Govind Prasad Bitthriya vs The State Of Madhya Pradesh
2021 Latest Caselaw 3056 MP

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             HIGH COURT OF MADHYA PRADESH
                      W.P. No. 678 of 2017
             Govind Prasad Bitthriya Vs. State of M.P.

Gwalior, dated 07-07-2021

      Shri D.P. Singh Counsel for the Petitioner.

      Shri Alok Bandhu Shrivastava, Counsel for the State

1.    Heard on I.A. No. 1439 of 2017, an application for

condonation of delay.

2.    This petition under Articles 226 of the Constitution of India

has been filed seeking the following relief(s):-

     7. Relief prayed for :
     The petitioner therefore, most humbly prayed that this
     Hon'ble Court may kindly be pleased to allow the petition
     and issue a writ of certiorari or any other suitable writ,
     order or direction may kindly be issued and following relief
     may be granted to the petitioner :-
     I)     That, the respondents be commanded to open the

recommendations made by the D.P.C. w.e.f. 23-5-1997 which was kept in sealed cover envelop for promotion over the post of Superintendent Engineer to the post of Chief Engineer and the respondents be further commanded to communicate the decision of D.P.C. to the petitioner and if the petitioner is found suitable as per recommendation for promotion over the post of Chief Engineer with a further direction to extend all the consequential benefits to the petitioner.

(II) That, the respondents be further directed to revise his terminal/retiremental claims and pay difference of the same along with interest @ 15% p.a., in the interest of justice. (III) Cost of the petition be awarded or any other order or direction deemed fit in the circumstances of the case be issued in the favour of the petitioner.

3. It is the case of the petitioner that DPC was convened for

consideration of candidates for promotion from the post of

Superintending Engineer to the post of Chief Engineer. At the

relevant time, the petitioner was facing investigation/prosecution

HIGH COURT OF MADHYA PRADESH W.P. No. 678 of 2017 Govind Prasad Bitthriya Vs. State of M.P.

under Prevention of Corruption Act. However, the petitioner has

been acquitted in the year 2008.

4. Since, the petitioner was facing investigation/trial, therefore,

the DPC decided to keep its recommendations in a sealed cover.

5. It is submitted that the petitioner stood retired on 28-2-2002.

6. After the acquittal of the petitioner in the year 2008, he made

representations on 13-7-2015 onwards for opening the sealed cover,

however, no heed has been paid and accordingly, this petition has

been filed.

7. The petitioner has also filed I.A. No. 1439/2017 for

condonation of delay. It is submitted by the Counsel for the

petitioner, that the respondents had issued No Objection Certificate

on 24-7-2010 to the effect that no departmental enquiry is pending.

Further, the respondents by order dated 25-2-2011 has granted the

benefit of promotion to the similarly situated person. It is submitted

that since, the petitioner is an old and infirm person and was confined

to bed, therefore, he could not file the petition at the earliest and the

respondents are sitting tight over the representations made by the

petitioner and accordingly, prayed that the delay in filing the petition

be condoned.

8. In support of his contention for condonation of delay, the

Counsel of the petitioner submitted that since, it was duty of the

respondents to open the sealed cover after the acquittal of the

HIGH COURT OF MADHYA PRADESH W.P. No. 678 of 2017 Govind Prasad Bitthriya Vs. State of M.P.

petitioner, therefore, it cannot be said that the petitioner was sleeping

over his rights. To buttress his contentions, the Counsel for the

petitioner has relief upon the judgments passed by the Supreme Court

in the case of SR. Bhanrale Vs. Union of India and others reported

in AIR 1997 SC 27, N. Balakrishnan Vs. K. Krishnamurthy

reported in (1998) 7 SCC 123, Ram Nath Sao @ Ramn Nath Sahu

& Ors. Vs. Gobardhan Sao & Ors. reported in AIR 2002 SC 1201,

K. Thimmappa & Ors. Vs. Chairman, Central Board of

Directions, State Bank of India & Anr reported in (2001) 2 SCC

259and order passed by this Court in the case of Indermal Vs.

Shambhulal reported in 2007(1) MPLJ 123.

9. Heard the learned Counsel for the petitioner on the question of

condonation of delay.

10. It is a trite law, that delay defeats equity. In order to appreciate

the submissions made by the Counsel for the petitioner, following

dates are material :

1. DPC was convened (Prior to 2002).

2. Petitioner was already facing investigation/prosecution under Prevention of Corruption Act.

3. The recommendations of DPC were kept in sealed cover.

4. The petitioner stood retired in the year 2002.

5. The petitioner was acquitted in the year 2008.

6. In the year 2010, No Objection was issued by the Department to the effect that No Departmental Enquiry is pending against the petitioner.

7. On 6-2-2011, another employee namely Shri Ravisharan Dixit was granted promotion.

8. The petitioner made representations on 13-7-2015, 16-11- 2015,27-1-2016 for opening of sealed cover.

HIGH COURT OF MADHYA PRADESH W.P. No. 678 of 2017 Govind Prasad Bitthriya Vs. State of M.P.

11. Thus, from the above mentioned dates, it is clear that the

petitioner made his first representation after 7 long years of his

acquittal and approached this Court in the year 2017 i.e., after 9 years

of his acquittal. It is also equally well established principle of law

that successive representations would not create any new cause of

action. Thus, it is clear that the petitioner has filed this petition after

2 years of making his first representation. Be that as it may.

12. The facts of the case are that in the year 2008, the petitioner

became entitled for opening of the recommendations of the D.P.C.

i.e., when he was acquitted by the Trial Court. However, the first

representation for the said purposes was made on 13-7-2015 i.e., after

7 long years and the present petition has been filed in the year 2017

i.e., after 9 long years of his acquittal.

13. So far the judgments relied upon by the Counsel for the

petitioner are concerned, it is suffice to say that none of the judgment

deals with a question of delay and laches in the case of promotion.

14. The Supreme Court in the case of P.S. Sadasivaswamy v.

State of T.N., reported in (1975) 1 SCC 152 has held as under :

2. The main grievance of the appellant is that the second respondent who was junior to him as Assistant Engineer was promoted as Divisional Engineer in 1957 by relaxing the relevant rules regarding the length of service necessary for promotion as Divisional Engineer and that his claim for a similar relaxation was not considered at that time. The learned Judge of the Madras High Court who heard the writ petition was of the view that the relaxation of the rules in

HIGH COURT OF MADHYA PRADESH W.P. No. 678 of 2017 Govind Prasad Bitthriya Vs. State of M.P.

favour of the second respondent without considering the appellant's case was arbitrary. In view of the statement on behalf of the Government that such relaxation was given only in the case of overseas scholars, which statement was not controverted, it is not possible to agree with the view of the learned Judge. Be that as it may, if the appellant was aggrieved by it he should have approached the Court even in the year 1957, after the two representations made by him had failed to produce any result. One cannot sleep over the matter and come to the Court questioning that relaxation in the year 1971. There is the further fact that even after Respondents 3 and 4 were promoted as Divisional Engineers over the head of the appellant he did not come to the Court questioning it. There was a third opportunity for him to have come to the Court when Respondents 2 to 4 were again promoted as Superintending Engineers over the head of the appellant. After fourteen long years because of the tempting prospect of the Chief Engineership he has come to the Court. In effect he wants to unscramble a scrambled egg. It is very difficult for the Government to consider whether any relaxation of the rules should have been made in favour of the appellant in the year 1957. The conditions that were prevalent in 1957, cannot be reproduced now. In any case as the Government had decided as a matter of policy, as they were entitled to do, not to relax the rules in favour of any except overseas scholars it will be wholly pointless to direct them to consider the appellant's case as if nothing had happened after 1957. Not only Respondent 2 but also Respondents 3 and 4 who were the appellant's juniors became Divisional Engineers in 1957, apparently on the ground that their merits deserved their promotion over the head of the appellant. He did not question it. Nor did he question the promotion of his juniors as Superintending Engineers over his head. He could have come to the Court on every one of these three occasions. 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

HIGH COURT OF MADHYA PRADESH W.P. No. 678 of 2017 Govind Prasad Bitthriya Vs. State of M.P.

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 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.

The Supreme Court in the case of Gian Singh Mann v. High

Court of P&H, reported in (1980) 4 SCC 266 has held as under :

3. In regard to the petitioner's claim for promotion to the Selection Grade post in the Punjab Civil Service (Judicial Branch) with effect from November 1, 1966, and to a post in the Punjab Superior Judicial Service with effect from May 1, 1967 on the basis that a post had been reserved in each of the services for a member of the scheduled castes, it seems to us that the claim is grossly belated. The writ petition was filed in this Court in 1978, about eleven years after the dates from which the promotions are claimed. There is no valid explanation for the delay. That the petitioner was making successive representations during this period can hardly justify our overlooking the inordinate delay. Relief must be refused on that ground. It is not necessary, in the circumstances, to consider the further submission of the respondents that the provision on which the petitioner relies as the basis of his claim is concerned with the appointment only of members of the scheduled castes to posts in the Punjab Superior Judicial Service and not to recruitment by promotion to that service.

The Supreme Court in the case of Union of India v. S.S.

Kothiyal, reported in (1998) 8 SCC 682 has held as under :

3. In our opinion, the admitted facts of this case alone are sufficient to reverse the judgment of the learned Single Judge as well as that of the Division Bench of the High

HIGH COURT OF MADHYA PRADESH W.P. No. 678 of 2017 Govind Prasad Bitthriya Vs. State of M.P.

Court. According to the version of Respondent 1 himself, his representation against non-promotion as Deputy Commandant was rejected on 10-6-1971, the second such representation made on 19-8-1971 was rejected on 4-11- 1974 and the third representation made on 12-4-1977 was rejected on 11-7-1977. It is obvious that on rejection of his representation in June 1971, there was no occasion for Respondent 1 to wait any longer to challenge his non- promotion and, therefore, the filing of the writ petition 8 years thereafter in December 1978, was highly belated and deserved to be rejected on the ground of laches alone in view of the settled principles relating to interference in service matters of this kind in exercise of the power of judicial review. The learned Single Judge as well as the Division Bench of the High Court completely overlooked this aspect. The fact that Respondent 1 waited for several years till he was actually promoted as Deputy Commandant in 1972 and even as Commandant in 1975 and more than three years elapsed even thereafter before he had filed the writ petition, is itself sufficient for the rejection of the writ petition.

The Supreme Court in the case of Ghulam Rasool Lone v.

State of J&K, reported in (2009) 15 SCC 321 has held as under :

20. Promotion of Hamiddulah Dar was effected in the year 1987. Abdul Rashid Rather filed his writ petition immediately after the promotion was granted. He, therefore, was not guilty of any delay in ventilating his grievances.

21. It will bear repetition to state that the petitioner waited till Abdul Rashid Rather was in fact promoted. He did not consider it necessary either to join him or to file a separate writ petition immediately thereafter, although even according to him, Abdul Rashid Rather was junior to him. The Division Bench, therefore, in our opinion rightly opined that the petitioner was sitting on the fence.

22. If at this late juncture the petitioner is directed to be promoted to the post of Sub-Inspector even above Abdul Rashid Rather, the seniority of those who had been promoted in the meantime or have been directly recruited would be affected. The State would also have to pay the back wages to him which would be a drainage of public

HIGH COURT OF MADHYA PRADESH W.P. No. 678 of 2017 Govind Prasad Bitthriya Vs. State of M.P.

funds. Whereas an employee cannot be denied his promotion in terms of the rules, the same cannot be granted out of the way as a result whereof the rights of third parties are affected. The aspect of public interest as also the general administration must, therefore, be kept in mind while granting equitable relief.

23. We understand that there would be a heart burning insofar as the petitioner is concerned, but then he is to thank himself therefor. If those five persons, who were seniors to Hamiddulah Dar filed writ petitions immediately, the High Court might have directed cancellation of his illegal promotion. This Court in Maharaj Krishan Bhatt did not take into consideration all these aspects of the matter and the binding decision of a three-Judge Bench of this Court in Govt. of W.B. v. Tarun K. Roy. The Division Bench of the High Court, therefore, in our opinion was right in opining that it was not necessary for it to follow Maharaj Krishan Bhatt.

The Supreme Court in the case of Prafulla Kumar Pallai v.

State of Orissa, reported in 1999 SCC (L&S) 777 has held as

under :

5. The facts beyond controversy are that the appellant was the de facto Headmaster of the School from August 1982 and that by letter (Annexure B) dated 27-8-1984, the Inspector of Schools had also been informed that the appellant had discharged his duties satisfactorily so that he had been promoted to the post of Headmaster by a resolution dated 12-8-1984. The Inspector of Schools, to whom the letter was addressed, had by the letter (Annexure C) dated 26-2-1985 apprised the Director of this fact requesting him to take the necessary steps in this behalf. The continuance of the appellant as Headmaster without any interruption thereafter for several years without any objection by the Director must be construed in the facts of this case as the deemed approval by the Director to the promotion of the appellant as Headmaster. By the Director's letter dated 16-8-1988, this fact was merely recognition of an existing fact which had his earlier approval. At any rate, Respondent 5, if he had any grievance to the promotion of the appellant as Headmaster, had to challenge the promotion

HIGH COURT OF MADHYA PRADESH W.P. No. 678 of 2017 Govind Prasad Bitthriya Vs. State of M.P.

latest in 1984 when the appellant was so promoted, if not earlier in 1982, when he was made the In-Charge Headmaster. A writ petition filed in 1988, about six years after the appellant had been working as the Headmaster, did not justify interference with the appellant's promotion. On these facts, after the lapse of almost a decade, the impugned order made by the High Court cannot be sustained. In our opinion, this conduct of Respondent 5 is alone sufficient to disentitle him to the relief claimed in the writ petition.

15. Thus, it is clear that in a case of promotion, the aggrieved party

must approach the Court within a reasonable period and delay of 9

long years would certainly make the petitioner dis-entitle for any

relief. It is true, that dismissal of this petition on the ground of delay

and laches would be heart burning for the petitioner, but the

petitioner has to thank himself for such a situation.

16. Accordingly, I.A. No. 1439 of 2017 for condonation of delay is

hereby rejected.

17. As a consequence thereof, the petition is dismissed on the

ground of delay and laches.

(G.S. Ahluwalia) Judge

ABHISHEK CHATURVEDI 2021.07.08 10:20:27 +05'30'