Karnataka High Court

Syed Noorul Hassan S/O Syedul Hassan vs The State And Ors on 30 July, 2024

Author: S.Sunil Dutt Yadav

Bench: S.Sunil Dutt Yadav

                                              -1-
                                                        NC: 2024:KHC-K:5454-DB
                                                       WA No. 200131 of 2021




                              IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                           DATED THIS THE 30TH DAY OF JULY, 2024

                                           PRESENT

                        THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
                                              AND
                    THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

                          WRIT APPEAL NO. 200131 OF 2021 (S-PRO)

                   BETWEEN:

                   SYED NOORUL HASSAN
                   S/O SYEDUL HASSAN,
                   AGE: ABOUT 43 YEARS,
                   OCC: F.D.A.,
                   R/O. TALUKA MUNICIPAL COUNCIL,
                   MANVI, TQ: MANVI,
                   DIST: RAICHUR.

                                                                  ...APPELLANT

Digitally signed
                   (BY SRI B.K. HIREMATH, ADVOCATE)
by SWETA
KULKARNI
Location: HIGH     AND:
COURT OF
KARNATAKA

                   1.   THE STATE
                        THROUGH PRINCIPAL SECRETARY,
                        VIDHANA SOUDHA,
                        BENGALURU - 560 001.

                   2.   THE DEPUTY COMMISSIONER
                        RAICHUR, DIST: RAICHUR - 584 101.

                   3.   THE DISTRICT PLANNING OFFICER
                        AND STATISTICAL OFFICER,
                        O/O DY. COMMISSIONER,
                            -2-
                                   NC: 2024:KHC-K:5454-DB
                                   WA No. 200131 of 2021




     RAICHUR - 584 101.

4.   THE DIRECTOR OF MUNICIPAL ADMINISTRATION
     VISVESVARAYYA TOWERS,
     AMBEDKAR VEEDHI,
     BENGALURU - 560 001.

5.   THE CHIEF LAW OFFICER,
     TOWN MUNICIPAL COUNCIL,
     MANVI, TQ: MANVI,
     DIST: RAICHUR - 584 123.

6.   SHARANABASAYYA A.
     AGE: MAJOR,
     OCC: F.D.A.,
     TALUKA MUNICIPAL COUNCIL,
     MANVI, TQ: MANVI,
     DIST: RAICHUR - 584 123.

7.   MALLESH
     AGE: MAJOR,
     OCC: F.D.A.,
     TALUKA MUNICIPAL COUNCIL,
     LINGASUGUR, TQ: LINGASUGUR,
     DIST: RAICHUR - 584 122.
                                          ...RESPONDENTS
(BY SRI GOPAL KRISHNA B. YADAV., H.C.G.P. FOR R1 TO R4;
NOTICE TO R6 IS SERVED;
V/O. DTD.23.06.2023 NOTICE TO R7 IS DISPENSED WITH)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW THE
APPEAL AND SET ASIDE THE ORDER PASSED BY THE SINGLE
JUDGE IN W.P.NO.200502/2021 DATED 08.03.2021 AND
RESPONDENT NO.4 BE DIRECTED TO PROMOTE THE
APPELLANT AS F.D.A., SINCE FROM 2010 AND AS MANAGER
SINCE FROM 2016 AND GRANT THE SERVICE AND OTHER
MONETARY BENEFITS TO THE APPELLANT, IN THE INTEREST
OF JUSTICE.

    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
                                  -3-
                                             NC: 2024:KHC-K:5454-DB
                                             WA No. 200131 of 2021




CORAM:    HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
          AND
          HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR


                       ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV)

The parties are referred to by their rank in the writ

proceedings.

The present appeal has been filed calling in question

the correctness of the order passed in

W.P.No.200502/2021, whereby, the writ petition filed by

the appellant who was the petitioner before the learned

Single Judge, calling in question the order at Annexure-B

dated 21.06.2010, came to be rejected on the ground that

the challenge to the order of 21.06.2010 whereby

respondent Nos.6 and 7 were promoted overlooking the

petitioner was sought to be upset by a belated plea made

in the year 2021. As against said order, the present

appeal has been filed.

NC: 2024:KHC-K:5454-DB

2. It must be noticed that writ petition was filed

seeking to set aside the order where respondent Nos.6

and 7 were promoted, which according to the petitioner,

was illegal insofar as respondent Nos.6 and 7 were junior

to the petitioner.

3. It is the contention of the petitioner that the

petitioner had passed departmental exams and his

eligibility was affirmed by the respondents and that being

so, his claim for promotion had been overlooked and

respondent Nos.6 and 7 were promoted ignoring his claim.

The learned Single Judge, while taking note of the relevant

facts, has dismissed the writ petition referring to the

observations made by the Apex Court in the case of Union

of India vs. Chaman Rana1, wherein the Apex Court has

referred to the aspect reasonable time within which

approach to a Court must be made as against denial of

promotion.

(2018) 5 SCC 798

NC: 2024:KHC-K:5454-DB

4. Learned counsel for the appellant/petitioner

would submit that seniority of the petitioner may be

considered independent of the promotion made to

respondent Nos.6 and 7.

5. It must be noticed that facts are not in dispute.

The petitioner who is stated to have passed departmental

exams in the year 2009 and subsequent to the petitioner

passing his departmental exams, matter had come up for

consideration of his promotion. In terms of the order on

21.06.2010, respondent Nos.6 and 7 were promoted

overlooking the petitioner.

6. The writ petition was filed in the year 2021

seeking for setting aside of the order giving promotion to

respondent Nos.6 and 7 overlooking the petitioner. As

rightly observed by the learned Single Judge, claim made

as against an order of 21.06.2010 in the year 2021 was

belated. Observation of the Apex Court in Union of India

vs. Chaman Rana (supra) at paragraphs 8 to 16 is

extracted below, which is self explanatory:

NC: 2024:KHC-K:5454-DB

"8. Manifestly, the cause of action first arose to the respondents on the date of initial supersession and again on the date when rejection of their representation was communicated to them, or within reasonable time thereafter. Even if the plea based on Dev Dutt v. Union of India, (2008) 8 SCC 725, be considered, the cause of action based thereon accrued on 12-5-2008. There has to be a difference between a cause of action and what is perceived as materials in support of the cause of action. In service matters, especially with regard to promotion, there is always an urgency. The aggrieved must approach the Court at the earliest opportunity, or within a reasonable time thereafter as third-party rights accrue in the meantime to those who are subsequently promoted. Such persons continue to work on the promotional post, ensconced in their belief of the protection available to them in service with regard to seniority. Any belated interference with the same is bound to have adverse effect on those already promoted affecting their morale in service also. Additionally, any directions at a belated stage to consider others for promotion with retrospective effect, after considerable time is bound to have serious administrative implications apart from the financial burden on the Government that would follow by such orders of promotion.

NC: 2024:KHC-K:5454-DB

9. As far back as in P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152, considering a claim for promotion belated by 14 years, this Court had observed that a period of six months or at the utmost a year would be reasonable time to approach a court against denial of promotion and that it would be a sound and wise exercise of discretion not to entertain such claims by persons who tried to unsettle the settled matters, which only clog the work of the court impeding it in considering genuine grievances within time in the following words: (SCC p. 154, para 2)

"2. ... A person aggrieved by an order of promoting a junior over his head should approach the court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the court. It clogs the work of the court and impedes the work of the court in considering legitimate

NC: 2024:KHC-K:5454-DB

grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal."

10. Mere repeated filing of representations could not be sufficient explanation for delay in approaching the Court for grant of relief, was considered in Gandhinagar Motor Transport Society v. Kasbekar, AIR 1954 Bom 202, by Chagla, C.J. observing as follows: (AIR p. 203, para 2)

"2. ... Now, we have had occasion to point out that the only delay which this Court will excuse in presenting a petition is the delay which is caused by the petitioner pursuing a legal remedy which is given to him. In this particular case the petitioner did not pursue a legal remedy. The remedy he pursued was extra-legal or extra-judicial. Once the final decision of the Government is given, a representation is merely an appeal for mercy or indulgence, but it is not pursuing a remedy which the law gave to the petitioner. ..."

11. The appellant, in its counter-affidavit before the High Court, had specifically taken the objection that the claim was highly belated, and that any direction for a retrospective consideration would have a destabilizing effect in unsettling the settled position which would lead to complete chaos apart from other administrative consequences. The High Court failed to consider the objection. In Union of India vs. M.K. Sarkar, (2010) 2 SCC 59, this Court observed as follows: (SCC p. 66, para 16)

NC: 2024:KHC-K:5454-DB

"16. A court or tribunal, before directing "consideration" of a claim or representation should examine whether the claim or representation is with reference to a "live" issue or whether it is with reference to a "dead" or "stale" issue. If it is with reference to a "dead" or "stale" issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration...."

12. In Dev Dutt Vs. Union of India, (2008) 8 SCC 725, the DPC was held on 16.12.1994. The appellant therein, aggrieved by his supersession moved the High Court with utmost expedition leading to the pronouncement by the Single Judge on 21.08.2001 and by the Division Bench on 26.11.2001. The appeal was instituted before this Court in the year 2002. If that were not sufficient to distinguish the case of the respondents, reference may also be made to the observations in paragraph 36 as follows: (SCC p. 737)

"36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation."

13. The High Court erred in placing absolute reliance on Dev Dutt and Sukhdev without noticing

- 10 -

NC: 2024:KHC-K:5454-DB

the fact situation of the respondents. In Union of India and another vs. Major Bahadur Singh, (2006) 1 SCC 368, it was observed: (SCC p.373, para 9)

"9. The courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments...."

14. A subsequent pronouncement by this Court could not enthuse a fresh lease of life, or furnish a fresh cause of action to what was otherwise clearly a dead and stale claim. In State of Uttaranchal v. Shiv Charan Singh Bhandari, (2013) 12 SCC 179, it was observed that: (SCC p. 186, para 29)

"29. ... Not for nothing, has it been said that everything may stop but not the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time."

15. The observations with regard to the modus operandi of the representation syndrome

- 11 -

NC: 2024:KHC-K:5454-DB

to revive what are clearly dead and stale claims as discussed in C. Jacob v. Director of Geology and Mining, (2008) 10 SCC 115, and the caution to be exercised by the Court are also considered apposite in the facts of the present case.

16. In the facts and circumstances of the present case, any direction to consider retrospective promotion of the respondents at such a belated passage of time of over 17 to 20 years, would virtually bring a tsunami in the service resulting in administrative chaos quite apart from the financial implications for the Government. The order of the High Court is therefore held to be unsustainable and is set aside."

7. The learned Single Judge was right in not

interfering with an order of promotion having effect on

altering seniority list at the instance of the petition filed

after a period of ten years. Observations of the Apex

Court are clear and by no stretch of lenient interpretation

can the period of ten years be construed to be reasonable

time for approaching this Court.

- 12 -

NC: 2024:KHC-K:5454-DB

8. The interference with the seniority list after ten

years will have administrative consequences.

9. Insofar as the contention that the relief as