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TMI Blog2009 (11) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... ime of consideration of their respective juniors. Such an exercise was directed to be completed within a period of six months. However, the writ petitions have been allowed to the extent that the direction issued by the Tribunal to prepare the gradation list of SIs (St) and SIs(g) in accordance with the dates of passing out of the Sub-Inspector training course, has been quashed. 3. The facts and circumstances giving rise to these appeals are that most of the officers appellants/respondents involved in all these five appeals, had been appointed in 1972-73 onwards as SIs (g) and SIs (St). The eligibility for appointment had been different for both the wings. An additional qualification of stenography was required for the post of SI (St). After selection, candidates who were appointed as SIs (St) were given direct appointment and after five years, thereof, they were sent for training and after successful completion of training, they could become SIs(g) and could be considered for further promotion as Inspectors. So far as the SIs (g) were concerned after their selection they were sent for training in Police Training College and after completion thereof, they were appointed on proba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace reliance upon the letters, one written by the Home Department dated 3.2.1987 and the other by Ministry of Law dated 14.2.1990 as the said letters were merely an opinion of the Departments and could not be treated as being Executive instructions. In fact, no executive instruction had ever been issued taking into consideration the said letters. In absence of any statutory rules for determining their inter-se seniority, the general principle of determination of seniority i.e. to reckon the period from the initial appointment i.e. continuous period/length of service should have been taken into consideration. The long standing practice followed by the State Authorities that SIs (St) would rank senior to SIs(g) could not be disturbed at such a belated stage, as it had been given effect to all throughout this period. More so, as the first part of the order passed by the Tribunal, namely, to prepare the gradation list of SIs (St) and SIs(g) in accordance with the dates of passing the course from the training college, has been set aside by the High Court and has not been challenged by anybody, has attained finality and therefore, the direction given against the present appellants regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenged by any person either before the High Court or before this Court and thus attained finality. Therefore, it becomes necessary for this Court to examine the correctness of that judgment and effect thereof, as the other judgments have been delivered by the Tribunal merely by placing reliance upon it. The admitted facts involved therein reveal that one Pursuram Sahu SI (g) joined the Police Services in 1968. He was promoted to the rank of Inspector in 1986 and to the rank of D.S.P. in 1998. In his O.A. before the Tribunal, he impleaded only two private persons, namely, Shri Bijaya Brata Kundu and Shri Paresh Ch. Mohanty who had been working as Superintendents of Police in the year 2000. The said private respondents had been appointed as SIs (St) on 25.1.1966 and 23.2.1966 respectively. The said respondents did not enter appearance nor contested the case. Therefore, questions do arise as to whether in absence of any statutory rule for determining their seniority as SIs, the Tribunal could disturb the uninterrupted practice in the State to place SI(St) above SI(g) while preparing their inter se seniority and whether the application could be entertained by the Tribunal at such a bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly referred to as practical construction although not controlling, is nevertheless entitled to considerable weight and is highly persuasive. However, it may be disregarded for cogent reasons. 11. The executive interpretation placed by those who are charged with executing the statute, though not binding, is nevertheless entitled to considerable weight as highly persuasive. However, the application of the doctrine in respect of modern Statutes has been doubted by this Court (vide M/s. Punjab Traders vs. State of Punjab and Ors. AIR 1990 SC 2300 and M/s. Oswal Agro Mills Ltd. vs. Collector of Central Excise AIR 1993 SC 2288. 12. In view of the above, one may reach the conclusion that administrative interpretation may provide the guidelines for interpreting the Rule or executive instruction and may be accepted unless it is found in violation of the Rules itself. The Court may not be bound to accept the mistaken construction of the statutes by those who had been dealing with the working of the Statute. In instant Appeals, this fact has been mentioned at several places by the present appellants but has not been considered either by the Tribunal or by the High Court. Shri Jena, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment. There is no law which lays down that a senior in service would automatically be eligible for promotion. Seniority by itself does not outweigh experience. 15. Thus, in view of the above we are of the opinion that in absence of any statutory rules, the executive instructions for fixing the inter se seniority of two wings of the Sub-Inspectors could have been issued by the State Government. Admittedly, no such executive instruction has ever been issued. The letters issued by the Government Departments, being merely opinion of the Departments could not be conferred status of the executive instructions. 16. The question of entertaining the petition disputing the long standing seniority filed at a belated stage is no more res integra. A Constitution Bench of this Court, in Ramchandra Shanker Deodhar Ors. v. State of Maharashtra Ors. AIR 1974 SC 259, considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a bela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck and consider that his appointment and promotion effected a long time ago would not be set-aside after the lapse of a number of years..... The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of 1968... We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the prayer for quashing the said Government resolution, should have been dismissed. (Emphasis added) 19. The issue of challenging the seniority list, which continued to be in existence for a long time, was again considered by this Court in K.R. Mudgal Ors. v. R.P. Singh Ors. AIR 1986 SC 2086. The Court held as under:- A government servant who is appointed to any post ordinarily should at least after a period of 3-4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n . (Emphasis added) 22. In Dayaram Asanand v. State of Maharashtra Ors. AIR 1984 SC 850, while re-iterating the similar view this Court held that in absence of satisfactory explanation for inordinate delay of 8-9 years in questioning under Article 226 of the Constitution, the validity of the seniority and promotion assigned to other employee could not be entertained. 23. In P.S. Sadasivaswamy v. State of Tamil Nadu AIR 1975 SC 2271, this Court considered the case where the petition was filed after lapse of 14 years challenging the promotion. However, this Court held that aggrieved person must approach the Court expeditiously for relief and it is not permissible to put forward stale claim. The Court observed as under :- A person aggrieved by an order promoting a junior over his head should approach the Court at least within 6 months or at the most a year of such promotion. 24. The Court further observed that it was not that there was any period of limitation for the Courts to exercise their powers under Article 226 nor was it that there could never be a case where the Courts cannot interfere in a matter after certain length of time. It would be a sound and wise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for 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. 30. The Tribunal ought to have dismissed the case of Parsuram Sahu (supra) only on the ground of delay and the laches, as the applicant approached the Tribunal at the verge of his retirement and after getting two promotions while the other parties have got three promotions. In the said case, the private respondents have not considered it proper to contest the case because both of them were likely to superannuate just thereafter on attaining the age of retirement. Undoubtedly, the said judgment and order has not been challenged by anybody and it attained finality but that remained the judgment in personem. More so, there is nothing on record to show as to whether the said applicant Parsuram Sahu could ever get any relief from the State Government. The O.A. filed by Shri Sudhir Chandr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 33. The other original application filed in Sudhir Chandra Ray's case was liable to be dismissed only on the ground of delay and laches and we dismiss the same. The High Court has set aside the direction issued by the Tribunal directing the State Authorities to prepare the gradation list of SI(St) and SI(g) in accordance with the dates of passing out of the Sub-Inspector training course. This part of the order has not been challenged by anybody and thus, this part of the order has attained finality, therefore, the said part of the order does not require any interference in either of these appeals. So far as the appeals arising out of writ petition nos.1233/06, 2878/06, 3424/06 and 5637/06 are concerned, stand allowed to that extent and the remaining part of the direction contained in paragraph 9 of the judgment stand set aside. 34. So far as the appeal arising out of writ petition no.426/06 which has arisen from the judgment and order of the Tribunal in OA No.203/2001 is concerned, the relevant facts thereof, have not been taken into consideration either by the Tribunal or by the High Court and the matter has been decided making reference to the facts of other connecte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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