# Sanjay Kumar Shukla & Ors v. State of U.P. & Ors. 754 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 8 ILRA 753
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-27
- **Case number:** Service Single No. 12394 of 2020
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-shukla-ors-v-state-of-u-p-ors-754-indian-law-reports-allahabad-47304
- **Pages:** 5

## Headnote

A. Service Law - Challenge to seniority -
No limitation has been prescribed for
filing a petition u/Article 226 of the
Constitution but one of the several rules
of self imposed restraint evolved by the
superior Courts is that the High Court
will not entertain petitions filed after
long lapse of time because that may
adversely affect the settled/crystallized
rights of the parties. If the writ petition is
filed
beyond
the
period
of
limitation
prescribed for filing a civil suit for similar
cause, the High Court will treat the delay
unreasonable and decline to entertain the
grievance of the petitioner on merits. (Para
13, 15)

In present case, a tentative seniority list was
issued and objections were invited to the
same from the Constables appointed in
pursuance
to
the
selection
made.
In
pursuance thereof, the final seniority list was
issued on 11.12.2017 and rights have settled
between the parties but the petitioners did
not challenge the same within time and now,
after lapse of almost three years, the same
has been challenged by way of present writ
petition that too beyond prescribed limit to
file civil suit. (Para 14)

Writ petition dismissed. (E-3)

Precedent followed:

## Text

8 All. Sanjay Kumar Shukla & Ors.Vs. State of U.P. & Ors.
753
recommendation
an
a
fair
and
just
consideration of material on record. Even if
the subordinate authority fails to discharge
its duty it does not absolve the appointing
authority from discharging its obligation by
calling for the records and consider
objectively if the allegations were so serious
that it would result in imposition of major
penalty/ unless allegations were such that
there could be no doubt about the
applicability of the proviso. Even in such
cases, the rule; of fair play must be read as
requiring the appointing authority to record
its own reasons. Otherwise it would be
surrendering
his
discretion
to
the
recommendation of the subordinate authority.
Such action would be arbitrary and contrary
to the letter and spirit of the rule."

19. On examination of the ratio laid
down in para 15, it is evident that mere
recommendation cannot be made a ground in
passing the order. The competent authority
who has been empowered to pass the order
would apply its own mind.

20. On perusal of the recommendation
of the Election Commission as well as the
Commissioner Commercial Tax, it is
evident that the respondent no.1 merely
relied upon the orders of the Election
Commission
and
Commissioner
Commercial Tax and has proceeded to pass
the impugned order.

21. Thus, in the opinion of the Court,
the order impugned cannot be sustained.

22. I have also perused the statement
of fact made in para 38 of the writ petition
in regard to recording of finding that the
charges are proved and the submission in
this regard that without holding preliminary
inquiry
against
an
employee
this
satisfaction cannot be recorded.

23. The statement of fact made in para
38 of the writ petition has been replied in
para 32 of the counter affidavit wherein on
perusal it is reflected that there is no
statement of fact that preliminary inquiry
was conducted against the petitioner and
thereafter the satisfaction was recorded.
Therefore, the submission advanced by the
learned Senior Advocate in this regard
appears to be correct.

24. In view of the reasons assigned
above, the impugned order cannot be
sustained and it is hereby set-aside.

25. Writ petition succeeds and is
allowed.

26. Respondents are directed to
permit the petitioner to allow to work on
the post of Joint Commissioner (SIB),
Bulandshahar and pay him regular salary
month by month as and when became due.

27. It is, however, made clear that the
disciplinary proceedings pending against
the petitioner shall go on and shall be
completed within three months from the
date of production of certified copy of this
order.
----------

(2021)08ILR A753
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.07.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Single No. 12394 of 2020

Sanjay Kumar Shukla & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
754 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Laltaprasad
Misra,
Rishabh
Tripathi,
Santosh Kumar Shukla

Counsel for the Respondents:
C.S.C., Gaurav Mehrotra, Santosh Kumar
Tripathi, Santosh Tripathi

A. Service Law - Challenge to seniority -
No limitation has been prescribed for
filing a petition u/Article 226 of the
Constitution but one of the several rules
of self imposed restraint evolved by the
superior Courts is that the High Court
will not entertain petitions filed after
long lapse of time because that may
adversely affect the settled/crystallized
rights of the parties. If the writ petition is
filed
beyond
the
period
of
limitation
prescribed for filing a civil suit for similar
cause, the High Court will treat the delay
unreasonable and decline to entertain the
grievance of the petitioner on merits. (Para
13, 15)

In present case, a tentative seniority list was
issued and objections were invited to the
same from the Constables appointed in
pursuance
to
the
selection
made.
In
pursuance thereof, the final seniority list was
issued on 11.12.2017 and rights have settled
between the parties but the petitioners did
not challenge the same within time and now,
after lapse of almost three years, the same
has been challenged by way of present writ
petition that too beyond prescribed limit to
file civil suit. (Para 14)

Writ petition dismissed. (E-3)

Precedent followed:

1. Banda Development Auth., Banda Vs Moti Lal
Agarwal & ors., (2011) 5 SCC 394 (Para 4, 13, 15)

2. H.S. Vankani & ors. Vs St. of Guj. & ors.,
(2010) 4 SCC 301 (Para 4)

3. Rajesh Kumar Singh & anr. Vs Rajeev Nain
Upadhyay & 24 ors., Spl. Appl. No. 819 of 2019
(Para 4)
(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri L.P. Misra, learned
counsel for the petitioners, Sri Alok
Sharma, learned ACSC for respondent
Nos.1 to 6, Sri Gaurav Mehrotra, learned
counsel for respondent No.692 and Sri
Sudeep Seth, learned Senior Counsel
assisted by Sri Santosh Tripathi, learned
counsel for respondent Nos.717 & 816.

2. Learned counsel for respondent
No.692 raised preliminary objection in
regard to maintainability of writ petition on
the ground of laches. He submitted that
while issuing the tentative seniority list,
objections
were
invited
from
the
Constables appointed in pursuance to the
selection made. The final seniority list was
issued on 11.12.2017. The petitioners were
not vigilant to know the order passed on
their seniority list and they kept sleeping on
the matter till filing of writ petition before
this court.

3. His next submission is that the
petitioners have not challenged the order
passed on their objection to the seniority
list dated 11.12.2017 and same was not
challenged in the writ petition, therefore,
his submission is that without challenging
the order of rejection of the objection filed
in regard to seniority list, the writ petition
cannot be maintained.

4. On the point of rejection of
objection to the seniority list as well as
laches in challenging the final seniority list
in the writ petition, he placed reliance upon
following judgments:

a) Banda Development Authority,
Banda Vs. Moti Lal Agarwal and others;
(2011) 5 SCC 394, paragraph 17.
8 All. Sanjay Kumar Shukla & Ors.Vs. State of U.P. & Ors.
755

b) H.S. Vankani and others Vs.
State of Gujarat and others; (2010) 4
SCC 301, paragraph 38 & 39.

c) Rajesh Kumar Singh and
another Vs. Rajeev Nain Upadhyay and
24 others; Special Appeal No.819 of
2019, paragraph 24, 25 & 33.

5. On the other hand, learned counsel
for the petitioners invited attention of this
Court on paragraph-31&32 of the writ
petition and on the said basis he submitted
that at no point of time the final seniority
list as well as the order of rejection of
petitioner's objection was communicated to
petitioners.

6. He further submitted that the
petitioners came to know about the final
seniority list when juniors to them were
granted promotion from the post Sub
Inspector to Inspector and immediately
thereafter, the petitioners filed the present
writ petition before this Court, therefore,
there is no delay or laches on the part of
petitioners in filing the writ petition.

7. His next submission is that the
objection
raised
on
behalf
of
the
respondents is not acceptable in the eyes of
law. The petitioners have approached to
this court within time from the date of
knowledge of final seniority list, thus, the
writ petition cannot be thrown out on the
ground of laches.

8. He also invited attention of this
Court on paragraph-5 of counter affidavit
filed by respondent Nos.5&6, wherein the
statement of fact made in the writ petition
has not been specifically denied.

9. He further submitted that Writ
Petition No.14319 (S/S) of 2021 is lying
pending consideration in regard to same
seniority list in as much as in regard to
same selection.

10. In reply to aforesaid submission
made by learned counsel for the petitioners,
Sri Gaurav Mehrotra, learned counsel for
the respondent No.692 submitted that he is
counsel for the petitioner in the writ
petition pointed out by learned counsel for
the petitioners. He submitted that in the
said writ petition, there is no challenge in
regard to seniority of same selection.

11. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record.

12. To resolve the controversy
involved in the present writ petition, the
judgments relied upon by learned counsel
for respondent No.692 are being quoted
below:

a)
Banda
Development
Authority, Banda (Supra):

"17. It is true that no limitation
has been prescribed for filing a petition
under Article 226 of the Constitution but
one of the several rules of self imposed
restraint evolved by the superior courts is
that the High Court will not entertain
petitions filed after long lapse of time
because that may adversely affect the
settled/crystallized rights of the parties. If
the writ petition is filed beyond the period
of limitation prescribed for filing a civil
suit for similar cause, the High Court will
treat the delay unreasonable and decline to
entertain the grievance of the petitioner on
merits."

b) H.S. Vankani and others
(Supra):

"38. Seniority is a civil right
which has an important and vital role to
play in one's service career. Future
756 INDIAN LAW REPORTS ALLAHABAD SERIES
promotion
of
a
Government
servant
depends either on strict seniority or on the
basis of seniority-cum-merit or merit-cumseniority 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.

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 and 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."

c) Rajesh Kumar Singh and
another (Supra):

"24. The exercise of creation of
the fresh seniority list in the year 2009, was
premised on the finality of the seniority list
of 2006. The said communication dated
29.12.2009, clearly records that the final
seniority list of the Junior Engineers
(Minor Irrigation), was duly published on
05.09.2006.
In
this
manner,
the
communication of date, while inviting
objections to the tentative seniority list of
2009,
precluded
the
officials
from
challenging the seniority list of 2006, and
restricted the scope of the objections only
to the proposed seniority list of 2009. Five
petitioners,
namely,
petitioner
no.2,
petitioner no.3, petitioner no.6, petitioner
no.9, and petitioner no.11, submitted their
objections,
in
response
to
the
communication dated 29.12.2009.

25. It is noteworthy that even at
this stage, the said petitioners did not
object to the seniority list of 2006. The said
objections
were
rejected
by
orders
supported with reasons. Thereafter, the
final seniority list was drawn up on
05.03.2010.

33.
We,
therefore,
find
no
illegality in the judgment of the High court
in
quashing
the
order
dated
29th
September,
1993
and
upholding
the
seniority of the candidates of 1980-81
batch over the candidates of 1979-81
batch."

13. On perusal of judgment in the
case of Banda Development Authority,
8 All. Kuldeep Kumar Tripathi Vs. State of U.P. & Ors.
757
Banda (Supra), it is evident that no
limitation has been prescribed for filing a
petition
under
Article
226
of
the
Constitution but one of the several rules of
self imposed restraint evolved by the
superior courts is that the High Court will
not entertain petitions filed after long lapse
of time because that may adversely affect
the settled/crystallized rights of the parties.
If the writ petition is filed beyond the
period of limitation prescribed for filing a
civil suit for similar cause, the High Court
will treat the delay unreasonable and
decline to entertain the grievance of the
petitioner on merits.

14. In the case in hand, a tentative
seniority list was issued and objections
were invited to the same from the
Constables appointed in pursuance to the
selection made. In pursuance thereof, the
final
seniority
list
was
issued
on
11.12.2017
and
rights
have
settled
between the parties but the petitioners did
not challenge the same within time and
now, after lapse of almost three years, the
same has been challenged by way of
present writ petition that too beyond
prescribed limit to file civil suit.

15.

In
view
of
above,
the
submissions advanced by learned counsel
for respondent No.692 in the light of
judgment
in
the
case
of
Banda
Development Authority, Banda (Supra)
appears to have substance in the matter
and the ratio of the judgment in the case
of
Banda
Development
Authority,
Banda (Supra) is fully applicable to the
facts and circumstances of the case.

16. In view of reasons assigned
above, the writ petition is dismissed on the
ground of laches.
----------
(2021)08ILR A757
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.08.2021

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 13222 of 2018

Kuldeep Kumar Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Kishor Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Payment of back wages
and other benefits - When an order of
termination by way of punishment i.e
dismissal or removal is set aside being in
violation of principle of natural justice,
such an order of punishment renders in
nullity and legal consequence is that
concerned
employee
was
never
terminated
by
way
of
removal
or
dismissal and has already continued in
service. It is only to avoid any administrative
doubt that a direction of reinstatement is
normally given but the nature of such an
order is nothing but a declaration that
termination
of
service
by
way
of
dismissal/removal is a nullity and the natural
consequence is that incumbent concerned is
deemed to continue in service as for he was
never terminated. (Para 4)

The very idea of restoring an employee
to the position which he held before
dismissal or removal or termination of
service implies that the employee will be
put in the same position in which he
would have been but for the illegal
action taken by the employer. The
reinstatement of such an employee,
entitles him to claim full back wages.
(Para 4)