N. NARASIMHIAH v. THE COMMISSIONER, CORPORATION OF THE CITY OF BANGALORE AND ANOTHER
1999-04-16
T.S.THAKUR
body1999
DigiLaw.ai
( 1 ) THE petitioner has in this writ petition questioned the correctness of an order issued by the respondent purporting to correct what is described as a mistake resulting in denial of promotion and consequent loss of seniority to the 2nd respondent. The rectification of the error and restoration of seniority is under challenge primarily on the ground that with passage of time, the 2nd respondent had lost the right to make any grievance and the Corporation the power to redress the same. Delay in the correction of the mistake was according to the petitioner sufficient for the respondents to accept the settled position and to continue the status quo. The controversy arises in the following circumstances. ( 2 ) THE 2nd respondent joined the Corporation of City of Bangalore as a Statistical Assistant in the year 1961. He was appointed as a Second Division Clerk on 9th of April, 1964 as against the petitioner who was appointed to that post only on 25th of October, 1965. Both the petitioner and the 2nd respondent were permitted to change their clerical cadre for that of the II Grade Revenue inspectors. While the 2nd respondent did so on 25th of March, 1977, the petitioner became a II grade Revenue Inspector only nine months later on 5th of December, 1977. The facts stated thus far would therefore show that the petitioner was junior to II respondent both in the cadre of II division Clerks as also the cadre of II Grade Revenue Inspectors. ( 3 ) BY an order dated 19th of March, 1990, the petitioner was placed in charge of the post of revenue Inspector, Grade I, which fell vacant in the office where he was posted. The IInd respondent however continued as a IInd Grade Revenue Inspector till 15th of September, 1987, when both the petitioner and the said respondent were together promoted as Revenue Inspector, grade I, on substantive basis. Claiming the right to promotion retrospectively from the date they were placed in charge of the higher post of Revenue Inspectors, Grade I, the petitioner and a few others filed Writ Petition Nos.
Claiming the right to promotion retrospectively from the date they were placed in charge of the higher post of Revenue Inspectors, Grade I, the petitioner and a few others filed Writ Petition Nos. 12393 to 12400 of 1987 in M. S. Ma-hadevaiah v Bangalore City corporation , which were allowed by this Court by order dated 18th of January, 1989 with a direction to the Corporation to consider their cases for promotion with effect from the dates on which they were placed in charge of the higher post. In compliance with the said direction, the petitioner was promoted retrospectively with effect from 22nd of March, 1980. He was in due course promoted further as Assessor in the year 1991 whereas the 2nd respondent was promoted to that post three years later in 1994. The seniority lists prepared by the Corporation understandably showed the petitioner to be senior to the second respondent on account of his promotion being earlier in point of time to that of the 2nd respondent both in the cadre of inspectors, Grade I and that of Assessors. Aggrieved by the denial of promotion at the time the same was due 2nd respondent appears to have made a representation in July 1998 seeking restoration of his seniority. This representation was examined after notice to the petitioner and allowed by the order impugned in this writ petition, a perusal whereof shows that the corporation, has with a view to undo the injury caused to the 2nd respondent on account of his non-consideration directed his promotion and consequent alteration of the seniority list. The promotion it is obvious is notional, unaccompanied by any monetary benefit to the 2nd respondent and meant only to restore his seniority. ( 4 ) MR. Babu, Counsel appearing for the petitioner strenuously argued that the petitioner having slept over the matter for a long time, must be deemed to have accepted the treatment meted out to him and the fact that the petitioner had on account of his promotion prior in point of time, become senior to the former in both the cadres.
Babu, Counsel appearing for the petitioner strenuously argued that the petitioner having slept over the matter for a long time, must be deemed to have accepted the treatment meted out to him and the fact that the petitioner had on account of his promotion prior in point of time, become senior to the former in both the cadres. He contended that the failure of the 2nd respondent to make any grievance either before the Corporation or in any other proceedings before any other forum for that matter, was sufficient to disentitle him to unsettle the position which stood settled by reason of the retrospective promotion given to him pursuant to the orders of this Court and the consequent promotion to the next higher cadre of Assessors. The representation filed in the year 1998, argued the learned Counsel, was an exercise in futility which the Corporation ought not to have embarked upon let alone made a basis for reversing the position which stood settled to the satisfaction of all concerned. ( 5 ) MR. Ashok Haranahalli, Counsel appearing for the respondent-Corporation on the other hand argued that the Corporation had committed a mistake in not considering the petitioner for promotion against the available vacancies in the cadre of Revenue Inspectors, Grade I, in the year 1980. He urged that the non-consideration of the petitioner's claim for promotion to the said grade, as also the delay in his promotion to the cadre of assessors was not on account of any fault or deficiency found in him but entirely on account of a mistaken impression that the corporation was in terms of the order of this Court in W. P. Nos. 12393 to 12400 of 1987, required to consider the claims of only those who were parties to the said petitions. When a representation was made by the 2nd respondent the issue was examined, the mistake noticed and accordingly corrected. Delay if any was not according to Mr. Ashok Haranahalli, a good reason for the Corporation to throw out a genuine grievance especially when the re-examination of the entire controversy did not involve any financial implications and was relevant only for purposes of restoration of seniority between the petitioner and the 2nd respondent. ( 6 ) MR.
Delay if any was not according to Mr. Ashok Haranahalli, a good reason for the Corporation to throw out a genuine grievance especially when the re-examination of the entire controversy did not involve any financial implications and was relevant only for purposes of restoration of seniority between the petitioner and the 2nd respondent. ( 6 ) MR. K. L. Manjunath, Counsel appearing for the 2nd respondent argued that the mistake committed by the Corporation in not considering his client's claim for promotion on retrospective basis was on account of a failure of the Corporation, as also the petitioner to point out the true facts to the Court while the earlier batch of cases were heard for final disposal. He urged that the Corporation had failed to point out to the Court that apart from the petitioners in the earlier petition, the 2nd respondent was also eligible for promotion to the next higher post and that he was senior to the petitioner herein. He drew my attention in particular to the following passage from the decision of this Court in the earlier batch of cases. " the only excuse put forth by the Corporation for not considering the case of the petitioners with effect from the dates they were placed in additional charge of the posts is that they were placed in additional charge of the posts in question when the Octroi Department was abolished in the year 1979, therefore it was not possible to consider their case and that thereafter the corporation sought for sanction for creation of additional posts of I Grade Revenue Inspectors and that sanction was accorded on 13-11-1984, therefore the case of the petitioners could not be considered for promotion with effect from the dates on which they were placed in additional charge of the posts. This overlooks the fact that these petitions were placed in additional charge of the existing and vacant posts of I Grade Revenue Inspectors. It is not the case of the corporation that there were other II Grade Revenue Inspectors who were seniors to the petitioners and they were required to be accommodated. Therefore, it is clear that there was no question of obtaining sanction for fresh posts. Hence, the contention of the Corporation is rejected".
It is not the case of the corporation that there were other II Grade Revenue Inspectors who were seniors to the petitioners and they were required to be accommodated. Therefore, it is clear that there was no question of obtaining sanction for fresh posts. Hence, the contention of the Corporation is rejected". (emphasis supplied) ( 7 ) HE submitted that the 2nd respondent was on account of his merit and seniority entitled to be promoted in preference to the petitioner cadre of Inspectors, Grade I, as also to that of Assessors from the date the petitioner was promoted to the same and that the failure of the Corporation to grant the said relief on the dates due was not because of any deficiency in his client but on account of its failure to properly consider his claim. ( 8 ) THAT the 2nd respondent was senior to the petitioner in the cadre of Inspectors, Grade II is not in dispute nor was it disputed that while placing the petitioner in charge of the higher post of inspector, Grade I, the cases of other candidates including the respondent-2 were not considered. The petitioner appears to have been picked up for an in charge arrangement only because the vacancy against which the arrangement was made had become available in the office in which he was posted. Such being the case, the petitioner could not possibly acquire an advantage over other eligible candidates particularly those senior to him only on account of any such temporary or officiating arrangement. Regular promotions to the cadre as noticed earlier was granted to both the petitioner and the 2nd respondent with effect from the same date, in September 1987. Judged by the norms governing determination of seniority it cannot be disputed that in the year 1987 the 2nd respondent was and continued to be senior to the petitioner in the cadre of inspectors, Grade. The difficulty arose on account of a direction from this Court in the writ petitions filed by the petitioner and others for consideration of their cases from the date they were placed in charge of the higher post. That direction it is obvious proceeded on the assumption that those in charge of the higher post were senior most officials entitled to such a benefit.
That direction it is obvious proceeded on the assumption that those in charge of the higher post were senior most officials entitled to such a benefit. The paragraph extracted in the earlier part of this writ petition, from the order of this court bears ample testimony to that aspect of the matter. The position would have been different if the Corporation or the petitioners had disclosed the true facts to the Court and pointed out that 2nd respondent was senior to the petitioners and yet not placed in charge of a higher post. Suffice it to say that the direction of this Court proceeded on an assumption which was factually incorrect. The argument made by Mr. Manjunath, that the Corporation as also the petitioners in the earlier petition, failed to disclose the true facts whether deliberately or otherwise resulting in the issue of a direction for consideration of the cases of the petitioners only cannot therefore be lightly brushed aside. The consequential order passed by the Corporation also did not for any good reason take note of the fact that the 2nd respondent was senior and therefore entitled to be considered for promotion. There is nothing on record to show that the case of the said respondent was considered by reference to a date prior to September 1987 at any stage. If the promotions were to be related back to any particular date, the consideration of all such candidates as were eligible for promotion on that date, was imperative. Non-consideration of the rightful claim of a candidate who was eligible resulting in denial of seniority to him apart from other monetary benefits would therefore be wholly unfair and unjust. Such a non-consideration cannot be equated with supersession where the competent authority assesses the comparative merit and suitability of the eligible candidates and chooses one over the other. Any such comparison and consequent selection may not be open to re-examination by the very same authority who has upon evaluation of the material come to a certain conclusion. But cases where there is total non-consideration either because of misunderstanding of the order issued by the Court or otherwise would stand on a different footing. Similarly, promotions to the cadre of assessors was also on the very same basis effected.
But cases where there is total non-consideration either because of misunderstanding of the order issued by the Court or otherwise would stand on a different footing. Similarly, promotions to the cadre of assessors was also on the very same basis effected. The promotion of the petitioner in the year 1991, was not upon consideration of the claim of the 2nd respondent, nor is it anybody's case that if considered in the year 1991, the 2nd respondent was not fit or eligible for such promotion. ( 9 ) THE question then is whether the Corporation could have entertained a complaint looked into the matter and rectified the mistake committed by it. According to the petitioner it could not have done so not because an error or mistake cannot be corrected even when it is brought to the notice of the authority who has committed the same but because the person aggrieved of such a mistake had not invoked the power of Corporation within a reasonable time. A distinction must however be made between delay which disables or disentitles a party from seeking relief from the Court under Article 226 and that which is sought to be pressed into service to prevent an authority who has committed the mistake from rectifying the same. Writ jurisdiction of this court under Article 226 is discretionary and equitable in nature. Exercise of that jurisdiction depends largely upon the diligence which the party invoking the power has shown in making his grievance. Courts have accordingly evolved norms and standards as matters of prudence for regulating the exercise of that power. Delay by itself may not be a bar but may in a given case be sufficient for a Writ Court to decline interference, if it is of the opinion that any such interference would unsettle a settled position or cause hardship and injustice to a third party. This would not be true in cases where the authority who has passed the order is satisfied that the mistake committed by it has resulted in injustice, which should be undone. The authority can upon any such satisfaction rectify the mistake to do complete justice between the parties. If it does do so, a writ Court would be slow in interfering with exercise of any such discretion by the authority.
The authority can upon any such satisfaction rectify the mistake to do complete justice between the parties. If it does do so, a writ Court would be slow in interfering with exercise of any such discretion by the authority. That is particularly so when the Court finds that the order under challenge has done substantial justice and prevented undeserved hardship to a party. That is precisely the position in the instant case also. The order passed by the Corporation has rectified a mistake and restored parity though belatedly to do complete justice between the parties. There is nothing unfair or irrational about the order to call for interference. A mistake committed by an Authority need not be perpetuated especially when it results in injustice to the party against whom it has been committed. The impugned order has without disturbing the promotion of any other person related back the promotion of the 2nd respondent to the dates on which the petitioner was promoted and on that basis corrected the seniority position. Since the promotion ordered is not accompanied by any other benefit by way of payment of arrears etc. , it is unnecessary to examine whether any post in the cadre of Inspector, Grade I or Assessors were actually available on the date by reference to which the 2nd respondent has been promoted. The substance of the order is that the disadvantage which the 2nd respondent suffered on account of his delayed promotion resulting from non-consideration of his case has been removed by the impugned order without disturbing the petitioner's promotion or the monetary advantages that he has drawn from the same. The order at this stage is relevant only for purposes of seniority in the cadre of assessor which would be one of the factors to be considered for purposes of further promotions. ( 10 ) IN the result, this petition fails and is dismissed but in the circumstances without any orders as to costs.