Punjab-Haryana High Court
Neelam Sharma vs State Of Punjab And Others on 6 November, 2024
Neutral Citation No:=2024:PHHC:144810
CWP No.29145 of 2017
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.29145 of 2017
Date of decision: 06.11.2024
Neelam Sharma
....Petitioner
Versus
State of Punjab and others
....Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. Gaurav Sharma, Advocate
for the petitioner.
Mr. Surya Kumar, AAG, Punjab
for respondent No.1.
Mr. Arav Gupta, Advocate
for respondents No.2 and 4.
NAMIT KUMAR J. (Oral)
1. The petitioner has filed the instant writ petition under
Articles 226/227 of the Constitution of India, seeking a writ of
mandamus, directing the respondents to consider and promote her to the
post of Junior Engineer, which has now been re-designated as
Additional Assistant Engineer from due date i.e. with effect from
30.01.2000, when the petitioner had passed the departmental accounts
examination and posts in the quota meant for diploma holder candidates
were available and respondents be also directed to consider and promote
the petitioner as Assistant Engineer with effect from the date persons
juniors to the petitioner were promoted and to grant her all the
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consequential benefits arising therefrom such as refixation of pay,
seniority and further promotions, etc. for which the petitioner is entitled.
2. The brief facts, as have been pleaded in the petition, are
that the petitioner passed the matriculation examination from Punjab
School Education Board in first division in the examination held in
March, 1982 and thereafter, she acquired three years diploma in
Electronics and Communication Engineering from Punjab State Board
of Technical Education in the year 1986. She was appointed as
Telephone Supervisor on 26.08.1988 in the erstwhile Punjab State
Electricity Board (now bifurcated into Punjab State Power Corporation
Limited and Punjab State Transmission Corporation Limited). The
services of the petitioner were allocated to the Punjab State
Transmission Corporation Limited. Subsequently, vide order dated
08.10.1991, the post of the petitioner i.e. Telephone Supervisor was re-
designated as Junior Engineer Grade-II (Communication). It has further
been pleaded that the service conditions of the petitioner are governed
by regulations known as 'Punjab State Electricity Board Service of
Engineers (Electrical) Regulations, 1965 and vide order dated
29.06.1976, 67% quota for promotion was fixed by the Board for filling
up the posts of Junior Engineers amongst the diploma holders having at
least five years experience and 33% quota from amongst the non-
diploma holders having at least ten years experience, however, the
petitioner has not been granted the benefit of said quota who has passed
the Departmental Accounts Examination on 12.10.1999. Hence, the
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present petition.
3. Separate written statements have been filed on behalf of
respondents No.3 as well as 2 and 4. In the written statement filed by
respondents No.2 and 4, it has been stated as under:-
"2. That the petitioner Neelam Sharma, joined the
erstwhile Punjab State Electricity Board (now PSPCL) on
26.08.1988 as Telephone Supervisor, now termed as Junior
Engineer/Communication. Her seniority number was 155
as JE/Communication and she had passed the
Departmental Accounts Examination (DAE) required for
promotion on 22.11.1999. Serial number 13 of the
eligibility criteria of promotion Junior Engineer Grade-I
on PLC side (now termed AAE/Communication) issued
vide office order no 133/ENG/BET/G-33 dt. 02.06.1987,
Annexure P-7, clearly states that
"All the posts may be filled up by promotion of
Telephone Supervisors on seniority-cum-merit basis
subject to completion of minimum time gap already
prescribed."
3. That it is submitted herein that the time gap prescribed
for the promotion from Telephone Supervisors to Junior
Engineer Grade-I on PLC side was 5 years for Diploma
Holders and 10 years for Non Diploma Holders which
stood issued vide office order number 365 dt. 29.6.76
(Annexure P-6). The said office order also stated that the
ratio of 67% was fixed for the promotion of Diploma
Holders and 33% for Non Diploma Holders but it is of
utmost importance that this part of the regulation was not
in practice at the time of joining of the petitioner instead
the regulation stood amended with office order no
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133/ENG/BET/G-33 dt. 02.06.1987 which states the
promotions to be considered on seniority-cum-merit basis
by taking into consideration only the requisite time gap
from the office order number 365 dt. 29.6.76. Hence, the
ratio system got amended and promotions were to be made
on Seniority cum merit base only. The Date of joining of
petitioner in PSEB now PSPCL is 26.08.1988 and the
service conditions of the petitioner has been regulated vide
office order no. 133/ENG/BET/G-33 dt.02.06.1987 which
came into existence before she had joined the erstwhile
PSEB now PSPCL.
4. That there is another requirement of passing the
Departmental Accounts Examination prescribed for
Engineering Subordinates which stands issued vide
Secretary/ Examination, Patiala memo No.46420/47570
dated 10.1.1980, Secretary/ENG-2, Patiala memo No.
87389/88289 dated 13.5.1983 and Secretary, Patiala office
order 46 dated 28.04.1998, exemption from passing said
Departmental Accounts Examination was added on certain
conditions which is applicable only when the employee
attains the age of 50 years and hence the same does not
apply in case of the petitioner, since that date of birth of
the petitioner is 01.01.1966. Copies of the said office
orders are annexed herewith and marked as Annexure R2/1
Colly.
5. That it is imperative to note herein that at the time of
entrance of petitioner in the erstwhile PSEB now PSPCL,
the promotion of the petitioner was to be regulated by the
para no. 13 of office order No. 133 dated 2.6.1987 which
says promotion has to be made on seniority cum merit
basis by taking into consideration the time gap prescribed
under office order number 365 dt. 29.6.76 alongwith
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passing of Departmental Accounts Examination meant for
Engineering subordinates. Although petitioner has
completed her 10 years' service in the year 1998, but she
had not passed the DAE prescribed for engineering
subordinates then, as such she did not fulfill the conditions
of promotion. The petitioner had passed the Departmental
Accounts Examination on 22.11.1999, and when the
petitioner fulfilled all other conditions required for
promotion, she was promoted as AAE/Communication on
seniority cum merit basis vide Office order No. 211 dated
30.10.11. However her seniors were promoted as
AAE/Communication prior to the petitioner because they
were eligible for promotion as per rules & regulations as
they fulfill both the conditions for promotion i.e.
completion of required years of service and passing of the
Departmental Accounts Examination (DAE) or falling in
the category of exemption from passing of Departmental
Accounts Examination. No employee junior to the
petitioner has been promoted before her
AAE/Communication."
4. Learned counsel for the petitioner submits that the
petitioner represented before the respondents that she should be
considered and promoted as Additional Assistant Engineer and Assistant
Engineer from the due date but in spite of number of representations
submitted by her, nothing has been done by the respondents. He further
submits that the action of the respondents in not considering and
promoting the petitioner as Additional Assistant Engineer w.e.f.
30.01.2000 and consequently, not promoting her as Assistant Engineer
from the due date is illegal, arbitrary, discriminatory and against the
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principles of natural justice.
5. Per contra, learned counsel for the respondents, have
opposed the submissions made by learned counsel for the petitioner.
Learned counsel for respondents No.2 and 4 submits that besides other
issues, there is an inordinate delay in filing the present writ petition for
espousing her cause after a period of seventeen years, therefore, the
same is liable to be dismissed on the ground of delay and latches.
6. I have heard learned counsel for the parties and perused the
record.
7. The facts are not in dispute that the petitioner initially
joined the erstwhile Punjab State Electricity Board (now Punjab State
Power Corporation Limited) on 26.08.1988 as Telephone Supervisor,
which has been later re-designated as Junior Engineer Grade II
(Communication). She had passed the Departmental Accounts
Examination (DAE) on 12.10.1999, which is required for further
promotion to the post of Junior Engineer Grade-I. Further promotion
from the post of Junior Engineer Grade-II is to the post of Junior
Engineer Grade-I and the said post is to be filled by promotion from
Telephone Supervisors on seniority-cum-merit basis. The petitioner has
already been promoted to the post of Junior Engineer Grade-I on
30.03.2011 and thereafter, during the pendency of the present petition,
she has further been promoted to the post of Assistant Engineer on
30.04.2018.
8. The instant petition has been filed in the year 2017
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claiming promotion as Junior Engineer Grade-I w.e.f. 30.01.2000 and
there is a gross and unexplained delay of 17 years in filing the present
petition. Further it is the stand of the respondents as have been
reproduced above that no person junior to the petitioner has been
promoted to the post of Junior Engineer Grade-I prior to the promotion
of the petitioner. Further reliance placed by the petitioner on the office
order dated 29.06.1976 whereby quota for diploma holders and non-
diploma holders was fixed at the ratio of 67% and 33 % respectively,
has been done away with the issuance of office order dated 02.06.1987,
which reads as under:-
"PUNJAB STATE ELECY. BOARD
OFFICE ORDER NO.133/ENG/BET/G-33 DATED 2-6-87
The Punjab State Electricity Board is pleased to
order that in future the following criteria will be followed
for filling up of below noted posts by direct
recruitment/promotion:-
1 to 12. XXXX XXXX XXXX
13. Junior Engineer Grade-I on PLC side.
All the posts may be filled up by promotion of Telephone
Supervisors on seniority-cum-merit basis subject to
completion of minimum time gap already prescribed."
9. Further, the Hon'ble Supreme Court in "Yunus
(Baboobhai) A Hamid Padvekar vs State of Maharashtra Through its
Secretary and others", 2009(2) SCT 24, while referring to the issue of
delay and latches, had held as follows:-
"8. Delay or laches is one of the factors which is to
be borne in mind by the High Courts when they exercise
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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 (AIR
1970 SC 769). Of course, the discretion has to be exercised
judicially and reasonably.
9. What was stated in this regard by Sir Barnes
Peacock in Lindsay Petroleum Company v. Prosper
Armstrong Hurde etc. (1874) 5 PC 221 at page 239 was
approved by this Court in Moon Mills Ltd. v. Industrial
Courts (AIR 1967 SC 1450) and Maharashtra State
Transport Corporation v. Balwant Regular Motor Service
(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
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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."
10. It would be appropriate to note certain decisions
of this Court in which this aspect has been dealt with in
relation with Article 32 of the Constitution. It is apparent
that what has been stated as regards that Article would
apply, a fortiori, to Article 226. It was observed in R.N
Bose v. Union of India (AIR 1970 SC 470) that no relief
can be given to the petitioner who without any reasonable
explanation approaches this Court under Article 32 after
inordinate delay. It was stated that though Article 32 is
itself a guaranteed right, it does not follow from this that it
was the intention of the Constitution makers that this Court
should disregard all principles and grant relief in petitions
filed after inordinate delay.
11. It was stated in State of M.P. v. Nandlal (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 trail new injustices, and if
writ jurisdiction is exercised after unreasonable delay, it
may have the effect of inflicting not only hardship and
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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.
12. In view of the aforesaid position we are not
inclined to interfere in this appeal which is dismissed
accordingly."
10. Further 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 revived even if such a representation has
been decided either by the authority or by getting 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
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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 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
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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."
14. XXXX XXXX XXXX XXXX
15. XXXX XXXX XXXX XXXX
16. XXXX XXXX XXXX XXXX
17. 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, (1997)
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.
18. In State of T. N. vs. 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:-
"... filing of representations alone would not
save the period of limitation. Delay or laches is a
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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 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."
19. XXXX XXXX XXXX XXXX
20. In New Delhi Municipal counsel 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.
11. In a recent judgment by the Division Bench of this Court in
"Ram Kumar vs State of Haryana and others", 2022 (3) SCT 346,
while rejecting the claim of the petitioner for counting of his ad hoc
service, for the purpose of seniority/pension and regularization in
service on completion of 02 years as per policy, held that the petition
filed by him suffered from gross, inordinate and unexplained delay in
approaching the High Court. In the said judgment, it has been held as
under:-
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"10. What we wish to emphasize, in particular, is that
services of the appellant were regularized w.e.f.
01.04.1997. And, he was assigned a specific seniority
position in the cadre. Whereafter, he continued to serve the
department for nearly twenty five years, before attaining
the age of superannuation in January, 2022. Needless to
assert that during all these years, he availed all admissible
benefits, promotions, and retired as Inspector. Thus, it
rather appears that institution of the petition by the
appellant was speculative and an attempt to resurrect a
stale and dead claim. The Supreme Court, in New Delhi
Municipal counsel v. Pan Singh & Ors., 2007(9) SCC
278, observed:
"15. There is another aspect of the matter
which cannot be lost sight of. Respondents herein
filed a Writ Petition after 17 years. They did not
agitate their grievances for a long time. They, as
noticed herein, did not claim parity with the 17
workmen at the earliest possible opportunity. They
did not implead themselves as parties even in the
reference made by the State before the Industrial
Tribunal. It is not their case that after 1982, those
employees who were employed or who were
recruited after the cut-off date have been granted the
said scale of pay. After such a long time, therefore,
the Writ Petitions could not have been entertained
even if they are similarly situated. It is trite that the
discretionary jurisdiction may not be exercised in
favour of those who approach the Court after a long
time. Delay and laches are relevant factors for
exercise of equitable jurisdiction. See Govt. of W.B.
v. Tarun K. Roy And Others [(2004) 1 SCC 347],
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Chairman, U.P. Jal Nigam & Anr. v. Jaswant
Singh And Anr. [2006 (12) SCALE 347] and
Karnataka Power Corpn. Ltd. through its
Chairman & Managing Director and Another v. K.
Thangappan and Another [(2006) 4 SCC 322]"
11. Similarly, in Jagdish Lal & Ors. v. State of Haryana
& Ors., (1997) 6 SCC 538, it was held by the Supreme
Court:
"That apart, as this Court has repeatedly
held, the delay disentitles the party to the
discretionary relief under Article 226 or 32 of the
Constitution. It is not necessary to reiterate all
catena of precedents in this behalf. Suffice it to state
that the appellant kept sleeping over their rights for
long and elected to wake up when they had the
impetus from Vir Pal Chauhan and Ajit Singh's
ratios..................... Therefore, desperate attempts of
the appellants to re-do the seniority had by them in
various cadres/grades though in the same services
according to 1974 Rules or 1980 Rule, are not
amenable to judicial review at this belated stage...."
12. In the wake of the position as sketched out above, we
are dissuaded to interfere with the impugned order and
judgment rendered by the learned single Judge. The appeal
being bereft of merit is, accordingly, dismissed."
12. The Co-ordinate Bench of this Court in "Prem Nath and
others vs State of Punjab and others", 2018(2) SCT 687, while
rejecting the claim of additional increments of acquisition of higher
qualifications has held as under:-
"3. It is the case set up on behalf of the petitioners
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that they had all been appointed before 19.02.1979 and
had even improved/acquired higher qualifications before
19.02.1979 and as such there would be no difference
between the employees working with the Punjab
Government, holding corresponding post and the
employees like the petitioners who have worked for Punjab
Privately Managed Recognised Aided Schools. It is also
the assertion made by counsel representing the petitioners
that their claim would be covered in terms of decision
dated 02.07.2013 rendered by this Court in a bunch of writ
petitions including CWP No.8083 of 1989 titled as Radha
Krishan Narang and others vs. State of Punjab and
others.
4. Having heard counsel for the petitioners at length,
this Court is of the considered view that the claim of the
petitioners would not require any consideration on merits
and the writ petition deserves to be dismissed on the sole
ground of delay and laches.
5. Placed on record and appended at Annexure P-1
are the particulars of the petitioners. The tabulation at
Annexure P-1 would show that all the petitioners stand
retired on various dates between the years 1995 to 2012.
Out of 32 petitioners in all, 22 petitioners superannuated
more than 10 years back.
6. There is no justification coming forth as regards
the inordinate delay in having approached the Writ Court.
There is also no explanation put forth by the petitioners as
to why the claim raised in the instant petition was not
agitated by the petitioners while they were in service. The
entire thrust of the submissions advanced by counsel is that
similarly situated employees had approached this Court
and have been granted releif.
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7. The issue regarding delay in invoking the
extraordinary writ jurisdiction under Article 226 of the
Constitution of India was considered by the Hon'ble
Supreme Court in Chairman, U.P. Jal Nigam and another
v. Jaswant Singh and another (2006)11 SCC 464. In such
case, certain employees raised the issue that they were not
liable to be retired at the age of 58 years but should be
permitted to continue in service till they attain the age of
60 years. Such employees were still in service when the
writ petitions were filed. The writ petitions were ultimately
allowed. Placing reliance upon such judgment, some of the
employees, who had already superannuated, filed writ
petitions seeking the same benefit. Even such petitions
were allowed by the High Court in terms of following the
earlier judgment. The judgment of the High Court was
challenged before the Apex Court and wherein while
referring to earlier judgments in Rup Diamonds v. Union
of India, (1989)2 SCC 356; "Jagdish Lal v. State of
Haryana, (1997)6 SCC 538 and Government of West
Bengal v. Tarun K. Roy, (2004)1 SCC 347, it was opined
that persons who approached the Court at a belated stage
placing reliance upon the order passed in some other case
earlier, can be denied the discretionary relief on the
ground of delay and laches. The relevant observations
made by the Supreme Court are contained in Paras 5, 6
and 16 of the judgment and are extracted here under:-
"5. So far as the principal issue is
concerned, that has been settled by this court.
Therefore, there is no quarrel over the legal
proposition. But the only question is grant of
relief to such other persons who were not
vigilant and did not wake up to challenge
their retirement and accepted the same but
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filed writ petitions after the judgment of this
court in Harwindra Kumar v. Chief
Engineer, Karmik, (2005) 13 SCC 300.
Whether they are entitled to same relief or
not? Therefore, a serious question that arises
for consideration is whether the employees
who did not wake up to challenge their
retirement and accepted the same, collected
their post-retirement benefits, can such
persons be given the relief in the light of the
subsequent decision delivered by this court?
6. The question of delay and laches has
been examined by this court in a series of
decisions and laches and delay has been
considered to be an important factor in
exercise of the discretionary relief under
Article 226 of the Constitution. When a person
who is not vigilant of his rights and
acquiesces with the situation, can his writ
petition be heard after a couple of years on
the ground that same relief should be granted
to him as was granted to person similarly
situated who was vigilant about his rights and
challenged his retirement which was said to
be made on attaining the age of 58 years. A
chart has been supplied to us in which it has
been pointed out that about 9 writ petitions
were filed by the employees of the Nigam
before their retirement wherein their
retirement was somewhere between 30.6.2005
and 31.7.2005. Two writ petitions were filed
wherein no relief of interim order was passed.
They were granted interim order. Thereafter a
spate of writ petitions followed in which
employees who retired in the years 2001,
2002, 2003, 2004 and 2005, woke up to file
writ petitions in 2005 and 2006 much after
their retirement. Whether such persons should
be granted the same relief or not?
xx xx xx
16. Therefore, in case at this belated stage if
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similar relief is to be given to the persons who
have not approached the court that will
unnecessarily overburden the Nigam and the
Nigam will completely collapse with the
liability of payment to these persons in terms
of two years' salary and increased benefit of
pension and other consequential benefits.
Therefore, we are not inclined to grant any
relief to the persons who have approached the
court after their retirement. Only those
persons who have filed the writ petitions when
they were in service or who have obtained
interim order for their retirement, those
persons should be allowed to stand to benefit
and not others."
[Emphasis supplied]
8. The issue of delay was also dealt with by this
Court in Tarsem Pal vs. Punjab State Power Corporation
Limited and others, 2013 (3)SLR 314. In the case of
Tarsem Pal(supra), the petitioner was serving as a Clerk
with the respondent-Corporation and had retired on
31.03.2005. Claim in the writ petition was to grant to him
the benefit of proficiency set up in the pay scale on
completion of 23 years of service from the due date as per
policy of the Corporation. During the service career, he
had not agitated the claim for increments. For the first
time, such claim had been made on 28.02.2005 i.e. just one
month prior to superannuation. While non-suiting the
petitioner on account of delay and laches it was held as
follows:-
"11. In the aforesaid judgments, it has
been clearly laid down that discretionary
relief in a writ jurisdiction is available to a
party who is alive of his rights and enforces
the same in court within reasonable time. The
judgment in another case does not give a
cause of action to file a writ petition at a
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belated stage seeking the same relief. Such
petitions can be dismissed on account of delay
and laches. As has already been noticed above
in the present case as well, the petitioner
joined service in the year 1965 and retired in
the year 2005, but raised the issue regarding
benefit of proficiency step up in the pay scale
on completion of 23 years of service from the
due date more than five years after his
retirement referring to a judgment of this
court and filed the petition claiming the same
relief.
12. The petitioner retired from service
on 31.3.2005 and the claim pertaining to the
benefit of proficiency step up, which may be
admissible to the petitioner during his service
career, was sought to be raised more than five
years after his retirement, the claim made at
such a late stage deserves to be dismissed on
account of delay and laches only. The
petitioner could raise a grievance about the
pay scales admissible to him or the last pay
drawn by him within a reasonable time after
his retirement. He cannot be permitted to
raise the same at any time on the plea that the
same is recurring cause of action.
13. Considering the enunciation of law,
as referred to above, in my opinion, the
petitioner herein is not entitled to the relief
prayed for and the petition deserves to be
dismissed merely on account of delay and
laches."
9. At this stage, counsel appearing for the
petitioners would make an attempt to overcome the
obstacle of delay by placing reliance upon a Full Bench
Judgment of this Court in Saroj Kumar vs. State of
Punjab, 1998(3) SCT 664. Counsel would argue that as
per dictum laid down in Saroj Kumar's case(supra),
matters of pay fixation involve a recurring cause of action
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and as such, writ petitions for such claim cannot be
dismissed on the ground of delay and laches and the Court
at the most, may restrict the arrears upto 38 months from
the date of filing of the petition and disallow the arrears
for the period for which even a suit had become time
barred.
10. The reliance placed by counsel upon the
judgment in Saroj Kumar's case, is wholly misplaced. The
observations and aspect of delay in Saroj Kumar's case,
were in the light of the judgment of the Supreme Court in
M.R. Gupta vs. Union of India and others, 1995(4) RSJ
502. In M.R. Gupta's case(supra), it had been categorically
held that so long as an employee "is in service" a fresh
cause of action arises every month when he is getting his
monthly salary on the basis of a wrong calculation made
contrary to rules. It was further held that the claim to be
awarded the correct salary on the basis of a proper pay
fixation "is a right which subsists during the entire tenure
of service".
11. In the present case, however the petitioners
choose not to agitate their claim while in service. It is
much subsequent to their superannuation that they have
woken up and seek to gain impetus from certain decisions
that may have been rendered in the case of similarly
situated employees.
12. Considering the dictum of law as laid down in
Chariman, U.P. Jal Nigam's case (supra), the petitioners
herein are not entitled to any releif as prayed for and the
petition deserves to be dismissed on the sole ground of
delay and laches.
13. Ordered accordingly."
13. The Division Bench of this Court in "H.S. Gill vs Union of
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India and others", 2016(2) SCT 477, has held that an employee cannot
claim the revised pay scale after retirement once he has been receiving
the pay scale granted by the employer for the last 09 years. The relevant
portion from the said judgment, reads as under:-
"14. The petitioner is also not entitled to any relief
on account of principle of delay and laches. He has been
receiving the pay in the pay scale of Rs.6500-10500 right
from his transfer to CSIO, Chandigarh i.e. 2.7.2002. For
the first time, he moved the representation on 29.8.2011,
so, he kept mum for about 9 years. Thus, the claim of the
petitioner is highly belated and stale."
14. In view of the foregoing discussions and abovesaid
authoritative enunciation of law by the Hon'ble Supreme Court and this
Court, the aforesaid issue as raised in the present writ petition cannot be
allowed to be agitated at this belated stage and further in view of the
fact that the petitioner already stood promoted as Junior Engineer
Grade-I on 30.03.2011 and further promoted to the post of Assistant
Engineer on 30.04.2018. Since there is an unexplained delay of
seventeen years in filing of the petition, therefore, the present petition is
dismissed on the ground of delay and latches and on merits as well.
(NAMIT KUMAR)
JUDGE
06.11.2024
yakub
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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