Delhi High Court
Ss Nirmal vs Uoi And Ors. on 28 July, 2011
Author: Sanjiv Khanna
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ REVIEW APPLICATION No. 395/2011 in W.P.(C)
3983/2011
Date of order: 28th July, 2011
SS NIRMAL ..... Petitioner
Through Mr. Bani Singh, Advocate.
versus
UOI AND ORS. ..... Respondents
Through Mr. Jatan Singh, CGSC & Mr.
Ashish Kumar Srivastava, Advocate for
UOI.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
Two errors or mistakes pointed out in paragraphs 1, 2 and
5 of the review application filed by the applicant-petitioner are
required to be corrected. Writ Petition (Civil) No. 6708/2007 was
field by the respondent and not by the petitioner and that the
date of retirement of the petitioner is 31st January, 2003 and not
31st March, 2003. Accordingly paragraphs 2, 4 and 5 in the
order dated 2nd June, 2011 will be substituted as under:
"2. The tribunal on 29th March, 2006 had
dismissed the original application in limine
and thereafter the review application filed by
the petitioner was allowed. Being
dissatisfied, the respondent approached this
Court in W.P. (C) No. 6708/2007.
R.A. No. 395/2011 in W.P. (C) No. 3983/2011 Page 1 of 6
3. XXXXX
4. It is noticeable from the factual
narration that the petitioner had retired on
31st January, 2003. On a perusal of the order
passed by the tribunal, it is perceivable that
the petitioner was promoted to the grade of
EE (Civil) on regular basis vide office order
dated 3rd November, 1999 based on his
empanelment for promotion. In the original
application, a contention was advanced that
though the date of regular promotion of the
petitioner is 3rd November, 1999, yet he
should have been granted promotion from
the deemed date i.e. 31st March, 1995. The
tribunal relying on the decisions of the
coordinate Bench came to hold as follows:-
"14. We have heard the
submissions of both sides and
noted the factual situation. We are
left in no doubt that action of the
respondents is in accordance with
the rules and the claim for regular
promotion can only be considered
after such promotion is made in
accordance with the prescribed
procedure. It is now the well-settled
position that ad hoc promotion
cannot entitle the applicant for
seniority or be treated as regular
promotion. Consequently, we find
ourselves in full agreement with the
well-considered decision of
Coordinate Bench in the earlier OA
Nos.779/2006, 1626/2006 &
1349/2006, the facts being similar.
Finding no justification in the
grounds raised by the applicant,
OA is dismissed. No costs."
5. The singular question that emerges for
R.A. No. 395/2011 in W.P. (C) No. 3983/2011 Page 2 of 6
consideration is whether the petitioner would
have been conferred the benefit of
promotion with effect from 1995. The
petitioner stood superannuated on 31st
January, 2003. He visited the tribunal in the
year 2006. Thus, the claim of promotion was
put forth after a span of 11 years. In or
considered opinion, the said grievance is hit
by the doctrine of delay and laches. This
Court in LPA No.249/2003, MCD Vs. Sudhir
Kumar has held thus:-
2. The aforesaid corrections are directed to be carried out
and the corrected order dated 2nd June, 2011 will be placed on
record and uploaded on the internet.
3. The aforesaid corrections will not result in any difference
to the final decision. The writ petition was dismissed on the
ground of delay and laches. It may be noted that the applicant-
petitioner had visited the tribunal in the year 2006 after he had
superannuated on 31st January, 2003. He had claimed that he
should have been promoted in the grade of Executive Engineer
(Civil) (EE, for short) on regular basis with effect from 1995. It
was accordingly held that the claim for promotion was being put
forward after a span of eleven years.
4. In the application for review a new and different stand has
been taken by the applicant-petitioner that he was granted ad
hoc promotion to the post of Executive Engineer vide order
R.A. No. 395/2011 in W.P. (C) No. 3983/2011 Page 3 of 6
dated 29th March, 1993 and this ad hoc promotion was
regularized vide order dated 3rd November, 1999. However, by
another order dated 28th September, 2001, it was given effect to
from 31st March, 1995. Subsequently, by another office
memorandum dated 10th November, 2004 it was changed from
31st March, 1995 to 3rd November, 1999 and accordingly, the
applicant-petitioner thereafter approached the tribunal in 2006.
It is further submitted that in September, 2005, the applicant-
petitioner had come to know that his juniors had been given
upgradation to non-functional Junior Administrative Grade in the
pay scale 12000-16500. It is stated that EEs are entitled to the
said upgradation/promotion after they have completed five years
of regular service in the cadre of EE(Civil). Thus, in case the
applicant-petitioner is treated as regular EE(Civil) with effect
from 31st March, 1995, he was eligible for upgradation/promotion
to the non-functional Junior Administrative Grade before his
retirement on 31st January, 2003 as he had completed five years
of regular service. The applicant-petitioner has also relied upon
the decision dated 5th December, 2008 passed by this Court in
W.P. (C) No. 2562/2002 and subsequent promotion order
passed by the respondent in other cases.
R.A. No. 395/2011 in W.P. (C) No. 3983/2011 Page 4 of 6
5. The aforesaid contentions though attractive do not merit
re-consideration/review and do not make any difference to the
final outcome. In the writ petition filed by the petitioner on or
about 25th May, 2011, the orders dated 9th July, 2008 and 4th
November, 2008 passed by the Central Administrative Tribunal,
Principal Bench in OA No. 693/2006 and RA No. 147/2008 were
made subject matter of challenge. As per the applicant-
petitioner himself he was appointed to officiate as EE(Civil)
temporarily on ad hoc basis vide order dated 3rd November,
1999 with the direction that a separate order would follow with
regard to the date of regular promotion. Separate order was
issued under office order dated 28th September, 2001 where the
date of regular promotion was shown as 31st March, 1995. The
applicant-petitioner claims that he is entitled to be considered for
upgradation/promotion to the non-functional Junior
Administrative Grade after completion of five years of regular
service. As per the applicant-petitioner, he had completed the
said five years in terms of office order dated 28th September,
2001 in the year 2000. Therefore, there was delay of nearly six
years in approaching the tribunal as the original application was
filed in 2006. In fact, the applicant-petitioner did not make any
R.A. No. 395/2011 in W.P. (C) No. 3983/2011 Page 5 of 6
such claim till the date of his retirement on 31st January, 2003.
Memorandum dated 10th November, 2004 that the applicant-
petitioner was promoted as EE(Civil) with effect from 3rd
November, 1999 did not make him better off. In these
circumstances, we feel that the delay and laches on the part of
the applicant-petitioner disentitles him to any relief.
6. In view of the aforesaid, we partly allow the present
application but the end result will be the same as the writ petition
has been rightly dismissed on the ground of delay and laches.
SANJIV KHANNA, J.
CHIEF JUSTICE
JULY 28, 2011
VKR
