Vikram Singh vs State Of U.P. & Others
2018 Latest Caselaw 4479 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
Case :- WRIT - A No. - 66009 of 2008
 

 
Petitioner :- Vikram Singh
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Ajy Kr. Sharma,A.K.Srivastava,Prateek Tyagi,S.K. Shukla
 
Counsel for Respondent :- C.S.C.,Archana Singh
 

 
Hon'ble Suneet Kumar,J.

1. Heard learned counsel for the petitioner, Sri J.S. Baghel holding brief of Ms. Archana Singh, learned counsel for the respondent and Sri K.R. Singh, learned Additional Chief Standing Counsel for the State.

2. Petitioner was appointed on the post of peon at District Treasury Office, Muzaffarnagar. His service was confirmed in 1992. On the promotion of Sri Mange Ram on 13 February 1996, one post of Assistant Treasury Accountant Grade-II1 (earlier nomenclature "Junior Clerk") fell vacant. Petitioner claims to possess the qualification and experience required under Rule 5(2) of the Uttar Pradesh Treasury Clerk Grade Services Rules, 19782. It appears that the claim of the petitioner for promotion was not considered, consequently, petitioner filed a petition being Writ Petition No. 34956 of 2008, which was disposed of on 31 July 2008 directing the District Magistrate-second respondent to decide the representation. The second respondent by the impugned order dated 10 October 2008 rejected the representation of the petitioner, inter alia, contending that the fourth respondent, Km. Vijay Arora, was appointed under the Dying-in-Harness Rules and the claim of the petitioner against the post is not genuine and lawful. Aggrieved, petitioner instituted the instant writ petition in December, 2008. The fourth respondent was impleaded on 20 July 2012, thereafter, by way of amendment, vide order dated 9 August 2012, an additional prayer and pleadings was incorporated seeking quashing of the order dated 21 October 1997 passed by the District Magistrate, transferring the fourth respondent on the post of Assistant Accountant and the consequential order dated 29 October 1997 passed by the Senior Treasury Officer, Saharanpur, on assumption of charge by the fourth respondent on the transferred post.

3. Learned counsel for the petitioner submits that petitioner was eligible for promotion on the post of Assistant Accountant from the date of acquiring the minimum qualification in 1991; petitioner was continuously approaching the second respondent but nothing was done, consequently, he instituted the writ petition in 2008, which was disposed of and pursuant, the impugned order came to be passed by the second respondent. Petitioner got the writ petition amended in 2012 impleading the fourth respondent and assailing her appointment on the post of Assistant Accountant by way of transfer. It is further urged that under the Rules 1978, post of Assistant Accountant is to be filled by way of promotion from amongst group-D employees and not by direct recruitment; petitioner being fully eligible was entitled to be promoted. It is, therefore, urged that petition be allowed and the impugned order be set aside.

4. Learned counsel appearing for the fourth respondent submits that fourth respondent was appointed on compassionate basis on 6 January 1994 on the post of junior clerk in the pay scale Rs.950-1500 in the Collectorate, Saharanpur, thereafter, fourth respondent was transferred to the Treasury Office, in the Collectorate on 1 December 1995 on the commensurate post. Upon acquiring qualification Intermediate (Commerce), fourth respondent was transferred to the post of Assistant Accountant on 23 October 1997. There is no difference in the pay scale except the nomenclature of the post and in view of Rule 14-B of the Financial Handbook (Vol. II to IV) the second respondent being the competent authority was authorized to interchange/transfer the employee within the Collectorate/Treasury Office. It is further urged that the writ petition is highly barred by laches and in the meantime on 23 June 2014, upon completing twenty five years of service, fourth respondent was promoted to the next higher post of Accountant. The petitioner slept over his rights, the relief claimed by him after a lapse of 16 years is a stale and dead claim which cannot be granted at this stage to nonsuit the fourth respondent. The writ petition is liable to be dismissed on this ground alone.

5. Learned Standing Counsel appearing for the first and second respondents submits that writ petition is highly barred by laches, the facts brought on record at the time of instituting the writ petition and while seeking amendment was known to the petitioner; petitioner had acquiesced to the transfer and appointment of the fourth respondent; further, fourth respondent in the meantime has been promoted to the next higher post of Accountant, therefore, at this stage it would not be appropriate to grant the relief sought by the petitioner. It is, further, urged that the petitioner as on date is not eligible for promotion in view of Rule 32 of U.P. Group 'D' Employees Service Rules, 1985 which mandates that for the post of clerk, only those Group-D employees possessing CCC+ computer certificate and having knowledge of computer typing (Hindi and English) and fulfilling other conditions can be promoted. It is not the case of the petitioner that he fulfills the requisite qualification. The petition being devoid of merit is liable to be dismissed.

6. Rival submissions fall for consideration.

7. The question that falls for consideration is as to whether petitioner is entitled to the reliefs, in particular, promotion on the post of Assistant Accountant at this belated stage.

8. It is not in dispute, inter se, parties that Sub-Rule (2) of Rule 5 of the Rules, 1978 govern the appointment on Class-III post in the Treasury Office under the promotion quota. Petitioner became eligible for being considered for promotion in 1996, upon the promotion of Sri Mange Ram to the post of Assistant Accountant. The fourth respondent was given compassionate appointment on the post of junior clerk on 6 January 1994 in the Collectorate, thereafter, she was transferred and posted as Assistant Accountant on 23 October 1997 carrying the same pay scale. Upon completion of twenty five years in service, she was promoted to the post of Accountant on 13 June 2014. It is not the case of the petitioner that the fourth respondent is not eligible to be appointed on the post of Assistant Accountant. The sole contention of the learned counsel for the petitioner is that the fourth respondent could not have been appointed under the Dying-in-Harness Rules on a post to be filled up by way of promotion in terms of Rule 5(2) of Rules, 1978. On specific query, the learned counsel for the petitioner does not dispute that the fourth respondent was appointed as junior clerk under the Dying-in-Harness Rules in the Collectorate, which is a direct recruitment post, thereafter, she was transferred and posted as Zamindari Abolition Clerk in the Treasury Office of the Collectorate, subsequently, petitioner was transferred on the post of Assistant Accountant. It is not the case of the petitioner that the fourth respondent was appointed Assistant Accountant under the Dying-in-Harness Rules on a post under the promotion quota.

9. The cause of action admittedly arose to the petitioner in 1996 when the post fell vacant or at the best in October 1997 when the fourth respondent was transferred to the post of Assistant Accountant. However, petitioner slept over his right and instituted the writ petition in 2008 after lapse of 12 years contending that he was continuously approaching the authorities by filing successive representation, which fell on deaf ears. The petition came to be disposed of directing the competent authority to decide the representation of the petitioner. The representation came to be rejected by the impugned order. The instant writ petition was filed assailing the impugned order in December 2008. The fourth respondent was not made a party to the lis, neither her transfer and posting was challenged. It was done four years thereafter in 2012. In the meantime, fourth respondent has been promoted to the next higher post of Accountant in 2014.

10. The High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. The Court may decline to intervene and grant relief in exercise of its writ jurisdiction because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. Representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore3. (Refer: Karnataka Power Corporation Ltd. and another vs. K. Thangappan and another4)

11. In State of U.P. Vs. Raj Bahadur Singh & another5, the Supreme Court observed that "there is no time limit for filing the writ petition. All that the Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to the relief claimed by him."

12. The issue of delay in filing a writ petition was considered in Smt. Sudama Devi Vs. Commissioner & others6, wherein, Supreme Court observed:

"There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of latches and that would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner."

13. In Northern Indian Glass Industries Vs. Jaswant Singh & others7, Supreme Court cautioned that the High Court cannot ignore the delay and latches in approaching the writ court and there must be satisfactory explanation by the petitioner as how he could not come to the court well in time. A similar view was reiterated in Printers (Mysore) Ltd. Vs. M.A. Rasheed & another8, wherein, the Supreme Court held that the High Court should have dismissed the writ petition on the ground of delay and laches.

14. The doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy. The validity of that defence must be tried upon principles substantially equitable. (Refer: Moon Mills Ltd. v. Industrial Courts9 and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service10)

15. It is now well settled that filing of series of representations cannot extend the period of limitation to condone the laches on the part of the petitioner. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. It is well known that law leans in favour of those who are alert and vigilant. (Refer: State of T.N. v. Seshachalam11)

16. In Karnataka Power Corporation Ltd. vs. K. Thangappan12, it was held that series of representation cannot extend the period of limitation to condone the laches on the part of the petitioner.

17. Reply to the representation relating to matter which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim. (Refer: C. Jacob v. Director of Geology and Mining and another13)

18. Rejection of representation by the authority pursuant to a direction of the Court does not give the aggrieved a fresh cause of action. The issue of delay/laches/limitation should be considered with reference to the original cause of action. The court's direction to consider the representation would not revive a dead or stale claim or dispute.

19. Supreme Court had occasion to examine such situations in Union of India v. M.K. Sarkar14. The Court held as follows:

"The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. x x x x x When a belated representation in regard to a 'stale' or 'dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the 'dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches."

20. Seven Judge Bench in S.S. Rathore vs State of Madhya Pradesh15 while dealing with the cause of action in a case of service dispute in view of the special limitation prescribed under Section 21(1)(3) of the Administrative Tribunal Act, 1985 and Article 58 of the Limitation Act, 1963, inter alia, held that the repeated representation would not give rise to cause of action nor would condone the delay.

21. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. But delay or laches is one of the factors which is to be borne in mind by the High Court when it exercises its discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports16.

22. There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and Kashmir and another17.

23. Person aggrieved by the promotion order must approach the Court expeditiously. In P.S. Sadasivasway v. State of Tamil Nadu18, it has been laid down that:

"2. ... A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. .............. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters."

24. The Supreme Court in State of Uttaranchal & another vs Shiv Charan Singh Bhandari & others19 reiterated the principle and denied relief to the appellant for promotion on the ground of delay and laches. The Court on fact held that if senior incumbents are eligible as per the rules of promotion and there is no justification to ignore them, the employer cannot extend the promotional benefit to a junior at his whim or caprice. However, on facts the court denied the relief to the senior as he had failed to challenge the promotion granted to junior employees at relevant time and had approached the Tribunal after two decades. Submission of learned counsel that the aggrieved person was giving repeated representations would not be a ground to give rise a fresh cause of action, cause of action arose when the junior employee was promoted.

25. Petitioner has approached this Court under Article 226 of the Constitution of India which is a discretionary jurisdiction and having due regard to the facts and circumstances of the case in hand, in my opinion, it would not be appropriate to non-suit the fourth respondent at this stage as she has earned subsequent promotion in 2014. Petitioner assailed the transfer/promotion order of the fourth respondent on the post of Assistant Accountant after a lapse of 16 years. It is not the case of the petitioner that these facts were not in his knowledge, rather, petitioner slept over his right and had acquiesced to the transfer of the fourth respondent made way back in 1997, since than much water has flown. Petitioner was not vigilant in agitating his right and claim. The plea of repeated representations falling on deaf ears is not sufficient to explain the delay in approaching the Court. The rejection of the representation pursuant to the direction of the Court does not give rise to a fresh cause of action.

26. Having due regard to the facts of the case, the Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India, declines to interfere with the impugned orders.

27. The writ petition is, accordingly, dismissed.

28. No order as to costs.

Order Date :- 20.12.2018

Mukesh Kr.