no.3 whereby the
seniority of the petitioner has been lowered
and respondent no.5 has correctly been
assigned the seniority as per the date of
substantive appointment over and above the
petitioner. He further contends that the said
order is fully in consonance with the rules
for assignment of the seniority and as such
there is no illegality in the same.

14. Sri Tripathi also argues that
respondent no.5 always agitated before the
816 INDIAN LAW REPORTS ALLAHABAD SERIES
competent authority for fixation of the
seniority as per law but when no heed was
paid by the official respondents it was only
then that the writ petition was filed in the
year 2016 and that the order passed by the
competent authority is perfectly legal and
valid in the eyes of law.

15. As regards the delay which has
been caused in the respondent no.5 in
raising the issue of seniority, Sri Tripathi
reiterates his argument that respondent no.5
always agitated for fixation of his seniority
as per law and thus the question of delay
will not arise. In this regard, Sri Tripathi
has placed reliance on the following
judgments:-

(i) Shitala Prasad Shukla vs.
State of U.P. and others - AIR 1986 SC
1859;

(ii) Joint Director of Education,
Azamgarh Mandal and another vs. Udai
Raj Vishwakarma and another - 2007 (3)
ALJ 33;

(iii) State of Orissa and another
vs. Mamata Mohanty - 2011 AIR SCW
1332, and

(iv)
An
unreported
Division
Bench judgment of Allahabad High Court
in the case of Dr. Anupma Mehrotra vs.
The
Hon'ble
Chancellor
Mahatma
Jyotiba Phule Rohilkhand University
and 9 others in Writ A No.17904 of 2018
decided on 01.08.2019, as affirmed by the
Apex Court.

16.

Sri
Pankaj
Patel,
learned
Additional Chief Standing Counsel has
argued that the order re-assigning the
seniority to respondent no.5 over and above
the petitioner is in accordance with rules
and does not call for any interference by
this Court.

17. Sri Chandra Bhushan, learned
counsel appearing for respondent no.6, has
adopted the arguments of Sri Rakesh
Kumar
Tripathi,
learned
counsel
for
respondent no.5.

18. Heard learned counsel for the
parties and perused the records.

19. From perusal of the records, it is
apparent that the petitioner was initially
appointed on the post of Lecturer (Bio) on
adhoc basis on 25.07.1991. He has been
regularized
through
an
order
dated
03/30.12.2001 w.e.f. 30.12.2000 in terms
of Section 33-F of 1982 Act. The
respondent no.5 had been appointed as
Lecturer (English) by the Selection Board
on a substantive post on 01.08.1996. Thus,
the
substantive
appointment
of
the
petitioner is 30.12.2000 while that of
respondent no.5 is 01.08.1996. Admittedly,
the rules governing the seniority namely
Regulation 3 of Chapter II of 1921 Act
provides that the seniority of teachers in a
grade shall be determined on the basis of
their substantive appointment in that grade.
For the sake of convenience, Regulation 3
of Chapter II of 1921 Act is reproduced
below:-

3.
(1)
The
Committee
of
Management of every institution shall
cause a seniority list of teachers to be
prepared in accordance with the following
provisions-

(a) The seniority list shall be
prepared separately for each grade of
teachers whether permanent or temporary,
on any substantive post;

(b) Seniority of teachers in a
grade shall be determined on the basis of
their substantive appointment in that grade.
If two or more teachers were so appointed
8 All. Prafulla Kumar Mishra Vs. State of U.P. & Ors.
817
on the same date, seniority shall be
determined on the basis of age;

[(bb)
Where
two
or
more
teachers working in a grade are promoted
to the next higher grade on the same date,
their seniority inter se shall be determined
on the basis of the length of their service to
be reckoned from the date of their
substantive appointment in the grade from
which they are promoted :

Provided that if such length of
service
is
equal,
seniority
shall
be
determined on the basis of age.]

(c) A teacher in a higher grade
shall be deemed to be senior to a teacher in
the lower grade irrespective of the length of
service;

(d) If a teacher who is placed
under suspension is reinstated on his
original post his original seniority in the
grade shall not be affected;

(e) Every dispute about the
seniority of the teacher shall be referred to
the Committee of Management which shall
decide the same giving reasons for the
decision;

[(f) mi[k.M M ds v/khu izcU/k
lfefr ds fofu'p; ls O;fFkr dksbZ v/;kid ,slk
fofu'p; ,sls v/;kid dks lwfpr fd;s tkus ds
fnuakd ls 15 fnu ds Hkhrj lEcfU/kr {ks=h; mi0
f'k{kk funs'kd dks vihy dj ldrk gS] vkSj
vihy ij lEcfU/kr i{kksa dks lquokbZ dk volj
nsus ds mijkUr mi f'k{kk funs'kd viuk fu.kZ;
dkj.k lfgr nsxk] tks vfUre gksxk vkSj izcU/k
lfefr }kjk dk;kZfUor fd;k tk;sxkA]

[(g) ;fn ,d xzsM+ esa dk;Zjr nks ;k
vf/kd v/;kid fdlh ,d gh frfFk ij inksUufr
fd, tk,a rks mudh T;s"Brk dk vk/kkj ml xzsM+
dk lsokdky gksxk] ftlesa os dk;Zjr Fks] ijUrq
;fn lsokdky cjkcj gS] rks inksUufr dks n'kk esa
vk;q ds vk/kkj ij T;s"Brk fu/kkZfjr dh tk;sxhA

(2) The seniority list shall be
revised every year and the provisions of
Clause (1) shall mutatis mutandis apply to
such revision.

20. A perusal of Regulation 3 of
Chapter II of 1921 Act would indicate that
as per Rule 3(1)(b), seniority of teachers in
a grade has to be determined on the basis of
their substantive appointment in that grade,
meaning thereby that a teacher appointed
substantively at an earlier point of time
would have a higher seniority vis-a-vis a
teacher appointed at a later point of time.
Likewise, Regulation 3(2) of Chapter II of
1921 Act provides that the seniority list
shall be revised every year and the
provisions of Clause (1) shall mutatis
mutandis
apply
to
such
revision.
Regulation 3(1) of Chapter II of 1921 Act
requires the Committee of Management of
every institution to prepare a seniority list
of
teachers
in
accordance
with
the
provisions of Regulation 3 of Chapter II of
1921 Act. Thus, when Regulation 3(2) of
Chapter II of 1921 Act is read in
accordance with Regulation 3(1) of Chapter
II of 1921 Act, it is apparent that a seniority
list of teachers has to be prepared every
year.

21. Now, the question would be that
once as per rules it is date of substantive
appointment in a grade which determines
the seniority of teachers as to what is the
infirmity in the impugned order dated
25.03.2017 passed by respondent no.3 by
which the seniority of the petitioner has
been re-assigned below the respondent
no.5 on the basis of the date of substantive
appointment of both, the petitioner and the
respondent no.5?

22. The Court consciously uses the
word
"re-assigned"
inasmuch
as
the
seniority lists had been issued by the
official
respondents
on
25.07.1997,
02.12.2005, 11.12.2006 and 08.11.2012,
wherein the petitioner has always been
assigned the seniority over and above the
818 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no.5 i.e. at serial no.17, 9, 6 and
5 vis-a-vis respondent no.5 who was
assigned seniority at serial no.21, 13, 7 and
8 respectively. There is another seniority
list of the year 2016-2017 at page 33 of the
writ petition wherein the petitioner finds
place at serial no.3 vis-a-vis respondent
no.5 who is figured at serial no.5 and thus
with the issue of impugned order dated
25.03.2017 re-assignment of the seniority
has taken place.

23. From perusal of the aforesaid, it is
apparent that the petitioner has been
assigned
seniority
over
and
above
respondent no.5 since the year 1997 which
situation prevailed till the issue of seniority
list dated 08.11.2012 and subsequent
thereto in the year 2016-2017 (which
incidentally has not been argued by either
of the parties). The only dispute pertaining
to seniority has been raised by respondent
no.5 in the year 2015 as would be apparent
from perusal of the order passed in Writ
Petition No.29967 (SS) of 2016, which was
filed by respondent no.5-Jairam. For the
sake of convenience, the order dated
20.12.2016 is reproduced below:-

"Heard.

The seniority list of teachers in
Lecturer
Grade
of
the
respondent
educational institution, was issued by the
Committee of Management, regarding
which the petitioner raised objections vide
his letter dated 9.9.2015, whereupon, the
D.I.O.S. who is the competent authority to
decide the appeal against such seniority list
as per relevant regulations on the subject,
passed an order dated 19.10.2015 directing
the Management to modify the seniority list
as per the directions contained therein. The
said
order
was
complied
by
the
Management. However, it seems that the
petitioner was not satisfied even then and
informed
the
D.I.O.S.
accordingly,
whereupon, the D.I.O.S. wrote a letter to
the Principal to refer the matter alongwith
all relevant informations and documents
for consideration by the Regional Level
Committee headed by the concerned Joint
Director.

If the facts as stated are correct,
and the matter is pending for consideration
before the Regional Level Committee as
aforesaid and if there is no legal
impediment in this regard, let the same be
considered by the said Committee on
whosoever is competent, within a period of
two months from the date of production of
a certified copy of this order.

With the above observations/
directions this with petition is disposed of."

24. From perusal of the aforesaid
order, it is apparent that respondent no.5
had contended before the writ Court by
filing Writ Petition No.29967 (SS) of 2016
that against the seniority, he had raised his
objections vide letter dated 09.09.2015 on
which the District Inspector of Schools had
passed an order dated 19.10.2015 directing
the management to modify the seniority list
which order has not been complied with by
the management. Thereafter, the District
Inspector of Schools had written a letter to
the Principal to refer the matter to the
Regional Level Committee but to no avail.
The writ Court vide order dated 20.12.2016
was of the view that if the facts as stated
are correct and if the matter is pending for
consideration before the Regional Level
Committee and if there is no legal
impediment the same was required to be
considered by the Committee or whosoever
is competent within a specified time. In
pursuance thereof, a notice was issued to
both the parties and thereafter respondent
no.3 has proceeded to re-assign the
seniority and placed respondent no.5 over
8 All. Prafulla Kumar Mishra Vs. State of U.P. & Ors.
819
and above the petitioner vide order dated
25.03.2017. Thus, right since 1997 till
2015, respondent no.5 never agitated for
assignment of his seniority over and above
the
petitioner,
meaning
thereby,
the
seniority of the petitioner over and above
respondent no.5 continued without any
dispute for a period of 18 years and long
standing seniority was sought to be
unsettled by respondent no.5 by submitting
his objections in the year 2015, which was
unsettled through the impugned order dated
25.03.2017. Here, it would be relevant to
mention that in paragraphs 9 and 16 of the
counter affidavit filed by respondent no.5,
it has been indicated that he was agitating
for his seniority since 'early' (long) but no
date of such objections or representations
are indicated. The only objection indicated
in the order of the writ Court dated
20.12.2016, filed by the respondent no.5, is
09.09.2015.

25. In this regard, the Court may
consider the law laid down by the Apex
Court in the case of K.R. Mudgal (supra)
wherein the Apex Court has held as under:-

"7. The respondents in the writ
petition raised a preliminary objection to
the writ petition stating that the writ
petition was liable to be dismissed on the
ground of laches. Although the learned
Single Judge and the Division Bench have
not disposed of the above writ petition on
the ground of delay, we feel that in the
circumstances of this case the writ petition
should have been rejected on the ground of
delay alone. The first draft seniority list of
the Assistants was issued in the year 1958
and it was duly circulated amongst all the
concerned officials. In that list the writ
petitioners had been shown below the
respondents. No objections were received
from the petitioners against the seniority
list. Subsequently, the seniority lists were
again issued in 1961 and 1965 but again
no objections were raised by the writ
petitioners, to the seniority list of 1961, but
only the petitioner No. 6 in the writ petition
represented against the seniority list of
1965. We have already mentioned that the
1968 seniority list in which the writ
petitioners had been shown above the
respondents
had
been
issued
on
a
misunderstanding
of
the
Office
Memorandum of 1959 on the assumption
that the 1949 Office Memorandum was not
applicable to them. The June 1975 seniority
list was prepared having regard to the
decision in Ravi Varma's case (supra) and
the decision of the High Court of Andhra
Pradesh in the writ petitions filed by
respondent Nos. 7 and 36 and thus the
mistake that had crept into the 1968 list
was rectified. Thus the list was finalised in
January, 1976. The petitioners who filed
the writ petition should have in the
ordinary course questioned the principle on
the basis of which the seniority lists were
being issued from time to time from the
year 1958 and the promotions which were
being made on the basis of the said lists
within a reasonable time. For the first time
they filed the writ petition in the High
Court in the year 1976 nearly 18 years
after the first draft seniority list was
published in the year 1958. 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.
820 INDIAN LAW REPORTS ALLAHABAD SERIES
Unfortunately in this case even after nearly
32 years the dispute regarding the
appointement 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. The facts of this case
are more or less similar to the facts in R.S.
Makashi & Ors.v. I.M. Menon & Ors.,
[1982] 2 S.C.R. 69. In the said decision this
Court observed at page 100 thus:

"In
these
circumstances,
we
consider that the High Court was wrong in
over-ruling
the
preliminary
objection
raised by the respondents before it, that the
writ petition should be dismissed on the
preliminary ground of delay and laches,
inasmuch as it seeks to disrupt the vested
rights regarding the seniority, rank and
promotions which had accrued to a large
number of respondents during the period of
eight years that had intervened between the
passing of the impugned Resolution and the
institution of the writ petition. We would
accordingly hold that the challenge raised
by the petitioners against the seniority
principles laid down in the Government
Resolution of March 22, ought to have been
rejected by the High Court on the ground
of delay and laches and the writ petition in
so far as it related to the prayer for
quashing the said Government Resolution
should have been dismissed."

8. We are in respectful agreement
with the above observation.

9. We may also refer here to the
weighty
observations
made
by
a
Constitution Bench of this Court in Malcom
Lawrence Cecil D'Souza v. Union of India
& Ors., [1975] Supp. S.C.R. 409 at page
413-414 which are as follows:

"Although security of service
cannot be used as a shield against
administrative action for lapse of a public
servant, by and large one of the essential
requirements of contentment and efficiency
in public services is a feeling of security. It
is difficult to doubt to guarantee such
security in all its varied aspects. It should
at least be possible to ensure that matters
like one's position in the seniority list after
having been settled for once should not be
liable to be reopened after lapse of many
years at the instance of a party who has
during the intervening period chosen to
keep quiet. Raking up old matters like
seniority after a long time is likely to result
in
administrative
complications
and
difficulties. It would, therefore, appear to
be in the interest of smoothness and
efficiency of service that such matters
should be given a quietus after lapse of
some time."

10.
We
feel
that
in
the
circumstances of this case, we should not
embark upon on and enquiry into the merits
of the case and that the writ petition should
be dismissed on the ground of laches
alone."

26. Likewise, the Apex Court in the
case of Shiba Shankar Mohapatra
(supra) has held as under:-

"18.
The
question
of
entertaining the petition disputing the
long standing seniority filed at a belated
stage
is
no
more
res
integra.
A
Constitution Bench of this Court, in
Ramchandra Shanker Deodhar & Ors. v.
State of Maharashtra & Ors. AIR 1974 SC
259, considered the effect of delay in
challenging the promotion and seniority
list and held that any claim for seniority at
a belated stage should be rejected
inasmuch as it seeks to disturb the vested
rights
of
other
persons
regarding
seniority, rank and promotion which have
8 All. Prafulla Kumar Mishra Vs. State of U.P. & Ors.
821
accrued to them during the intervening
period. A party should approach the Court
just after accrual of the cause of
complaint. While deciding the said case,
this Court placed reliance upon its earlier
judgments, particularly in Tilokchand
Motichand v. H.B. Munshi, AIR 1970 SC
898, wherein it has been observed that the
principle, on which the Court proceeds in
refusing relief to the petitioner on the
ground of laches or delay, is that the
rights, which have accrued to others by
reason of delay in filing the writ petition
should not be allowed to be disturbed
unless there is a reasonable explanation
for delay. The Court further observed as
under:-

"A party claiming fundamental
rights must move the Court before others'
rights come out into existence. The action
of the Courts cannot harm innocent
parties if their rights emerge by reason of
delay on the part of person moving the
court."

19. This Court also placed
reliance upon its earlier judgment of the
Constitution Bench in R.N. Bose v. Union
of India & Ors. AIR 1970 SC 470, wherein
it has been observed as under:-

"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 defeated after the
number of years."

20. In R.S. Makashi v. I.M.
Menon & Ors. AIR 1982 SC 101, this Court
considered all aspects of limitation, delay
and laches in filing the writ petition in
respect of inter se seniority of the
employees. The Court referred to its earlier
judgment in State of Madhya Pradesh &
Anr. v. Bhailal Bhai etc.