Allahabad High Court

Mohd. Qasim vs Union Of India And 2 Others on 17 April, 2025

Author: Ashwani Kumar Mishra

Bench: Ashwani Kumar Mishra





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:56577-DB
 
Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 299 of 2025
 

 
Appellant :- Mohd. Qasim
 
Respondent :- Union Of India And 2 Others
 
Counsel for Appellant :- Sr. Advocate,Vishnu Shanker Gupta
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Vinod Diwakar,J.

1. Heard Sri Ashok Khare, learned Senior counsel for the appellant, Sri Shashank Shekhar Singh, learned counsel for the respondent-University, Sri P.N. Rai, learned counsel for the Union of India.

2. This appeal arises out of the judgment rendered by learned Single Judge in Writ-A No.2521 of 2009, whereby the writ petition is dismissed vide judgment dated 28.2.2025.

3. Undisputed facts, as are noticed by the learned Single Judge in para 2 of the judgment are that the appellant was appointed as Senior Library Attendant in the respondent-Aligarh Muslim University on 12.9.1969. He was then appointed on 9.2.1978 as a Semi-Professional Assistant and was confirmed on the such post in 1979. In 1985, University advertised certain posts of Professional Assistant and invited applications from eligible candidates. The petitioner also applied and was interviewed alongwith other candidates by a Selection Committee on 22.3.1985. 23 persons were granted promotion as Professional Assistant. The claim of the appellant, however, was not considered. This led to various petitions and representations filed by the petitioner as a result of which the matter was placed before the Visitor. An order has been passed by the Visitor on 29.1.1998. Pursuant to the order of the Visitor the University granted promotion to the appellant on 23.7.1998. This order recorded that the appellant would be entitled to all benefits as were available to other similarly placed persons mentioned in the order dated 27.3.1985. The clause by which parity was accorded to the appellant with other persons from 1985 was deleted. The matter was again brought to this Court. Ultimately the issue has been resolved and the appellant has been granted promotion since 1985 vide order passed by the University in the year 2007. The matter with regard to promotion to the post of Professional Assistant has thus attained finality.

4. The appellant filed writ petition in the year 2009 stating that persons who were promoted in 1985 were then accorded promotion to the post of Assistant Librarian in 1994 but the claim of the appellant was not accorded consideration. It is for this reason that the writ petition came to be filed before the learned Single Judge. In para 24 of the writ petition it was asserted that three other persons, namely Sayada, Rana Askari, Chaudhary Ahrarul Hasan and Aslam Mehdi placed at serial nos.1, 9 and 13 in the office memo dated 27.3.1985 were granted promotion to the post of Assistant Librarian. According to the appellant his claim was also liable to be considered once the University had found him entitled to be appointed on the post of Professional Assistant. The promotion to the post of Assistant Librarian was from the feeding cadre which included the post of Professional Assistant. The procedure for promotion has been laid down under an office order dated 3.1.1994. Following requirements for promotion have been outlined:-

"A). Good Academic Record with atleast a Master's degree with 55% marks in a subject other than Library Science.

B). Master's degree in Library Science with atleast 55% marks.

B.Lib.Sc. with Ph.D. Degree.

C). Should have worked as Professional Assistant in the University for at least 5 years."

5. Learned counsel for the University has opposed the claim of the appellant on two grounds. The first ground is that the requirement of five years working as Professional Assistant was not completed by the appellant and that the claim for Assistant Librarian was otherwise belatedly instituted, inasmuch as till 2009 no claim for promotion was put forth before the University.

6. So far as the objection with regard to working as five years on the post of Professional Assistant is concerned, we find that the appellant had applied for appointment to the post of Professional Assistant and the University pursuant to the directions issued by the Visitor has ultimately granted benefit of such promotion from 1985. It would, therefore, be too late in the day to say that the claim of the appellant was not liable to be considered for promotion on account of non-working on the post of Professional Assistant for a period of five years. Merely because promotion to the post of Professional Assistant was not allowed for long by the University, arbitrarily, the University cannot put premium on its own wrong and say that five years working on the post of Professional Assistant was not complete. We, moreover, find that the occasion for lodging a claim for promotion to the post of Assistant Librarian had arisen only after 2007 when the University vide its order dated 20.3.2007 granted the benefit of post and pay scale to the appellant from 1985.

7. Learned counsel for the respondent-University states that the appellant has attained the age of superannuation on 30.9.2009 at the age of 60 years. It is submitted that at such belated stage the claim lodged by the appellant has rightly been non-suited by the University. It is also submitted that learned Single Judge has dismissed the writ petition on valid grounds which requires no interference.

8. Sri Ashok Khare, learned Senior counsel for the appellant, however, submits that the entitlement to the post of feeding cadre has ultimately been accepted by the University on 20.3.2007. The University cannot take advantage of its own wrong, inasmuch as the entitlement of appellant to promotion from 1985 was denied and only after orders were passed by the Visitor and by the Writ Court that such benefit has been granted to him vide order dated 20.3.2007. Since the entitlement to the feeding cadre itself was not accorded consideration, as per law, by the University, there was no occasion for the appellant to have staked claim for promotion to the post of Assistant Librarian. It is only after 2007 when the University has not accorded consideration to appellant's claim for promotion that the writ petition came to be filed.

9. Attention of the Court has been invited to a detailed representation submitted by the appellant before the Vice-Chancellor of the University on 10.5.2008, wherein the appellant had prayed for consideration of his claim for promotion to the post of Assistant Librarian. Reminder to this letter was sent on 19.8.2008 and again on 1.11.2008. Since such claim was not considered, therefore, the writ petition had been filed in 2009. We, therefore, find substance in the submission that the University having belatedly granted benefit of promotion to the post of Professional Assistant, with effect from 1985, vide order passed in the year 2007, is not justified in denying consideration to the appellant's claim for promotion. The plea that the claim was belatedly instituted is thus not made out on facts.

10. Learned counsel for the appellant has also placed reliance upon the judgment of the Supreme Court in Union of India & Ors. Vs. Chaman Rana (2018) 5 SCC 798, wherein the Court has observed as under in para 8 and 9:-

"8. Manifestly, the cause of action first arose to the respondents on the date of initial supersession and again on the date when rejection of their representation was communicated to them, or within reasonable time thereafter. Even if the plea based on Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] be considered, the cause of action based thereon accrued on 12-5-2008. There has to be a difference between a cause of action and what is perceived as materials in support of the cause of action. In service matters, especially with regard to promotion, there is always an urgency. The aggrieved must approach the Court at the earliest opportunity, or within a reasonable time thereafter as third-party rights accrue in the meantime to those who are subsequently promoted. Such persons continue to work on the promotional post, ensconced in their belief of the protection available to them in service with regard to seniority. Any belated interference with the same is bound to have adverse effect on those already promoted affecting their morale in service also. Additionally, any directions at a belated stage to consider others for promotion with retrospective effect, after considerable time is bound to have serious administrative implications apart from the financial burden on the Government that would follow by such orders of promotion.

9. As far back as in P.S. Sadasivaswamy v. State of T.N. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22] , considering a claim for promotion belated by 14 years, this Court had observed that a period of six months or at the utmost a year would be reasonable time to approach a court against denial of promotion and that it would be a sound and wise exercise of discretion not to entertain such claims by persons who tried to unsettle the settled matters, which only clog the work of the court impeding it in considering genuine grievances within time in the following words: (SCC p. 154, para 2)

?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. It is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time. 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. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the court. It clogs the work of the court and impedes the work of the court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal.?"

11. Having given our thoughtful consideration to the judgment of the Supreme Court in Chaman Rana (supra), we find that the observations of the Court are not applicable in the facts of the present case, inasmuch as the default on account of which the appellant's claim for promotion was not considered is entirely attributed to the University. Once that be so, and a claim was instituted as soon as occasion arose for such purposes, we do not find that there was any delay on part of the appellant which dis-entitle him from promotion.

12. Sri Ashok Khare, learned Senior counsel for the appellant further submits that if the claim for promotion is accepted the appellant would be entitled to continue in service till the age of 62 years and, therefore, a direction be also issued to the University to release salary for this period. This part of the relief cannot be extended to the appellant, inasmuch as the appellant has actually retired at the age of 60 years. We are of the view that equity demands that the claim of appellant for promotion be accorded consideration, in accordance with law, and such benefits be allowed to him notionally since he has actually not worked. Claim of salary between 60 to 62 years is, therefore, declined.

13. The claim of appellant for promotion was liable to have been examined as per the parameters fixed by the University in its order dated 3.1.1994. We are also of the view that such claim for promotion ought to have been accorded consideration by the University on its own, particularly as no provision is shown whereunder a specific application had to be moved by the appellant for seeking promotion. In such circumstances, when the appellant has been promoted on the post of Professional Assistant with effect from 1985, which is the post in the feeding cadre from which promotion was to be made to the post of Assistant Librarian, the claim of the appellant is liable to be considered, in accordance with law. In the event, such claim is accepted the notional benefit is liable to be extended to the appellant. He would not be entitled to any monetary benefit for the period he remained in employment but on the strength of orders passed notionally (if the claim is ultimately accepted) the retiral benefits in the form of pension etc. would be recalculated. This exercise would be undertaken, within a period of 3 months, from the date of presentation of certified copy of this order before the Registrar.

14. The judgment of the learned Single Judge dated 28.2.2025 to such extent, stands modified.

15. The special appeal is, accordingly, disposed of.

Order Date :- 17.4.2025