Delhi High Court

Sh.Kishan Pal Singh vs Union Of India & Ors. on 23 January, 2012

Author: Anil Kumar

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.424/2012

%                          Date of Decision: 23.01.2012

Sh.Kishan Pal Singh                                          .... Petitioner

                        Through Ms.Deepakshi Jain, Advocate


                                  Versus

Union of India & Ors.                                     .... Respondents

                        Through Mr.Utkarsh    Sharma,   Advocate  for
                                Mr.B.V.Niren, Advocate for respondent
                                Nos.1 to 4.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE J.R.MIDHA

ANIL KUMAR, J.

1. The petitioner, is a constable G.D, and has sought quashing by

the respondents of the adverse entries made in the ACRs of the

petitioner for the year 2002 and has also sought quashing of

communication dated 2nd May, 2008 and list "C" of 2007. The petitioner

has also sought directions to the respondents to draw a fresh seniority

list without considering his adverse entry of the ACR of 2002 and to

include his name in the list "C" of 2007 onwards and to award him ACP

as per the rules and his seniority.

2. The petitioner contended that a major punishment was imposed

on him by the Summary Force Court by order dated 20th March, 1998,

sentencing him to 70 days of rigorous imprisonment in forced custody

w.e.f. 20th March, 1998 to 28th May, 1998. On account of this

punishment, adverse entries were made in his ACR for 2002.

3. The petitioner contended that the said adverse entry made in the

ACR of 2002 was not communicated to him and he was not given an

opportunity to explain himself or make a representation against the

same. However, the petitioner on his own had written various letters to

clarify his stand regarding the adverse entries in his ACR of 2002 since

he became aware of the same. However, according to the petitioner his

representations have not been taken into consideration by the

respondents.

4. The petitioner contended that subsequently he received a letter

dated 2nd May, 2008 stating that his name could not be considered for

the List "C" of 2008 due to the adverse entries in his ACR for the year

2002. In July and August, 2010 the name of the petitioner was again

missing from the seniority in the "C" list. The petitioner thereafter sent

a notice dated 2nd August, 2011 to which a reply dated 18th November,

2011 was received, disclosing that the petitioner was suspended for the

period of 57 days with effect from 22nd January, 1998 to 19th March,

1998 while he was posted with the 25th Battalion and was awarded 70

days of rigorous imprisonment in force custody with effect from 23rd

March, 1998 upto 28th May, 1998. It was further stipulated that

regarding the ACR of 2002, since the petitioner had not represented

against the same, it was viewed as an acceptance of the grading given to

him, which is why he was graded as Below Average. It was also specified

that the adverse remark was communicated to the petitioner by the 25th

Battalion letter No.2003 dated 18th March, 2003.

5. A prohibition was also imposed on the petitioner for five years to

be eligible for the next promotion on account of the major penalty and,

therefore, the name of the petitioner could not be included in the "C"

list. It was also disclosed that after the completion of the punishment

tenure the name of the petitioner had been placed at Srl.No.1 in the "C"

list of 2009 and his overall seniority was fixed at 224.

6. The learned counsel for the petitioner has approached this Court

in its writ jurisdiction for seeking to quash the adverse entry in the ACR

of 2002 which was communicated to him on 18th March, 2003. Firstly

the learned counsel for the petitioner is unable to show any cogent or

sufficient reason for challenging the adverse entry made in the ACR of

2002 by filing the petition in 2012.

7. The learned counsel for the petitioner has relied on W.P(C)

No.18820/2006 decided on 11th January, 2007 titled as „Ex.Sepoy

Bishan Lal v. Union of India & Ors‟ to contend that delay per se may not

be a ground for rejecting the writ petition. The petitioner in the instant

case had claimed disability pension as the same had not been paid to

him though the petitioner was subjected to medical examination and

was subsequently discharged under Rule 13(b) of the Army Rules. It

was observed that the petitioner had been corresponding with the

respondents and he had also filed appeals before the competent

authority. The learned counsel has also referred to the observation of

this Court in Ex.Sepoy Bishan Lal (supra) holding that even if the cause

of action had arisen more than 15 to 20 years back but the same was

revived by subsequent rejection of the claim of the petitioner by the

competent authority especially as the claim of the petitioner was a

recurring cause of action.

8. The learned counsel for the respondent who appears on advance

notice has contended that the writ petition is liable to be dismissed on

account of delay and latches as the claim of the petitioner is stale. The

learned counsel for the respondents have further contended that the

precedent of Ex.Sepoy Bishan Lal (supra) relied on by the petitioner is

distinguishable as it pertains to the claim of the disability pension

which has a recurring cause of action in contradistinction to the claim

of the petitioner in the present matter who is seeking to expunge the

adverse remarks made in his ACR of 2002. The learned counsel for the

respondent has contended that expunging of the adverse comment

made in the ACR of 2002 after more than 9 years could not be

construed as a recurring cause of action and, therefore, the ratio of

Ex.Sepoy Bishan Lal (supra) is not applicable to the facts and

circumstances of the case of the petitioner.

9. This Court has heard the learned counsel for the parties in detail.

This is not disputed that the claim of the petitioner is not regarding his

pension as the petitioner is still employed in the service. The petitioner

is seeking the expunging of the adverse remarks made in his ACR of

2002, on account of the petitioner being awarded a major punishment

of 70 days rigorous imprisonment in force custody with effect from 23rd

March, 1998 to 28th May, 1998. The learned counsel for the petitioner is

unable to give any satisfactory answer as to how this can be a recurring

cause of action as has been sought to be alleged by the learned counsel.

10. The principles underlying continuing wrongs and

recurring/successive wrongs are completely distinctive and connote the

applicability of entirely different set of principles. A "continuing wrong"

refers to a single wrongful act which causes a continuing injury

whereas "recurring/successive wrongs" are those which occur

periodically, each wrong giving rise to a distinct and separate cause of

action. However, if the wrongful act causes injury which is complete,

then there is no continuing wrong, even though the damage resulting

from the act may be continuing.

11. It is no more res integra that a belated service related claim is

liable to be rejected on the ground of delay and latches (where remedy is

sought by filing a writ petition) or limitation alone (where remedy is

sought by an application to a Tribunal). Exception to the said rule is

only in relation to a continuing wrong.

12. There is another exception that if the grievance is in respect of

any order or administrative decision which relates to or affects several

others also, and if the reopening of the issue would affect the settled

rights of third parties then the claim will not be entertained even if it is

a continuing wrong though in the case of petitioner it is not even a case

of continuing wrong.

13. In the case of M.R.Gupta v.Union of India, (1995) 5 SCC 628 it was

held as under:-

"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be

entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."

14. 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:

(i) Rajalakshmiah v. State of Mysore, AIR 1967 SC 993

(ii) J.N. Maltiar v. State of Bihar AIR 1973 SC 1343

(iii) C.B.S.E. v. B.R. Uppal and Ors., 129 (2006) DLT 660

(iv) Savitri Sahni v. Lt. Governor, NCT of Delhi and Ors., 130 ( 2006) DLT 287

15. In Shiv Dass v. Union of India, (2007) 9 SCC 274 the Supreme

Court had held at page 277 in para 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.

16. The learned counsel for the petitioner has not even averred any

reason for the inordinate delay in the entire writ petition seeking the

expunging of the adverse remarks in the ACR of 2002 on account of

punishment awarded to the petitioner. Even if the petitioner is entitled

for the relief claimed by him, the granting of the same shall impact a

number of other persons who have already been promoted whereas the

petitioner had not been put in the list "C" till 2009 when his overall

seniority was fixed at 224 due to the prohibition imposed by way of the

major punishment. The learned counsel for the petitioner has been

unable to contend any cogent grounds that would show that the

petitioner was entitled for the fixing of his seniority in the "C" list prior

to 2009 inspite of the major punishment imposed on him, in the facts