# Sushil Kumar Dwivedi v. State of U.P. & Ors

- **Citation:** (2016) 5 ILRA 594
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-18
- **Bench:** Dr. Devendra Kumar Arora, Dr. Vijay Laxmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-dwivedi-v-state-of-u-p-ors-43884
- **Pages:** 11

## Headnote

State authorities have preferred writ petition No. 2058 (S/B) of 2011, challenging the judgment and order
dated 27.6.2012 passed in Claim Petition No. 656 of 1998 :Satish Kumar Tripathi Vs. State of U.P. & others by
the State Public Services Tribunal, Lucknow (hereinafter referred to as the "Tribunal"), whereby the Tribunal,
while allowing the claim petition preferred by respondent-Satish Kumar Tripathi, set-aside the final seniority
list dated 22/23.7.1990 for the post of Routine Grade Clerk/Assistant Accountant of District Treasury, Unnao,
and appellate order dated 9.10.1997, directed the State authorities for consideration of the appointment of
the claimant-Satish Kumar Tripathi for the post of Treasury Clerk w.e.f. 7.11.1986 after modifying the
gradation list/seniority list dated 23.7.1990 and issue appointment order after placing claimant/ private
respondent over and above to the writ petitioner-Sushil Kumar Dwivedi with all consequential service benefits.

In the present case, it is an admitted position that claimant-respondent has raised no objection between
24.4.1987 (when the claimant/private respondent joined on the newly created post) to 23.7.1990 (when final
seniority list was issued). Surprisingly, against the final seniority list dated 23.7.1990, the claimant/
respondent has raised objection on 26.2.1991 by giving a representation and when the representation was
rejected, he preferred appeal before the Commissioner, Lucknow Division, Lucknow. It is pertinent to point
out that proper course available to the petitioner after circulation of final seniority list, was to approach the
appropriate forum as available under law. Instead, the petitioner first filed representation and then filed the
appeal without there being any provision of filing representation and appeal, which of course is a creation by
the statute.

On considering the aforesaid legal proposition in the present facts and circumstances of the case,
admittedly, the claimant/respondent was given fresh appointment on newly created post and he joined as
such on 24.4.1987. At that relevant time, writ petitioner was working as he was given appointment and joined
on substantive post of Treasury Clerk in accounts cadre much earlier i.e. on 2.12.1986. Therefore, the
5 All. Sushil Kumar Dwivedi Vs State Of U.P. & Ors.

595
claimant/private respondent is a latecomer as he joined accounts cadre on 24.4.1987.Accordingly, both the
writ petitions are allowed.
Held: Para-

Case Law discussed:

## Text

594 INDIAN LAW REPORTS ALLAHABAD SERIES
under Sections 147, 148, 149, 307, 436, 336, 452, 332, 393, 506 I.P.C. police station
Chowk, district Lucknow.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.05.2016

BEFORE

THE HON'BLE DR. DEVENDRA KUMAR ARORA, J.
THE HON'BLE DR. VIJAY LAXMI, J.

Service Bench/Writ Petition No.- 1542 Of 2011

Sushil Kumar Dwivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Upendra Nath Mishra
Counsel for the Respondents:
Sushil Kumar Dwivedi, Mr. R.D. Shahi, assisted by Mr. O.P. Tiwari, learned Counsel for the contesting
respondent-Satish Kumar Tripathi.

Sushil Kumar Dwivedi has approached this Court by filing writ petition No. 1542 (S/B) of 2011, whereas
State authorities have preferred writ petition No. 2058 (S/B) of 2011, challenging the judgment and order
dated 27.6.2012 passed in Claim Petition No. 656 of 1998 :Satish Kumar Tripathi Vs. State of U.P. & others by
the State Public Services Tribunal, Lucknow (hereinafter referred to as the "Tribunal"), whereby the Tribunal,
while allowing the claim petition preferred by respondent-Satish Kumar Tripathi, set-aside the final seniority
list dated 22/23.7.1990 for the post of Routine Grade Clerk/Assistant Accountant of District Treasury, Unnao,
and appellate order dated 9.10.1997, directed the State authorities for consideration of the appointment of
the claimant-Satish Kumar Tripathi for the post of Treasury Clerk w.e.f. 7.11.1986 after modifying the
gradation list/seniority list dated 23.7.1990 and issue appointment order after placing claimant/ private
respondent over and above to the writ petitioner-Sushil Kumar Dwivedi with all consequential service benefits.

In the present case, it is an admitted position that claimant-respondent has raised no objection between
24.4.1987 (when the claimant/private respondent joined on the newly created post) to 23.7.1990 (when final
seniority list was issued). Surprisingly, against the final seniority list dated 23.7.1990, the claimant/
respondent has raised objection on 26.2.1991 by giving a representation and when the representation was
rejected, he preferred appeal before the Commissioner, Lucknow Division, Lucknow. It is pertinent to point
out that proper course available to the petitioner after circulation of final seniority list, was to approach the
appropriate forum as available under law. Instead, the petitioner first filed representation and then filed the
appeal without there being any provision of filing representation and appeal, which of course is a creation by
the statute.

On considering the aforesaid legal proposition in the present facts and circumstances of the case,
admittedly, the claimant/respondent was given fresh appointment on newly created post and he joined as
such on 24.4.1987. At that relevant time, writ petitioner was working as he was given appointment and joined
on substantive post of Treasury Clerk in accounts cadre much earlier i.e. on 2.12.1986. Therefore, the
5 All. Sushil Kumar Dwivedi Vs State Of U.P. & Ors.

595
claimant/private respondent is a latecomer as he joined accounts cadre on 24.4.1987.Accordingly, both the
writ petitions are allowed.
Held: Para-

Case Law discussed:

(Delivered by Hon'ble Dr. Devendra Kumar Arora J.)
&
(Hon'ble Dr. Vijay Laxmi, J.)

1. Heard Mr. Upendra Nath Mishra, learned Counsel for the petitioner-Sushil Kumar
Dwivedi, learned Standing Counsel for the State and Mr. R.D. Shahi, assisted by Mr. O.P. Tiwari,
learned Counsel for the contesting respondent-Satish Kumar Tripathi.

2. Sushil Kumar Dwivedi has approached this Court by filing writ petition No. 1542 (S/B)
of 2011, whereas State authorities have preferred writ petition No. 2058 (S/B) of 2011, challenging
the judgment and order dated 27.6.2012 passed in Claim Petition No. 656 of 1998 :Satish Kumar
Tripathi Vs. State of U.P. & others by the State Public Services Tribunal, Lucknow (hereinafter
referred to as the "Tribunal"), whereby the Tribunal, while allowing the claim petition preferred by
respondent-Satish Kumar Tripathi, set-aside the final seniority list dated 22/23.7.1990 for the post
of Routine Grade Clerk/Assistant Accountant of District Treasury, Unnao, and appellate order
dated 9.10.1997, directed the State authorities for consideration of the appointment of the claimantSatish Kumar Tripathi for the post of Treasury Clerk w.e.f. 7.11.1986 after modifying the gradation
list/seniority list dated 23.7.1990 and issue appointment order after placing claimant/ private
respondent over and above to the writ petitioner-Sushil Kumar Dwivedi with all consequential
service benefits.

3. Since common question of facts and law are involved in the above-captioned writ
petitions, therefore, they are being decided by a common order.

4. Shorn off unnecessary details, the facts of the case are as under :

The ministerial cadre of every District Treasury is divided into two separate
cadres; firstly known as Cash Cadre, which deals with cash; and secondly Accounts Cadre, which
deals with preparation of bills and maintenance of accounts. The appointment of these two cadres
were made through District Selection Committee constituted under the provisions of Subordinate
Offices Ministerial Staff (Direct Recruitment) Rules, 1985.

5. In the year 1985, a Selection Committee was constituted for making appointment on the
post of Class-III in various ministerial offices in District Unnao including various offices at Block
levels of District Unnao. On receipt of names of suitable candidates from the Employment
Exchange, interview for the post of Routine Grade Clerk, Accounts Clerk and Typist etc. Of
various offices of District Unnao were held w.e.f. 19.12.1985 to 21.12.1985 by a duly constituted
596 INDIAN LAW REPORTS ALLAHABAD SERIES
District Selection Committees presided over by the District Magistrate. Thereafter, a select list
including waiting list was prepared on 21.12.1985.

6. In the waiting list so prepared on 21.12.1985, the name of claimant-Satish Kumar
Tripathi was placed at serial No. 1, whereas name of writ petitioner-Sushil Kumar Dwivedi was at
serial No. 2. In the meantime, a vacancy on the post of Extra Money Tester in the cash cadre on a
temporary basis arose, whereupon the State directed to make appointment on the said post on daily
wage basis. Accordingly, the Treasury Officer, Unnao, sent requisition for names of suitable
candidates for appointment on the said post from the District Employment Officer. On the
requisition of Treasury Officer, Unnao, the District Employment Officer had sent the name of
claimant-Satish Kumar Tripathi, who was at serial No.1 in the waiting list dated 21.12.1985 for
appointment on the post of Extra Money Tester. Thereupon, on 4.11.1986, the Treasury Officer,
Unnao recommended the name of claimant-Satish Kumar Tripathi for appointment on the post of
Extra Money Tester to the District Magistrate, Unnao, who, in turn, issued appointment letter to the
claimant-Satish Kumar Tripathi on 4.11.1986. On receipt of the said appointment letter, the
claimant-Satish Kumar Tripathi joined on the post of Extra Money Tester on the same day i.e.
4.11.1986.

7. On 7.11.1986, another requisition to provide names of the suitable candidates for
appointment on a substantive post of Treasury Clerk in different cadres was sent by the Treasury
Officer, Unnao to the District Employment Officer, Unnao with a request to send names of suitable
candidates from the select list/waiting list, so prepared by the District Selection Committee. On
receipt of the same, the District Employment Officer, Unnao, recommended the name of writ
petitioner-Sushil Kumar Dwivedi, who was at serial No.1 in the waiting list after joining of
claimant-Satish Kumar Tripathi for the post of Extra Money Tester. Thereafter, the Treasury
Officer, on obtaining permission from the appointing authority i.e. District Magistrate on
12.11.1986, appointed the writ petitioner-Sushil Kumar Dwivedi on the post of Treasury Clerk. In
pursuance to the appointment letter, the writ petitioner submitted his joining on the substantive post
of Treasury Clerk in Accounts Cadre on 2.12.1986 and since then, he is working on the post of
Treasury Clerk in District Treasury, Unnao.

8. In the meantime, on 17.2.1987, a post of Posting Clerk/Assistant Shyaha Navis was
created in accounts cadre. On coming to know about the creation of the said post, claimant-Satish
Kumar Tripathi made a representation to the District Magistrate, Unnao, requesting therein to
adjust/appoint him against a newly created post of Posting Clerk/Assistant Shyaha Navis in the
Accounts Cadre. The request of claimant-Satish Kumar Tripathi was accepted by the District
Magistrate, Unnao on 21.3.1987. Thereafter, on 23.4.1987, the claimant was offered appointment
on the post of Assistant Shyaha Navis in Accounts Cadre, which was accepted by the claimant and,
accordingly, he joined on the said post on 24.4.1987.

9. On 23.7.1990, a final seniority list for the post of Accounts Clerk was issued by the
District Treasury, Unnao, wherein name of writ petitioner-Sushil Kumar Dwivedi was placed at
5 All. Sushil Kumar Dwivedi Vs State Of U.P. & Ors.

597
serial No. 23 by reckoning the date of his joining in the accounts cadre as 2.12.1986 and the name
of claimant-Satish Kumar Tripathi was at serial No.24 by reckoning the date of his joining in the
accounts cadre on 24.4.1987. Not being satisfied with the final seniority list, claimant-Satish
Kumar Tripathi moved a representation, claiming seniority over and above the writ petitionerSushil Kumar Dwivedi. The District Magistrate, Unnao, vide order dated 22/23.12.1992, rejected
the representation of the claimant inter alia on the grounds that claimant entered into the Accounts
Cadre only on 24.4.1987, whereas writ petitioner-Sushil Kumar Dwivedi had entered into the
Accounts Cadre on 2.12.1986, therefore, seniority between the writ petitioner and claimant has
rightly been determined.

10. Being dis-satisfied with the order dated 22/23.12.1992, the claimant has approached the
Commissioner, Lucknow Division, Lucknow by filing an appeal. During pendency of the appeal,
claimant-Satish Kumar Tripathi has approached this Court by means of writ petition No. 4305 (S/S)
1997 : Satish Kumar Tripathi Vs. Commissioner, Lucknow Division, Lucknow and others. This
Court, vide judgment and order dated 1.8.1997, on appreciating the fact that appeal of the
claimant/private respondent is pending disposal, dismissed the writ petition in limine and directed
the Commissioner, Lucknow Division, Lucknow to make an earnest endeavour to decide the appeal
of the claimant/private respondent, expeditiously, if possible, within a period of three months.

11. In pursuance of the order dated 1.8.1997, the appeal/representation of the
claimant/private respondent was considered and rejected by the Commissioner, Lucknow Division,
Lucknow vide order dated 9.10.1997, stating therein that the writ petitioner was substantively
appointed in the accounts cadre on 2.12.1986, whereas the claimant/private respondent, after
willing to join the Cash Cadre, had made efforts to join the Accounts Cadre by way of transfer of
his services, but he was substantively appointed in Accounts Cadre only on 24.4.1987, therefore,
his seniority in the Accounts Cadre can be reckoned only with effect from the date of joining the
Accounts Cadre, which is 24.4.1987 and not from any prior date.

12. Feeling aggrieved by the order dated 22/23.12.1992 passed on the claimant's
representation by the District Magistrate, Unnao, gradation list/seniority list dated 23.7.1990 and
appellate order dated 9.10.1997, the claimant/private respondent has approached the State Public
Services Tribunal by filing Claim Petition No. 656 of 1998 : Satish Kumar Tripathi Vs.
Commissioner, Lucknow Division, Lucknow and others. The Tribunal, after hearing the parties and
perusal of the records, vide judgment and order dated 27.6.2011, allowed the claim petition and
quashed the order dated 22/23.12.1992 passed by the District Magistrate, Unnao and appellate
order dated 9.10.1997. It has been directed that on considering the appointment of the claimantSatish Kumar Tripathi for the post of Treasury Clerk w.e.f. 7.11.1986 and on modifying the
gradation list/seniority list dated 23.7.1990, an order for appointment be issued, placing
claimant/private respondent over and above to the writ petitioner-Sushil Kumar Dwivedi with all
consequential service benefits.
598 INDIAN LAW REPORTS ALLAHABAD SERIES
Hence the instant writ petition.

13. Challenging the judgment and order dated 27.6.2011 passed by the Tribunal, Mr.
Upendra Nath Mishra, learned Counsel for the writ petitioner has submitted that the seniority of a
person working in a cadre can be settled only with effect from the date of his substantive
appointment. He further submitted that the appointment of the claimant/private respondent on the
post of Assistant Shyayha Navis dated 23.4.1987 was made by the Treasury Officer of District
Unnao initially under stop gap arrangement, but since the approval of the appointing authority i.e.
District Magistrate, Unnao, was already given for engagement of the claimant on the post of
Posting Clerk on 21.3.1987 itself, therefore, a regular appointment order was issued by the
Treasury Officer on 1.5.1987, wherein it was clearly mentioned that the claimant/private
respondent was being given regular appointment on the post of Assistant Shyaha Navis/Posting
Clerk equal to the Accounts Clerk and it was also mentioned in the said letter that his appointment
shall be made with effect from the date of his joining, which was 24.4.1987. Thus, since the
claimant/private respondent had already joined on the aforesaid post of Assistant Shyaha
Navis/Accounts Clerk on 24.4.1987 itself, therefore, the regular appointment of the claimant in the
Accounts Cadre of the District Treasury, Unnao can be considered to be effective only from
24.4.1987 itself and not any date prior to that.

14. Submission of the learned Counsel for the petitioner is that the Tribunal, while
allowing the claim petition, has erred in not considering the fact that as a result of selection held by
the District Selection Committee in December, 1985, the claimant/private respondent, who was at
serial No.1 in the select list, was firstly given appointment in ''Cash Cadre' on daily wage basis
and, later on, the claimant had switched over his cadre from ''Cash Cadre' to ''Accounts Cadre',
where he was given appointment on 24.4.1987 and, therefore, in the seniority list of Accounts
Cadre, he was rightly given seniority from the date of his substantive appointment in the Accounts
Cadre i.e. 24.4.1987, which was the date when the claimant/private respondent was first born in the
Accounts Cadre. Thus, the placement in the said final seniority list dated 23.7.1990 cannot be
allowed to be altered after 21 years, especially when the writ petitioner was also given promotion to
the next higher post of Accountant in the meantime, which was also not challenged by the claimant.

15. Further submission of the learned Counsel for the petitioner is that though the Tribunal
has no power or authority under the Public Services Tribunal's Act to condone the delay in filing
the claim petition beyond the statutory period of one year but even then, the Tribunal has also erred
in law in condoning the delay in filing of the claim petition in 1998 i.e. after about 12 years from
the date of appointment of the writ petitioner.

16. To strengthen his arguments, Mr. Mishra has placed reliance upon the judgments of the
Apex Court in Malcom Lawrence Cecil D'Souza Vs. Union of India and others : 1976 (1) SCC
599, Shiba Shankar Mohapatra and others Vs. State of Orissa and others: 2010 (12) SCC 471,
Rajendra Pratap Singh Yadav and others Vs. State of Uttar Pradesh and others: 2011 (7)
SCC 743, Amarjeet Singh and others Vs. Devi Ratan and others: 2010 (1) SCC 417, Union of
5 All. Sushil Kumar Dwivedi Vs State Of U.P. & Ors.

599
India and others Vs Deo Narain and others 2008 (10) SCC 84 and the judgment of the Division
Bench of this Court in Abdul Shamim Vs. State of U.P. and others, decided on 5.4.2013 (Review
Petition No. 203 of 2010) and Karan Kumar Yadav Vs. U.P. State Public Services Tribunal
and others : 2008 (2) AWC 1987 (L.B.).

17. Learned Standing Counsel appearing on behalf of petitioners of writ petition No. 2058
(S/B) of 2011 has submitted that though the issuance of the appointment order to its employees
primarily falls in the domain of the executive and, therefore, no such direction for appointment
should normally be issued by the Court of law, but the Tribunal, vide impugned order, gave
direction to the State authorities to issue appointment order in favour of the claimant/respondent on
the post of Treasury Clerk w.e.f. 7.11.1986. Thus, the said direction of changing the date of
substantive appointment of the claimant/respondent in the Accounts Cadre of District Treasury,
Unnao from 24.4.1987 to 7.11.986 is absolutely errorneous and legally untenable.

18. Further submission of the learned Standing Counsel is that the said waiting list was
only relevant till the claimant/respondent and writ petitioner were given appointments but after
both of them have accepted their appointment in two different cadres i.e. "Cash Cadre" and
"Accounts Cadre" of District Treasury, Unnao, the said waiting list has lost its relevance and the
same cannot be pressed into service for the purposes of offering backdated appointment to the
claimant from 7.11.1986 so as to make him senior to the writ petitioner and that too after lapse of
21 long years. Therefore, the impugned judgment is not tenable in the eyes of law and is liable to
be set-aside.

19. Supporting the impugned judgment passed by the Tribunal and refuting the
submissions of the learned Counsel for the writ petitioner, Mr. R.D. Shahi, learned Counsel for the
claimant/respondent has submitted that for the purpose of direct recruitment of ministerial staff in
the subordinate Government Offices of the district, a Selection Committee under the chairmanship
of District Magistrate, Unnao was constituted. The Selection Committee had prepared select list
and waiting list, whereby eight candidates were given regular appointment for Clerk Grade,
whereas four candidates were kept in waiting list. The name of the claimant/respondent was placed
at serial No. 1 in the waiting list and the name of the writ petitioner was at serial No. 2 in the
waiting list. The Treasury Officer, Unnao, vide letter dated 18.10.1986 requested the District
Employment Officer to send the name of the suitable candidate for the post of Extra Money Tester
in cash branch (daily wage) and in pursuance to the said letter, the District Employment Officer
vide his letter dated 27.10.1986, sent the name of claimant/private respondent. Thereafter, the
Treasury Officer, vide its letter dated 4.11.1986, issued the appointment order in favour of the
claimant/respondent and on the same date i.e. 4.11.1986, claimant/respondent submitted his
joining.

20. Further submission of Mr. R.D. Shahi, learned Counsel for the claimant/respondent is
that after joining of claimant/ respondent on the post of Extra Money Tester, the Treasury Officer,
vide its letter dated 7.11.1986, requested the District Employment Officer to send name of another
600 INDIAN LAW REPORTS ALLAHABAD SERIES
candidate for appointment on the post of Treasury Clerk. In response, the District Employment
Officer, vide letter dated 7.11.1986, sent the name of the writ petitioner for the said post.
Accordingly, the writ petitioner was appointed by the District Magistrate on 12.11.1986 and he
joined on the post in question on 2.12.1986. Thereafter, the claimant/respondent was given
appointment as Assistant Syaha Navis at Sub-Treasury, Tehsil Hasanganj on 23.4.1987. After
joining on the post of Assistant Syaha Navis, the claimant/respondent moved a representation
against the appointment of writ petitioner on the ground that the appointment of writ petitioner is
not in accordance with the order of select list so prepared by the duly constituted Selection
Committee.

21. Mr. Shahi has contended that on 23.7.1990, provisional seniority list was issued by the
Treasury Officer, Unnao without considering the plea raised in the representation of the
claimant/respondent, wherein the name of the writ petitioner was placed at serial No. 23, whereas
the name of the claimant/private respondent was at serial No. 24. Subsequently, the
claimant/respondent has submitted a representation dated 16.8.1990 against the seniority list dated
23.7.1990, which was rejected by the District Magistrate, Unnao vide order dated 22/23.12.1992,
against which, a departmental appeal was preferred by the claimant/respondent before the
Commissioner, Lucknow Division, Lucknow.
22. It has been stated by Mr. Shahi that the said appeal was kept pending and, therefore, the
claimant/respondent has approached this Court by filing writ petition No. 4305 (S/S) of 1997. This
Court, vide order dated 1.8.1997, while dismissing the writ petition, directed the Commissioner,
Lucknow Division, Lucknow to decide the appeal within three months. Thereafter, the said
departmental appeal was rejected vide order dated 9.10.1997. Feeling aggrieved, the
claimant/respondent had approached the Tribunal by filing claim petition No. 656 of 1998. The
Tribunal, after considering the pleadings and relevant rules, has rightly allowed the claim
application of claimant/respondent vide judgment and order dated 27.6.2011, directing the State
authorities to amend the seniority list dated 23.7.1990 and thereafter place the claimant/respondent
over and above to the writ petitioner.

23. Submission of Mr. Shahi is that seniority list dated 23.7.1990 issued by the Treasury
Officer, Unnao was provisional and not final and on coming to know about the seniority, the
claimant/respondent moved representation to the competent authority. Therefore, the assertion of
the writ petitioner that the claimant/respondent has never raised any objection from 1987 to 1990,
is wrong. He further submitted that if any wrong procedure is adopted by the appointing authority
for appointment, then, the candidate, who was at the top in the select list, cannot be deprived of his
right. Therefore, the Tribunal has rightly held that the claimant/private respondent is senior to the
writ petitioner and accordingly, allowed the claim petition. Thus, there is no illegality and infirmity
in the impugned judgment of the Tribunal.

24. We have heard learned Counsel for the parties and perused the record.
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601
25. The admitted facts involved in the above-captioned writ petitions are that the
ministerial cadre of the District Treasury is divided into two separate cadres, namely, ''Cash
Cadre', which deals with cash, and ''Accounts Cadre', which deals with preparation of bills and
maintenance of accounts. The appointments on the ministerial post in the aforesaid two cadres were
made through a District Selection Committee constituted under the provisions of Subordinate
Offices Ministerial Staff (Direct Recruitment) Rules, 1985 for appointments on Class-III post of
various ministerial offices in District Unnao.

26. In order to make appointment on the post of Routine Grade Clerk, Accounts Clerk and
other ministerial staff of various offices of district Unnao, a District Selection Committee under the
chairmanship of District Magistrate, Unnao was constituted. The said Committee, after calling the
names of the suitable candidates from the Employment Exchange and taking interviews of the
suitable candidates, had issued a select list and waiting list on 21.12.1985. In the waiting list, the
name of claimant/ respondent was at serial No.1 and the name of writ petitioner was at serial No.2.
In the year 1986, a vacancy arose on a temporary post of "Extra Money Tester" in the Cash Cadre
of District Treasury, Unnao, on which a direction was issued by the State Government to make
appointment on daily wage basis. Consequently, the Treasury Officer, Unnao, vide letter dated
18.10.1986, sent a requisition to the District Employment Officer to send the name of a suitable
candidate for appointment on the aforesaid temporary post of "Extra Money Tester" in cash cadre.
In pursuance of the letter dated 18.10.1986, the District Employment Officer had sent the name of
claimant/respondent for appointment on the aforesaid temporary post of "Extra Money Tester".
Thereafter, the Treasury Officer, Unnao, recommended the name of the claimant/respondent to the
District Magistrate, Unnao, who, in turn, approved the said recommendation on 4.11.1986. On
being offered the said appointment, the claimant/respondent had readily accepted the aforesaid
temporary post of "Extra Money Tester" and he joined on the said post on the same day i.e.
4.11.986.

27. After joining of claimant/respondent on temporary post of Extra Money Tester (daily
wage basis), the Treasury Officer, Unnao had sent another requisition for appointment on a
substantive post of Treasury Clerk in a different cadre on 7.11.1986 to the District Employment
Officer. Since the writ petitioner was placed at serial No.2 in the select list and first candidate of
list had already accepted appointment in another cadre, therefore, the name of the writ petitioner
was recommended by the District Employment Officer. Thereafter, on permission being granted by
the District Magistrate, Unnao, writ petitioner was appointed on a substantive post of Treasury
Clerk on 2.12.1986. Subsequently, on 17.2.1987, a post of Posting Clerk/Assistant Shyaha Navis
was created in the accounts cadre. On coming to know about the aforesaid post, the
claimant/respondent made a representation to the District Magistrate for his adjustment against a
newly created post of Posting Clerk/Assistant Shyaha Navis in the Accounts Cadre. The District
Magistrate, vide order dated 21.3.1987, approved/permitted the claimant/ respondent for fresh
appointment on newly created post i.e. Posting Clerk/Assistant Shyayha Navis. In pursuance
thereof, the claimant/respondent had joined on newly created post on 24.4.1987.
602 INDIAN LAW REPORTS ALLAHABAD SERIES
28. According to the claimant/respondent, as he was placed at serial No.1 in the waiting list
and the name of writ petitioner was at serial No. 2, therefore, on joining in the accounts cadre on
24.4.1987, his name has wrongly been placed in the seniority below the name writ petitioner. The
case of the writ petitioner is that since he has been given appointment on the substantive post of
Treasury Clerk in Accounts Cadre and he joined on the said post on 2.12.1986, therefore, his
seniority ought to be reckoned from the date of his joining in the accounts cadre and not from the
waiting list as the same was not in existence after joining of the writ petitioner on the substantive
post of Treasury Clerk in Accounts Cadre.

29. From perusal of pleadings on record, one thing is clear that writ petitioner-Sushil
Kumar Dwivedi was appointed and joined on the substantive post of Treasury Clerk in Accounts
Cadre on 2.12.1986, whereas claimant/private respondent was appointed and joined on the newly
created post in Accounts Cadre on 24.4.1987. Accordingly, final seniority list was prepared and
issued on 23.7.1990.

30. In Malcom Lawrance (supra), the Apex Court has held that it is difficult no 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. The Apex Court has further held that raking up old matters like seniority after
a long time is likely to result in administrative complications and difficulties.

31. In Shiba Shankar Mohapatra (supra), the Apex Court has held that once seniority
had been fixed and it remains in existence for a reasonable period, any challenge to the same
should not be entertained. On appreciating the ratio laid down in K.R. Mudgal V. R.P. Singh:
1986 (4) SCC 531 that a seniority list which remains in existence for 3 to 4 years unchallenged,
should not be disturbed, the Apex Court has held that three to four years is a reasonable period of
challenging the seniority and in case someone agitates the issue of seniority beyond this period, he
has to explain the delay and laches in approaching the adjudicatory forum by furnishing
satisfactory explanation.

32. In Rajendra Pratap Singh Yadav (supra), the Apex Court has held that in service
jurisprudence, there is immense sanctity of a final seniority list. The seniority list once published
cannot be disturbed at the behest of a person who chose not to challenge it for four years. The
sanctity of the seniority list must be maintained unless there are very compelling reasons to do so in
order to do substantial justice. This is imperative to avoid avoidable litigation and unrest and chaos
in the services.

33. From the aforesaid legal preposition, it is crystal clear that final seniority list cannot be
disturbed after 3-4 years at the behest of a person who chose not to challenge it.
5 All. Sushil Kumar Dwivedi Vs State Of U.P. & Ors.

603
34. In the present case, it is an admitted position that claimant-respondent has raised no
objection between 24.4.1987 (when the claimant/private respondent joined on the newly created
post) to 23.7.1990 (when final seniority list was issued). Surprisingly, against the final seniority list
dated 23.7.1990, the claimant/ respondent has raised objection on 26.2.1991 by giving a
representation and when the representation was rejected, he preferred appeal before the
Commissioner, Lucknow Division, Lucknow. It is pertinent to point out that proper course
available to the petitioner after circulation of final seniority list, was to approach the appropriate
forum as available under law. Instead, the petitioner first filed representation and then filed the
appeal without there being any provision of filing representation and appeal, which of course is a
creation by the statute.

35. In Amarjeet Singh (supra), the Apex Court has held that an officer cannot be granted
seniority prior to his birth in the cadre adversely affecting the seniority of other officers who had
been appointed prior to them. The latecomers to the regular stream cannot steal a march over the
early arrivals in the regular queue.

36. In Deo Narain (supra), the Apex Court has held that if an employee is transferred
from one department to another department on compassionate ground, he would be placed at the
bottom of the seniority in the transferee department. Hence, at the time of his transfer in the
transferee department, all employees in the same cadre who were very much serving at that time
 would be shown above such transferee employee and in such combined seniority list, the
transferred employee would be shown as junior most.

37. On considering the aforesaid legal proposition in the present facts and circumstances of
the case, admittedly, the claimant/respondent was given fresh appointment on newly created post
and he joined as such on 24.4.1987. At that relevant time, writ petitioner was working as he was
given appointment and joined on substantive post of Treasury Clerk in accounts cadre much earlier
i.e. on 2.12.1986. Therefore, the claimant/private respondent is a latecomer as he joined accounts
cadre on 24.4.1987.

38. In Abdul Shamim (supra) and Karan Kumar (Supra), a Division Bench of this
Court has held that the Tribunal has no power to condone the delay under Section 4 of the U.P.
Public Services Tribunal Act, 1976. In the present case, admittedly, on 6.4.1998,
claimant/respondent had filed the claim petition No. 656 of 1998, challenging the order dated
22/23.12.1992, gradation list/seniority list dated 23.7.1990 and appellate order dated 9.10.1997.
Thus, the claim petition was barred by limitation and, therefore, the Tribunal erred in entertaining
the claim petition.

39. For the reasons aforesaid, the Tribunal has erred in allowing the claim petition as the
findings recorded by the Tribunal are perverse and contrary to settled position of law.
604 INDIAN LAW REPORTS ALLAHABAD SERIES
40. Accordingly, both the writ petitions are allowed. The impugned judgment and order
dated 27.6.2011 passed by the Tribunal is hereby set-aside. Consequent to follow.

41.There is no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.05.2016

BEFORE

THE HON'BLE HARSH KUMAR, J.

Second Appeal No.- 1841 Of 1981

Shri Sukhan ...Appellant
Versus
Brij Veer Singh ...Respondent

Counsel for the Appellant:
H.S. Nigam, Arjun Singhal

Counsel for the Respondent:
V. Sahai, B. Dayal

The present appeal has been filed by defendants/appellants against the judgment and decree dated
10.7.1981 passed by Civil Judge, Muzaffarnagar in Civil Appeal No.314 of 1979 (Brijveer Singh and another vs.
Sukhan and another) arising out of Civil Suit No.375 of 1977 decreed by Munsiff, Muzaffarnagar.
In view of the discussions made above with reference to para 7 of impugned judgement reproduced
above, I find that the defendant/appellants are neither aggrieved with the dismissal of first Civil Appeal
no.314 of 1979 Brijveer Singh and others vs. Sukhan and another nor are aggrieved with enhancement of
amount to be paid by plaintiffs-respondents to defendants-appellants on redemption of mortgage, in
accordance with prayer made by them in their first Civil Appeal No.330 of 1979 Sukhan and another vs.
Brijveer Singh and others. I am also of the considered view that though the defendants/appellant are not
aggrieved with the impugned judgement, and decree yet the appeal has been filed by them not only to harm
and harass the plaintiffs-respondents and to deprive them from taking fruits of decree, filing of which has also
caused sheer wastage of valuable time of courts wherein several important matters are pending for
consideration. Moreover, there is no substantial questions of law worth consideration and involved in this
second appeal, the appeal is liable to be dismissed with special costs.

Held: Para-

Case Law discussed:
Sukhan and another vs. Brijveer Singh and others

(Delivered by Hon'ble Harsh Kumar, J.)