In CWP-6400-2017-PUNJ HC- Granting benefit of notional seniority now would amount to opening ‘Pandora’s box’, petitioner could have raised this ground in first round of litigation: P&H HC Justices G. S. Sandhawalia & Vikas Suri[22-03-2022]

Read Order: Vijay Kumar v. Union of India & Others 

LE Correspondent

Chandigarh, April 1, 2022: While dealing with the grievance that the Tribunal declined the petitioner’sclaim for notional seniority above the fourth respondent, the Punjab and Haryana High Court has dismissed thepetition on the ground that the cause of action arose in 2003 and the first round of litigation was initiated by the petitioner in 2007, yet he raised his grievance of the benefit of notional seniority in 2014 by initiating the second round of litigation. 

The High Court held that the principles of Order 2, Rule 2, CPC would kick, to the extent that the said relief (of claiming the benefit of notional seniority) was never claimed for in the earlier OA filed in 2007. 

The Division Bench of Justices G. S. Sandhawalia and Vikas Suri held, 

“… the cause of action has arisen way-back in 2003 on appointment of Neeraj Kumar and the earlier OA had been filed in the year 2007… At that point of time, the writ petitioner had chosen not to agitate for his grievance of benefit of notional seniority and in such circumstances, allowing the said benefit now would amount to opening up “Pandora’s Box”, as not only interests of one Neeraj Kumar would be involved but also a large number of persons appointed between Neeraj Kumar and the petitioner.”

The present writ petition, filed under Articles 226/227 of the Constitution of India was directed against an order (of 2016) passed by the Tribunal declining the claim of the petitioner for notional seniority above Neeraj Kumar, the fourth respondent, in the cadre of LDC. 

In brief, the case of the petitioner was that he was appointed on compassionate grounds on account of his father’s death (dated August 12, 1994) while the death of Neeraj Kumar’s father took place in the year 2002 and thus both of them were placed in the seniority list for an appointment. It was further his case that the petitioner was placed at the third position on the seniority list in the year 2001, whereas Neeraj Kumar was placed at the twenty-second. 

It was accordingly contended that Neeraj Kumar was wrongly given a compassionate appointment in 2003 in preference to the petitioner. Aggrieved, the petitioner approached the Tribunal which directed consideration of the petitioner’s case for compassionate appointment. The said order was unsuccessfully challenged by the respondents before the High Court of Jammu & Kashmir and the Supreme Court in form of an SLP. 

It was submitted by the counsel for the petitioner that the provisional letter of appointment was offered to him in 2011, subject to the decision of the SLP. After the dismissal of the said SLP, he agitated his grouse by serving a legal notice in 2014 and thereafter, filed an Original Application (OA) in July 2015. It was thus contended that he could not be denied the benefit of notional seniority and the respondents could not take advantage of their own fault. 

Here, it is to be noted that the Tribunal passed the impugned order by giving the reasoning that the petitioner was appointed in the year 2011 and therefore, he could be granted seniority from the date of entry in service and the legal notice for grant of the said benefit was filed on September 12, 2014, and as such notional seniority could not be granted in view of the facts of the case. It was also noticed that there was a considerable delay as the cause of action arose when the petitioner was appointed i.e. in the year 2011 and the benefit of notional seniority came to be agitated only by serving legal notice on September 12, 2014, and therefore, the filing of the Original Application was held to be delayed and time-barred.

On the other hand, the case of the respondents’ counsel was that there was a considerable delay to the extent that after his (petitioner’s) appointment in the year 2011 which was offered to him, he never raised the issue of notional seniority though the SLP was dismissed and only after a year later in July 2014 a legal notice was served. It was further submitted that the Tribunal was justified in dismissing the OA on this account also. Apart from that, it was argued that on an earlier occasion when the petitioner approached the Tribunal, the relief of notional seniority was not agitated and the only prayer made was for consideration of the case. It was submitted that once the relief was not claimed in the first instance, it could not be claimed in the second round of litigation.

After considering the rival submissions, the Court found substance in the case advanced by the respondents. On the factual aspects of this case, the Court opined at the outset that when the petitioner approached the Tribunal it was always open to him to seek the relief for appointment on compassionate ground and also the fact that he was entitled to seniority over and above Neeraj Kumar. The said claim, the Court noted, was not agitated in those proceedings and only a simple prayer was made for issuance of directions to consider his case for compassionate appointment. 

Thus, the Court opined that the principles of Order 2, Rule 2, CPC shall come into play, to the extent that the said relief was never claimed for in the earlier OA (original application). The Court further added that it would not be proper to allow the petitioner to agitate for the same relief, in the second leg of litigation which he preferred not to claim in the first instance, after having secured the appointment in the year 2011. 

Reliance in this regard was placed upon Union of India & others Vs. Major S.P. Sharma & others wherein it was held that sanctity is to be given to finality of judgments and it is not permissible to reopen the concluded judgments of the Court, as it would tantamount to an abuse of the process of the Court and would have an adverse effect on the administration of justice.

Against this backdrop, the Court opined that the cause of action arose way back in 2003 on the appointment of Neeraj Kumar and the petitioner did not agitate his grievance of the benefit of notional seniority for the first time when he filed the earlier Original Application in the year 2007 which was adjudicated in 2008. 

Thus, the Court opined that in such circumstances, allowing the said benefit now would amount to opening up “Pandora’s Box”, as not only the interests of one Neeraj Kumar would be involved but also a large number of persons appointed between Neeraj Kumar and the petitioner. 

Accordingly, the petition was dismissed.