Allahabad High Court

Sunil Kumar Pal vs State Of U.P. Thru. Its Prin. Secy. ... on 23 May, 2025

Author: Rajesh Singh Chauhan

Bench: Rajesh Singh Chauhan





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:30951
 
Court No. - 3
 

 
Case :- WRIT - A No. - 5763 of 2025
 

 
Petitioner :- Sunil Kumar Pal
 
Respondent :- State Of U.P. Thru. Its Prin. Secy. Medical Edu. Deptt. Lko. And 3 Others
 
Counsel for Petitioner :- Dineshja Pati Tripathi L,Dinkar Tiwari
 
Counsel for Respondent :- C.S.C.,Shubham Tripathi
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Dineshja Pati Triapthi L, learned counsel for the petitioner, Dr. Uday Veer Singh, learned Addl. C.S.C. for the opposite party no. 1 and Sri Shubham Tripathi, learned counsel for the opposite parties no. 2,3 and 4.

2. By means of this petition the petitioner has prayed following relief :

"(i) Issue a writ, order or direction in the nature certiorari quashing the order dated 23.09.2021 passed by the Director. SGPGIMS as well as order dated 04.02.2023 passed by the Joint Director (Administration), SGPGIMS, Lucknow contained in Annexure No. and Annexure No. respectively.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties to consider the case of petitioner for promotion from the post of Cleaner to the post Driver Grade - II with effect from the date of attaining the eligibility i.e. 10.03.2001 as per procedure laid down by the Governing Body of the Respondent Institute in its meeting dated 03.01.1997.

3. At the very outset Sri Shubham Tripathi has raised objection regarding maintainability of the writ petition saying that the petitioner is claiming promotion on the post of Driver Grade-II w.e.f. 10.3.2001 and the explanation of the aforesaid inordinate delay claiming such relief about 24 years has been explained by the petitioner saying that he kept on representing the competent authority since long time. The first representation preferred by the petitioner is of 2003, thereafter he preferred couple of representations in year 2018, 2019, 2020, 2021. Sri Shubham Tripathi has also informed that the petitioner has also approached the Visitor in the years 2018 and pursuant to the directions being issued by the Visitor of the institute the Director has passed the order dated 23.9.2021. The aforesaid order is also about four years old but this petition has been filed in the year 2025.

4. Sri Shubham Tripathi has also submitted that the promotion on the post of Driver Grade-II from the post of Cleaner is done on the principles of seniority-cum-merit and the petitioner has been promoted on the post of Driver Grade-II in the year 2007. Sri Tripathi has placed reliance on the judgment of the Apex Court in re: C. Jacob vs. Director of Geology and Mining and Anr. reported in (2008) 10 SCC 115.

5. Learned counsel for the petitioner has stated that despite the fact that the petitioner was fully eligible to be promoted on the post of Driver Grade-II and the promotion in the similar circumstances are being made but the candidature of the petitioner has not been considered for such promotion and the representations of the petitioner have been turned down in a mechanical manner.

6. Having heard learned counsel for the parties and having perused the material available on record it emerges that the petitioner is claiming his promotion on the post of Driver Grade-II w.e.f. 10.3.2001 but the aforesaid promotion has been given to the petitioner in the year 2007 so the petitioner could have challenged the action of the opposite parties in the year 2001 itself when he should have been promoted on the post of Driver Grade-II, as per his contention or at least in the year 2007 when he was given promotion. In the impugned order dated 23.9.2021 the opinion of the counsel indicated that the promotion on the post of Driver Grade-II is done through departmental test by applying criteria i.e. seniority-cum-merit, therefore, the notional promotion on a post which is a merit based and dependable on availability of vacancy appears to be non-sustainable and considering the aforesaid opinion the impugned order has been passed. The petitioner could have assailed the order dated 23.9.2021 immediately after the aforesaid order but the petitioner took four years to challenge the aforesaid order, so keeping in a view the law laid down by the Apex Court in re: C. Jacob (supra), I am also of the considered opinion that the repeated approach by the petitioner to the respondents for redressal of his grievance can not explain the laches inasmuch as any such order which was sought to be challenged by the petitioner should have been challenged within reasonable time. For the sake of convenience the relevant portion of the aforesaid judgment is being quoted herein below :

"8. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation.

9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.

10. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.

In this regard, the Court may also consider the judgment of the Hon'ble Supreme Court in the case of Karnataka Power Corporation Limited and Ors Vs.K. Thangappan and Ors reported in (2006) 4 SCC 322 wherein the Hon'ble Supreme Court has held as under:-

6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their 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 Exports : [1969]2SCR861 . Of course, the discretion has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd etc. 1874 (5) P.C. 221 was approved by this Court in Moon Mills Ltd. v. Industrial Courts AIR 1967 SC 1450 and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service : [1969]1SCR808 . Sir Barnes had stated:

Now, 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. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. 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.

8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in R.M. Bose v. Union of India : [1970]2SCR697 that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.

9. It was stated in State of M.P. v. Nandlal [1987] 1SCR1 that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and 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. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.

10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore AIR 1967 SC 973. This was reiterated in R.N. Bose's case (supra) by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. P. Samantaraj AIR 1976 SC 1617 making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar AIR1976SC1639 also)."

7. Keeping in view the judgment of Apex Court in C. Jacob (supra) and the fact that the petitioner could have approached this Court in the year 2007 when the petitioner was promoted to the post of Driver Grade-II taking plea that he should have been promoted in the year 2001 but the petitioner has approached this Court after about four years from the impugned order dated 23.9.2021 and after about 24 years from the date when the petitioner became eligible for promotion as per learned counsel for the petitioner, therefore, the stale claim of the petitioner may not be adjudicated after a substantial delay.

8. Accordingly, in view of the aforesaid dictum of Apex court and the facts of the case, the writ petition is dismissed.

[Rajesh Singh Chauhan, J.]

Order Date :- 23.5.2025