Punjab-Haryana High Court
Gurdev Singh vs State Of Punjab And Others on 14 May, 2024
Neutral Citation No:=2024:PHHC:067732
CWP No.9459 of 2024 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
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117 CWP No.9459 of 2024
Reserved on : April 29, 2024
Pronounced on : May 14, 2024
Gurdev Singh
...... Petitioner
Versus
State of Punjab and others
...... Respondents
CORAM : HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. Ish Puneet Singh, Advocate
for the petitioner.
Mr. Rajesh Sehgal, Addl. A.G., Punjab.
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NAMIT KUMAR, J. (Oral)
1. The petitioner has approached this Court by way of filing instant
petition under Articles 226/227 of the Constitution of India seeking writ in the
nature of Certiorari for quashing of the order dated 14.03.2024 (Annexure P-9)
passed by Respondent No.3, whereby his claim for ante dated promotion to the
post of Mandi Supervisor-cum- Fee Collector w.e.f. 25.01.2014, has been rejected
and further a writ of mandamus has been sought directing the respondents to
consider him for promotion to the post of Mandi Supervisor-cum- Fee Collector
w.e.f. 25.01.2014, against a reserved category post, as per Roster Points and grant
him further promotion to the post of Accountant by counting his experience as
Mandi Supervisor-cum- Fee Collector w.e.f. 25.01.2014 and quash the resolution
dated 28.05.2012 (Annexure P-3) whereby Respondent No.6 - Kulwant Singh
was promoted against reserved category post.
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2. The brief facts, as have been pleaded in the writ petition, are that the
petitioner was appointed as Clerk in the Market Committee Lohian Khas, District
Jalandhar, vide appointment letter dated 17.01.2008 (Annexure P-1) and joined,
as such, on 22.01.2008. He was further promoted to the post of Auction Recorder
vide order dated 24.01.2011 (Annexure P-2). Further promotion from the post of
Auction Recorder is to the post of Mandi Supervisor-cum- Fee Collector and
roster points no.1, 6, 11 and 16 of the reservation policy are reserved for
scheduled caste category, to which the petitioner belongs. It has further been
pleaded that in the Departmental Promotion Committee held on 07.03.2006, the
06th post of Mandi Supervisor-cum- Fee Collector was left vacant to be filled by
a person belonging to reserved category. It has further been averred that vide
resolution dated 28.05.2012, the Market Committee, Lohian, filled one post
reserved for scheduled caste category by promoting the general category
candidate namely Kulwant Singh to the post of Mandi Supervisor-cum- Fee
Collector with the condition that in future in order to complete the backlog of
scheduled caste category posts, Gurdev Singh (petitioner) - Auction Recorder,
who belongs to scheduled caste category and who would complete the experience
on 25.01.2014, shall be promoted to the post of Mandi Supervisor-cum- Fee
Collector on its falling vacant.
3. It is further case of the petitioner that two posts of Mandi Supervisor-
cum- Fee Collector became vacant on 31.03.2014 and 31.10.2015 on the
retirement of Sh. Balwinder Singh and Hans Raj, respectively, however, the
petitioner was promoted to the post of Mandi Supervisor-cum- Fee Collector, vide
resolution dated 29.02.2016 (Annexure P-4).
4. It has further been pleaded that Kulwant Singh (Respondent No.6),
who belongs to general category, was wrongly promoted against reserved
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category vacancy, vide resolution dated 28.05.2012. It has further been stated that
since the petitioner became eligible to be promoted on the post of Mandi
Supervisor-cum- Fee Collector on 25.01.2014, therefore, he should have been
promoted on the said date whereas he has been promoted to the post of Mandi
Supervisor-cum- Fee Collector on 29.02.2016, and for claiming the said date of
promotion i.e. 25.01.2014 alongwith consequential benefits, he has given various
representations but to no avail. Thereafter, the petitioner served a legal notice
dated 18.10.2022 (Annexure P-6) to which a reply dated 10.11.2022 was received
from Respondent No.5, whereby the claim of the petitioner was neither accepted
nor rejected and only factual averments were given in the said reply and aggrieved
thereof, the petitioner filed CWP No.27266 of 2022, seeking promotion to the
post of Mandi Supervisor-cum- Fee Collector w.e.f. 28.05.2012, against a
reserved category, which was disposed of vide order dated 26.02.2024, on the
statement made by learned counsel for Respondent Nos.2 and 3 therein that the
claim of the petitioner would be considered and a speaking order would be passed
. In compliance thereof, the claim of the petitioner for retrospective promotion to
the post of Mandi Supervisor-cum- Fee Collector w.e.f. 25.01.2014, instead of
29.02.2016, has been rejected, vide impugned order dated 14.03.2024
(Annexure P-9).
5. It has further been averred that one Kuldip Kumar also filed CWP
No.23419 of 2015, claiming promotion to the post of Mandi Supervisor-cum- Fee
Collector from the date, the vacancy became available, and during the pendency
of the said writ petition, he alongwith the present petitioner were promoted to the
post of Mandi Supervisor-cum-Fee Collector on 29.02.2016 and the claim of the
Kuldip Kumar, seeking promotion w.e.f. the date vacancy became available, was
rejected by a Co-ordinate Bench of this Court, vide order dated 29.09.2022 and
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the said order reads as under:-
xxx xxx xxx xxx
The petitioner is seeking promotion to the post of Mandi
Supervisor-cum-Fee Collector from the date the post had fallen
vacant.
Learned counsel for the petitioner submits that the petitioner,
who was working as an Auction Recorder, was fully eligible for
promotion to the post of Mandi Supervisor-cum-Fee Collector w.e.f.
01.04.2014, the date when the post had fallen vacant as he was the
senior most eligible person at that time.
Learned counsel for respondent No.3, while referring to the
reply filed by the respondents, submits that during the pendency of
this petition, the petitioner has been promoted to the post of Mandi
Supervisor-cum-Fee Collector on 29.02.2016, after following due
procedure. A copy of the resolution is appended as Annexure R-2
along with the reply. She also submits that mere vacancy of a post
would not give any right for promotion to the petitioner. She has
relied upon the judgment of the Supreme Court in the case of Union
of India and another versus Manpreet Singh Poonam etc., (2022) 6
SCC 105.
Heard.
The petitioner was working as an Auction Recorder. He had
been promoted to the post of Mandi Supervisor-cum-Fee Collector
on 29.02.2016. It is not a case of the petitioner that any person
junior to the petitioner had been promoted ahead of him. Merely
because the post had fallen vacant and some time had passed while
ordering the promotion would not give a right to the petitioner for
promotion from the date the vacancy had arisen. The Supreme Court
in the case of Union of India and another versus Manpreet Singh
Poonam etc. (supra) has held that the promotion cannot be granted
retrospectively and extended to give benefit and seniority from date
of notional vacancy. Mere existence of vacancy per se will not create
any right in favour of an employee for retrospective promotion.
In view of the above, I do not find any merit in the claim of the
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petitioner for retrospective promotion from the date the vacancy had
arise.
Consequently, the petition stands dismissed.
xxx xxx xxx xxx
6. Learned counsel for the petitioner inter-alia submits that the
resolution dated 28.05.2012 (Annexure P-3), whereby Kulwant Singh belonging
to general category was promoted against reserve category post as Mandi
Supervisor-cum-Fee Collector on the basis of seniority-cum-merit, was totally
illegal and arbitrary, as the said post can only be filled by promoting the reserve
category candidate as per roster point and no person belonging to general
category has right to be promoted against said post and, therefore, the resolution
dated 28.05.2012 (Annexure P-3) is liable to be set aside. He further submits that
although the petitioner has been promoted on 29.02.2016 but he is entitled to be
promoted either from 28.05.2012, when Kulwant Singh was promoted, or w.e.f.
25.01.2014, when the petitioner became eligible on completion of 03 years
experience as Auction Recorder.
7. On the other hand learned State counsel, who has caused appearance
on the strength of advance copy served upon him, submits that the claim raised by
the petitioner is liable to be rejected outrightly on the ground of delay and latches
as the petitioner cannot claim promotion to the post of Mandi Supervisor-cum-Fee
Collector either w.e.f. 28.05.2012 or 25.01.2014 at this stage. He further submits
that the claim of the petitioner itself is contradictory, as in the earlier writ petition
i.e. CWP No.27266 of 2022, the petitioner was claiming promotion to the post of
Mandi Supervisor-cum-Fee Collector w.e.f. 28.05.2012 and now in the present
writ petition, he is claiming promotion on the said post w.e.f. 25.01.2014 as well.
8. I have heard learned counsel for the parties and perused the record.
9. Firstly, the preliminary objection raised by learned State counsel with
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regard to delay and latches is required to be considered.
10. The cause of action accrued to the petitioner on 28.05.2012, when
vide resolution dated 28.05.2012 (Annexure P-3) Kulwant Singh (Respondent
No.6) was promoted as Mandi Supervisor-cum-Fee Collector and since the
petitioner was not eligible on the said date, as he was not having required
experience of three years for promotion to the post of Mandi Supervisor-cum-Fee
Collector, however, the said resolution was never questioned by the petitioner so
far and the same is now being challenged after a period of more than 12 years.
However, the petitioner was promoted to the said post on 29.02.2016 as
mentioned in the order dated 29.09.2022 passed in CWP No.23419 of 2015 and if
the petitioner was still aggrieved and wanted to claim promotion either w.e.f.
28.05.2012 or 25.01.2014, again the cause of action for second time accrued to
him, however, he did not take any step in this regard.
11. On the other hand, Kuldip Singh, who was aggrieved at that point of
time, filed CWP No.23419 of 2015 by claiming following relief:-
xxx xxx xxx xxx
"(i) Summon the all relevant records of the case;
(ii) issue appropriate writ, order or direction especially in the
nature of Mandamus directing the respondent-authority to
consider the claim of the petitioner for promotion as Mandi
Supervisor-cum-Fee Collector as per the Statutory Rules his
conditions of service, under general category against the
sanctioned post of Mandi Supervisor-cum-Fee Collector at
Lohian Khas being senior most amongst the feeder cadre post
of Auction Recorder w.e.f. the date of his rights when the post
became vacant w.e.f. 01.04.2014 on the superannuation of
Balwinder Singh alongwith all consequential benefits and
interest on the delayed payment of arrears etc.
(iii) Further to issue the directions to the respondents to consider
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and decide the issue in hand and not dilly dally the matter as
is apparent from the reply undated (ANNEXURE P-4) and
letter dated 08.09.2015 (ANNEXURE P-5). "
xxx xxx xxx xxx
12. During the pendency of the said writ petition, Kuldip Singh was
promoted to the post of Mandi Supervisor-cum-Fee Collector on 29.02.2016
alongwith the petitioner and his claim for promotion w.e.f. 01.04.2014 was
rejected by this Court vide order dated 29.09.2022 by holding that merely because
the post has fallen vacant and some time had passed while ordering the promotion
to the petitioner would not give a right to the petitioner for his promotion from the
date the vacancy had arisen while relying the Judgement passed by the Hon'ble
Supreme Court in Union of India and another versus Manpreet Singh Poonam
etc., (2022) 6 SCC 105.
13. The petitioner, had served a legal notice dated 18.10.2022 (Annexure
P-6) and thereafter filed CWP No.27266 of 2022 before this Court after a span of
six years. Although the claim of said Kuldip Singh for promotion from earlier date
was rejected, however, fact remains that he approached the Court immediately in
the year, 2015 and whereas the petitioner remained silent for substantial period
and has now woken up from his deep slumber and is claiming ante dated
promotion to the post of Mandi Supervisor-cum-Fee Collector and further also to
the post of Accountant.
14. The Hon'ble Supreme Court in State of Uttaranchal and another v.
Sri Shiv Charan Singh Bhandari and others, 2013(6) SLR 629, while
considering the issue regarding delay and laches and referring to earlier
judgments on the issue, opined that repeated representations made will not keep
the issues alive. A stale or a dead issue/dispute cannot be got revived even if such
a representation has either been decided by the authority or got decided by getting
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a direction from the court as the issue regarding delay and laches is to be decided
with reference to original cause of action and not with reference to any such order
passed. Delay and laches on the part of a government servant may deprive him of
the benefit which had been given to others. Article 14 of the Constitution of India,
in a situation of that nature, will not be attracted as it is well known that law leans
in favour of those who are alert and vigilant. Even equality has to be claimed at
the right juncture and not on expiry of reasonable time. Even if there is no period
prescribed for filing the writ petition under Article 226 of the Constitution of
India, yet it should be filed within a reasonable time. An order promoting a junior
should normally be challenged within a period of six months or at the most in a
year of such promotion. Though it is not a strict rule, the courts can always
interfere even subsequent thereto, but relief to a person, who allows things to
happen and then approach the court and puts forward a stale claim and try to
unsettle settled matters, can certainly be refused on account of delay and laches.
Any one who sleeps over his rights is bound to suffer. An employee who sleeps
like Rip Van Winkle and got up from slumber at his own leisure, deserves to be
denied the relief on account of delay and laches. Relevant paragraphs from the
aforesaid judgment are extracted below:
"13. We have no trace of doubt that the respondents could
have challenged the ad hoc promotion conferred on the junior
employee at the relevant time. They chose not to do so for six years
and the junior employee held the promotional post for six years till
regular promotion took place. The submission of the learned counsel
for the respondents is that they had given representations at the
relevant time but the same fell in deaf ears. It is interesting to note
that when the regular selection took place, they accepted the position
solely because the seniority was maintained and, thereafter, they
knocked at the doors of the tribunal only in 2003. It is clear as noon
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day that the cause of action had arisen for assailing the order when
the junior employee was promoted on ad hoc basis on 15.11.1983. In
C. Jacob v. Director of Geology and Mining and another, (2008) 10
SCC 115, a two-Judge Bench was dealing with the concept of
representations and the directions issued by the court or tribunal to
consider the representations and the challenge to the said rejection
thereafter. In that context, the court has expressed thus:-
"Every representation to the Government for relief, may
not be replied on merits. Representations relating to matters
which have become stale or barred by limitation, can be
rejected on that ground alone, without examining the merits of
the claim. In regard to representations unrelated to the
Department, the reply may be only to inform that the matter
did not concern the Department or to inform the appropriate
Department. Representations with incomplete particulars may
be replied by seeking relevant particulars. The replies to such
representations, cannot furnish a fresh cause of action or
revive a stale or dead claim."
15. In Union of India and others v. M. K. Sarkar, (2010) 2 SCC 59, the
Hon'ble Supreme Court, after referring to C. Jacob (supra) has ruled that when a
belated representation in regard to a "stale" or "dead" issue/dispute is considered
and decided, in compliance with a direction by the court/tribunal to do so, the date
of such decision cannot be considered as furnishing a fresh cause of action for
reviving the "dead" issue or time-barred dispute. The issue of limitation or delay
and laches should be considered with reference to the original cause of action and
not with reference to the date on which an order is passed in compliance with a
Court's direction. Neither a court's direction to consider a representation issued
without examining the merits, nor a decision given in compliance with such
direction, will extend the limitation, or erase the delay and laches.
16. From the aforesaid authorities, it is clear as crystal that even if the
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court or tribunal directs for consideration of representations relating to a stale
claim or dead grievance it does not give rise to a fresh cause of action. The dead
cause of action cannot rise like a phoenix. Similarly, a mere submission of
representation to the competent authority does not arrest time. In Karnataka
Power Corpn. Ltd. through its Chairman & Managing Director v. K.
Thangappan and another, (2006) 4 SCC 322, the Court took note of the factual
position and laid down that when nearly for two decades the respondent-workmen
therein had remained silent mere making of representations could not justify a
belated approach.
17. In State of Orissa v. Pyarimohan Samantaray, (1977) 3 SCC 396, it
has been opined that making of repeated representations is not a satisfactory
explanation of delay. To the same effect is the judgment in State of Orissa v. Arun
Kumar Patnaik, (1976) 3 SCC 579.
18. In Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and
others, (2011) 4 SCC 374, a three-Judge Bench of the Hon'ble Supreme Court
reiterated the principle stated in Jagdish Lal v. State of Haryana, (1977) 6 SCC
538 and proceeded to observe that as the respondents therein preferred to sleep
over their rights and approached the tribunal in 1997, they would not get the
benefit of the order dated 7.7.1992.
19. In State of T. N. v. Seshachalam, (2007) 10 SCC 137, the Hon'ble
Supreme Court, testing the equality clause on the bedrock of delay and laches
pertaining to grant of service benefit, has ruled thus:-
xxx xxx xxx xxx
"... filing of representations alone would not save the period of
limitation. Delay or laches is a relevant factor for a court of law to
determine the question as to whether the claim made by an applicant
deserves consideration. Delay and/or laches on the part of a
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government servant may deprive him of the benefit which had been
given to others. Article 14 of the Constitution of India would not, in a
situation of that nature, be attracted as it is well known that law
leans in favour of those who are alert and vigilant."
xxx xxx xxx xxx
20. In New Delhi Municipal Council v. Pan Singh and others, (2007) 9
SCC 278, the Hon'ble Supreme Court has opined that though there is no period of
limitation provided for filing a writ petition under Article 226 of the Constitution
of India, yet ordinarily a writ petition should be filed within a reasonable time. In
the said case the respondents had filed the writ petition after seventeen years and
the court, as stated earlier, took note of the delay and laches as relevant factors
and set aside the order passed by the High Court which had exercised the
discretionary jurisdiction.
21. In "Union of India & Anr vs Manpreet Singh Poonam Etc.",
2022(4) SCT 550, the Hon'ble Supreme Court, has held as under:-
"16. It is trite law that once an officer retires voluntarily, there
is cessation of jural relationship resorting to a "golden handshake"
between the employer and employee. Such a former employee cannot
seek to agitate his past, as well as future rights, if any, sans the
prescription of rules. This would include the enhanced pay scale.
The Respondent in Civil Appeal No.517 of 2017 was rightly not
considered in the DPC in 2012 since he was no longer in service at
the relevant point of time. The High Court has committed an error in
relying upon a circular, which has got no application at all,
particularly in the light of our finding that we are dealing with a
case of promotion simpliciter as against upgradation of any nature."
22. To the same effect is the judgment of this Court in "Suraj Mal vs
The State of Haryana and others", 2015(1) SCT 31, wherein the petitioner was
claiming the benefit of ACP scale, after completion of 10 years of regular service,
revised pension and other retiral benefits, after nearly 05 years, after his
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retirement and the said claims were rejected on the ground of delay and latches.
23. In view of the above authoritative enunciation of law by Hon'ble the
Supreme Court and this Court, the aforesaid issue as raised in the present writ
petition filed by the petitioner after about 10 /12 years from the date of accrual of
the cause of action, cannot be allowed to be agitated, at this stage and
consequently, the present petition is liable to be dismissed on the ground of delay
and latches.
24. Even otherwise, the petitioner cannot claim promotion to the post of
Mandi Supervisor-cum-Fee Collector w.e.f. 28.05.2012, when Kulwant Singh
(Respondent No.6) was promoted as on the said date he was not eligible as he was
not having requisite experience of 03 years. Further, no employee can claim
promotion w.e.f. the date of occurrence of vacancy or w.e.f. the date he became
eligible for promotion. Further, it is not the case of the petitioner that any of his
junior has been promoted prior to 29.02.2016, when the petitioner has been
promoted to the post of Mandi Supervisor-cum-Fee Collector, therefore, in this
view of the matter finding no merit in the writ petition, the same is hereby
dismissed.
May14, 2024 (NAMIT KUMAR)
mkkoundal JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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