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2002 DIGILAW 1385 (RAJ)

B. B. Gupta v. State of Rajasthan

2002-08-07

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - The grievance of the petitioner's in the instant writ petition is that conclusion (inclusion ?) of name of respondent No. 5 in the cadre of Assistant Director infringes the legal rights of the petitioners in the matter of their seniority and future chances of promotions as Deputy Directors and Joint Directors. According to the petitioners creation of the post of Assistant Secretary and Personnel Officer by means of resolution of the Board dated September 27, 1985 without the previous sanction of the State Government was bad in law. Order dated June 16, 1990 issued by the Managing Director redesignating the post of the Assistant Secretary and Personnel Officer as Assistant Director was ultra vires of the Warehousing Corporation Act, 1962 (for short the Act) and Rajasthan State Warehousing Corporation (Staff) Regulations, 1974 (for short the Regulations). 2. It is contended that in the recruitment schedules attached to the Regulations, there was no such post as Assistant Secretary and Personnel Officer till September 27, 1985 when the aforesaid post was inserted in the Schedule of the post in Administration Division attached to the recruitment schedule as Item No. 2(a). This creation of posts was not sanctioned by the Government of Rajasthan and the Board of Directors only by the resolution dated September 27, 1985 created the said post to be filled 100% by direct recruitment. Post of Assistant Director is 100% by promotion and the said post can never be equivalent or interchangeable with the post of the Assistant Secretary and Personnel Officer. The said post was created by the Board in utter disregard of the powers given to the Corporation under Section 42 of the Act. 3. It is further averred in the writ petition that the respondent No. 5 was appointed on the aforesaid newly created post temporarily for one year w.e.f. July 5, 1986. The Managing Director thereafter ordered on June 16, 1990 that as per decision taken in the Board meeting No. 144 dated May 24, 1990, the post of Assistant Secretary and Personnel Officer was redesignated as Assistant Director with immediate effect. On May 7, 1991 final seniority list of Assistant Directors as on January 1, 1991 was issued wherein respondent No. 5 was placed senior to all the petitioners. On May 7, 1991 final seniority list of Assistant Directors as on January 1, 1991 was issued wherein respondent No. 5 was placed senior to all the petitioners. The petitioners have made prayer to restrain the respondents No. 1 to 4 from giving effect to the said final seniority list and to quash the initial appointment of respondent No. 5 on the post of Assistant Secretary and Personnel Officer. 4. The respondents in the written statement pleaded that the Board rightfully created the post of Assistant Secretary and Personnel Officer (for short ASPO) for which no approval of the State Government was at all required. Regulation 37 provides that amendments to the Appendix and/or Schedules forming part of the Regulations may be made by the Board. The Regulations were made with the previous sanction of the Government of Rajasthan. The right to create/abolish posts in the Corporation was within the authority of the Board. Post of ASPO was created in same grade of the Assistant Director (for short the AD). When the post of ASPO was created, no promotional channel was prescribed. Thereafter in order to reorganise the structure of the Corporation a sub- committee was constituted who gave its report. The report was discussed with the officers and Trade Unions and a detailed proposal was prepared. It was proposed that the post of ASPO be merged in the cadre of AD. Further the posts of AD which were 7, were proposed to be increased to 12 in order to give benefit to the petitioners. 5. The respondents further contended that the respondent No. 5 was appointed in 1986 in the higher grade as compared to the grade of Storage and Inspection Officer (for short the SIO) in which the petitioners were placed in the year 1986. The petitioners remained as SIO till the decision was taken to upgrade the SIO as AD. Pursuant to the decision dated May 24, 1990 of the Board of Directors, the petitioners took the advantage of promotion to the cadre of AD, thus they are estopped to challenge the power of Board to create the post of ASPO. The writ petition was filed by the petitioners in 1991 challenging the creation of the post of ASPO which was created in 1985. The unexplained delay of six years according to the respondents is fatal to the writ petition.5A. The writ petition was filed by the petitioners in 1991 challenging the creation of the post of ASPO which was created in 1985. The unexplained delay of six years according to the respondents is fatal to the writ petition.5A. The petitioners submitted rejoinder to the reply reiterating the relief claimed in the writ petition. 6. I have heard the rival submissions. 7. It is established from the record that despite knowledge of creation of post of ASPO by the Board of Directors in 1985, the petitioners kept mum and did not assail the action of the Board forthwith. It also appears that the posts of AD which were seven in number, were increased by the Board to 12 in order to give benefit to petitioners and the petitioners took advantage of promotion to the cadre of AD. 8. The period of six years is too long and during this period many events have been crystallized. The petitioners got promotion from the post of SIO to AD, decision was taken by the Board to redesignate the post of ASPO to AD and Final seniority list of AD's as on January 1, 1991 was published. The respondent No. 5 who became AD prior to the petitioners was placed in the said seniority list above the petitioners. 9. Their Lordships of the Supreme Court in B.S. Bajwa v. State of Punjab, 1998(1) SCT 670 (SC) : (1998) 2 SCC 523 : (1999 Lab IC 229) , indicated that : "the question of seniority should not be reopened in such situation after a lapse of reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case in making such a grievance. This alone was sufficient to decline interference under Article 226 and reject the writ petition." 10. The petitioners had slept over their right to assail the creation of post of ASPO by the Board for a period of six years and after being promoted to the post of AD pursuant to the decision of the Board they suddenly awoke and knocked at the door of this court. It appears that the petitioners did not see any error in the action of the Board when it gave benefit of promotion to them but after having grabbed the post of AD they started finding fault in the post decisions of the Board. It appears that the petitioners did not see any error in the action of the Board when it gave benefit of promotion to them but after having grabbed the post of AD they started finding fault in the post decisions of the Board. This cannot be permitted. The conduct of the petitioners as well as inordinate delay in filing the writ petition disentitles them to any relief. 11. For the reasons aforementioned the writ petition being devoid of merit stands dismissed without any order as to costs.Petition dismissed. *******