K J UPENDRANATH Vs. S MABEL FRANCO

JUDGEMENT

(1.) THE issue raised in these writ appeals is inter se seniority between the appellants herein and the contesting respondents namely the writ petitioners, in the category of U. D. Clerk in the Department of directorate of Medical Education. All the incumbents who were contesting for seniority had been promoted to the cadre of U. D. Clerk with effect from 16. 09. 1985. This is an admitted fact before us. When Ext. R3 (b) provisional seniority list of U. D. Clerk as on 16. 09. 1985 was published, the respondents/writ petitioners were placed as juniors and the appellants herein, the respondent Nos. 4, 5 and 6 in the writ petition were shown as seniors. Even at that time, the promotion to the post of U. D. Clerk of the respective incumbents had not been regularised. THE regularisation came far later in ext. P1 dated 30. 01. 1992. Naturally, the provisional promotees ought not to have been included in Ext. R3 (b) seniority list published on 27. 02. 1990. Whatever that be, collecting details as to the acquisition of the test qualification of the respective incumbents, the writ petitioners represented before the government that the appellants ought not to have been regularised as U. D. Clerk in preference to them, as on 16. 09. 1985 as they had successfully completed the test qualification on that date; whereas the appellants had only appeared for the test and were awaiting the results. THErefore, they ought not have given the benefit of Rule 28 (bbb) Part II KS & SSR. This contention raised by them was not accepted by Government and as per Ext. P7 their representations for seniority over the appellants were rejected. Consequential order has been communicated in Ext. P8. It was in the above Circumstances, writ petition has been filed.

(2.) THE appellants resisted the writ petition on the ground of delay and laches on the part of the writ petitioners and that the vacancies in question had arisen only by reason of Ext. R3 (a) order dated 05. 03. 1986 by which time all of them had passed the test. THErefore, there was no reason for application of rule 28 (bbb) Part II KS & SSR. THEy being admittedly seniors to the writ petitioners, in the category of L. D. Clerks were thus entitled to earlier promotion as U. D. Clerks and to consequent seniority.

(3.) THE learned Single Judge had in paragraph 11 of the impugned judgment considered the aspects of delay. Time limit has been prescribed to object the seniority list as per Rule 27b of KS & SSR. As six months from the date of publication of the seniority list or receipt of copy of the order concerned fixing the seniority. THE retrospective regularisation by which the writ petitioners were aggrieved was passed as per Ext. P1. But neither ext. P1 nor Ext. R3 (b) seniority list did contain the actual date of examination which is relevant for the purpose of application of Rule 28 (bbb) with reference to the date of occurrence of vacancies namely 16. 09. 1985, when admittedly the appellants had only appeared for the examination. So the writ petitioners could not have been found to be guilty of laches. It was also found by the learned single Judge that the appellants who were only awaiting the test result could aspire only the vacancies remaining unfilled on 16. 09. 1985 after providing the writ petitioners, who had been fully qualified as on that date.