Delhi High Court

Ramphal, Store Petty Officer vs Union Of India & Ors. on 17 February, 2012

Author: Anil Kumar

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.980/2012

%                        Date of Decision: 17.02.2012

Ramphal, Store Petty officer                                .... Petitioner

                       Through Mr. Sukhjinder Singh, Advocate

                                 Versus

Union of India & Ors.                                   .... Respondents

                       Through Mr. Satya Saharawat, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

1. The petitioner has challenged the order dated 22nd July, 2011

passed by the Armed Force Tribunal, Principal Bench, New Delhi in

OA No.450/2010, titled as „Ramphal, Store Petty Officer v. Union of

India & Ors.‟, dismissing his application seeking the quashing of

orders dated 12th June, 2009, 23rd September, 2009 and 29th

January, 2010 and declining his prayer of declaring him to have

passed out as Store Assistant-I (SA-I) instead of Store Assistant-II (SA-

II) and allowing him to maintain his original seniority w.e.f. 19th May,

1988 when he had enrolled.

2. The Tribunal had held that since the petitioner had claimed the

seniority viz-a-viz other persons, who had not been impleaded before

the Tribunal, it could not examine the averments of the petitioner

seeking seniority above them. The Tribunal had also declined to grant

the petitioner seniority over the non-impleaded individuals, in view of

the averments made by the respondents in their counter affidavit that

the other individuals are direct entry MER Sailors while some of them

had changed their branch later and were thus governed by NI 2/96.

The prayer of the petitioner that he be granted seniority from his

original date of enrollment i.e. 19th May, 1988 was declined also on

the ground that it suffers from delay and laches. It was held that the

petitioner had made various attempts to revise the date of seniority

however at no point of time had the petitioner sought the date of

seniority w.e.f. 19th May, 1988. In the circumstances, it was

concluded that no injustice had been caused to the petitioner by

fixing his basic seniority as 24th December, 1990 and that he had not

been brought down by posting him out as SA-II and also that he was

not given seniority incorrectly and thus, the Tribunal declined to

interfere with orders of the respondents.

3. The brief relevant facts are that the petitioner was enrolled in

the Indian Navy on 19th May, 1988. He became qualified after training

to become a Cook I on 23rd May, 1990. Meanwhile, the petitioner had

asked for a change of his trade for becoming a Store Keeper.

Consequently, the petitioner was detailed for the MER test for two

weeks in December, 1989, which was required by all the sailors who

had applied for the change of their branches.

4. The petitioner qualified the MER test and about it he was

intimated by letter dated 30th December, 1989. He was thereafter sent

for trial by letter dated 11th September, 1990 to assess his suitability

as a Store Keeper which was carried out at INS Valsura. Ultimately,

the petitioner was attached to the Ships Electrical Department from

27th March, to 30th June, 1990.

5. The petitioner again sought a change of branch on 20th August,

1990 which was countersigned by his Commanding Officer on 11th

September, 1990. Thereafter, the petitioner was asked to attend the

INS Hamla from 14th February, 1991 to 22nd June, 1991 for change of

his trade to that of Store Keeper Assistant. As per Naval Instructions

2/S/1961 Para 20 (7) he was accorded eight weeks of antedated

seniority.

6. Later on, the petitioner approached his unit on 8th January,

1993 for fixing of his seniority, as according to the petitioner his

antedated seniority had not been granted. Pursuant to the

representation made by the petitioner, he was given seniority w.e.f.

24th December, 1990.

7. From 12th February, 1993 when he was given the seniority from

24th December, 1990, up until he approached the Tribunal, the

petitioner did not take any steps for further antedating his seniority to

9th July, 1990 instead of 24th December, 1990. The petitioner,

thereafter, continued to make representations on failure to get any

relief as claimed by him. He then filed an original application before

the Armed Forces Tribunal, Principal Bench, New Delhi and raised

three issues. The first being fixation of seniority on transfer. The

contention of the petitioner was that he was governed by the Para 272

(5) of the Navy Regulation Part-III read with Para 22/7 of NI 2/S/61

and that he was entitled to get the basic date in the new branch from

the date he qualified for the first course which was held in December,

1989.

8. The petitioner also agitated that he should have been declared

passed out as SA Class I since there is no provision in the Navy to

revert a Seaman to a lower grade from Sailor Class I to Sailor Class II.

The petitioner also claimed that similarly situated batch mates i.e.

No.174908W, 174696F and 174891F at INS Chilka were given basic

seniority w.e.f. 9th July, 1990 whereas, the petitioner has been given

seniority only w.e.f. 24th December, 1990.

9. The petition was contested by the respondents contending, inter-

alia, that the petitioner was enrolled on 19th May, 1988 as a Cook in

pay group C as a "Non Metric Entry Recruit" and that he had been

upgraded as a Cook (O)-I on 23rd May 1990. For upgrading himself,

the petitioner applied to become a "Metric Entry Recruit" for which he

was required to qualify the Metric Entry Recruitment examination

(MER) at INS Chilka. The petitioner qualified the MER test in

December, 1989 and thereafter, he underwent a trade suitability trial

at INS, Valsura from 27th March, 1990 to 30th June, 1990 whereafter

the petitioner applied for a change of branch on 20th August, 1990

and thus he was detailed for the conversion course at INS Hamla on

18th February, 1991 to 22nd June, 1991 after which he was finally

designated as SA-II. The respondents disclosed that since the

petitioner was finally designated as SA-II, after giving 8 weeks of

antedated seniority, it was fixed as from 24th December, 1990.

10. The pleas and contentions of the petitioner were also opposed on

the ground that the petitioner cannot compare himself with the other

persons as the individual named by the petitioner were direct entry

"MER" recruits and they had not undergone any change of branch.

While the other individuals referred to by the petitioner were those

who had obtained transfer in 2003 and thus they were governed by NI

2/96.

11. The pleas and contentions of the petitioner were also objected on

the ground that the petitioner was found guilty of misappropriation of

Govt. property on 31st December, 2006 and as a punishment he had

been reduced to rank, from Store Petty Officer (SPO) on 11th January,

2007 and was re-promoted as SPO only on 14th July, 2008.

12. After considering the pleas and contentions of the parties, the

Tribunal held that the petitioner was not governed by the Instructions

contained in NI 2/S/96 pursuant to which he was granted the

antedated seniority w.e.f. 24th December, 1990 since he had attended

the conversion course from 18th February, 1991 to 22nd June, 1991.

The plea of the petitioner regarding the date of calculation of

antedated seniority from the date of MER test or trade of suitability

trial was not found to be logical and repelled especially since the

petitioner had formally applied for conversion only on 20th August,

1990 after having successfully completed the MER test and the Trade

suitability trial.

13. The petitioner has challenged the order of the Tribunal by

raising similar grounds as were raised by the petitioner before the

Tribunal. The learned counsel for the respondents Sh.Satya

Saharawat, Advocate, who has appeared on advance notice has

contended that the Tribunal has also declined to grant any relief to

the petitioner on the ground of delay and laches and also since the

petitioner had not been able to give any satisfactory explanation

explaining the delay.

14. This is not disputed that the petitioner had sought for a change

of the branch and had undergone SA-II "Q" course from 14th

February, 1991 to 22nd June, 1991 and had subsequently qualified as

SA-II. Consequently, on becoming entitled for antedated seniority, the

petitioner had made a representation on 8th January, 1993.

15. The petitioner was thereafter, given the new basic date as 24th

December, 1990 pursuant to signal dated 12th February, 1993. From

the record, it is apparent that thereafter the petitioner did not raise

any plea of antedating from 9th July, 1990 till 2008 when pursuant to

the representations made by the petitioner, a letter dated 1st August,

2008 addressed by the Lt. Commandant to the Commodore directed a

reconciliation of the basic date and rating of the petitioner as SA-I on

passing out SA-II "Q" course. The petitioner thereafter made a detailed

representation again on 11th November, 2009 and referred to the

various correspondences made by him to the authorities from time to

time in para 6 of the said representation which are as under:-

"(a) INS Guldar letter 203 dated 08 Jan 1993 (Appendix-I)

(b) INS Guldar DTG 061305/Feb 1993 (Appendix-II)

(c) CABS DTG 111959/Feb 1993 (Appendix-III)

(d) BLO (V) letter 100/Div dated 01 Aug 08 (Appendix-IV)

(e) CABS letter DV/152072/Log dated 23 Oct 08(Appendix-V)

(f) BLO (V) letter 258 dated 19 Nov 08 (Appendix-VI)

(g) CABS letter PR/0301/LOG dated 07 an 09 (Appendix-VII)

(h) BLO (V) letter 251 dated 30 Jan 09 (Appendix-VIII)

(j) CABS letter PR/0301/152072/LOG dated 31 Mar 09 (Appendix-IX)

(k) BLO (V) letter 251 27 Aug 09 (Appendix-X)

(l) CABS letter PR/0301/152072/LOG dated 12 Jun 09 (Appendix-XI)

(m) BLO (V) letter 251 dated 04 Aug 09 (Appendix-XII)

(n) HQENC letter RP/1408/PC dated 24 Aug 09 (Appendix-XIII)

(p) CABS letter PR/0301/152072/Log dated 07 Sep 09(Appendix-XIV)

(q) HQENC letter RP/1408/PC dated 23 Sep 09 (Appendix-XV)"

The petitioner also placed reliance on Regulation 273. Para 5 of

Section II to Chapter XII of the Regulations Navy Part III, and thereby

sought a change of the basic date and date of promotion to SA-I from

24th December, 1993 to 18th February, 1991.

16. Leaned counsel for the petitioner is unable to give any

satisfactory reason for not impleading the other persons, over whom

and in parity with them, seniority has been claimed by the petitioner.

The petitioner has also not been able to refute the fact that the other

individuals were either the direct entry MER sailors or those who had

changed the branch later and were thus governed by the NI 2/96.

Consequently, the learned counsel for the petitioner has not been able

to make out any ground satisfactorily impugning the observations and

decision of the Tribunal. Learned counsel for the petitioner has

further referred to Regulation 273 regarding the Transfer between the

branches which is as under:-

SECTION III. - TRANSFER BETWEEN BRANCHES

273.Transfer of men from one Branch to another.- (1) Transfer from one Branch to another may be allowed only subject to the approval of the Chief of the Naval Staff, who will however, not consider such applications unless: -

(a) there are vacancies in the branch to which transfer is desired, and the training of the applicant for the new branch can be arranged;

(b) the applicant is recommended by his Captain and possess the prescribed educational qualifications and medical standard for the new rate; and

(c) the transfer is otherwise in the interest of the Service.

(2) All candidates for entry in the Indian Navy shall be required to sign an acknowledgement that they have not been induced to enter by the prospect of being transferred to another rank at their own request. No application for transfer shall be entertained if made on the ground of such alleged inducement.

(3) All Applications submitted to the Chief of the Naval Staff under these regulations must be accompanied by the sailor‟s Service Documents.

(4) Applications from sailors for transfer from one rate to another shall be submitted through proper channels to the Captain Naval Barracks for onward transmission to the Chief of the Naval Staff. Applications shall be forwarded only when the man concerned is considered to possess particular aptitude for the new rate or where there are exceptional circumstances known to his

Captain, and in any case the transfer must be recommended as being clearly in the interests of the Service and of the man. The final decision shall depend upon the requirements of the Service in the branches to which transfer is desired.

(5) Where necessary, the Chief of the Naval Staff shall issue instructions for the man to undergo a course of trial in the proposed new branch, the nature and duration of which shall be as directed by the chief of the Naval Staff. Based on the results of the course and the other conditions in sub-regulation (4) being fulfilled, a final decision shall be conveyed by the Chief of the Naval Staff. Transfer shall generally be to the lowest rate in which men are normally entered in the new branch by this may be relaxed at the discretion of the Chief of the Naval Staff. If transferred in equivalent rate (but above O.D. rate) the effective date of transfer shall be the date of commencement of the Conversion Course. The effective date of transfer if in O.D. rate shall be the basic date of training of the batch with which a transferee is conjoined."

The above Regulation, however, does not negate the plea of delay

and laches.

17. This cannot be disputed that belated service claim is liable to be

rejected on the ground of delay and laches. In Shiv Dass v. Union of

India (2007) 9 SCC 274 the Supreme Court had held at page 277 in

paras 8 as under:

"8. ... 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.

It has been held in a number of cases by the Supreme Court as

also this Court that stale claims should not be entertained by the

Courts and failure to make out grounds to condone the delay in

seeking remedy in law is sufficient in itself to oust the petitioner. In

this connection, reference can be made to the following precedents: