Ram Paul Sharma vs Hon'Ble High Court Of Jammu & ...
2023 Latest Caselaw 972 j&K

         HIGH COURT OF JAMMU AND KASHMIR & LADAKH
                         AT JAMMU

                                                 Reserved on : 15.03.2023
                                                 Pronounced on: 16.05.2023.

                                                    WP(C)No. 2398/2021
                                                    CM No.8368/2021
Ram Paul Sharma
                                                        ..... Petitioner(s)...

                              Through:-Mr. Vikas Magotra, Advocate

             Vs.

Hon'ble High Court of Jammu & Kashmir and Ladakh and others
                                                 ......Respondent(s)...
                 Through:- Mr. Rajnish Raina and
                           Mr. Rishu Rajeshwar, Advocates for R-1 to 3
                           Mr. Vishal Sharma, DSGI for R-4.
CORAM:
        HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
        HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

                                      JUDGMENT

TASHI RABSTAN-J

1. Through the medium of petition in hand, the petitioner has prayed

for grant of the following relief:-

a. Certiorari, quashing and setting aside, impugned order No.621 dated 04.08.2017, passed by the respondent no. 2 and 3 in awarding penalty of withholding one annual increment with non-cumulative effect in favour of the petitioner on the ground that the same is perverse and not based on facts, being issued contrary to mandate of the J&K Civil Service (Classification, Control and Appeal) Rules, 1956 and also being totally, arbitrary, discriminatory and unsustainable in law, being in violation of the basic principles of natural justice, beside being illegal and non-est in law.;

b. Mandamus, commanding the respondents to pass favorable effective orders for fixation of seniority of petitioner as Assistant Registrar-l immediately after the seniority position held by Sh. Bashir Ahmed Vaid, Assistant Registrar-I and also the benefits

of promotion of petitioner as Section Officer w.e.f. 26.10.2008 and consequential promotion as Assistant Registrar-II w.e.f. 30.08.2011 & further as Assistant Registrar-I and other higher posts in line retrospectively along with all consequential benefits. c. Direct the respondents to produce all the relevant record including the service record of the petitioner, record of enquiry proceedings and also other relevant record before this Hon'ble Court.

d. And or any other writ, order or direction which this Hon'ble Court feels fit and proper may also kindly be passed in favour of the petitioner and against the respondents, keeping in view facts and circumstances of the present case."

2. Before proceeding further in the matter, it would be necessary to

refer to the service profile of the petitioner, as per the record and the same is

tabulated hereunder:-

Service Profile of Petitioner:-

30.04.1988 Petitioner appointed as Junior Assistant.

 26.11.1994       Promoted as Senior Assistant.
 27.05.1999       Promoted as Head Assistant (Accountant).
 26.10.2008       Adjusted as S.O. 11 (O.P.G) Rs. 6500-10500/- pre revised.
 24.11.2008       Adjusted as S.O. 1 (O.P.G) Rs. 7450-11500/-.
 2014             Another enquiry initiated in 2014 (stoppage of two
                  increments)
 04.08.2017       Impugned order passed.
 10.01.2019       Promotion of petitioner as S.O regularized and also promoted

as Assistant Registrar-II w.e.f 04-08-2018 i.e. a day after the penalty period of one year was over.

Further the relevant dates of the Enquiry proceedings forming

subject matter of instant petition are as under:-

     2000              Incident.
     03.01.2005        Preliminary enquiry report.
     04.01.2005        Charges to be framed against petitioner and Bharat
                       Bhushan
     26.02.2005        Matter dropped against the then Ld. Registrar Judicial
                       Charges framed and regular enquiry commenced
     10.01.2017        Enquiry report submitted
     19.07.2017        2nd Show cause notice of the proposed penalty issued
     04.08.2017        Impugned order passed

3. The case set up by the petitioner primarily hinges around the issue

that due to unjustified and unprecedented delay in conclusion of the enquiry

proceedings against him, which started in the year 2005 and concluded in the

year 2017, the seniority of the petitioner was distorted and as a result his right of

consideration for further promotions got adversely affected. The direct adverse

consequence of the delayed enquiry proceedings upon the petitioner was that at

the time of institution of the enquiry, the petitioner was working as Head

Assistant and as per Order No. 579 dated 24.10.2008 issued in terms of Rule 6

of the J&K High Court Staff (Condition of Service Rules) 1968 whereby the

service conditions and partial avenues for High Court Staff are provided for

promotion from the post of Head Assistant to Section Officer, two years

minimum experience is prescribed, similarly for promotion from Section Officer

to Assistant Registrar -II, again minimum service of two years is prescribed.

Likewise for promotion from Assistant Registrar-II to Assistant Registrar-I and

from Assistant Registrar-I to Deputy Registrar and from Deputy Registrar to

Joint Registrar, again two years' service/experience is required in each feeding

cadre. The above preposition implies that for being promoted from Head

Assistant to Joint Registrar, a total of eight years of service experience in all

respective feedings cadres is required.

4. The petitioner has urged that had the enquiry initiated against him

been concluded within a reasonable time and even if the impugned punishment /

penalty imposed against him was to be maintained, the petitioner who was

initially appointed as Junior Assistant in the year 1988 could have very easily

retired as Joint Registrar in the year 2019, whereas due to unjustifiable delayed

enquiry proceedings, the petitioner got retired as Assistant Registrar-II, whereas

his counterpart/colleague, namely, Sh. Bashir Ahmed Vaid and others retired on

much higher posts than him.

5. The further case of the petitioner is that vide order No. 476 dated

30.08.2011 issued by the Registrar General of this Court, the promotion of the

petitioner was deferred till conclusion of the enquiry proceedings pending

against him, while as his counterpart, colleague and similarly situated employee,

namely, Sh. Bashir Ahmed Vaid, was promoted as Assistant Registrar-II in

terms of the same order. However, the said order contained a specific stipulation

under Note-II, providing that the postponement of the consideration of the

petitioner for promotion from Section Officer-I in OPG would not affect his

seniority in case the petitioner was considered and appointed as Section Officer

in future. But, the said condition was never followed by the respondents as

would be evident from record.

6. For facility of reference extract of Note-I figuring in order dated

30.08.2011 is reproduced as under:-

Note:- 1 Promotion of Shri Ram Paul Sharma Section Officer-! ( in OPG) and Ms Veena Kumari Head Assistant are deferred till conclusion of regular enquiry pending against them. However, postponement of consideration shall not effect their seniority in case they are considered and appointed as Section Officer.

7. It is a fact that vide order No. 985/GS dated 29.10.2018, when the

promotion of the petitioner as Section Officer (OPG) was regularized, it was

provided that the dates regarding the effect of promotion shall be notified

separately, however, in the year 2019, when the petitioner was promoted as

Assistant Registrar-II vide order No. 1279 dated 10.01.2019, the seniority of the

petitioner was not protected and the date of effect of his promotion was notified

as 04-08-2018. The above discrimination and injustice was meted out to the

petitioner despite the fact that he was entitled to be promoted as Section Officer

w.e.f. 26.10.2008 and further for consequential promotion as Assistant

Registrar-II w.e.f. 30.08.2011 on the analogy of his counterpart and colleague -

Sh. Bashir Ahmed Vaid.

8. It was further contended that on one hand, the promotion accruable

to the petitioner was deferred pending enquiry proceedings and on the other

hand, all the persons in the High Court Registry, against whom various enquiry

proceedings were pending, were granted promotions subject to outcome of the

enquiry proceedings pending against them. The petitioner has quoted instances

by citing the case of Sh. Bharat Bhushan, the then peon who although was

mainly held responsible for misconduct on all charges in the same enquiry

proceedings, yet even during the currency of the enquiry proceedings, he was

promoted and regularized as Junior Assistant vide order No.1107 dated

26.02.2010, when his services were regularized w.e.f. 12.04.2007 and

subsequently also vide order No.1730 dated 07.09.2018, sanction was accorded

for regularization of promotion of said Sh. Bharat Bhushan as Senior Assistant

w.e.f. 31.03.2010 and even First Higher Standard Pay Scale ( In-situ promotion)

of level SL2 as Orderly was granted in his favour w.e.f. 01.01.2007. The above

aspect is clear discrimination with the petitioner, who was held to be guilty of

minor charges only in the enquiry report dated 10.07.2017 and even the enquiry

officer had duly acknowledged the injustice meted out to the petitioner in the

same enquiry report.

9. Further contention of the petitioner is that the petitioner has been

subjected to unwarranted stagnation in service due to above acts of omission &

commission on the part of the respondents and the practice of stagnation has

been deprecated by the Hon'ble Supreme Court of India in catena of judgments.

The petitioner would also contend that the penalty imposed upon the petitioner

has been imposed by a non-speaking order dated 04.08.2017 which is without

any justification or reason. Therefore, not sustainable in law. It is contended that

keeping in view the recommendations of the enquiry officer and otherwise in

the totality of circumstances, the punishment/penalty imposed upon the

petitioner was grossly disproportionate and therefore the petitioner seeks the

quashment of the said penalty order dated 04.08.2017.

10. The petitioner, as such, has summarized his contentions by stating

that the petitioner has been deprived of his right of consideration for promotion

with the delay in concluding the enquiry at the first instance and also by not

protecting his seniority as decided and further by depriving him promotion till

the conclusion of enquiry proceedings which took twelve long years to conclude.

11. In support of his submissions, the petitioner has relied upon AIR

1998 SC 1833 ( Para 19), AIR 2000 SC 2767 ( Para 5), AIR 2006 SC 207

( Para 15 and 16) on the issue of prejudice caused to employee with delayed

enquiry by the employer. It would be appropriate to reproduce relevant

paragraphs of the aforesaid judgments.

In case titled State of A.P. Vs. N. Radhakishan, reported in 1998 SC

1833, the Hon'ble Surpeme Court in paragraph No.19 held as under :-

"19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. the essence of the matter is that the court has to take into consideration all relevant factors and to balance and weight them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he s not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether delay has vitiated the disciplinary proceedings the Court has to consider the nature of charge, its complexity and on what account the delay has occurred. if the delay is unexplained prejudice to the delinquent employee is writ large on the face of it.

It could also be seen as to how much disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed.Normally, disciplinary proceedings should be allowed to take its course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations."

In case titled Delhi Jal Board Vs. Mahinder Singh, reported in 2000

(SC) 2767, the Hon'ble Surpeme Court in pargraph No.5 held as under :-

"5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the Disciplinary Enquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any Disciplinary Enquiry. The sealed cover procedure was envisaged under the rules to give benefit oi any assessment made by the Departmental Promotion Committee in favour of such an officer. if he had

been found fit for promotion and it he was later exonerated in the disciplinary inquiry which was pending at the time when the DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental enquiry was started by the department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is. therefore, no question of referring the matter to a larger Bench."

In case titled P.V.Mahadevan Vs. M.D., Tamil Nadu Housing Board,

reported in 2006 AIR (SC)207, the Hon'ble Surpeme Court in pargraphs No.15

and 16 held as under :-

15. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in the 1994-1995. The explanation offered for the delay in finalising the audit account cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr. R. Venkataramani, learned Senior counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merit and force. The stand now taken by the respondent in this Court in the counter affidavit is not convincing and is only an afterthought to give some explanation for the delay.

16. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the

disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."

12. The petitioner has further relied upon AIR 2010 SC 2642 (Para 9,

10 and 15), AIR 1990 SC 311 ( Para 7) AIR 1978 SC 851 ( Para 8 ) on the

issue of stagnation and delay in promotion.

In case titled Charanjit Lamba Vs. Commanding Officer, Southern

Command and others reported in AIR 2010 SC 2642 , the Hon'ble Surpeme

Court in pargraph Nos.9, 10, and 15 held as under :-

9. The doctrine of proportionality which Lord Diplock saw as a future possibility is now a well recognized ground on which a Writ Court can interfere with the order of punishment imposed upon an employee if the same is so outrageously disproportionate to the nature of misconduct that it shocks conscience of the Court. We may at this stage briefly refer to the decisions of this Court which have over the years applied the doctrine of proportionality to specific fact situations.

10. In Bhagat Ram v. State of Himachal Pradesh (1983) 2 SCC 442 this Court held that if the penalty imposed is disproportionate to the gravity of the misconduct, it would be violative of Article 14 of the Constitution.

15. That the punishment imposed upon a delinquent should commensurate to the nature and generally of the misconduct is not only a requirement of fairness, objectivity, and non-discriminatory treatment which even those form quality of a misdemeanour are entitled to claim but the same is recognized as being a part of Article 14 of the Constitution. It is also evident from the long time of decisions referred to above that the courts in India have recognized the doctrine of proportionality as one of the ground for judicial review. Having said that we need to remember that the quantum of punishment in disciplinary matters is something that rests primarily with the disciplinary authority. The jurisdiction of a Writ Court or the Administrative Tribunal for that matter is limited to finding out whether the punishment is so outrageously disproportionate as to be suggestive of lack of good faith. What is clear is that while judicially reviewing an order of punishment imposed upon a delinquent employee the Writ Court would not assume the role of an appellate authority. It would not impose a lesser punishment merely because it considers the same to be more reasonable than what the disciplinary authority has

imposed. It is only in cases where the punishment is so disproportionate to the gravity of charge that no reasonable person placed in the position of the disciplinary authority could have imposed such a punishment that a Writ Court may step in to interfere with the same."

In case titled Dr. Ms. O.Z.Hussain Vs. Union of India and others

reported in AIR 1990 SC 311, the Hon'ble Surpeme Court in paragraph No.7

held as under :-

"7. This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the non-medical wing of the Directorate."

In case titled Mohinder Singh Gill and another Vs. The Chief Election

Commissioner, New Delhi and others reported in AIR 1978 SC 851, the

Hon'ble Surpeme Court in paragraph No.8 held as under :-

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

Orders are not like old wine becoming better as they grow older."

13. The petitioner has also relied upon case titled Ramesh Kumar Vs.

Union of India and others reported in AIR 2015 SC 2904 wherein at

paragraphs 12 and 13, the Hon'ble Apex Court has held that in case it is

demonstrated before the Court that an employee has been deprived for

consideration for promotion only due to the inaction/action of the employee, the

said employee shall be entitled to monetary benefits besides other consequential

benefits also, as the principle of no work no pay has been held to be not a thumb

rule to be followed in every case without appreciating above aspect. The

petitioner, therefore, contends that since he has already retired from service in

the year 2019, appropriate relief may be granted in his favour as prayed by him

in the prayer part of his petition. It is relevant to reproduce paragraphs 12 and 13

here as under:-

"12. In normal circumstances when retrospective promotions are effected, all benefits flowing therefrom, including monetary benefits, must be extended to an employee who has been denied promotion earlier. So far as monetary benefits with regard to retrospective promotion is concerned that depends upon case to case. In State of Kerala & Ors. vs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524, this Court held that the principle of "no work no pay" cannot be accepted as a rule of thumb and the matter will have to be considered on a case to case basis and in para (4), it was held as under:-

"... We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to

him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also."

13. We are conscious that even in the absence of statutory provision, normal rule is "no work no pay". In appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The principle of "no work no pay" would not be attracted where the respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the appellant was granted promotion w.e.f. 01.01.2000 with the ante-dated seniority from 01.08.1997 and maintaining his seniority alongwith his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar."

14. Per contra, respondents No. 1 to 3 vehemently opposed the petition

and urged that the petition is hit by delay and laches. It is also insisted that the

petitioner has been rightly given the punishment on the basis of the enquiry

report. The respondent Nos. 1 to 3 further contend that besides the impugned

punishment, petitioner was also imposed punishment of stoppage of one

increment in the year 2014. Respondents 1 to 3,therefore, prayed for dismissal

of writ petition. The counsel for respondents 1 to 3 has produced the relevant

record and has relied upon judgment reported as 1997 (6) SCC 255 on the issue

of delay.

15. Last but not the least, respondent No.4 has submitted that his role

would only come in case this Court proceeds to grant relief in favour of the

petitioner.

16. Heard learned counsel for the parties and perused the record.

17. The case set up by the petitioner revolves around the issue that due

to unjustified and unprecedented delay in conclusion of the enquiry proceedings

against him, which started in the year 2005 and concluded in the year 2017, his

seniority was distorted and as a result his right of consideration for further

promotions got adversely affected. The grievance of the petitioner is that had the

enquiry initiated against him been concluded within a reasonable time

impugned punishment/ penalty imposed against him even if maintained, still the

petitioner who was initially appointed as Junior Assistant in the year 1988 would

have retired as a Joint Registrar in the year 2019, but, due to unjustifiable delay

in the enquiry proceedings, the retired as an Assistant Registrar-II, whereas his

counterpart/colleague, retired on much higher posts than him.

18. According to the petitioner he has been subjected to unwarranted

stagnation in service due to delayed enquiry conducted by the respondents

which resulted in his stagnation. The petitioner has also questioned the penalty

imposed upon alleging that the same has been imposed by a non-speaking order

which is without any justification or reason besides being disproportionate.

Thus, the petitioner has summarized his contentions by stating that the petitioner

has been deprived of his right of consideration for promotion with the delay in

concluding the enquiry at the first instance and also by not protecting his

seniority as decided and further by depriving him promotion till the conclusion

of enquiry proceedings which took twelve long years to conclude. The petitioner

was all along pursuing his cause with the respondents even during the pendency

of the enquiry proceedings and after imposition of penalty upon him, he relied

upon his initial representation dated 17.02.3014, reminder dated 16.12.2017 both

of which remained unaddressed and unattended by the respondents without any

reason or justification and the petitioner has further relied upon representations

dated 13.06.2019 and 31.03.2021, submitted by him after imposition of

impugned penalty upon him which too were not decided by the respondents

despite there being a legal obligation.

19. As per the petitioner the delay in disposal of inquiry is attributable

to the respondents who kept the matter pending. Moreover, there is no third-

party right which would be effected in the event of grant of relief to the

petitioner. The petitioner has thus prayed that gross injustice has been meted out

to him and this Court is not bound to go into technicalities as has been done by

the respondents while dealing with his case so justice may be done to him.

20. In support of his contention, learned counsel for the petitioner has

relied upon Shiv Dass Vs. Union of India and others reported in 2007 Vol 9

SCC 274 ( see- paras 6 to 10 ) and titled Syed Sharief-ud-Din reported in 2010

Vol 9 JKJ 876 (see-paras 10-14) which clearly substantiate that the instant

cause of the petitioner is not hit by delay and laches.

In case titled Shiv Dass Vs. Union of India and others, reported in (2007)

9 SCC 274, the Hon'ble Supreme Court in paragraphs Nos. 6 to 10 has held as

under :-

6. Normally, in the case of belated approach writ petition has to be dismissed. Delay or laches is one of the factors to be borne in mind by the High Courts when they exercise their discretionary powers under Article 226 of the Constitution of India, 1950 (in short the 'Constitution'). In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the

opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v.

Chief Controller of Imports and Exports and Ors. (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurd etc., (1874) 5 P.C. 221 at page 239 was approved by this Court in The Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay and Ors. (AIR 1967 SC 1450) and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, Amravati and Ors. (AIR 1969 SC 329), Sir Barnes had stated:

"Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

8. It was stated in State of M.P. v. Nandlal Jaiswal and Ors. (AIR 1987 SC 251), that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. 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.

9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore (AIR

1967 SC993). There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Sri Pyarimohan Samantaray, (AIR 1976 SC 2617) making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar Patnaik).

10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone.

21. It is settled position of law that as a general rule time limit for

filing a writ petition under Article 226 of the Constitution of India cannot be

more than the time limit prescribed for a civil suit for a similar relief, but, where

there is an extraordinary delay on the part of the petitioner in approaching the

Court, relief should be refused. It is true that petitioner should be vigilant in

pursing the remedy, which is open to him under the Constitution, but in order to

determine whether there has been delay in a particular case, the facts of each

case have to be taken into consideration. Mere lapse of time which does not

result in changing the position of other party, does not constitute laches, which

is a word of French origin, viz. lachesse, the roots meaning of which are laxness;

remissness or negligence, and which in legal connotation is understood as

unreasonable delay or undue lapse of time accompanied with negligence in

failing to act more promptly while having the opportunity to act in the

vindication of one's right. The doctrine of laches is not like limitation, its mere

matter of time, but principally is a question of the inequity of permitting a claim

to be enforced, such inequity being founded on some change in the condition of

relation of the property or the parties. The essence of laches is estopped rather

than limitation or abandonment. In catena of judgements, it has been held that

mere delay by itself is not a ground for rejection of a writ petition and whether

there has been delay or laches in bringing it has to be considered with reference

to the facts of each case. [See: Purshotam Lal and others v. Union of India

and another, 19782 All India Services Law Journal 352 (SC); M Ariffuddin

Nizami and others v. D.D.Chitale and others, 1973 (2) SLR 119, Rajinder

Parshad and another v. The Punjab State and another, AIR 1966 Punjab

185; and Balbir Singh v. Union of India, 1968 SLR 221]. The delay cannot

operate as an absolute bar to the grant of relief under Article 226 of the

Constitution of India and it depends upon the facts and circumstances of each

case whether a citizen should be denied his legal and constitutional right on the

ground of laches alone when an authority admittedly made a patently erroneous

order and is not prepared to listen to the gravamen of aggrieved party, no matter

that the cause of the latter was just. It is also well settled that a time lag which

can be explained does not spell laches. Therefore, the judgment relied upon by

the respondents No. 1 to 3 is otherwise not applicable as the same is on entirely

different facts and not applicable in the instant case.

22. In the present case, the petitioner has been making representations

to respondents to redress his grievance, but, he has been unsuccessful and, in

these circumstances, the delay, if any, in the present case in preferring the writ

petition on hand cannot be attributed to the petitioner much less considered to be

fatal to his petition.

23. Viewed thus, the objection raised by the respondents that present

petition is hit by delay and laches is overruled.

24. Reverting to the merits of the present case and legality or otherwise

of the impugned order No. 621 dated 04.08.2017 passed by respondents No. 2

and 3, vide which, penalty of withholding one annual increment with non-

cumulative was awarded against the petitioner, it is pertinent to note that

petitioner, at the relevant point of time, was working as Head Assistant. It is an

admitted position of fact on the record that Order No. 579 dated 24.10.2008

came to be issued in terms of rule 6 of the J&K High Court Staff (Condition of

Service Rules) 1968, by virtue of which, the service conditions and partial

avenues for the High Court Staff are provided. As per the said order, two years

minimum experience, in each feeding cadre, is prescribed for promotion; from

the post of Head Assistant to Section Officer, from Section Officer to Assistant

Registrar-II, from Assistant Registrar-II to Assistant Registrar-I, from Assistant

Registrar-I to Deputy Registrar and from Deputy Registrar to Joint Registrar.

The obvious implication is that a total of eight years experience in all respective

feeding cadres has been provided for promotion from Head Assistant to Joint

Registrar. According to the petitioner, even if the impugned punishment/penalty

of withholding one annual increment with non-cumulative effect is to be

maintained, he having been initially appointed as Junior Assistant way back in

the year 1988 could have retired as Joint Registrar in the year 2019. Allegation

of the petitioner is that it is only due to unjustifiable and uncalled for delay of

enquiry proceedings on the part of the respondents that he was retired as

Assistant Registrar-II whereas his counterparts namely Sh. Bashir Ahmed Vaid

and others superannuated on higher post than him. Further, grievance of the

petitioner is that his promotion was deferred till conclusion of enquiry

proceedings in view of Order No. 476 dated 30.08.2011 issued by Registrar

General of this Court whereas his counterpart and similarly situated employee,

namely, Sh. Bashir Ahmed Vaid was promoted as Assistant Registrar-II in terms

of the same order. Further, the said order stipulated under Note-II that

postponement of the consideration of the petitioner for promotion from Section

Officer-I in OPG would not affect his seniority in case he was considered and

appointed as Section Officer in future, however, said condition was never

adhered to by the respondents and his seniority was not protected.

25. We have carefully gone through the record, whereby it is discerned

that promotion of the petitioner as Section Officer was regularized by the

respondents vide order dated 985/GS dated 29.10.2018 by providing that dates

regarding the effect of promotion shall be notified separately. Record further

reveals that when petitioner was promoted as Assistant Registrar-II in terms of

Order No. 1279 dated 10.01.2019, seniority of the petitioner was never protected

and date of his promotion was notified as 04.08.2018. It is a clear case of

discrimination because petitioner was entitled to be promoted as Section Officer

w.e.f. 26.10.2008 with consequential promotion as Assistant Registrar-II w.e.f.

30.08.2011 on the principle of parity against his colleague, Sh. Bashir Ahmed

Vaid. Instance quoted by the petitioner that Sh. Bharat Bhushan, Peon, who was

held responsible for misconduct of all the charges in the enquiry proceedings,

yet was promoted and regularized as Junior Assistant and subsequently

promoted as Senior Assistant, is well founded. Petitioner has been treated

differently and has been discriminated against by the respondents without any

rhyme or reason.

26. It is a fundamental right of an employee that disciplinary

proceedings initiated against him are concluded without undue delay as, in such

circumstances, he is made to undergo mental trauma and torture and suffer

monetary loss without any fault on his part as held by Hon'ble Supreme Court

in State of A.P. Vs. N. Radhakishan (Supra). True it is, that whether delay

vitiates the disciplinary proceedings or not is to be considered depending upon

the facts and circumstances of each case as also the nature of charges, however,

inexplicable delay defeats justice and causes prejudice to the charged employee.

27. There is no dispute that monetary benefits with respect to

retrospective promotion depends upon facts and circumstances of each case.

However, principle of "no work no pay" cannot be accepted as a thumb rule as

held by Hon'ble Supreme Court in Ramesh Kumar (Supra). Since in the

present case, petitioner has been subjected to unwarranted and unjustifiable

stagnation in service due to inaction on the part of the respondents in general

and due to delay in concluding the enquiry proceedings against the petitioner in

particular, therefore, he is held entitled to all the retrospective monetary benefits.

28. Viewed in the above context, this petition is allowed. The

impugned order No.621 dated 04.08.2017, passed by respondents 2 and 3,

awarding penalty of withholding one annual increment, is hereby quashed. The

respondents are directed to fix the seniority of the petitioner as Assistant

Registrar-I immediately after the seniority position held by Sh. Bashir Ahmed

Vaid, Assistant Registrar-I and also grant the benefit of promotion to the

petitioner as Section Officer w.e.f. 26.10.2008 and consequential promotion as

Assistant Registrar-II w.e.f. 30.08.2011 and further as Assistant Registrar-I and

other higher posts in line retrospectively along with all consequential benefits

and his pension be accordingly fixed. Let this exercise be completed within a

period of two months from the date of copy of this order is made available to the

respondents against proper receipt.

29. Disposed of as above along with connected CM(s), if any.

30. Record produced by learned counsel for respondents 1 to 3 is

returned to him against proper receipt.

                                (Rajesh Sekhri)                    (Tashi Rabstan)
                                      Judge                            Judge
Jammu
16.05.2023
(Madan-PS)
                                Whether the order is speaking?           Yes
                                Whether the order is reportable?         Yes