Sankar Bhattacharjee v. Tripura Small Industries Corporation Ltd. and Ors
2007-11-23
U.B.SAHA
body2007
DigiLaw.ai
1. The petitioner by filing the instant writ petition claimed to declare the promotion of respondent No. 3 to all posts since 1979 illegal and in his place to consider the petitioner's case for promotion and also for a direction to the respondent Nos. 1 and 2 to promote the petitioner to the post of Superintendent (Commercial & M.A.) from the date of promotion of respondent No. 3 to the post of Assistant Manager (Commercial) and also declare the decision of the Departmental Promotion Committee (for short 'DPC') taken on 12.5.1997 as illegal and non-est along with other prayers. 2. Heard Mr. D.K. Biswas, learned counsel for the petitioner and Mr. S. Saha, learned counsel for the respondent Nos. 1 and 2 as well as Mr. S. Deb, learned senior counsel, assisted by Mr. S. Choudhury, learned counsel for the respondent No. 3. 3. A brief note on the factual aspects required for decision is narrated herein under : On 1st January, 1975 the petitioner, a Graduate, joined as Daily Rated Worker (DRW) under the Tripura Small Industries Corporation Ltd., a Govt. of Tripura undertaking (for short herein after referred to as the 'Corporation') and was working exclusively in the Store as Assistant Store Keeper. On 6.11.1978 he was appointed regularly as Store Keeper-cum-Clerk with a regular pay scale and the petitioner was always understood from the activities of the Corporation that the seniority of its employees would be considered streamwise. But in the year 1979 suddenly the authority picked up the respondent No. 3 for promotion to the post of Store Keeper and deviated from the policy of promotion streamwise seniority basis, though the respondent No. 3 is only Higher Secondary passed and was appointed initially as Accounts Clerk in his stream completely different from the stream of the petitioner, store keeping. On such promotion the petitioner felt aggrieved being the senior most in the stream of store keeping and protested the said promotion of the respondent No. 3. Replying to the protest of the petitioner, respondent No. 2 the managing director of the Corporation informed the petitioner vide letter dated 18.9.1979 (Annexure-1 to the writ petition) that the Corporation made promotion on the basis of "seniority in service" and not "streamwise seniority at work".
Replying to the protest of the petitioner, respondent No. 2 the managing director of the Corporation informed the petitioner vide letter dated 18.9.1979 (Annexure-1 to the writ petition) that the Corporation made promotion on the basis of "seniority in service" and not "streamwise seniority at work". Again, in the year 1982 by memo dated 9.12.1982, the Corporation published a draft streamwise seniority list and proved its earlier statement regarding the policy of promotion to be untrue and baseless. Soon after publication of the draft streamwise seniority list the petitioner made representation pointing out that the earlier stand of the Corporation at the time of promoting the respondent No. 3 as Store Keeper was unfair and illegal, which deprived the petitioner of his due promotion to the post of Store Keeper. But despite said representation the said draft seniority list streamwise was finally published on 28.3.1986 and in the said final seniority list also the petitioner was shown against serial No. 1. In the year 1989 while the Corporation sought to fill up the post of Store Keeper by way of direct recruitment ignoring the petitioner's claim for promotion, he filed a writ petition being Civil Rule No. 258/89 and during the pendency of the aforesaid Civil Rule the petitioner was propitiated by providing graded scale of Store Keeper vide Order dated 28.1.1992 and was asked to withdraw the writ petition and accordingly, the petitioner did not press the same. The Board of directors of the Corporation constituted a review DPC which made its recommendation on 12.5.1997 for promoting the respondent No. 3 to the post of Assistant Manager (Commercial) and Deputy Manager (Commercial) along with Store Keeper of graded pay scale and consequent thereupon in spite of not being eligible he was promoted both to the post of Assistant Manager (Commercial) and Deputy Manager (Commercial) against the ST vacancy as exchange method within a span of a day suppressing the fact relating to pendency of a criminal case against the respondent No. 3 since 1993 for defalcation of an amount to the tune of Rs. 6,00,000 and the said promotion of the respondent No. 3 to the post of Deputy Manager (Commercial & M.A) was done without following the process of selection as required under the relevant recruitment rules approved by the Corporation on 8.11.1996 in its 144th Board of directors meeting.
6,00,000 and the said promotion of the respondent No. 3 to the post of Deputy Manager (Commercial & M.A) was done without following the process of selection as required under the relevant recruitment rules approved by the Corporation on 8.11.1996 in its 144th Board of directors meeting. Being prejudiced, the petitioner preferred the instant writ petition with a prayer for relief as stated (supra). 4. The respondent-Corporation and its managing director by filing an affidavit-in-opposition resisted the claim of the petitioner, inter alia, that the respondent No. 3 was engaged as DRW on 13.11.1972 and subsequent thereto was appointed as Accounts Clerk on 1.7.1974 on regular basis with a regular scale of pay, four years prior to the appointment of the petitioner on regular basis and the respondent No. 3 was also experienced regarding store keeping as he was allowed to look after the stock at the store of the Bonded Warehouse while he was working as Accounts Clerk. It is also contended in the affidavit-in-oppositton that there was no illegality or infirmity in the promotion of respondent No. 3 to the post of Store Keeper he being the senior most on the basis of service seniority and at that time there was no policy for promotion on the basis of streamwise seniority and the respondent No. 3 was the only regular employee then who completed five years of service and senior to the petitioner in general service seniority. The Corporation further contended that the Civil Rule No. 258/89 filed by the petitioner was dismissed for not pressed. The petitioner was Store Keeper-cum-Clerk prior to the revision of pay in 1988. The post of Store Keeper-cum-Clerk has been re-designated as Junior Store Keeper and has come under the purview of graded scale of pay and accordingly, as per Revision of Pay Rules, 1988 adopted by the Corporation the holders of the post of Junior Store Keeper have to move to the next higher post/grade. The petitioner was accordingly provided the graded scale of the Store Keeper. Subsequent promotion of the respondent No. 3 as Assistant Manager (Commercial) and Deputy Manager (Commercial) was done in view of the recommendation of the DPC, inter alia, that "Shri Khitish Chandra Sarkar, Store Keeper may be considered for promotion to the post of Asstt. Manager (Commercial) from 1.1.1993.
The petitioner was accordingly provided the graded scale of the Store Keeper. Subsequent promotion of the respondent No. 3 as Assistant Manager (Commercial) and Deputy Manager (Commercial) was done in view of the recommendation of the DPC, inter alia, that "Shri Khitish Chandra Sarkar, Store Keeper may be considered for promotion to the post of Asstt. Manager (Commercial) from 1.1.1993. As two posts are held by his juniors and as such he may be given benefit of the post of Deputy Manager (Commercial) against S.T. vacancy as exchange method. The benefit of the graded scale of storekeeper eligible to him is being processed separately. His case for promotion as Deputy Manager (Commercial) may be considered after following benefit of graded scale and Shri Sarkar belongs to S.C. community and due to non-availability of eligible S.T. candidate he may be considered against ST vacancy". In the seniority list published on 19.6.1995 though the petitioner's position was shown at serial No. 1 in the group of stores, sales etc., in the final seniority list published on 9.5.1997 his position was at serial No. 4. The reason of variation of the position was also informed to the petitioner denying his objection, inter alia, that the respondent No. 3 was appointed in the post of Store Keeper with higher scale of pay of Rs. 550-1245/- while the petitioner was appointed in the post of Store Keeper-cum-Clerk in the pre-revised scale of pay of Rs. 430-850, which post was re-designated as Junior Store Keeper in the 1988 revision. 5. The respondent No. 3 though got opportunity, did not file any counter-affidavit. 6. Mr. Biswas, learned counsel for the petitioner submits that admittedly the respondent No. 3 is senior to the petitioner in service but said seniority cannot be treated as a seniority for the purpose of promotion to the post of Store Keeper being the petitioner and the respondent No. 3 were working in different streams and an understanding was given to the petitioner that the seniority would be determined streamwise. He further submits that store keeping in which stream the petitioner was working at the time of promotion of the respondent No. 3, as Store Keeper is a separate wing. It has no connection with the stream of accounts keeping wherein the respondent No. 3 was working as an Accounts Clerk prior to his promotion to the post of Store Keeper.
It has no connection with the stream of accounts keeping wherein the respondent No. 3 was working as an Accounts Clerk prior to his promotion to the post of Store Keeper. Hence the promotion of the respondent No. 3 as Store Keeper prejudiced the accrued right of the petitioner and was illegal in the eye of law, which requires to be set aside by this court. He further contends that there was a mischief in the whole process of promotion of the respondent No. 3 and it started while the respondent-Corporation informed the petitioner regarding the policy of seniority for the purpose of promotion of the Store Keeper which proves from the later action of the respondent-Corporation while they published the final seniority list streamwise. Not only that the subsequent promotions of the respondent No. 3 to the post of Assistant Manager (Commercial) and Deputy Manager (Commercial) also prove that the authority made its policy time to time only to favour the respondent No. 3 even though there was a criminal case pending against him at the relevant time for defalcation. Any reasonable person would consider that the respondent-Corporation in fact deceived the petitioner by way of a decisive plan to deprive the petitioner from his eligible right and for that they took the plea of general seniority while they promoted the respondent No. 3 as Store Keeper and after his promotion they published the seniority list on streamwise basis and, therefore, presumption should be there that they acted with some malice for which itself the promotion of the respondent No. 3 to the post of Store Keeper in the year 1979 and the subsequent promotions to the post of Assistant Manager (Commercial) and Deputy Manager (Commercial) in the year 1997 are liable to be set aside and the case of the petitioner is to be considered for promotion in his place. Mr.
Mr. Biswas again submits that the entire decision of the DPC was also hit by doctrine of bias as the respondent No. 3 was not even eligible for promotion to the post of Deputy Manager (Commercial) as the educational Qualification prescribed for such promotion to the post of Deputy Manager (Commercial) is B.A. pass but the educational qualification of the respondent No. 3 is only Higher Secondary and not only that the whole process relating to promotion of the respondent No. 3 proves serious mis-chief which is evident from the fact that the respondent No. 3 was considered by the same DPC for promotion to the post of Assistant Manager (Commercial) and Deputy Manager (Commercial) on a single day, even by change method though the post was reserved for ST candidate. 7. Mr. Saha, learned counsel appearing for the respondent-Corporation and its Managing Director raised a preliminary objection to the maintainability of the petition on the ground of inordinate delay in filing the writ petition and locus of the petitioner on the ground of extinguishment/abandonment of his right while he filed the earlier writ petition being Civil Rule 258/89 without making any allegation whatsoever. The alleged irregularities, infirmities and illegalities committed by the respondent-Corporation relating to the promotion of the respondent No. 3 cannot be raised by filing a subsequent writ petition like the instant one as the same is hit by the principle of res judicata, Mr. Saha submits. He further submits that there was no wrong on the part of the respondent-Corporation in promoting the respondent No. 3 as Store Keeper as he was the only eligible person having five years' experience and senior to the petitioner in service seniority. As there was no combined seniority list as well as streamwise seniority list, the authority/employer had no other option except to give promotion to the respondent No. 3 on the basis of the service seniority and admittedly, the respondent No. 3 was four years senior to the petitioner in service. Hence the question of giving promotion to any of the employees including the petitioner in place of the respondent No. 3 did not arise at the relevant time.
Hence the question of giving promotion to any of the employees including the petitioner in place of the respondent No. 3 did not arise at the relevant time. He further contends that the fixation of the seniority and providing promotion are matters to be decided by the employer and an employee cannot challenge the same unless it violates the settled principle of service jurisprudence and affects the accrued right of an employee. Mr. Saha also relied on Note No. 3 and 4 from the office file wherefrom it appears that the relevant persons were considered for the post of Store Keeper and submitted that the case of the petitioner was also considered along with other fifteen persons including the respondent No. 3. Hence the petitioner should not have any grievance as promotion is not a right, but consideration is the only right and which was done by the authority. The aforesaid Note Nos. 3 and 4 relied on by Mr. Saha along with the list of fifteen persons who were considered for the post of Store Keeper in the year 1979 are re-produced herein below for proper appreciation : - "We have got a vacant post of Store-Keeper carrying n scale of pay of Rs. 330-580. Duties assigned to the post are maintenance of the Raw Materials Depot, its stock und books, distribution of raw materials to the allottees and other allied works. The post is required to be filled up immediately. There is no recruitment rules for the post. Ordinarily the post is to be filled up on promotion from the cadre of Store-Keeper-cum-Clerk. Present holders of the post of Store-Keeper-cum-Clerk have been appointed a few months back and they are yet to attain eligibility for being promoted to the next higher post. For filling up of the post of Store-Keeper, the next below posts of L.D. Clerk, Accounts Clerk, Store-Keeper-Cum-Clerk, Clerk-cum-Typist may be considered as feeder posts and the selection may be made on the basis of seniority in service and experience in handling Raw Materials stores and similar nature of work. Since the post will be filled up on promotion, the incumbents who have completed 5(five) years' service in the present grade may only be considered. The list of the holders of the feeder posts is placed in the file at P-98/C. The Staff Selection Committee may like to consider the above note.
Since the post will be filled up on promotion, the incumbents who have completed 5(five) years' service in the present grade may only be considered. The list of the holders of the feeder posts is placed in the file at P-98/C. The Staff Selection Committee may like to consider the above note. Sd/- Illigible 24.7.1979 (R. Bhattacharjee) ACCOUNTS OFFICER The Managing Director Date of appointment SI. No. Name of the Post Name of the incumbent post hold Date of Joining as D.R.W 24.5.1973 1. L.D. Clerk Shri Anil Chandra Acharjee 1.7.1974 2. L.D. Clerk Shri Pradip Kumar Bhattacharjee 12.1.1977 3. L.D. Clerk Shri Suranjan Ghosh 26.8.1977 4. L.D. Clerk Shri Rabindra Kumar Debnath 13.11.1978 5. L.D. Clerk Shri Satya Ranjan Dutta 2.1.1979 (Afternoon) 6. L.D. Clerk Shri Ratan Paul 2.1.1979 (Afternoon) 7. L.D. Clerk Shri Arjun Laskar 5.1.1979 8. L.D. Clerk Shri Ranjit Lal Saha 12.1.1979 13.11.1972 9. Accounts Clerk Shri Khitish Chandra Srakar 1.7.1979 10. Typist-cum-Clerk Shri Madhusudhan Chakraborty 16.10.1974 1.1.1975 11. Store Keeper-cum-Clerk Shri Shankar Bhattacharjee 16.11.1978 12. Store keeper-cum-Clerk Shri Swadesh Chakraborty 2.1.1979 (Afternoon) 13. Store keeper-cum-Clerk Shri Ruhini Kumar Paul 3.1.1979 1 14. Store keeper-cum-Clerk Shri Krishna Mangal Banik 3.1.1979 15. Store keeper- Shri Ranjut Kumar Das 4.1.1979 cum-Clerk SI. No. 9 is recommended for the post of Store-Keeper as he has specific experience in this line. SoV- Sd/- Illigible Illigible 27/7 27.7.1979" Mr. Saha finally submitted that the authority cancel led the promotion of the respondent No. 3 so far the posts of Assistant Manager (Commercial) and Deputy Manager (Commercial) are concerned as there was some illegality. 8. Mr. Deb, learned senior counsel for the respondent No. 3 also raised the question of maintainability of the writ petition on the same ground as raised by the learned counsel for the Corporation. But in addition to that he submits that the petitioner while filed the earlier writ petition his only challenge was against the filling up of the post of Store Keeper by way of direct recruitment, not appointment on promotion of the respondent No. 3 thereby he abandoned his right by way of promotion even if he had that right and no leave was granted by the court while the writ petition was dismissed.
On that count also the right of the petitioner for filing the instant writ petition sought to be extinguished and according to him on that backdrop also it would not be proper for the court to allow the relief sought for. Mr. Deb referring to paragraph 120 of the Halsbury's Laws of England, Vol. I (Fourth Edition) submits that condition precedent to issue a mandamus is that the petitioner has to show that he has some legal right to the performance of a legal duty by the respondents against whom the mandamus is sought or alternatively he has a substantial personal interest under a statute and for fulfilment of such personal interest the respondents can be directed to discharge their legal duty. The Court can exercise its genuine discretion in accordance with law not on sympathy and in the instant case the petitioner failed to establish that either he had right at that relevant time for promotion to the post of Store Keeper in place of the respondent No. 3 on the basis of streamwise seniority or otherwise. Therefore, the respondent-Corporation had/has no duty to discharge the same and said being the position, the court cannot issue any mandamus directing the respondents as sought for. To support his aforesaid contention, Mr. Deb relied on paragraph 11 of the decision of the Apex Court in the case of The State of Haryana v. Subash Chancier Marwaha and Others, (1974) 3 SCC 220 and paragraph 9 of the decision in the case of Mani Subrat Jain and Others v. State of Haryana and Others, (1977) 1 SCC 489, which is subsequently followed by the Apex Court in the case of Ramesh Prasad Singh v. State of Bihar and Others, (1978) 1 SCC 37 . While raising the question of maintainability on the ground of extraordinary delay, he relied on paragraphs 14, 18, 34, 41 and 65 of the decision of the Apex Court in Tilokchand and Motichand and Others v. H. B. Munshi and Another, 1969 (1) SCC 110 . On the same issue he also referred-paragraph 31 of Rabindranath Bose and Others v. The Union of India and Others, 1970 (1) SCC 84 , paragraph 11 of Aflatoon and Others v. Lt.
On the same issue he also referred-paragraph 31 of Rabindranath Bose and Others v. The Union of India and Others, 1970 (1) SCC 84 , paragraph 11 of Aflatoon and Others v. Lt. Governor of Delhi and Others (1975) 4 SCC 285 , paragraph 10 of Indrapuri Griha Nirman Sahakari Samiti Ltd. v. The State of Rajasthan and Others (1975) 4 SCC 296 and the case of State of H.P. and Others v. Gujarat Ambuja Cement Ltd. and Another, (2005) 6 SCC 499 as in the aforesaid cases, the case of Tilokchand (supra) was relied on and the law laid down by the Apex Court in that case is still covering the field. Referring to the aforesaid cases, Mr. Deb submits that the petitioner is not entitled to any relief as sought for as he slept over his so called right of seniority over the respondent No. 3 about 20 years and on that count even the writ petition is liable to be dismissed. Mr. Deb further submits that if the doctrine of public policy in limitation can be considered from the publication of the draft seniority list in 1982 and final seniority list in 1986 then also the instant writ petition has been filed after a decade. Hence it would not be proper for the court to issue any relief to the petitioner quashing the promotion of the respondent No. 3 in the post of Store Keeper, the same being a stale claim in view of the decision of the Apex Court in P.S. Sadasivaswamy v. State of Tamil Nadu, (1975) 1 SCC 152 wherein the Apex Court held that a person aggrieved by an order of promoting a junior over his head should approach the court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the courts to exercise their powers under article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time.
It is not that there is any period of limitation for the courts to exercise their powers under article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the court to put forward stale claims and try to unsettle settled matters. On his plea on withdrawal or abandonment of the earlier writ petition of the petitioner without permission to file afresh, Mr. Deb contended that when the petitioner once approached the court and availed the remedy given to him under law, he cannot be permitted to approach the court afresh by a subsequent writ petition relating to same subject-matter after abandoning or by withdrawing the earlier petition without the permission of the court to file afresh as the same is invito beneficiam non dator. In support of his aforesaid submission, Mr. Deb-relied on the decision of the Apex Court in the case of Sarguja Transport Service v. State Transport Appellate Tribunal, M.P. Gwalior and Others, (1987) 1 SCC 5 . Mr. Deb finally submits that as at the time of promotion of respondent No. 3 there was no seniority rules or regulations, it was open for the employer to pass an order of promotion as per the service seniority as the same was a policy decision of the employer Corporation as stated by the learned counsel for the respondent-Corporation and the said policy decision cannot be interfered with by the court of law unless the petitioner can establish his right to the said post of Store Keeper. In support of his aforesaid contention, Mr. Deb relied on the decision of the Apex Court in Meghalaya State Electricity Board and Another v. Jagadindra Arjun (2001) 6 SCC 446 wherein the Apex Court held - "Hence, if there are no rules or regulations pertaining to service conditions of its employees, the same could be prescribed by administrative order and such power of the employer which is a statutory corporation would be implied." Mr.
Deb also relied on the decision of the Apex Court in Sant Ram Sharma v. State of Rajasthan and Another, (1968) 1 SCR 111 wherein their Lordships of the Supreme Court observed as follows : - "We proceed to consider the next contention of Mr. N. C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts." 9. It would not be proper for the court to overburden the judgment by way of detailed discussion of the law reports relied on by Mr. Deb and his submission as there is no quarrel with the proposition of the law laid down by the Apex Court in the law reports cited by him. 10. In response to the submissions of the learned counsel for the respondents, Mr. Biswas, learned counsel for the petitioner submits that there is no quarrel with the submission of Mr. Deb and the law reports relied on by him, but it is necessary to supplement, inter alia, that law in England is not exactly similar in our country. Mr. Biswas further submits that the civil court decides the issues or lis before it exercising statutory jurisdiction and writ court creates jurisdiction vested on it by article 226 to decide the issues. The civil court's jurisdiction is from the statute and the writ court's jurisdiction is the creation of the Judge himself as vested on him by the Constitution and he is the just person to decide how he will decide the issues before him for ends of justice. Referring article 226 of the Constitution he submits that the power of the High Court is not to issue a writ only regarding the rights conferred by Part III rather for any other purpose also.
Referring article 226 of the Constitution he submits that the power of the High Court is not to issue a writ only regarding the rights conferred by Part III rather for any other purpose also. Here in the instant case the petitioner was not sleeping over his right rather he was waiting for the proof of mischief committed by the respondent-Corporation, particularly the respondent No. 1, the Managing Director while promoting the respondent No. 3 on the basis of service seniority ignoring the streamwise seniority. In 1979 the petitioner could not have any tool to establish his presumption regarding mischief/bias committed by the respondent-Corporation though that was there but he got the same only after publication of the streamwise seniority list and in 1997 when the respondent No. 3 was promoted on the same day to the posts of Assistant Manager (Commercial) and Deputy Manager (Commercial) on the basis of the purported recommendation of the DPC and the cause of action for filing the instant writ petition arose only after discovery of such mischief, not from the date of promotion of the respondent No. 3 to the post of Store Keeper and hence there was no delay in filing the instant writ petition. Mr. Biswas also submits that the law of limitatior has prescribed in the Limitation Act should not be applied to defeat the just cause of an action as for filing a writ no limitation is prescribed. According to him, the question of extinguishment of the right of the petitioner as contended by Mr. Deb cannot be taken into consideration as the petitioner filed the earlier writ petition only to prevent the direct recruitment of the store keeper and not for any other purpose and nor in the said writ petition the issues involved in the instant writ petition were the subject-matter. Therefore, principle of public policy of res judicata will not apply in the instant case as the same is applicable only when the issues between the parties have already been decided by the court of law in an earlier suit or proceeding. He finally contended that the law reports cited by Mr.
Therefore, principle of public policy of res judicata will not apply in the instant case as the same is applicable only when the issues between the parties have already been decided by the court of law in an earlier suit or proceeding. He finally contended that the law reports cited by Mr. Deb on the question of delay cannot be considered on the back drop of the facts and circumstances involved in the present case as in those cases the petitioners were sleeping even as an indolent inlooker and in the present case the petitioner was a helpless inlooker as the bias was there against him but no proof was available and he has to wait for proof which he ultimately recovered from the action of the respondent corporation while they provided promotion to the respondent No. 3 in two posts on a single day in the year 1997. 11. In Sarguja Transport Service (supra) the Apex Court also held where a petitioner withdraws a petition filed by him in High Court under article 226/227 without permission to institute fresh petition, remedy under article 226/227 should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition and it would not be open to him to file a fresh writ petition in the High Court under the said Articles. According to this court, the aforesaid case has no application in the instant case as the petitioner did not raise the same question which he raised in his earlier petition, rather when one did not raise his grievance or claim which was within his knowledge before filing the earlier writ petition and having omitted to raise his grievance or make any claim regarding his right, he cannot be said to get it indirectly which he cannot get directly and as such relief is not permissible in view of the principle as laid down in order 2, rule of the Code of Civil Procedure. In the instant case, as the petitioner tried to get relief indirectly though not permissible directly as he did not agitate the grievance which was within his knowledge at the time of filing the earlier writ petition. 12.
In the instant case, as the petitioner tried to get relief indirectly though not permissible directly as he did not agitate the grievance which was within his knowledge at the time of filing the earlier writ petition. 12. Learned counsel for the rival parties tried to convince this court by way of placing their rival arguments in their own manner and the said submissions of the learned counsel cast a duty on this court to do real justice between the parties and for which this court has given an anxious consideration to the submissions of the learned counsel for the parties and the law reports as well as the records available before the court including the records submitted by the learned counsel for the Corporation. After proper scrutiny of the records and submissions of the learned counsel, this court is of the considered opinion that there is no debate between the parties regarding the factual matrix of the matter. Therefore, the questions remain for decision are whether there was really any mischief or bias against the petitioner at the time of giving promotion to the respondent No. 3 as Store Keeper and whether the petitioner approached in time to ventilate his grievance regarding the promotion to the post of Store Keeper on the basis of streamwise seniority and whether by the dismissal of the earlier writ petition his right is extinguished to challenge the promotion of the respondent No. 3 as Store Keeper and the subsequent promotions thereto by way of filing the instant writ petition. 13. As confronted by this court, learned counsel for the parties fairly submit that in the year 1979 there was no seniority rule either streamwise or regarding combined seniority of the Clerks working in the stream of Accounts Keeping as well as Store Keeping for promoting an employee to the post of Store Keeper. Appointment by way of promotion being a policy matter of the employer it can only be taken by the employer and the employee has no right to dictate the mode of promotion in any particular manner and the fixation of seniority in a particular service/cadre/stream is a managerial function/job of the authority/employer. Neither the employee nor the court can ask for fixation of seniority in any particular mode as the same is based on evaluation by the experts.
Neither the employee nor the court can ask for fixation of seniority in any particular mode as the same is based on evaluation by the experts. Employee can raise his voice only when any promotion is given contrary to the provisions of rule covering the field and fixation of seniority is made in contrary to rules and regulations or public employment scheme. Right to get particular position in a seniority list is not a vested light of an employee but once seniority position is fixed, same cannot be taken away without providing the opportunity to the employee concerned and no order detrimental to him can be passed by the employer. But in the instant case the admitted position is that the seniority position between the petitioner and the respondent No. 3 was never finalized either streamwise seniority or common seniority. But fact remains that the respondent No. 3 is senior to the petitioner in service as the petitioner was regularly appointed as store-keeper-cum-clerk in a regular scale of pay in the year 1978 whereas the respondent No. 3 was appointed regularly as Accounts Clerk in 1974 in a regular scale of pay. Thus the authority/employer had/has the right to promote an employee like the respondent No. 3 to the post of Store Keeper on the basis of the service seniority as per the administrative decision of the authority, same being the policy and which gets support from the decision of the Apex Court in Sant Ram Sharma (supra) as cited by Mr. Deb, learned senior counsel for the respondent No. 3, therefore, it can be held that the respondent-Corporation committed no mischief or bias while promoting the respondent No. 3 as Store Keeper in the 1979. 14. Though by this time it is settled that the provision of Limitation Act has no application in a writ proceeding, but the principle of the provision of the said Act can be taken a note of for consideration of the delay cause din filing the writ petition and unless the delay is properly explained the same cannot be condoned and in the instant case it is the admitted position that the petitioner filed the writ petition after more than a decade but question is this whether he was sleeping as indolent onlooker he was really helpless onlooker.
According to this court he was not sleeping over the matter rather he raised his objection to the authority, but the authority answered his objection in a negative manner. Therefore, he has to wait for some time for collecting the proof of alleged mischief. But when he filed the writ petition challenging the action of the authority while they tried to fill up the post of Store Keeper by way of direct recruitment, the petitioner could have raised his claim against the promotion of respondent No. 3 as by that time he was armed with the streamwise seniority list and as he did not claim or agitate his that right, regarding the promotion of the respondent No. 3 as Store Keeper in his erstwhile writ petition though the said fact had within his full knowledge and having omitted to make any claim for the said post of Store Keeper or challenge the promotion of the respondent No. 3 in the opinion of this court the petitioner cannot be permitted to agitate the same after more than a decade when the matter is by this time settled and the settled position cannot be unsettled by a court as the same will create a chaos in the administration of the Corporation and more so, this court is also of the opinion that in 1979 no right accrued to the petitioner for promotion to the post of Store Keeper prior to the respondent No. 3. More so, the claim of the petitioner for cancellation of appointment of respondent No. 3 is also hit by the principle of order 2, rule 2 of CPC as stated supra. Therefore, the court cannot ask the respondent-Corporation to discharge its duty by way of providing promotion to the petitioner after cancellation of the promotion of respondent No. 3 as sought for, as a writ court though its jurisdiction is wider than the civil court, which is supposed to decide the issues or the lis before it, but the writ court creates its jurisdiction vested on it to protect the right of a citizen. But the discretion has to be exercised both in equity as well as law and the equity is always subject to provisions of law and in this case though the petitioner deserves some sympathy but the sympathy cannot take the place of proof and the place of law.
But the discretion has to be exercised both in equity as well as law and the equity is always subject to provisions of law and in this case though the petitioner deserves some sympathy but the sympathy cannot take the place of proof and the place of law. Hence it would, not be proper for the court to presume anything against the respondent-Corporation in absence of proof. Mere allegation of malice is not enough, but that has to be established, which is absent in the instant case. Regarding other prayers of the petitioner, as the learned counsel for the respondent-Corporation contended that promotion given to the respondent No. 3 to the post of Deputy Manager (Commercial) has already been cancelled on the ground of declaring the purport recommendation of the DPC null and void by this court and the respondent No. 3 has by this time being reverted to the post held by him prior to his promotion to the post of Deputy Manager (Commercial), i.e., Store-Keeper, no order needs be passed by this court. 15. For the reasons and discussion made above, this court find no merit in this writ petition. Accordingly, the same is dismissed leaving the parties to bear their own cost.