Gujarat High Court
Akabari Kaushik Hansrajbhai vs State Of Gujarat on 22 July, 2025
NEUTRAL CITATION
C/SCA/10273/2016 JUDGMENT DATED: 22/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10273 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 10274 of 2016
With
R/SPECIAL CIVIL APPLICATION NO. 10786 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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AKABARI KAUSHIK HANSRAJBHAI & ANR.
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR. DWIJEN JOSHI(8518) for the Petitioner(s) No. 1,2
MR. PATH PATEL, AGP for the Respondent - State in SCA/10273/2016
MR. JEEJ JOTANGIA, AGP for the Respondent - State in SCA/10274/2016
MR. HENIL SHAH, AGP for the Respondent - State in SCA/10786/2016
GOVERNMENT PLEADER for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 22/07/2025
COMMON ORAL JUDGMENT
Rule returnable forthwith. Learned AGP waives
service of notice of Rule on behalf of respective
respondents in the respective petitions.
1. Since the issues involved in the present petitions
are almost identical in nature, hence, at the request of
learned advocates for the respective parties, the matters
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are heard together and decided together and Special Civil
Application No. 10273 of 2016 is considered as lead
matter and accordingly, facts are taken from the lead
matter for convenience of the Court.
2. The present lead petition i.e. Special Civil
Application No. 10273 of 2016 is filed by the petitioners
for seeking the following reliefs:
“(A) This Honourable Court be pleased to admit and allow
this petition.
(B) This Honourable Court be pleased to issue appropriate
writ, order or direction including the writ in the nature of
mandamus and present petitioners be given seniority from
dated 5.9.2011 as per the appointment of other candidates.
(C) Pending, admission hearing and/or final disposal of this
Special Civil Application this Honourable be pleased to give
present petitioners the benefit of regular pay-scale and all
other benefits arising out of theirappointment as per the appointment of other candidates i.e.
dated 5.9.2011.
(D) This Honourable Court be pleased to grant any other
and further relief/s as may be deemed fit in the facts andPage 2 of 23
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circumstances of the case.”
3. Brief facts as stated in the memo of the lead
petitions are as under:
3.1 It is the case of the petitioners in this petition that
the present petitioners are blind and seeking protection
under Section 33 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation)
Act, 1995. It is further the case of the petitioners in
this petition that the present petitioners as well as other
similarly situated persons have preferred different
petitions before this Court, whereby on 01.12.2012, the
Court has passed common judgment and the present
petitioners have preferred Special Civil Application
No.6858 of 2010 and that the aforesaid commonjudgment passed by the Court was implemented. It is
further the case of the petitioners in this petition that
pursuant to the aforesaid order passed by this Court, the
present petitioners were appointed by the respondent by
Office Order dated 10.07.2013 and petitioner No.2-
Makwana Dipak Prahladbhai and petitioner No.1-Akabari
Kaushik Hansrajbhai have resumed the charge on
11.07.2013. Therefore, the petitioners are already
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appointed pursuant to the order passed by this Court,
whereby the petitions of the petitioners were allowed
and, therefore, the right, which has been created in
favour of the present petitioners pursuant to the
judgment of the Court and the aspect of seniority of the
petitioners is also required to be considered from the
date of appointment of other candidates. It is further the
case of the petitioners in this petition that as per the
advertisement dated 28.5.2010, the petitioners are
required to be awarded and notional seniority is required
to be given to the present petitioners and they are also
entitled for salary as the prevailing pay-scale of the
Government as the Government has not cared to
implement the provisions of the Disabilities Act in proper
manner and due to that, the present petitioners are
unnecessarily penalized.
3.2 It is further the case of the petitioners in this
petition that earlier petitions preferred by the petitioners
were with regard to appointment of primary teacher and
the Hon’ble High Court has given the mandate in favour
of the present petitioner by issuing appropriate direction
in judgment and order dated 01.11.2012. The petitioners’
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right to get an appointment is created and, therefore,
present petitioners have preferred the earlier petition as
the present petitioners are now already appointed and
are working in the fixed salary of Rs.5300/-, which is
required to be regularized after 05 years of completion of
service and at the same time the petitioners are required
to be given benefit of their notional seniority. Hence, the
present petition has been filed against the illegal action
of the State Authority in appointing present petitioners
from the year 2013 and consider his service and
seniority from the year 2013 and, hence, the present
petition is filed under Article 226 of the Constitution of
India. Hence, the present petitions have been preferred.
4. Heard Mr. Dwijen Joshi, learned advocate for the
petitioners and learned Assistant Government Pleader for
the respondent – State in the respective petitions.
5.1 Mr. Dwijen Joshi, learned advocate for the
petitioners has submitted that the present petitioners are
blind and seeking protection under Section 33 of the
Persons with Disabilities (Equal Opportunities, Protection
of Rights and Full Participation) Act, 1995 (hereinafter
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referred to as “the Disabilities Act”. He has further
submitted that the present petitioners as well as other
similarly situated persons have preferred different
petitions before this Court, whereby on 01.12.2012, the
Court has passed common judgment. He has further
submitted that the present petitioners have preferred
Special Civil Application No.6858 of 2010 and that the
aforesaid common judgment passed by the Court was
implemented. He has further submitted that pursuant to
the aforesaid order passed by this Court, the present
petitioners were appointed by the respondent by Office
Order dated 10.07.2013 and petitioner No.2-Makwana
Dipak Prahladbhai and petitioner No.1-Akabari Kaushik
Hansrajbhai have resumed the charge on 11.07.2013.
Therefore, the petitioners are already appointed pursuant
to the order passed by this Court, whereby the petitions
of the petitioners were allowed and, therefore, the right,
which has been created in favour of the present
petitioners pursuant to the judgment of the Court and
the aspect of seniority of the petitioners is also required
to be considered from the date of appointment of other
candidates. He has further submitted that as per the
advertisement dated 28.05.2010, the petitioners are
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required to be awarded and notional seniority is required
to be given to the present petitioners and they are also
entitled for salary as the prevailing pay-scale of the
Government as the Government has not cared to
implement the provisions of the Disabilities Act in proper
manner and due to that, the present petitioners are
unnecessarily penalized.
5.2 He has further submitted that earlier petitions
preferred by the petitioners were with regard to
appointment of primary teacher and the Hon’ble High
Court has given the mandate in favour of the present
petitioners by issuing appropriate direction in judgment
and order dated 01.11.2012. The petitioners’ right to get
an appointment is created and, therefore, present
petitioners have preferred the earlier petitions as the
present petitioners are now already appointed and are
working in the fixed salary of Rs.5300/-, which is
required to be regularized after 05 years of completion of
service and at the same time the petitioners are required
to be given benefit of their notional seniority. Hence, the
present petitions have been filed against the illegal
action of the State Authority in appointing present
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petitioners from the year 2013 and consider his service
and seniority from the year 2013 and, hence, the present
petitions are filed under Article 226 of the Constitution
of India.
5.3 He has further submitted that considering the
material available on the record and considering various
provisions of the Disabilities Act, more particularly,
Sections 33, 41 and 47, the action of the respondent
Authority is to be considered by this Court and
appropriate order may be passed by granting senior from
the date of the advertisement considering the date of
appointment of other candidates, who are appointed as
per the advertisement.
5.4 In support of his submissions, he has relied upon
the judgment of the Hon’ble Apex Court in the cases of
(i) C. Jayachandran vs. State of Kerala and Others
reported in MANU/SC/0271/2020, equivalent citation is
(2020) 5 SCC 230, and he has relied upon the
paragraphs 35 to 37 and 42 as well as (ii) Shri Vallabh
Glass Works Ltd. and Others Vs. Union of India and
Others reported in MANU/SC/0173/1984, equivalent
citation is (1984) 3 SCC 362, and he has relied upon
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paragraph 9 and has prayed that the present petitions
are required to be allowed.
6.1 Per contra, learned Assistant Government Pleader
for the respondent – State has strongly opposed the
request made by learned advocate for the petitioners and
has submitted that retrospective seniority cannot be
granted in the case of the present petitioners. Learned
AGP has referred to the affidavit-in-reply filed by the
respondent and prayer of the present petitioners to give
the seniority from dated 05.09.2011 is misconceived as
the petitioners are claiming to give the seniority to them
as per the appointment of other candidates, which is
given on 05.09.2011. Learned AGP has further submitted
that pursuant to the order dated 01.11.2012 passed by
this Hon’ble Court in Special Civil Application No. 6858
of 2010 and allied matters, the present petitioners were
appointed vide order dated 10.07.2013 on the post of
Vidya Sahayak.
6.2 Learned AGP has also submitted that the
petitioners have assumed the charge on 11.07.2013 and
appointment order dated 10.07.2013 is happily accepted
by the petitioners and the same was not challenged and,
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therefore, they have accepted the appointment order
dated 10.07.2013. Learned AGP has also submitted that
for all these years the petitioners are working on the
post of Vidya Sahayak pursuant to the appointment
order dated 10.07.2015 and after the lapse of almost
three years from the date of appointment i.e. 10.07.2013,
the present petitions are preferred in the year 2016 with
malafide intentions and ulterior motive. Learned AGP
has also submitted that in view of the order passed by
this Court, the petitioners were appointed by order dated
10.07.2013 and it cannot be considered at par with other
candidates who are appointed on 05.09.2011 as there is
substantial difference that the other candidates are
already selected and appointed and the present
petitioners are appointed pursuant to the order passed by
this Court. Learned AGP has also submitted that the
right and interest of the petitioners on the post of Vidya
Sahayak came into existence only after the appointment
order dated 10.07.2013 and, therefore, the seniority
cannot be claimed from 05.09.2011. Learned AGP has
also submitted that looking to the prayers of the
petitioners, they are claiming the retrospective senior,
which is not permissible under the law.
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6.3 In support of the submission, learned AGP has
referred to the judgment of the Hon’ble Apex Court in
the cases of (i) Ganga Vishan Gujrati and Other Vs.
State of Rajasthan and Others reported in (2019) 16
SCC 28, and more particularly, paragraph 45 is relevant
as well as (ii) Shiba Shankar Mohapatra and Others Vs.
State of Orissa and Others reported in (2010) 12 SCC
471, more particularly, paragraph 18 is relevant and
therefore, learned AGP has submitted that the present
petitioners have no case on merits and the petitions are
required to be dismissed.
7.1 I have considered the rival submissions made at the
bar. I have perused the pleadings of the parties as well
as documents available on the record. I have also
considered the various materials available on the record.
Prima facie, it transpires that the petitioners were
appointed as Vidya Sahayak pursuant to common CAV
judgment dated 01.11.2012 passed in Special Civil
Application No.6858 of 2010 and allied matters by this
Hon’ble Court and thereafter, pursuant to Office Order
dated 10.07.2013, they were appointed and have assumed
the charge 11.07.2013. Now, considering the prayers,
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which is sought by the petitioners to consider the
seniority from 05.09.2011 as per the appointment of
other candidates are prima facie found misconceived.
7.2 Now considering the contentions of the respective
parties, it is fruitful to refer the judgment relied upon
by learned advocate for the petitioners in the case of C.
Jayachandran (supra), and he has relied upon the
paragraphs 35 to 37 and 42, as under:
“…35. We have heard learned counsel for the parties and
find that the order passed by the Division Bench of the
High Court is not sustainable.
36. The earlier writ petition filed by the appellant was
allowed on 13 th September, 2010. The Division Bench of
the High Court has directed to re-cast the seniority
amongst the seven shortlisted candidates. The appellant was
one of them. The challenge to the said order by three
affected candidates remained unsuccessful when SLP was
dismissed by this Court on 8 th October, 2010. The SLP
was filed by the candidates who were granted benefit of
moderation of marks. Once the direction of the Division
Bench has attained finality, the appellant was entitled to
seniority as per the select list to be revised as per merit of
the candidates. In terms of Rule 6(2), the seniority is to be
determined by the serial order in which the name appearedPage 12 of 23
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in the appointment order. The argument of learned counsel
appearing for respondent No. 5 that the appellant was not
appointed by the same appointment order, therefore, the
appellant cannot claim seniority is not tenable. The
appellant was entitled to be appointed along with other
three candidates but because of the action of the High
Court in adopting moderation of marks, the appellant was
excluded from appointment. The exclusion of appellant from
appointment was on account of an illegal act by the High
Court which has been so found by the judgment dated 13th
September, 2010. Since the select list has to be revised, the
appellant would be deemed to be the part of the
appointment along with other candidates in the same select
list. As the actual date of appointment was on 24 th
February, 2011, the appellant cannot actually be treated to
be appointed on 30 th March, 2009 but is entitled to
notional appointment from that date and consequential
seniority.
37. In Sanjay Dhar, a three-Judge Bench of this Court held
as under:
“16. For the foregoing reasons the appeal is allowed. The
judgment under appeal is set aside. It is directed that the
appellant shall be deemed to have been appointed along
with other appointees under the appointment order dated 6-
3-1995 and assigned a place of seniority consistently with
his placement in the order of merit in the select list
prepared by J&K PSC and later forwarded to the Law
Department…”
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42. Still further, the Division Bench of the High Court has
completely erred in law in holding that the appellant has
delayed the challenge of his appointment vide order dated
22nd December, 2010. The appellant was appointed
pursuant to a direction issued earlier by the Division
Bench. The Division Bench has directed to re-cast the
select list and in such select list, the name of the appellant
appears at Sl. No. 3 and that of Badharudeen at Sl. No. 4.
The appellant has submitted the representation on 11 th
April, 2012 i.e. within 1 year and 2 months of his joining
and submitted reminder on 18 th September, 2014. It is
the High Court which has taken time to take a final call
on the representation of the appellant and other direct
recruits. The appellant was prosecuting his grievances in a
legitimate manner of redressal of grievances. Therefore, it
cannot be said that the claim of the appellant was delayed
as he has not claimed the date of appointment as 30th
March, 2009. The appellant having been factually appointed
vide communication dated 22nd December, 2010, he could
not assume or claim to assume charge prior to such offer
of appointment. The appellant has to be granted notional
seniority from the date the other candidates were appointed
in pursuance of the same select list prepared on the basis
of the common appointment process…”
7.2.1 Furthermore, it is also fruitful to refer another
judgment relied upon by learned advocate for the
petitioners in the case of Shri Vallabh Glass Works Ltd.
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and Others (supra), and he has relied upon paragraph 9,
as under:
“… 9. In regard to the relief of refund of excess duty paid
in respect of the other goods, the case stands on an
entirely different footing. This is a case where the
Department had assessed the duty payable by the
appellants under a wrong provision. The appellants were
obliged to pay the duty so assessed. They did not, no
doubt, question the assessments by taking a specific stand
as they had done earlier in the case of wired glass. The
appellants, however, questioned the validity of the levy only
on February 20, 1976 on the ground that tariff Item 23A
(1) of the First Schedule to the Act under which the duty
has been levied was not applicable to tile goods. While the
Department refused to accept the said plea, the High Court
has upheld it. In view of the decision of the High Court,
the fact that the appellant had paid duty in excess of what
they were bound in P law to pay should be now taken as
having been established. It is. not disputed that if the
appellants had filed a suit within the period of limitation
the excess amount would have become refundable by virtue
of section 72 of the Indian Contract Act. Section 17(1)(c) of
– the Limitation Act, 1963 provides that where in the case
of any suit or application for which a period of limitation
is prescribed under that Act, the suit or application is for
relief from the consequence of a mistake, the period of
limitation shall not begin to run until the plaintiff or
applicant had discovered it or could have with reasonablePage 15 of 23
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diligence discovered it. In the instant case the date on
which the mistake was discovered by the appellants or the
date on which the appellants could with reasonable
diligence have discovered it is not clear from the record
before us. No efforts also was made in the course of the
arguments urged on behalf of the appellants to establish it.
We have, therefore, to assume that on the date each
payment of excise duty made by the appellants in excess of
the proper duty payable by them, the appellants could have
discovered with due diligence that the duty claimed from
them was excessive. Under Article 113 of the Limitation
Act, 1963 which is applicable to this case, a suit for
recovery of such excess duty had to be filed within three
years from the date of payment to the Department. But the
appellants instead of filing a suit, first filed a writ petition
in Special Civil Application No. 1365 of 1976 on September
28, 1976 and that petition had to be withdrawn in view of
clause (3) of Article 226 of the Constitution as it stood
then because the alternative remedy by way of an appeal
was available. The appellants could, therefore, file the writ
petition out of which the appeal arises only after the
disposal of the revision petition by the Government of India
as mentioned earlier. lt is not disputed that the High
Courts have power, for the purpose of enforcement of
fundamental rights and statutory rights, to make
consequential orders for repayment of money realised by the
Government without the authority of law under Article 226
of the Constitution. This is an alternative remedy provided
by the Constitution in additional to but not in supersession
of the ordinary remedy by way of suit in the absence of
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any provision which would bar such a suit either expressly
or by necessary implication. While there are different
periods of limitation prescribed for the institution of
different kinds of suits by the limitation Act, 1963, there is
no such period prescribed by law in respect of petitions
filed under Article 226 of the Constitution. Whether relief
should be granted to a . petitioner under Article 226 of the
Constitution where the cause of action had arisen in the
remote past is a matter of sound judicial discretion
governed by the doctrine of laches. Where a petitioner who
could have availed of the alternative remedy by way of suit
approaches the High Court under Article 226 of the
Constitution, i. is appropriate ordinarily to construe that
any unexplained delay in the filing of the writ petition
after the expiry of the period of limitation prescribed for
filing a suit as unreasonable. This rule, however, cannot be
a rigid formula. There may be cases where even a delay of
a shorter period may be considered to be sufficient to
refuse relief in a petition under Article 226 of the
Constitution. There may also be cases where there may be
circumstances which may persuade the court to grant relief
even though the petition may have been filed beyond the
period of limitation prescribed for a suit. Each case has to
judged on its own facts and circumstance touching the
conduct of the parties, the change in situation, the
prejudice which is likely to be caused to the opposite party
or to the general public etc. In the instant case, the
appellants had in fact approached the High Court on
September 28, 1976 itself by filing Special Civil Application
No. 1365 of 1976 for directing repayment of the excess duty
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paid by them. But no relief could be granted in that
petition in view of the provisions of Article 226 of the
Constitution as it stood then and the petition had to be
withdrawn. Hence even granting that on the date of
making each payment of excise duty in excess of the proper
duty payable under law, the appellants should be deemed
to have discovered the mistake, all such excess payments
made on and after September 28, 1973 which would fall
within the period of three years prior to the date on which
Special Civil Application No. 1365 of 1976 was filed should
have been ordered to be refunded under Article 226 of the
Constitution. But the High Court declined to do so on
grounds of estoppel and acquiescence. While we do agree
that the appellants should not be granted any relief in
respect of payment made between October 1, 1963 and
September 27, 1973 which would fall beyond three years
from the date of the first writ petition filed in this case we
do not find it proper and just to negative the claim of the
appellants in respect of excess payments made after
September 28, 1973. In the instant case the appellants had
made excess payments on being assessed by the Department
and such payments cannot be treated as voluntary
payments precluding them from recovering them. (See Sales
Tax officer, Banaras & Ors. v. Kanhaiya Lal Mukundlal
Saraf. We do not also find that the conduct of the
appellants is of such a nature as would disentitle them to
claim refund of excess payments made in respect of goods
other than wired glass…”
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7.2.2 Furthermore, it is also fruitful to refer the
judgment relied upon by learned AGP in the case of
Ganga Vishan Gujrati and Other (supra), and more
particularly, paragraph 45 is relevant, as under:
“… 45. A consistent line of precedent of this Court follows
the principle that retrospective seniority cannot be granted
to an employee from a date when the employee was not
borne on a cadre. Seniority amongst members of the same
grade has to be counted from the date of initial entry into
the grade. This principle emerges from the decision of the
Constitution Bench of this Court in Direct Recruit Class II
Engineering Officers’ Association v State of Maharashtra14.
The principle was reiterated by this Court in State of
Bihar v Akhouri Sachindra Nath15 and State of
Uttaranchal v Dinesh Kumar Sharma16. In Pawan Pratap
Singh v Reeven Singh17, this Court revisited the
precedents on the subject and observed:
“45. … (i) The effective date of selection has to be
understood in the context of the service rules under which
the appointment is made. It may mean the date on which
the process of selection starts with the issuance of
advertisement or the factum of preparation of the select
list, as the case may be.
(ii) Inter se seniority in a particular service has to be
determined as per the service rules. The date of entry inPage 19 of 23
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a particular service or the date of substantive appointment
is the safest criterion for fixing seniority inter se between
one officer or the other or between one group of officers
and the other recruited from different sources. Any
departure therefrom in the statutory rules, executive
instructions or otherwise must be consistent with the
requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from
the backdate and if it is done, it must be based on
objective considerations and on a valid classification and
must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of
occurrence of the vacancy and cannot be given
retrospectively unless it is so expressly provided by the
relevant service rules. It is so because seniority cannot be
given on retrospective basis when an employee has not
even been borne in the cadre and by doing so it may
adversely affect the employees who have been appointed
validly in the meantime.”
This view has been re-affirmed by a Bench of three judges
of this Court in P Sudhakar Rao v U Govinda Rao…”
7.2.3 Additionally, it is also fruitful to refer another
judgment relied upon by learned AGP in the case of
Shiba Shankar Mohapatra and Others (supra), more
particularly, paragraph 18 is relevant, as under:
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NEUTRAL CITATION
C/SCA/10273/2016 JUDGMENT DATED: 22/07/2025
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“… 18. 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 belated stage should
be rejected inasmuch as it seeks to disturb the vested
rights of other persons regarding seniority, rank and
promotion which have accrued to them during the
intervening period. A party should approach the Court just
after accrual of the cause of complaint. While deciding the
said case, this Court placed reliance upon its earlier
judgments, particularly in Tilokchand Motichand v. H.B.
Munshi, AIR 1970 SC 898, wherein it has been observed
that the principle, on which the Court proceeds in refusing
relief to the petitioner on the ground of laches or delay, is
that the rights, which have accrued to others by reason of
delay in filing the writ petition should not be allowed to be
disturbed unless there is a reasonable explanation for delay.
The Court further observed as under:-
“A party claiming fundamental rights must move the Court
before others’ rights come out into existence. The action of
the Courts cannot harm innocent parties if their rights
emerge by reason of delay on the part of person moving
the court….”
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NEUTRAL CITATION
C/SCA/10273/2016 JUDGMENT DATED: 22/07/2025
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7.3 It clearly transpires that case of the retrospect
seniority cannot be considered. In the present case, on
the bare reading of the prayers, the case of the
petitioners is for retrospective seniority. Moreover, the
question of entertaining the petitions disputing long
standing seniority filed at the belated stage cannot be
considered as in the present case, the petitioners have
got appointment in the year 2013 and the present
petitions are filed in the year 2016 and, therefore, in my
view, the case of the petitioners have failed on this
ground that no prayer for granting retrospective seniority
can be considered in view of the judgment of the Hon’ble
Apex Court in the case of Ganga Vishan Gujrati and
Other (supra) as well as considering the aspect of delay
for which the judgment of the Hon’ble Apex Court in the
case of Shiba Shankar Mohapatra and Others (supra) is
relevant. There is no quarrel about the legal position in
view of the judgments of the Hon’ble Apex Court cited
at the bar by learned advocate for the petitioners but
the facts of those cases are different from the facts of
the present cases and the judgments cited by learned
AGP are more helpful in the facts of the present cases.
Hence, I am of opinion that the present petitions lack
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NEUTRAL CITATION
C/SCA/10273/2016 JUDGMENT DATED: 22/07/2025
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merits and are required to be dismissed.
8. In view of the above, the present captioned petitions
are dismissed with no order as to costs. Rule stands
discharged.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
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