Neutral Citation Number: 2022/DHC/005295
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 02nd December, 2022
+ W.P.(C) 14406/2022
RAM MURTI BANSAL ..... Petitioner
Through: Ms. Roopa Paul, Advocate.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Ms. Abha Malhotra, Senior
Central Government Counsel with
Mr. Anirudh Shukla, Government Pleader
for R-1.
Mr. Abhishek Gupta, Ms. Ikshita Singh,
Mr. Dishant Bhati and Ms. Tanya,
Advocates for R-2.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J. (ORAL)
1. Present writ petition has been filed seeking a writ of Mandamus to Respondent No. 2 to consider the Petitioner for promotion from E-4 to E-5 level w.e.f. 01.01.1999, along with all consequential benefits.
2. Preliminary objection has been raised on behalf of the Respondents to the maintainability of the writ petition on the ground that it is barred by delay and laches, as a period of nearly 21 years has elapsed from 1999, when allegedly the cause of action arose in favour of the Petitioner.
3. Petitioner was appointed as Administrative Officer (Vigilance) in ONGC on 19.02.1983 at E-1 level and was subsequently promoted on 01.01.1987, 01.01.1992 and 01.01.1996 to E-2, E-3 and E-4 levels, respectively. The grievance of the Petitioner is that he was entitled to promotion to the E-5 level w.e.f. 01.01.1999 and despite being Signature Not Verified Digitally Signed W.P.(C) 14406/2022 Page 1 of 6 By:KAMAL KUMAR Signing Date:05.12.2022 11:23:53 Neutral Citation Number: 2022/DHC/005295 eligible, experienced and meritorious, his junior was given promotion while he was deprived of the same.
4. From the averments in the writ petition, it is evident that Petitioner was aware of his non-promotion way-back in the year 2002 when admittedly, a letter dated 04.07.2002 was received by the Petitioner from the Department informing him that he was not promoted to E-5 level. Thereafter, Petitioner approached the National Commission for Scheduled Castes and Schedules Tribes, on 01.08.2002 and kept pursuing the matter before the Commission, despite the fact that his grievance with respect to non-promotion could not be redressed in the said Forum. The only other remedy that the Petitioner resorted to was under the Right to Information Act, 2005, wherein he sought certain documents from the ONGC, including filing of cases before the Central Information Commission ('CIC') for disclosure of ACR entries of other officers and employees, minutes of the DPC proceedings, etc. This was followed by filing a writ petition in this Court in 2019, challenging an order dated 07.02.2018, passed by the CIC, refusing the disclosure of certain documents, which was dismissed vide order dated 29.04.2022. It is, thus, apparent that no steps worth a mention were taken by the Petitioner to approach this Court against his alleged non-promotion in the year 1999 or taking the best case in favour of the Petitioner from 2002, when admittedly, a written communication was received, intimating the Petitioner that he had not been promoted. There is, thus, merit in the contention of the Respondents that the petition is barred by delay and laches, as a period of nearly 21 years has elapsed from the time the alleged grievance, if any, had arisen.
5. The issue of delay and laches, particularly, becomes pronounced in the present case, as the relief sought relates to Signature Not Verified Digitally Signed W.P.(C) 14406/2022 Page 2 of 6 By:KAMAL KUMAR Signing Date:05.12.2022 11:23:53 Neutral Citation Number: 2022/DHC/005295 promotion. It needs no reiteration that in case the said relief is granted to the Petitioner and he succeeds in getting promotion w.e.f. 1999, the obvious consequence would be unsettling the seniority of the other employees/officers, who were in reckoning for promotion with the Petitioner at E-5 level. The effect of entertaining the present writ petition may ultimately lead to unsettling the seniority in the Department, which has remained settled for over two decades, if the Petitioner was to ultimately succeed and this would be against several judgments of the Supreme Court as well as of this Court, expounding the principle that long-settled seniority must not be unsettled.
6. The question of entertaining a writ petition relating to long standing seniority, when the same has been filed belatedly is no longer res integra and I may to avoid prolixity, profitably allude to only a few. In B.S. Bajwa and Another v. State of Punjab and Others, (1998) 2 SCC 523, the Supreme Court held that in service matters, question of seniority should not be re-opened after lapse of a reasonable period, as this results in disturbing the settled position, which is not justifiable. Inordinate delay in making such a grievance is by itself sufficient to decline interference under Article 226 of the Constitution and reject the petition. In P.S. Sadasivaswamy v. State of Tamil Nadu, (1975) 1 SCC 152, it was held by the Supreme Court that a petition filed after a lapse of 14 years challenging promotion could not be entertained and if a person is aggrieved by an order promoting a junior over his head, he should approach at least within 6 months or at the most, a year from such promotion. The Court also observed that while there is no period of limitation for Courts to exercise their power under Article 226 and nor could it be said that there would never be a case where a Court may interfere, but in the ordinary course, it would be a sound and wise exercise of jurisdiction Signature Not Verified Digitally Signed W.P.(C) 14406/2022 Page 3 of 6 By:KAMAL KUMAR Signing Date:05.12.2022 11:23:53 Neutral Citation Number: 2022/DHC/005295 to refuse to exercise the extraordinary powers under Article 226, if the Petitioner does not approach the Court expeditiously for relief and merely stands by, allowing things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The Constitution Bench of the Supreme Court in Ramachandra Shankar, Deodhar and Others v. State of Maharashtra and Others, (1974) 1 SCC 317, was seized of the issue of impact of delay in challenging promotion and seniority and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb vested rights of other persons regarding seniority, rank and promotion, which have accrued to them during the intervening period.
7. It bears repetition to state that Petitioner was aware of the fact that he was not promoted to the E-5 level, in the year 2002 itself, but chose to remain silent and did not approach the correct Forum for agitating his grievance. No doubt, Petitioner was filing cases before the National Commission for SC/ST as well as before the CIC, but none of them were the appropriate Forums where he could have redressed his grievance pertaining to non-promotion. It is only in the year 2022 that the Petitioner has chosen to approach this Court and challenge the non-grant of promotion to the E-5 level and needless to state, the attempt is to agitate a stale claim which this Court cannot encourage, in view of the binding and time-honoured dicta of the Supreme Court, as aforementioned. This Court also finds that there is no plausible or satisfactory explanation for the inordinate delay of over two decades in questioning the non-promotion and/or validity of promotion and seniority of the other employees. The delay and laches are, therefore, fatal to the case of the Petitioner in the present case, who has permitted a certain state of affairs to prevail for an unprecedented period, as a mere fence-sitter. Signature Not Verified Digitally Signed W.P.(C) 14406/2022 Page 4 of 6 By:KAMAL KUMAR Signing Date:05.12.2022 11:23:53 Neutral Citation Number: 2022/DHC/005295
8. Albeit subtly, it is sought to be argued by learned counsel for the Petitioner that the powers of the Court under Article 226 of the Constitution are wide and extraordinary and the petition can be entertained in the interest of justice. There is and cannot be any dispute that the powers of the High Court under Article 226 of the Constitution are extraordinary, but it is equally well-settled that the relief under Article 226 is discretionary and the Supreme Court has, time and again, elucidated that one ground for refusing relief under Article 226 is that the petition is filed after a considerable delay, for which there is no satisfactory explanation. In this context, I may allude to a passage from the judgment of the Supreme Court in Durga Prashad v. Chief Controller of Imports and Exports, (1969) 1 SCC 185, which is as follows:
"4. Gajendragadkar, C.J., speaking for the Constitution Bench, in Smt Narayani Devi Khaitan. v. State of Bihar [ CA No. 140 of 1964 ; judgment dated September 22, 1964] observed:
"It is well-settled that under Article 226, the power of the High Court to issue an appropriate writ is discretionary. There can be no doubt that if a citizen moves the High Court under Article 226 and contends that his fundamental rights have been contravened by any executive action, the High Court would naturally like to give relief to him; but even in such a case, if the petitioner has been guilty of laches, and there are other relevant circumstances which indicate that it would be inappropriate for the High Court to exercise its high prerogative jurisdiction in favour of the petitioner, ends of justice may require that the High Court should refuse to issue a writ. There can be little doubt that if it is shown that a party moving the High Court under Article 226 for a writ is, in substance, claiming a relief which under the law of limitation was barred at the time when the writ petition was filed, the High Court would refuse to grant any relief in its writ jurisdiction. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. That is a matter which must be left to the discretion of the High Court and like all matters left to the discretion of the Court, in this matter too discretion must be exercised judiciously and reasonably."
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9. Reference may also be made to another judgment in Tridip Kumar Dingal and Others v. State of West Bengal and Others, (2009) 1 SCC 768, more particularly, para 56 thereof, which is as under:
"56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches."
10. For all the aforesaid reasons, the writ petition cannot be entertained, being barred by delay and laches and is, accordingly, dismissed with no order as to costs.
JYOTI SINGH, J DECEMBER 02, 2022/sn/shivam
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