The Delhi High Court recently comprising of a bench of Justices Manmohan and Asha Menon observed that in light of matter pivoting grounds of promotion, payment of residue wages in regard to a prospective promotion shall not be filed after an unreasonable delay. ( Anupam Kumar v Director-General, Border Security Force & Anr.)
The bench opined that though limitation period is not attracted for filing of writ petitions, yet there should be no unreasonable delay for the same. The unreasonable delay here is construed to be a gap of thirteen years.
Facts of the Case
The Present petition was filed by the Petitioner seeking "NonFunctional Grade Selection" in accordance with the Office Order dated 26th December, 2019 along with the consequential benefits like back wages. Petitioner further seeks direction to Respondent No. 1 to modify the promotion granted to the Petitioner to the rank of "Second-in-Commands" as being effective from 21st October, 2016 and grant all the consequential benefits such as back wages w.e.f from the same date.
Contention of the Parties
The petitioner stated that in 2016, six batches of the BSF, including the batch to which the petitioner belongs, were simultaneously promoted from the level of Deputy Commandant to “Second-in-Commands” vide Office Order dated 21st October, 2016.
He further stated that the Petitioner was however not promoted due to his low ACR grading for the year 2010-2011. He submitted that this denial of promotion was not only arbitrary and illegal but has also seriously affected the seniority position of the Petitioner bringing him 350 ranks below his batchmates.
He further submitted that the loss of seniority was coupled with a pay scale that was much lower than what was paid to his counterparts.
Courts Observation & Judgment
The bench noted that the difference in paygrade is due to the petitioner’s own shortcoming and observes that, “this Court finds that the petitioner, in essence, challenges his APAR Grade for the year 2010-11 as according to him, it is due to his adverse APAR grading that Non-Functional Grade Selection has been denied to him”
The court placed reliance on the Supreme Court judgment in the case of Chairman/Managing Director, U.P. Power Corporation Ltd. & Ors. Vs. Ram Gopal; (2020 SCC OnLine SC 101) wherein it was held that “Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions”
The court opined that though there has been an irregularity in the payment of the residue wages relating to the unreasonable promotion fallacies in the BSF department and although it does come under to purview of Article 32 and Article 226 to challenge the same; an allowance of the same would cause an even higher irregularity in the future balances of payment.
Thereby the court held that “Accordingly, this Court is of the view that the petitioner cannot challenge his APAR grading after a gap of more than ten years.”
Share this Document :Picture Source :
