# Shatrughna Tripathi and another v. Hon'ble C.J. High Court, Allahabad and others

- **Citation:** (2001) 2 ILRA 227
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-10-14
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shatrughna-tripathi-and-another-v-hon-ble-c-j-high-court-allahabad-and-others-39860
- **Pages:** 6

## Text

2All] Shatrughna Tripathi and another V. Hon'ble C.J. High Court, Allahabad and others 227
power to pass an appropriate order under
Section 19(3) of the Aligarh Muslim
University Act.

In view of the above discussion we
do not find any merit in the writ petition.
It is accordingly dismissed.

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By the Court

1. This special appeal has been
preferred against the judgement and order
dated 14.10.1999 of a learned single
Judge by which the C.M. Writ Petition
No. 109 of 1999 filed by the appellants
was dismissed.

2. An office memorandum was
issued by the Allahabad High Court on
24.11.1998
inviting
applications
for
making recruitment to the post of Bench
Secretary Grade II from such assistants of
the Court who had put in not less than 10
years continuous service on 1.12.1998 in
Class III cadre. The selection was to be
made on the basis of a competitive
examination
and
interview.
The
appellants,
Shatrughan
Tripathi
and
Kamlakar Dwivedi, who were working as
Lower
Division
Assistants
made
applications for the post but their
candidature was rejected on the ground
that they had not put in 10 years
continuous service in Class III cadre. The
appellants then filed the writ petition
giving rise to the present appeal in which
an
interim
order
was
passed
on
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
228
08.01.1999 that they should be allowed to
appear in the examinations but their result
shall not be declared. The petitioners
appeared
in
the
examination
and
thereafter, moved an application praying
that their results be declared. The writ
petition was thereafter heard and on the
finding that their experience in Class III
cadre
fell
short
of
the
essential
requirement of 10 years, and thus they
were not eligible for appearing in the
examination held for promotion to the
post of Bench Secretary Grade II, it was
dismissed.

3. The selection and appointment on
the post of Bench Secretary Grade II is
governed by the Allahabad High Court
Officers and Staff (Conditions of Service
and Conduct) Rules, 1976, (hereinafter
referred to as the Rules). Rule 8 of the
Rules lays down the source of recruitment
to various Class III posts in the
establishment and sub-rule (e), which
relates to the post in question, reads as
follows:

"(e) Bench Secretaries Grade II - By
selection
through
competitive
examination conducted by the appointing
authority open to the assistants having not
less than 10 years continuous service in
class III posts. Preference shall be given
to candidates possessing a Law Degree"

4. The office memorandum laid
down the same condition viz. that the
candidate should have put in not less than
10 years continuous service in Class III
post on 1.12.1998. The petitioners were
admittedly appointed in 1989 and had put
in less than 10 years continuous service in
Class III post by the date fixed.
Consequently, they did not meet the
essential
qualification
for
being
considered for appointment on the post of
Bench Secretary Grade II.

5. The appellant no. 2 who argued in
person for both the appellants, has
submitted that the appellants appeared in
the examination for making recruitment to
the post of Routine Grade Assistants in
the year 1988 and in the merit list their
names figured at Sl. No. 71 and 75,
respectively and though 100 selected
candidates came to be appointed as
Routine Grade Assistants in the year 1988
itself, but the appellants were given
appointment in 1989 on the basis of the
same merit list. It has been contended that
if
the
appellants
had
been
given
appointments in 1988 along with other
successful candidates who were much
lower in the merit list, they would have
completed 10 years continuous service in
Class III post as on 01.12.1998. It has
been further urged that the reservations
rule were not properly followed and the
rostering was wrongly done and as a
consequence thereof the persons who had
secured lower rank in merit like Sl. no.
239, 258 and 270 in the merit list
prepared in the year 1988 were given
appointment prior to the appellants. The
contention is that the appellants ought to
have
been
appointed
in
1988
and
therefore they should be treated to be
eligible for the post in question.

6. In the counter affidavit filed on
behalf of respondent no. 2 in the writ
petition. It is averred that the candidates
who had secured rank at Sl. No. 239, 258
and 270 in the merit list were Schedule
Caste and on account of rostering they
came to be appointed in the year 1988
itself. It is further pleaded that sub-rule
(5) of rule 10 of the Rules as it existed in
1988 provided that in case of typists a
2All] Shatrughna Tripathi and another V. Hon'ble C.J. High Court, Allahabad and others 229
separate merit list shall be prepared on the
basis of marks obtained by them in the
written examination, interview and type
test. The provision to rule 13(1) as it
existed at the relevant time laid down that
in case of Routine Grade Assistants and
typists a combined list shall be prepared
by taking candidates alternatively, the
first name being from the list of Routine
Grade Assistant and in accordance with
the aforesaid rules, two separate lists were
prepared is respect of recruitment held in
the year 1988 and thereafter a combined
list based on rostering of the selected
candidates was prepared giving adequate
representation to general categories and
reserved categories. By an amendment
dated 27.10.1989, sub-rule(5) of the rule
10 and proviso to rule 13(1) have been
deleted. However, the appointment of the
appellants had been made prior to
27.10.1989
in
accordance
with
the
proviso to rule 13(1) and as a result of
rostering the name of the appellants did
not find place in the first list of 100
candidates.

7. The question which requires
consideration is whether the appellants
can be treated to be eligible for the post in
question. The dictionary meaning of the
word 'continuous' is without break or
interruption. However, in the service
jurisprudence the expression 'continuous
service' has acquired a slightly different
connotation. In M/s Jeewan Lal Ltd.
Calcutta Vs. Its Workmen, AIR 1961 SC
1567, a scheme of gratuity which
provided for payment of gratuity on a
certain rate on voluntary retirement or
resignation of an employee after 15 years
continuous
service
came
up
for
consideration. In paragraph 6 of the
Reports, meaning of the expression
'continuous service' was explained as
under:

"
"Continuous
Service" in the
context of the scheme of gratuity framed
by the tribunal in the earlier reference
postulates
the
continuance
of
the
relationship
of
master
and
servant
between the employer and his employees.
If the servant resigns his employment
service automatically comes to an end. If
the employer terminates the service of the
employee that again brings the continuity
of service to an end. If the service of an
employee is brought to an end by the
operation of any law that again is another
instance
where
the
continuance
is
disrupted; but it is difficult to hold that
merely because an employee is absent
without obtaining leave that itself would
bring to an end the continuity of service."

8. The same expression came up for
consideration
in
Banaras
Hindu
University Vs. Dr. Indra Pratap Singh,
AIR 1992 SC 780, with reference to
paragraph
2(a)
of Merit Promotion
Scheme
of
University
Grants
Commission, which provided that a
teacher in the university department
engaged in advance teaching and research
and whose contribution and achievements
are such as to merit recommendation must
be considered for merit promotion in the
first instance after completing 8 years
continuous service in the respective cadre,
of which at least 4 years should be in the
institution where he is being considered
for such assessment of merit promotion.
The meaning of the expression of "eight
years
of
continuous
service"
was
explained in paragraph 9 of the Reports as
under:
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
230
"We agree with the learned counsel
for the respondent that the expression
"eight years of continuous service" in
para 2(a) of the scheme should be
understood in a reasonable manner having
regard to the underlying aim and object.
Para 2(a) itself expressly recognises that
the eight years service may be in more
than one institution, the only requirement
being a minimum of four years' service in
the
institution
where
he
is
being
considered
for promotion under the
scheme. In case of shift from one
University to other - or from one
institution to the other - it can reasonably
be presumed that there is bound to be
some interval. The interval may be of a
day, a week or a month. What is relevant
is not the length of the interval or break as
it may be called but its nature. We do not
mean to say that length of such interval is
totally
irrelevant;
what
we
mean,
however, is that one must take into
consideration the reason for such breaks -
or the circumstances in which such break
- has occurred. Another factor to be taken
into consideration in understanding and
construing the said expression is the
object underlying the said requirement.
According to us, the object is to ensure
eight years teaching experience..."

9. These authorities show that in
service jurisprudence 'continuous service'
would not mean a wholly uninterrupted
service, in which there is no break at all.
What it means is a continuance of the
relationship
of
master
and
servant
between the employer and his employees
and a short break would not end the
continuity of his service. The object of
such a requirement is to ensure actual
working
experience
for
the
period
specified. However no notional or deemed
appointment or promotion can be taken
into consideration for counting the period
of continuous service and the date from
which
an employee started actually
working can not be pushed back to some
notional date in order to determine the
length of continuous service.

10. The appellants have next urged
that the procedure adopted for making
appointment
in
the
year
1988
by
bifurcating
the
list
and
making
appointment in batches without regard to
the number of posts of Routine Grade
Assistants and typists was not warranted
under the rules. They have also submitted
that the rostering of the candidates for
making appointment in 1988 was not
correctly done. Sri Sunil Ambwani,
learned counsel appearing for respondent
no. 2, has submitted that the appointments
made in 1988 and 1989 cannot be
challenged in the writ petition filed in the
year 1999, wherein the appellants have
assailed the rejection of their candidature
on the ground that they had not put in 10
years continuous service on the relevant
date. Learned counsel has submitted that
the claim of the appellants is highly
belated and they are guilty of laches as
they should have raised such a grievance
in the year 1988 itself when they were not
given appointments. He has further
submitted that such a plea can not be
raised and entertained by the Court in the
present
writ
petition
where
the
controversy is entirely different. The only
explanation given by the appellants for
the delay is that some other candidates,
namely, Sharad Upadhyay, Sunil Kumar
and
J.K.
Jaiswal
had
made
a
representation to the Hon'ble The Chief
Justice on 15.09.1989 and that Sharad
Upadhyaya and others had also filed Writ
Petition No. 21928 of 1989 which is still
pending.
It
is noteworthy that the
2All] Shatrughna Tripathi and another V. Hon'ble C.J. High Court, Allahabad and others 231
appellants themselves neither filed any
representation nor any writ petition
challenging the action of the respondents
in not giving appointment to them in
1988. The appellants willingly accepted
the appointment given to them in 1989
and never raised any grievance regarding
alleged delay in appointment at any stage.
Therefore, the explanation offered by
them for not raising any grievance against
the so called late appointments given to
them is wholly untenable and cannot be
accepted.

11. It is well-settled that this court
would not examine stale claims under
Article 226 of the Constitution, especially
where there is no allegation of violation
of fundamental rights. In Ramchandra
Shankar Deodhar and others Vs. The state
of Maharastra and others, AIR 1974 SC
259, it was held as under:

"The rule which says that a Court
may not inquire into belated or stale
claims is not a rule of law but a rule of
practice based on sound and proper
exercise of discretion, and there is no
inviolable rule that whenever there is
delay the Court must necessarily refuse to
entertain the petition. The question is one
of discretion to be followed on the facts of
each case."

In M/s Delhi Rohtas Light Railway
Company Limited Vs. District Board,
Bhojpur and other AIR 1992(2) SCC 598,
it was held as under:

"The rule which says that the Court
may not enquire into belated and stale
claim is not a rule of law but a rule of
practice based on sound and proper
exercise of discretion. Each case must
depend upon its own facts. It will all
depend on what the breach of the
fundamental right and the remedy claimed
are and how delay arose. The principle on
which the relief to the party on the
grounds of laches or delay is denied is
that the rights which have accrued to
others by reason of the delay in filing the
petition should not be allowed to be
disturbed unless there is a reasonable
explanation for the delay. The real test to
determine delay in such cases is that the
petitioners should come to the writ court
before a parallel right is created and that
the lapse of time is not attributable to any
laches or negligence. The test is not to
physical running of time. Where the
circumstances
justifying
the
conduct
exists, the illegality which is manifest
cannot be sustained on the sole ground of
laches".

12. In Makashi Vs Menon, AIR
1982 SC 101 a writ petition filed after a
delay of 8 years was allowed by the High
Court. The Apex Court reserved the
judgement and dismissed the writ petition
on the ground of delay and laches with the
observation that it seeks to disrupt the
vested rights regarding seniority, rank and
promotions which had accrued to a large
number of respondents during the period
of 8 years which had intervened. In
Bhoop Singh Vs. Union of India, AIR
1992 SC 1414, a stale claim of similarly
placed constable who had been dismissed
from service was rejected though the
claim of another constable similarly
dismissed had been allowed earlier. These
authorities show that there is no absolute
bar in entertaining a claim after a long
gap, but there should be a reasonable
explanation for the delay. If some rights
have been created in favour of others
during the period which has intervened,
then such rights of others cannot be
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
232
disturbed by entertaining a writ petition
after a long delay.

13. In the present case the appellants
have not impleaded those persons as party
to the writ petitioners or in the present
special appeal who according to them had
been illegally given preference over them
and had been appointed prior to them in
1988. If the contention of the appellants is
entertained, it would result in disturbing
the seniority list prepared in 1988-89.
Valuable rights have accrued in favour of
such
persons
who
were
given
appointment prior to the appellants in
1988. It is also pertinent to mention that
the appellants are not illiterate rustic
villagers living in some remote area who
may not be having any idea of court
proceedings. The appellants were working
as
Routine
Grade
Assistant
and,
thereafter, as Lower Division Assistant in
the High Court, and it can be safely
presumed that they have some knowledge
of court proceedings. As against a
common man, it was very easy and
convenient for them to take appropriate
legal proceedings for redress of their
alleged grievance that they should have
been appointed in 1988. But they chose to
remain silent and contended. In these
circumstances, there is absolutely no
ground
to
entertain
any
challenge
regarding their initial appointment in the
present writ petition which has been filed
after more than 10 years in the year 1999.

14. For the reasons mentioned
above, we find no merit in the present
special appeal, which is hereby dismissed.

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