Delhi High Court
Mukul Kumar Misra vs Union Of India And Anr on 24 August, 2017
28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7265/2017 & CM 30102/2017
Date of decision: 24th August, 2017
MUKUL KUMAR MISRA ..... Petitioner
Through: Mr.Ravinder Agarwal, Adv.
versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Mr.Abhay Prakash Sahay, CGSC, UOI
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J. (Oral)
The petitioner, Mukul Kumar Misra, impugns orders dated
6th July, 2016 and 17th February, 2011.
2. The petitioner claims that he should be granted the benefit of
non-functional up gradation w.e.f. 1st July, 2008 instead of 1st April,
2011. However, we find that the principal prayer is to expunge
below bench mark grading as recorded by the Accepting Officer in
the Annual Confidential Report (ACR for short) for the period 1st
April, 2006 to 5th December, 2006.
3. The petitioner is working as Suptd. Engineer (Civil) in
General Reserve Engineering Force, Border Road Organization.
WP(C) 7265/2017 Page 1
4. Non-functional up gradation (NFU for short) was made
applicable to the said service on 24th April, 2009 with retrospective
effect from 2006. In order to be eligible for Non-Functional up
gradation, one of the requirements is that the officer must have
grading of 'very good' in 4 out of 5 ACRs.
5. The petitioner was communicated and informed about the
below bench mark grading for ACR between 1st April, 2006 to 5th
December, 2006 on 28th July, 2010. The petitioner made
representation against this grading, by the Accepting Authority.
The representation was rejected by the competent authority on 17 th
February, 2011. The grading was maintained.
6. The petitioner did not challenge or question the rejection of
the representation vide order dated 17th February, 2011 in any
proceedings.
7. The petitioner claims that he had made another representation
dated 17th March, 2011 requesting for upgradation in the light of
instructions vide O.M. dated 13th April, 2010 and for re-appraisal of
his performance. It is a settled position that repeated
representations would not confer continuing or extend the cause of
action.
8. The question which arises for consideration is whether the
petitioner should be allowed to question and challenge the grading
recorded by the Accepting Officer in the ACRs for the period from
1st April, 2006 to 5th December, 2006, which was rejected vide
WP(C) 7265/2017 Page 2
order dated 17th February, 2011, in this writ petition filed in August,
2017.
9. There is certainly a delay of more than 6 years in preferring
the writ petition. Principle of delay and laches would come into
play as it would be impossible for the respondents today to re-
examine the issue after so many years. Apparently, the petitioner
except for making one representation on 17th March, 2011, did not
file any proceeding to challenge the order of the competent
authority dated 17th February, 2011 rejecting his request for up
gradation of the ACR for the period from 1st April, 2006 to 5th
December, 2006.
10. The petitioner, however, submits that he is challenging the
order dated 6th July, 2016 by which his request for review /fresh
consideration of up gradation of his below bench mark grading in
the ACR for the period from 1st April, 2006 to 5th December, 2006
was rejected. This letter disposes of the representation made by
the petitioner vide letter dated 14th August, 2015, which was the
third representation made by the petitioner. In this order dated 6 th
July, 2016, records that there was no provision for reconsideration
for up gradation of the below bench mark grading given in the ACR
by the Competent Authority, when Competent Authority had
already taken the decision to reject the request for the up gradation.
Accordingly, the representation was not entertained.
WP(C) 7265/2017 Page 3
11. Thus, we do not think that the aforesaid order would give a
fresh cause of action or right to the petitioner to invoke writ
jurisdiction.
12. Learned counsel for the petitioner has referred to the
judgment in Union of India & Ors. vs. Tarsem Singh (2008) 8 SCC
648 and submits that this is a case of continuing cause of action and
no third party would be adversely effected if the petitioner is
granted NFU. This is not a case of continuing cause of action. The
cause of action first arose when below the bench mark grading was
given to the petitioner in the ACR for the period from 1st April,
2006 to 5th December, 2006. The petitioner had thereafter, made
a representation for upgradation which was rejected vide order
dated 17th February, 2011. The aforesaid order concluded and
brought to an end, the issue of ACR grading for the aforesaid
period. The cause of action, therefore, finally accrued on 17th
February, 2011 and is not a continuing cause of action.
13. The writ petition, therefore, has to be dismissed on the
ground of delay and laches. Ordered accordingly, with no order as
to costs.
SANJIV KHANNA, J
NAVIN CHAWLA, J
AUGUST 24, 2017
RN
WP(C) 7265/2017 Page 4
