Hari Krishan Agarwal vs Indraprastha Power Generation ...
2017 Latest Caselaw 1471 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) Nos. 2506/2017 & 2514/2017

%                                                      20th March, 2017

1.           W.P.(C) No. 2506/2017

HARI KRISHAN AGARWAL                                      ..... Petitioner
                 Through:                Mr. A.K. Vashishtha, Advocate.
                          versus

INDRAPRASTHA POWER GENERATION COMPANY LTD.
                                    .... Respondent

Through:

2.           W.P.(C) No. 2514/2017

VINOD KUMAR AGARWAL                                      ..... Petitioner
                Through:                 Mr. A.K. Vashishtha, Advocate.
                          versus

INDRAPRASTHA POWER GENERATION COMPANY LTD.
                                    .... Respondent
                Through:

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. 2506/2017

1. By this writ petition under Article 226 of the Constitution

of India, the petitioner prays for the relief of being granted the second

Time Bound Promotion Scale (TBPS). The second TBPS as per the

petitioner is the pay-scale of an Executive Engineer/Manager

(Technical).

2. The writ petition is hopelessly misconceived and is an

abuse of process of law. The reasons why the writ petition has to be

dismissed are stated hereinafter.

3. Petitioner took voluntary retirement under the VRS

Scheme of the respondent/employer way back on 29.2.2004. Once an

employee takes voluntary retirement under a VRS Scheme, such an

employee thereafter cannot claim benefits with respect to past services

with his employer inasmuch as by taking VRS benefits and receiving a

golden handshake lump sum amount, an employee thereafter leaves

with all his rights as per the VRS scheme. This is stated by the

Supreme Court in para 34 of the judgment of the Supreme Court in the

case of A.K.Bindal and Another Vs. Union of India and Others

(2003) 5 SCC 163, and which para 34 reads as under:-

"34. This shows that a considerable amount is to be paid to an employee ex- gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and foregoing all his claims or rights in the same. It is a package deal of give and take. That is why in business world it is known as 'Golden Handshake'. The main purpose of paying this amount is to bring about a compete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights

and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrated." (underlining added)

4. It is therefore clear that petitioner who has received VRS

benefits under the VRS scheme is estopped from filing the present

petition, more so and as stated below, by claiming a right which

accrued even as per the petitioner assumedly pursuant to the TBPS

dated 23.7.1997 i.e 20 years back resulting in the claim being barred by

limitation/delay and laches as stated hereinafter. The first reason

therefore for dismissing of the writ petition is the ratio of the judgment

of the Supreme Court in the case of A.K. Bindal (supra) and this writ

petition is accordingly dismissed for this first reason.

5. The second reason for dismissal of the writ petition is that

a scheme of TBPS or also known as Assured Career Progression

(ACP) Scheme in some organizations or Modified Assured Career

Progression (MACP) Scheme in certain other organizations is only to

prevent stagnation of an employee in services because promotion posts

are limited. Since promotion posts are limited, schemes have been

taken out by different employers to grant the higher pay-scales of the

promotion posts without actually granting promotion to the promotion

posts. Of course, benefit of two TBPS is subject to an employee

fulfilling the eligibility criteria with respect to the higher/promotion

post. In the present case, it is seen that the petitioner was appointed as

Inspector Grade-II on 4.10.1974 and therefore he got his promotion to

the post of Superintendent (Technical) on 31.8.1989. Though the writ

petition is conspicuously silent with respect to petitioner receiving a

second promotion, and which in the opinion of this Court, is deliberate

concealment of fact to mislead the Court, however, the list of dates

shows that after receiving the first promotion to the post of

Superintendent (Technical) on 31.8.1989 petitioner in list of dates has

stated that petitioner received the second time bound promotion under

the TBPS scheme on 1.4.1994. On a query to the counsel for the

petitioner, counsel for the petitioner clarifies that it is not that the

petitioner received TBPS on 1.4.1994 but petitioner was in fact given

the second promotion to the post of Assistant Manager (Technical) on

1.4.1994. I note that there would not have been an issue of second

TBPS on 1.4.1994 because the scheme of TBPS is of a subsequent date

viz. 23.7.1997. Therefore in terms of the TBPS scheme, a person gets

at best two higher pa- scales of the higher promotion posts, but that is

in case that otherwise the two promotions are not already granted i.e a

person who has already received two promotions in his career then to

such a person TBPS is not to be granted. Since petitioner has already

received two promotions, petitioner hence cannot claim benefit of the

second stage TBPS by claiming that he has not got second stage TBPS.

I would like to further note that it is not in dispute that in the hierarchy

of posts in the respondent/employer, and as stated by the counsel for

the petitioner, in the respondent/employer is that after the first stage

post of Inspector Grade-II, the second stage promotion post is of

Superintendent (Technical), and the third stage promotion post is of

Assistant Manager (Technical) and the next higher stage is of the

promotion post of Executive Engineer/Manager (Technical).

Therefore the petitioner is once again misleading the Court by praying

in the prayer clause that the petitioner seeks second TBPS of Executive

Engineer/Manager (Technical) whereas the post of Executive

Engineer/Manager (Technical) is not second TBPS but third TBPS so

far as the petitioner is concerned.

6. I may also note, at this stage, that though petitioner had to

fulfill the eligibility criteria of the higher promotion post, and with

respect to which para 2 of the TBPS circular dated 23.7.1997 is clear,

yet the petitioner has not stated as to how the petitioner qualifies for

the post of Executive Engineer/Manager (Technical) because petitioner

has not stated what are the eligibility criteria for appointment to the

post of Executive Engineer/Manager (Technical) and how the

petitioner satisfies the same.

7. The third reason for dismissal of the writ petition is that

the writ petition is grossly barred by limitation and which calls for

application of doctrine of delay and laches so far as the present writ

petition in view of the ratio of the judgment of the Supreme Court in

the case of State of Orissa and Another Vs. Mamta Mohanty (2011) 3

SCC 436, and paras 52 to 54 of which judgment read as under:-

"52. In the very first appeal, the respondent filed writ petition on 11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f. 1.1.1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act 1963, makes it obligatory on the part of the court to dismiss the Suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at appellate stage because in some of the cases it may go to the root of the matter.

53. Needless to say that Limitation Act 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the Respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.

54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time."

8. In the facts of the present case, it is seen that the petitioner

even as per the petitioner was entitled to the benefit of second TBPS on

15.8.1999 when allegedly a favorable order was passed in favour of the

petitioner, however, this writ petition is filed in the year 2017 i.e after

18 years of the alleged order by which petitioner is said to have given

the benefit of second TBPS. Obviously the order dated 15.8.1999

giving benefit of second TBPS to the petitioner was not correct, and

petitioner therefore was rightly not granted benefit of second TBPS

under the same, inasmuch as, the petitioner had already received two

promotions, first to the post of Superintendent (Technical) on

31.8.1989 and second to the post of Assistant Manager (Technical) on

1.4.1994. The present petition therefore is grossly barred by delay and

laches and is accordingly dismissed by applying the ratio in the case of

Mamta Mohanty (supra).

9. The aforesaid facts show that the petitioner is guilty of

deliberate concealment of facts, deliberate mis-statement of facts,

setting up a particular case in the writ petition but stating differently in

the list of dates and which also is modified during the arguments of the

second TBPS allegedly granted on 1.4.1994 being not a TBPS benefit

but was a grant of promotion to the petitioner etc etc.

10. Since the writ petition is wholly misconceived, and also in

view of the aforesaid factual and legal position against the petitioner,

the writ petition is dismissed with costs of Rs.10,000/- and which costs

shall be paid within four weeks from today to Friendicoes, No.271 &

273, Defence Colony, Flyover Market, Jangpura Side, New Delhi-

110024.

W.P.(C) No.2514/2017

11. Adopting the above discussion, this writ petition is also

dismissed by noting that petitioner in this writ petition was appointed

to the post of Inspector Grade-II on 5.9.1973, and he received the first

promotion to the post of Assistant Manager (Technical) on 1.4.1994

and thereafter petitioner got his second promotion to the post of

Assistant Engineer on 25.8.1995, and thereby petitioner has during his

service career already received two promotions, and therefore, there

does not arise a question of grant of a second TBPS, and that too at the

level of Executive Engineer/Manager(Technical) and which will be in

fact a third TBPS as per the discussion given with respect to petitioner

in W.P.(C) No.2506/2017.

12. This writ petition is also liable to be and is accordingly

dismissed by applying the ratios of the judgments of the Supreme

Court in the cases of A.K. Bindal (supra) and Mamta Mohanty

(supra). This writ petition also is accordingly dismissed with costs of

Rs.10,000/- and which costs shall be paid within four weeks to

Friendicoes, No.271 & 273, Defence Colony, Flyover Market,

Jangpura Side, New Delhi-110024.

13. List both these petitions before the Registrar General on

24th April, 2017 for compliance of the order with respect to deposit of

costs and in case costs are not deposited then the Registrar General will

take action to recover the same by means of appropriate proceedings

including contempt or execution or recovery as arrears of land revenue.

MARCH 20, 2017                              VALMIKI J. MEHTA, J
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