HARISH TANDON, J - (1.) THIS writ petition has been taken out by the petitioner challenging the order No.1402 dated 11th May, 2001 passed by the respondent No.5 whereby and whereunder the private respondent was promoted to the post of Assistant Engineer(Electrical).
(2.) THIS case has a chequered history. The parties have approached this Court and were subjected to several round of litigation. It is undisputed that the petitioner was appointed as Junior Engineer under the Municipal Council, Port Blair on temporary and ad hoc basis. Subsequently, the petitioner was promoted as Assistant Engineer (E&M) on ad hoc basis initially for a period of six months which was extended from time to time. The said appointment was subsequently regularized as per Order No.674 dated 18.02.2004. The private respondent was also ad hoc appointee and appointed w.e.f. 04th December, 1992. Subsequently, the authorities promoted certain candidates by excluding the candidature of the private respondent which constrained him to approach this Court by filing the Writ Petition being W.P. No.82 of 2000. According to the private respondent, the selection for promotion was selective and the authorities did not consider his candidature and therefore has acted in gross violation of Articles 14 and 16 of the Constitution of India. The Hon'ble Single Bench by its judgement dated 10th August, 2000 set aside the appointment of the selective candidate as the same was in contravention to the recruitment rules. The mandamus appeal, against the said judgement and order preferred by the private respondents, came up for consideration before the Division Bench of this Court. While disposing of the said mandamus appeal on 13.12.2000, the Division Bench recorded the submission made on behalf of the official respondents to the effect that the recruitment rules as referred and relied upon by the Hon'ble Single Bench are yet to be notified under the provisions of law. While notifying Clause 11(eleven) of the said Recruitment Rules it was categorically observed that it does not provide for a promotion in the post of Assistant Engineer (Electrical) of a Junior Engineer(Mechanical) and directed the respondent concerned to constitute a Departmental Promotion Committee for such promotion upon consideration of eligible Junior Engineers(Electrical) as the aforesaid Recruitment Rules had not been notified as yet. In spite of the aforesaid direction, the authority concerned did not venture to call upon all the eligible candidates who are entitled for such promotional posts which led to filing of a Contempt Petition before this Court being CPAN No.009 of 2001. The said Contempt Petition was disposed of with the following orders which read thus:- "Mr. Biswas, learned Advocate appearing for the alleged Contemnors/Respondents submits that the promotional order in favour of Sri Ram Chander, dated 11th May, 2001 takes effect from date i.e. 11.5.2001 and the promotional status, salary and all other benefits and emoluments attached to the promotional post shall be made available to Ms. Ganguly's client on and from 11.5.2001. With this clarification, and on the basis of the letter dated 11.5.2001, the contempt application is disposed of without any further orders. The personal appearance of the alleged contemnors/ Respondents be dispensed with. The Contempt Rule is also discharged." Consequent thereupon by order No.1402 dated 11th May, 2001 the private respondent was promoted to the post of Assistant Engineer(Electrical) on the terms and conditions as admissible to the similar cadre of employees of the Municipal Council. It is pertinent to record that one of the Junior Engineers namely Shri Sanat Kumar Chakraborty filed a Special Leave Petition before the Hon'ble Supreme Court against the judgement of the Division Bench delivered on 13th December, 2000. Although the said candidate is not a party to the instant writ petition, but the parties have been informed that the said Special Leave Petition is pending. Be that as it may, the fact remains that the private respondent was promoted w.e.f. 11th May, 2001. Several seniority lists from time to time were prepared by the Municipal Council which include the name of the petitioner who has been shown to have been regularized to the post of Junior Engineer w.e.f. 18th February, 2004. While preparing the seniority list the authorities took into consideration the period which each of the candidates rendered on ad hoc and temporary basis. Therefore, if those periods are counted and are taken into consideration at the time of preparation of the seniority list, naturally, the petitioner stood on a better footing than the private respondent. Although the date of regularization of the appointment of the petitioner is shown as 18.2.2004 whereas the date of regularization of the appointment of the private respondent is shown as 11.5.2001, the petitioner did not choose to challenge the said seniority list. Rather the private respondent assailed the seniority list on the allegation that the authorities could not have taken into consideration the period rendered by the candidates as ad hoc employees, but such seniority list must be prepared on the basis of the date of regularization of the appointment. The said writ petition which was numbered as W.P. 335 of 2007 came up before the Hon'ble Single Bench for final disposal on November 25, 2010. It is held therein that if any promotion is made on ad hoc basis after regularization, then ad hoc period cannot be taken into consideration for the purpose of determining seniority. While quashing and setting aside the said seniority list it was directed that the Municipal Council shall re-fix the seniority list on the basis of substantive order of promotion having been granted to the respective parties without taking into consideration the length of service rendered on ad hoc basis. It is relevant to record that in the said writ petition the petitioner was arrayed as respondent no.9 therein. It is after the aforesaid judgement is passed the petitioner has filed the instant writ petition challenging the order by which the appointment of the private respondent was regularized. The parties have locked their horns to the point that after a gap of more than 12 years and having suffered several orders during interregnum period, the writ petition is liable to be dismissed on the ground of delay and latches. Apropos to the core point as indicated above, an ancillary point has been taken at the instance of the private respondent that the petitioner having the knowledge of the date of regularization of the appointment cannot take a rebound after having suffered an order passed in the previous writ petition by contending that the initial order of regularization is bad and was not made in accordance with the rules. To counter the aforesaid points evolved in this writ petition Mr. Gopala Binnu Kumar, learned advocate appearing for the petitioner, strenuously submits that the delay and latches itself cannot be a ground to defeat the writ petition if it could be aptly demonstrated that an earlier order impugned in the writ petition is palpably illegal and de hors the statutory rules. To support the aforesaid contention he placed reliance upon the following judgements of the Apex Court:- i) Ramchandra Shankar Deodhar and others Versus The State of Maharashtra and others reported in AIR 1974 SC 259, ii) M/s. Dehri Rohtas Light Railway Company Limited Versus District Board, Bhojpur and others reported in AIR 1993 SC 802, iii) State of U.P. and others Versus Raj Bahadur Singh and another reported in (1998) 8 SCC 685 and iv) Kumar Veda Kantha Sinha Roy v. The State of West Bengal and others reported in AIR 1982 Calcutta 307.
(3.) HE further submits that there is sufficient explanation in the Writ Petition which occasioned the delay in challenging the impugned order and as such the writ petitioner cannot be a guilty of delay in approaching the Court. Lastly, he submits that since the petitioner was always kept above the private respondent in order of seniority there was no occasion to challenge the order of regularization of the appointment of the private respondent. It is only after the judgement and order dated November 25, 2010 passed in W.P. No.335 of 2007 by which this Court directed the re-fixation of the seniority list on the basis of a substantive order of promotion the petitioner felt aggrieved by an order of regularization of an appointment of the private respondent. Par contra, Mrs. Nag, learned advocate appearing for the private respondent vehemently submits that the petitioner having accepted the order of regularization of the private respondent he cannot turn around and challenge the said order after having found the order dated November 25, 2010 as not favourable to him. She succinctly submits that the writ petition has been filed after a long delay, more particularly, when several orders intervened in the meantime which is not permissible. She lastly submits that the order of regularization of the appointment was made in terms of a Division Bench order, more particularly, after an order disposing of the contempt application, therefore, any interference, would amount to upsetting the order of the Division Bench which is opposed to judicial discipline. On behalf of the official respondents Mr. Arul Prasanth, learned counsel, submits that the order of regularization was issued in terms of an order of the Division Bench dated 13.12.2000 which has not been challenged by the petitioner meaning thereby that the petitioner has accepted the said order. He therefore submits that the petitioner is prevented from challenging the said order in this writ petition.;