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2005 DIGILAW 217 (PAT)

Yadav Lal Sah v. State of Bihar

2005-02-25

body2005
ORDER Heard learned Counsel for the petitioner and the learned Counsel for the State. 2. The writ application assails the order dated 22.7.97 as contained in Annexure 22 to the writ application passed in pursuance of the order dated 17.1.97 in CWJC No. 397/96 preferred by the petitioner earlier. 3. The impugned order seeks to deny the petitioner the relief for promotion to a Grade III post in accordance with the government provisions applicable as on the date when the petitioner became eligible for consideration. The impugned order seeks to deny him the benefit on the basis of subsequent change in procedure. 4. The petitioner was appointed as a Peon on 9.12.76. On 12.7.80 the petitioner was recommended for promotion to the grade III post of Typist-cum-Clerk. This recommendation was reiterated on 5.3.83 and 9.7.84. The grievance of the petitioner would be that he would at least be entitled to the said promotion with effect from 10.5.88 when his junior respondent no. 6 came to be so considered and promoted. 5. The counter affidavit tiled on behalf of the respondents while not disputing the eligibility of the petitioner and the recommendations in his favour would virtually admit the claim of the petitioner and laches of the respondents in para 5 thereof by only stating that "since the relevant papers of the petitioner was not available at the time of considering the claim", the case of the petitioner could not be considered. This could hardly be a defence for the respondents. They clearly themselves are only to be blamed for the injustice meted out to the petitioner. The impugned order clearly seeks to take advantage of this laches on the part of the respondents to their own benefit. The respondents clearly cannot be permitted to take advantage of their own wrongs. Reliance may be placed upon a judgment reported in 1999(2) SCC 594 (M.K. Shah Engineers & Contractors Vs State of M.P.), paragraph 17 (relevant extract) of which would hold: "17. No one can be permitted to take advantage of his own wrong .............. It will be a travesty of justice if the appellants for the fault of the respondents are denied the right to have recourse to the remedy of arbitration......... No one can be permitted to take advantage of his own wrong .............. It will be a travesty of justice if the appellants for the fault of the respondents are denied the right to have recourse to the remedy of arbitration......... The party at fault cannot be permitted to set up the bar of nonperformance of pre-requisite obligations so as to exclude the applicability of operation of the arbitration clause." 6. The impugned order dated 22.7.97 at Annexure 22 is accordingly quashed. The respondents would be obliged to consider the case of the petitioner for promotion to Grade III post in accordance with the recommendations made on 12.7.80 and reiterated on 5.3.83 and 9.7.84 in accordance with the government instructions of 11.2.1985 then applicable with effect from the date when juniors to the petitioner were promoted and grant him relief accordingly. Any subsequent policy decision of change in procedure for promotion to grade III would not govern the consideration of the case of the petitioner. Reliance may usefully be placed on a Division Bench order of this Court reported in 2004 (4) PLJR 732 , para 6 whereof (relevant extract) would hold: "6. ............. The eligibility of a candidate has to be seen/ reckoned from the date when the vacancy occurred or the first appointment was made. If the vacancy was of the year 1992, the Rules pertaining in the year 1992 will prevail. If the petitioner-appellant was qualified on the aforesaid date to be considered for appointment as Headmistress her appointment could not be subsequently challenged or cancelled by the authorities on the ground that the subsequent Rule which has come into force prescribes a higher qualification for the aforesaid post. ..........." 7. Let such consideration be done by the respondent no. 3 within a period of three months from the date of receipt or production of a copy of this order. Should the grievance of the petitioner be found justified the petitioner would be entitled to all consequential benefits, promotions having been denied to him for no fault of his. 8. The writ application stands allowed to the extent indicated with the directions as contained.