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2002 DIGILAW 965 (PAT)

Nanhak Singh v. State Of Bihar

2002-09-04

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. In this writ application prayer of the petitioner is to direct the respondents to consider his case for promotion to the post of Chief Engineer with effect from 1.1.94 and grant of consequential benefits flowing from that. 2. Short facts giving rise to the present application are that the petitioner was a Superintending Engineer in the Road Construction Department of the Government of Bihar and on attaining the age of superannuation, retired with effect from 1.10.94. His case for promotion as Chief Engineer was considered by the Departmental Promotion Committee in its meeting held on 17.6.96 and he was found fit for promotion with effect from 1.1.94 till the date of his superannuation i.e. 30th September, 1994. It is the assertion of the petitioner that one Sri L.N. Kanodia was also found fit for promotion as Chief Engineer in the meeting of the Departmental Promotion Committee held on the same day with effect from 1.1.94 till the date of his superannuation i.e. 31.1.95 and by order dated 28.11.96 (Annexure-3) was promoted as Chief Engineer with effect from 1.1.94. 3. Counter affidavit has been filed on behalf of respondents 2 and 3 in which has been stated that the said Sri Kanodia has been promoted to the post of Chief Engineer with effect from 1.1.94 not on the recommendation of the Departmental Promotion Committee dated 17.6.96 but in view of the order passed by this Court in C.W.J.C. No. 1151 of 1991 and contempt application arising out of the said order i.e. M.J.C. No. 1235 of 1995 and as such the order passed in the said writ application is judgment in personem and not judgment in rem and, therefore, petitioner shall not be entitled for the relief claimed in the present writ application. Excepting the aforesaid nothing has been pleaded to distinguish Kanodia aforesaid. Respondents further contend that the writ application suffers from delay and laches and on this ground alone same deserves to be dismissed. 4. Mr. Mukul Sinha appearing on behalf of the petitioner submits that the case of the petitioner for promotion as Chief Engineer was considered by the Departmental Promotion Committee in its meeting dated 17.6.96 and the petitioner having been found fit for promotion as Chief Engineer with effect from 1.1.94, respondents are obliged to promote him as Chief Engineer. 4. Mr. Mukul Sinha appearing on behalf of the petitioner submits that the case of the petitioner for promotion as Chief Engineer was considered by the Departmental Promotion Committee in its meeting dated 17.6.96 and the petitioner having been found fit for promotion as Chief Engineer with effect from 1.1.94, respondents are obliged to promote him as Chief Engineer. He points out that Sri L.N. Kanodia who was found fit for promotion as the Chief Engineer along with the petitioner has been promoted, but the petitioner has been left out. 5. J.C. to S.C. X however highlights the plea taken in the counter affidavit and submits that Sri Kanodia was not promoted in view of the recommendation made by the Departmental Promotion Committee, but on account of the order passed by this Court in the cases referred to above and the petitioner not being party in the said writ application, he shall not be entitled for the same relief. 6. Having appreciated the rival contention, I do not find any force in the submission of J.C. to S.C. X. Nothing has been placed on record to show that the case of said Sri Kanodia was considered in the meeting of any other Departmental Promotion Committee. The respondents seem to distinguish the case of the petitioner with that of said Sri Kanodia only on the ground that in the earlier writ application filed by Sri Kanodia, petitioner was not a party. Such specious plea may lie in the mouth of an ordinary litigant but certainly the Court shall not consider it favourably in case of the State Government. In the absence of any ground showing that the case of the petitioner is not similary situated as that of said Sri Kanodia, I am not inclined to decline the relief to the petitioner only on the ground that he was not a party in the earlier writ application. 7. Respondents are right when they contend that in this writ application relief has been claimed in respect of stale claim but on this ground alone whether entire relief claimed by the petitioner deserves to be rejected. Mr. Sinha contends that this Court does not permit digging out stale claims so as to avoid unsettling settled things. 7. Respondents are right when they contend that in this writ application relief has been claimed in respect of stale claim but on this ground alone whether entire relief claimed by the petitioner deserves to be rejected. Mr. Sinha contends that this Court does not permit digging out stale claims so as to avoid unsettling settled things. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case V.N. Meenakshi V/s. Union of India and others [1999 Supreme Court Cases (L&S) 669] and contends that equity can be worked out in lis regard and petitioner on account of delay may not be entitled to claim arrears of the salary but the entire relief is not fit to be rejected. He draws my attention to the following passage from the said judgment. "Since the appellant claimed to be otherwise entitled for promotion to the post of Joint Assistant Director but in the meantime has retired on superannuation, her case may be considered for promotion to the post of Joint Assistant Director in accordance with law and if ultimately she is promoted to the post of Joint Assistant Director, then she would be entitled to the consequential enhancement in retiral benefits but will not be entitled to any arrears of salary on that score. Appeal is accordingly allowed but there will be no order to costs." 8. The meeting of the Departmental Promotion Committee, on whose recommendation the petitioner claims promotion, was held on 17.6.96. In fact the aforesaid Sri Kanodia was promoted by order dated 28.11.96. This writ application has been filed on 23.7.200V Thus in the writ application relief in respect of stale claim has been made but on that ground alone I am not inclined to defeat the entire claim of the petitioner. In the facts of the present case I would rather direct the respondents to consider the case of promotion of the petitioner as Chief Engineer with effect from 1.1.94 within two months from the date of receipt/production of a copy of this order bearing in mind the observation made above. In the facts of the present case I would rather direct the respondents to consider the case of promotion of the petitioner as Chief Engineer with effect from 1.1.94 within two months from the date of receipt/production of a copy of this order bearing in mind the observation made above. In case he is promoted as Chief Engineer with effect from 1.1.94, even so he shall not be paid the arrears of salary or the pension till the date of filing of the application but his pension shall be revised, in case he is promoted as Chief Engineer with effect from 1.1.94 and paid the arrears of pension from the date of filing of the writ application i.e. 23.7.2001. 9. Application stands allowed in the aforesaid terms.