Sh.V.K. Jain vs Delhi Pollution Control ...
2015 Latest Caselaw 1638 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 5491/2012

%                                                    25th February, 2015

SH.V.K. JAIN                                              ..... Petitioner
                          Through:       Mr. Divyakant Lahoti, Mr. Anish
                                         Gupta and Mr. Tanuj, Advocates

                          versus

DELHI POLLUTION CONTROL COMMITTEE          ..... Respondent

Through: Ms. Avnish Ahlawat, Advocate AND + W.P.(C) No. 5524/2012

SANJAY VATS ..... Petitioner Through: Mr. Divyakant Lahoti, Mr. Anish Gupta and Mr. Tanuj, Advocates

versus

DELHI POLLUTION CONTROL COMMITTEE ..... Respondent Through: Ms. Avnish Ahlawat, Advocate

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

W.P.(C) No. 5491/2012

1. This writ petition has been remanded for decision by the Division

Bench of this Court by the order dated 18.2.2015 observing that the learned

Single Judge of this Court who decided the writ petition on 17.7.2014 should

have decided all the aspects in the writ petition and not decided the writ

petition only with respect to one aspect of fresh promotions to be made as

per the fresh recruitment rules. The learned Single Judge of this Court had

disposed of the writ petition vide order dated 17.7.2014 and which order was

set aside by the Division Bench of this Court on 18.2.2015 and therefore, the

matter is listed for today in terms of the order of the Division Bench of this

Court.

2. Petitioner, by means of this writ petition filed under Article 226 of the

Constitution of India, claims two promotions. First promotion is claimed by

the petitioner to the post of Assistant Environmental Engineer (for short,

'AEE') with effect from 16.3.1999. The second promotion which the

petitioner claims is to the post of Environmental Engineer (for short, 'EE')

with effect from 16.3.2004. It may be noted that the petitioner was

promoted as AEE w.e.f 02.12.2005 originally on ad hoc basis but thereafter,

was regularized on permanent basis w.e.f the same date viz. 02.12.2005.

3. By the writ petition, the petitioner effectively challenges the decision

dated 02.12.2005 in promoting him to the post of AEE only from 2005 and

not from 16.3.1999 as claimed in the writ petition. It also needs to be noted

that surely the second step promotion to the post of EE w.e.f 16.03.2004

would only be granted if the petitioner is successful in getting the promotion

to the post of AEE from 16.3.1999 inasmuch as his second promotion to the

post of EE can only be if the petitioner had been appointed as AEE w.e.f

16.3.1999 and had also complied with other requirements for being

appointed to the post of EE w.e.f 16.3.2004.

4. Firstly, the writ petition is liable to be dismissed in limine on the

ground of delay and laches on two counts. The first count is that the

entitlement to promotion by seeking holding of a Departmental Promotion

Committee (DPC) w.e.f 16.3.1999 cannot be claimed by means of filing a

writ petition in the year 2012 viz about 13 years later. Entitlement to

promotion from a specific date gives rise to the cause of action on that

specific date and if there is no promotion on that specific date, then, in and

around the period of limitation thereafter, such a petitioner must come to the

Court for seeking relief but this however cannot be done by a petition which

is filed about 13 years later.

5. The second count for dismissing the writ petition on the ground of

delay and laches is that the petitioner by filing a writ petition in the year

2012 has in effect challenged his order of appointment as AEE on and w.e.f

02.12.2005 since petitioner pleads that the order must in fact operate

retrospectively from 16.3.1999 and not from 02.12.2005 which is the date as

per the order. The petitioner therefore had a cause of action to approach this

Court on and from 02.12.2005, and which right had necessarily to be

exercised within a period of three years or so of the arising of the cause of

action inasmuch as the writ petitions are not meant to be filed when for

seeking the selfsame reliefs the suit cannot be filed because the suit has

become time barred. The limitation period applicable against a government

cannot be overlooked by filing writ petitions beyond the period of limitation

which is provided under the Limitation Act, 1963 for filing of a suit seeking

same reliefs. It is only where there are reasons showing that the employer is

considering a representation, and therefore the writ petition was not filed

within the limitation period, then only the Courts can overlook the doctrine

of delay and laches because in certain cases the cause of action may not

have arisen till the representation remains pending or till it is rejected.

However, there are no such facts in this case to allow condonation of the

doctrine of delay and laches.

6. Therefore, in my opinion, the writ petition is liable to be dismissed on

the ground of delay and laches itself.

7. For equity and justice however even examining the case on merits, the

petitioner has no case on merits. The case of the petitioner is for claim of

promotion to the post of AEE w.e.f 16.3.1999 i.e not from 02.12.2005 when

it was given and petitioner seeks a retrospective promotion given on

02.12.2005 so as to be effective from 16.3.1999. The pleadings in the writ

petition, however I find are totally bereft of the necessary averments which

are required to be made for constituting a legal cause of action for promotion

to the post of AEE.

8. In the writ petition, the petitioner has only stated the eligibility criteria

for the post of AEE, however, it is not disputed before this Court that

besides complying with the eligibility criteria there can be a promotion to a

promotion post only after and by means of consideration of the ACRs of the

candidates by a DPC. The DPC will inter alia examine the ACRs of a

candidate for five preceding years and this is so stated in the Office

Memorandum dated 08.9.1998 relied upon by the petitioner and filed as

Annexure P-6. The writ petition, however, does not even remotely mention

as to what are the benchmarks which a candidate has to meet in the

preceding five years and how the petitioner meets those benchmarks for

being considered by the DPC, assuming the DPC was to be held today for an

event which would be about 16 years old as of today.

9. Not only the benchmarks for promotion have not been given by the

petitioner, the petitioner had to further give the seniority list of Junior

Environmental Engineers (for short 'JEE') as on 16.3.1999, the feeding

cadre for the post of AEE, and state that the petitioner in terms of the

seniority list would have been the senior most JEE on 16.3.1999 and

therefore the petitioner on complying with the requisite benchmarks was

otherwise fit for being considered by the DPC. These averments which had

to be made for the petitioner seeking promotion to the post of AEE w.e.f

16.3.1999, have however not been made.

10. Thus, the petitioner has neither given the requisite benchmarks nor the

petitioner has given the seniority list and his position in the seniority of JEEs

as on 16.3.1999 before this Court and hence the petitioner is not entitled to

claim consideration by the DPC for being promoted to the post of AEE as on

16.3.1999.

11. I am making the aforesaid observations on the basis that a requisite

number of posts of AEEs would have been available for promotion of the

petitioner to the post of AEE w.e.f 16.3.1999, however, there is no requisite

clarity on this aspect in the writ petition, though of course I am not

dismissing the petition on this ground alone because some averments are

there with respect to existence of posts and vacancies, but, the crux of the

matter in the present writ petition is existence of vacancies as on the

specified date being 16.3.1999 alongwith the applicable seniority list as on

16.3.1999 and which is not stated.

12. Once the petitioner is not entitled to the promotion to the post of AEE

w.e.f 16.3.1999, the petitioner surely will not be entitled to the second step

promotion to EE which is claimed by him. At the cost of repetition, both the

posts are not automatic promotional posts like grant of pay scale in terms of

the Assured Career Progression (ACP) Scheme and promotional posts are

only for promotion after being considered for appointment by the DPC

which has to consider the necessary requirements including the eligibility

criteria, compliance of benchmarks, position of the petitioner in the seniority

list etc and all those aspects which are missing in the present writ petition.

13. In view of the above, the writ petition is dismissed.

W.P.(C) No. 5524/2012

14. The present writ petition is dismissed in terms of the order passed

above in W.P. (C) No. 5491/2012.

FEBRUARY 25, 2015                              VALMIKI J. MEHTA, J
sd