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2008 DIGILAW 734 (GAU)

P. K. Handique v. State of Meghalaya

2008-09-26

T.NANDAKUMAR SINGH

body2008
JUDGMENT T.N.K. Singh, J. 1. By this writ petition, filed in the month of November 2006, the Petitioner is assailing the notifications of the Government of Meghalaya, being No. PHE.155/82/Pt/103 Shillong, dated 10th July, 1995 for promoting Respondent Nos. 6 to 9 to the posts of Assistant Engineer/Sub-Divisional Officers and notification issued by the Commissioner and Secretary to the Government of Meghalaya, P.H.E, Department being No. 453/96/43 elated 2nd July, 1999 for determining the final seniority list of the officers under the P.H.E. Department. It is apparent on the face of the present writ petition that the writ petition is filed with an inordinate delay of 11 years and some months so far as the impugned notification dated 10th July, 1995 is concerned and inordinate delay of 7 years so far as the second notification dated 2nd July, 1999 is concerned. 2. Heard Mr. Kynjing, learned senior Counsel for the Petitioner and also Mr. N.D. Chullai, learned senior GA appearing for Respondent Nos. 1, 2, 3, 4 and 5 as well as Mr. Thankhiew, learned Counsel appearing for Respondent Nos. 10 to 32. 3. The fact in nutshell, basing on which the Petitioner filed the present writ petition, is that the Petitioner is a diploma holder (Civil) and was appointed as Sub Engineer Grade-I (Civil) on 30.9.1975 in the office of the Chief Engineer, Public Health Engineering (PHE) Department, Meghalaya. The next higher promotion from the post of Sub-Engineer Grade-I is Assistant Engineer under Rule 7(5) of the "Meghalaya Public Health Engineering Service Rules, 1996". The post of Assistant Engineer/SDO (Civil)/Electrical/Mechanical, is to be filled up by direct recruitment as well as by promotion from the Sub-Engineer/Overseer Grade-I on the basis of 70% of the vacancies by direct recruitment and 30% of the vacancies by promotion from the Sub-Engineer/Overseer Grade-I. Further, it is crystal clear from the Meghalaya Public Health Services Rules, 1996 that the promotion to the post of Assistant Engineer from the post of Sub-Engineer Grade-I is on the basis of merit cum seniority and as such, the seniority in the feeder post, i.e., Sub-Engineer Grade-I is not the only criteria for appointment by promotion to the post of Assistant Engineer. Such being the situation, post of Assistant Engineers is a selection post. 4. It is the case of the Petitioner that private Respondent Nos. Such being the situation, post of Assistant Engineers is a selection post. 4. It is the case of the Petitioner that private Respondent Nos. 6 to 9, who were juniors to the Petitioner in the feeder post of Sub-Engineer Grade-I, superceded the Petitioner by promoting them to the post of Assistant Engineer on the recommendation of DPC, vide impugned notification No. PHE.155/82/Pt/103, Shillong dated 10th July, 1995. It is alleged in the writ petition that the Petitioner was informed of the adverse remarks on his ACR for the period from 1.1.1984 to 31.12.1993 and cautioned to be careful in near future vide letter of the Chief Engineer, PHE, Meghalaya, Shillong being No. CE/PHE/616/82/90 Shillong dated 14th June 1995. The Petitioner, on receipt of the said letter of the Chief Engineer dated 14.6.1995, submitted a representation/appeal to the Chief Engineer, HPE, Meghalaya dated 15.7.1995 expressing his dissatisfaction over the adverse remarks on his ACR. The adverse remarks on the ACR must not be used, before giving a chance of explanation or/notice to the Petitioner, by the DPC for promotion to the post of Assistant Engineer. Because of the undue delay in informing the adverse entry in the ACR of the Petitioner vide the said letter of the Chief Engineer dated 14.6.1995, the Petitioner had been superceded by the private Respondent Nos. 6 to 9 in the matter of promotion to the post of Assistant Engineer vide impugned notification dated 10.7.1995. In the present writ petition the Petitioner is not impugning the said letter of the Chief Engineer dated 14.6.1995 by seeking the prayer for quashing the same. 5. Private Respondent Nos. 10 to 32, who are Degree holders, were appointed by direct recruitment to the post of Assistant Engineers in the Public Health Engineering Department against the direct recruitment quota, i.e., 70% quota for direct recruitment on the recommendation of the Meghalaya Public Service Commission vide notification No. PHE/44/96/15 Shillong 25th June, 1996. The Petitioner in the present writ petition is also not assailing the said notification dated 25.6.1996 for appointing the private Respondent Nos. 10 to 36 by direct recruitment. 6. It is an admitted fact that the Petitioner was not promoted to the post of Assistant Engineer in the year 1999 inasmuch as he was promoted to the post of Assistant Engineer only in the month of October 2002. 10 to 36 by direct recruitment. 6. It is an admitted fact that the Petitioner was not promoted to the post of Assistant Engineer in the year 1999 inasmuch as he was promoted to the post of Assistant Engineer only in the month of October 2002. But the Petitioner who was not even an Assistant Engineer in the year 1999 filed the present writ petition challenging the said impugned notification dated 2.7.1999 for fixing the final seniority of the Assistant Engineers. For easy reference, the relief sought for in the present writ petition is as under: ...to set aside the government notification dated 10th July 1995 and notification dated 2nd July 1999 issued by the Commissioner & Secretary, Government of Meghalaya, PHE and to direct the Respondent to give his overdue promotion. 7. The private Respondent Nos. 6 to 9, whose promotion to the post of Assistant Engineers, vide impugned notification dated 10.7.1995 are impugning in the present writ petition, are no more in service, inasmuch as Respondent Nos. 6, 8 and 9 had already retired on superannuation and Respondent No. 7 had expired. 8. In the writ petition there is absolutely no plausible and rational reason for the inordinate delay of several years in filing the present writ petition assailing the impugned notifications dated 10.7.1995 and 2.7.1999 only in the month of November 2006. This writ petition is liable to be dismissed at the threshold only on the ground of inordinate delay. Mr. N.D. Chullai, learned senior GA for the State Respondents and also Mr. Thankhiew, learned Counsel for Respondent Nos. 10 to 32 strenuously contend that there is inordinate delay in filing the present writ petition and the same is liable to be dismissed only on this score. In support of their contentions, they place heavy reliance on the decisions of the Apex Court in: (1) State of Orissa v. Pyarimohan Samantaray and Ors., (1977) 3 SCC 396 ; (2) Ashok alias Somanna Gowda and Anr. v. State of Karnataka by its Secretary and Ors., (1992) 1 SCC 28 ; (3) State Bank of Indore v. Govindrao, (1997) 2 SCC 617 ; (4) Union of India and Ors. v. Kishorilal Bablani, (1999) 1 SCC 729 ; and (5) A.J. Fernandis v. Divisional Manager, South Central Railway and Ors., (2001) 1 SCC 240 . 9. v. State of Karnataka by its Secretary and Ors., (1992) 1 SCC 28 ; (3) State Bank of Indore v. Govindrao, (1997) 2 SCC 617 ; (4) Union of India and Ors. v. Kishorilal Bablani, (1999) 1 SCC 729 ; and (5) A.J. Fernandis v. Divisional Manager, South Central Railway and Ors., (2001) 1 SCC 240 . 9. The Apex Court in Pyarimohan Samantaray's case (supra) held that the petition filed by the Government employee challenging the seniority list after 11 years is liable to be rejected. Making of repeated representations, after the rejection of one representation, could not be held to be a satisfactory explanation of the delay. The High Court should, therefore, have rejected the petition on this preliminary ground. Para 6 of the SCC in Pyarimohan Samantaray's case read as follows: 6. It would, thus, appear that there is justification for the argument of the Solicitor General that even though a cause of action arose to the Petitioner as far back as 1962, on the rejection of his representation on 9th November, 1962, he allowed some eleven years to go by before filing the writ petition. There is no satisfactory explanation of the inordinate delay for, as has been held by this Court in Rabindra Nath Bose v. Union of India, (1970) 2 SCR 697 , the making of repeated representations, after the rejection of one representation, could not be held to be a satisfactory explanation of the delay. The fact therefore remains that the Petitioner allowed some years to go by before making a petition for the redress of his grievances. In the meantime a number of other appointments were also made to the Indian Administrative Service by promotion from the State Civil Service, some of the officers received promotions to higher posts in that service and many even have retired. Those who continued to serve could justifiably think that as there was no challenge to their appointments within the period prescribed for a suit, they could look forward to further promotion and higher terminal benefits on retirement. The High Court therefore erred in rejecting the argument that the writ petition should be dismissed because of the inordinate and unexplained delay even though it was "strenuously" urged for its consideration on behalf of the Government of India. The High Court therefore erred in rejecting the argument that the writ petition should be dismissed because of the inordinate and unexplained delay even though it was "strenuously" urged for its consideration on behalf of the Government of India. The Apex Court is of similar view in the case of Ashok @ Somanna Gowda's case (supra) that case of the candidate who never approached for redress within reasonable time cannot be considered. 10. The Apex Court in Govindrao's case (supra) held that writ petition filed challenging the order of dismissal from service ten years after the date of the impugned order is not entertainable and delay in challenging the impugned order by filing writ petition is fatal. Para 5 of the SCC in Govindrao's case (supra) read as follows: 5. It is difficult to see how this writ petition was entertained at all by the High Court. The date of dismissal was 3.10.1977. The appeal against that order was dismissed on 18.7.1978. The writ Petitioner did not choose to challenge that appellate order by way of a writ petition. What was described as special appeal was again dismissed on 12.5.1982. There was no reason for the High Court, after a long lapse of nearly ten years from the date of the order of dismissal, to entertain the writ petition and quash the order of dismissal. We are of the view that the High Court should not have entertained that at all. It should have been dismissed in limine. 11. The Apex Court in Kishorilal Bablani's case (supra) held that it would not be fair to the employee to take away the benefit which they secured on the basis of the impugned selection/appointment after long period often years of such enjoyment by reopening such appointment or selection on the basis of the writ petition tiled after ten years. The Apex Court further held that after more than ten years, the process of selection and notification of vacancy cannot be and ought not be reopened in the interest of proper functioning and morale of the concerned services. It would also jeopardize existing positions of a large number of members of that service. Paras 6, 7 and 8 of the SCC in Kishorilal Bablani's case (supra) read as follows: 6. It would also jeopardize existing positions of a large number of members of that service. Paras 6, 7 and 8 of the SCC in Kishorilal Bablani's case (supra) read as follows: 6. The Appellants submitted before us with some justification, that in a writ petition which was filed in the year 1985, appointments which were made as far back as in the year 1974, ought not to have been disturbed. If a similar relief is to be granted to all those who were in the merit list of 1974 of the IAS and Allied Services examination and who were placed in Class II posts because of wrong notification of vacancies in the year 1974, there would be a complete disruption in the postings and positions of persons appointed as far back as in the year 1974 who are now occupying various posts not merely in this Department but in other various Allied Services as well. The same would be the position if the vacancies for any subsequent years from 1975 to 1990 are now recalculated and the initial posting given to a large number of candidates during these years are now disturbed. They are, undoubtedly, right about this apprehension. Delay defeats equity is a well known principle of jurisprudence. Delay of 15 and 20 year cannot be overlooked when an applicant before the court seeks equity. It is quite clear that the applicants for all these years had no legal right to any particular post. After more than 10 years, the process of selection and notification of vacancies cannot be and ought not to be reopened in the interest of the proper functioning and morale of the services concerned. It would also jeopardize the existing position of a very large number of members of that service. The Respondent, however, submitted that he has, in fact, been given the relief by the Tribunal. As a result, various orders have been issued granting him Group A; appointment and subsequent promotions, though these are made subject to the outcome of this appeal. The only question is, whether having upheld the merits of his contention, we should not take away the benefit which the Respondent has actually obtained under the orders of the Tribunal. 7. As a result, various orders have been issued granting him Group A; appointment and subsequent promotions, though these are made subject to the outcome of this appeal. The only question is, whether having upheld the merits of his contention, we should not take away the benefit which the Respondent has actually obtained under the orders of the Tribunal. 7. We do not think that it would be fair to the Respondent to take away the benefit which he has secured on the basis of the contentions which are accepted as justified. We, therefore, maintain the relief which has been granted to the Respondent. But obviously after this lapse of time, such relief cannot be granted to anybody else. 8. One intervention application is before us which was filed in the year 1996 by a person who was recruited in the year 1975. The Appellants have also pointed out that after the decision of the Tribunal in the present case, they have received a number of representations from other persons who were appointed during the period 1974 up to 1990. Such belated applications cannot now be considered. We, therefore, dismiss the intervention application. We make it clear that the present order will operate only in respect of the Respondent for reasons which we have set out earlier. We also make it clear that in notifying vacancies available to direct recruits, the Appellants are bound to take into account permanent as well as temporary vacancies of long duration as per the office memoranda of 20.4.1953 and 8.6.1967. However, this will not affect the right of the Appellants to decide in accordance with the law on the number of vacancies which are required to be filled up or not filled up, while maintaining the ratio of 50:50 between promotees and direct recruits. 12. The Apex Court in A.J. Fernandis' case (supra) held that application challenging the promotion of another after a period of four long years is liable to be dismissed. Para 14 of the SCC in A.J. Fernandis' case (supra) read a follows: 14. Even otherwise, it is to be noted that the Appellant got promoted to the post of Ticket Collector on 28.5.1983. He was thereafter promoted as a Senior Ticket Collector on 25.9.1986. The Appellant was then promoted as a Train Ticket Examiner on 25.5.1987. Para 14 of the SCC in A.J. Fernandis' case (supra) read a follows: 14. Even otherwise, it is to be noted that the Appellant got promoted to the post of Ticket Collector on 28.5.1983. He was thereafter promoted as a Senior Ticket Collector on 25.9.1986. The Appellant was then promoted as a Train Ticket Examiner on 25.5.1987. The 3rd Respondent chose to challenge the promotion of the Appellant as a Ticket Collector only on 11.12.1987, i.e., after a period of 4 years. On the ground of delay and laches also the application of the 3rd Respondent should have been dismissed. 13. Even though the present writ petition is dismissed only on the ground of inordinate delay for the reasons discussed above this Court is constrained to observe that the relief sought for in the present writ petition cannot be granted in the absence of relief for setting aside the said letter of the Chief Engineer, PHE dated 14.6.1995 for communicating the adverse entry in the ACR of the Petitioner for the period from 1.1.1984 to 21.12.1993 after the DPC for promotion to the post of Assistant Engineer had been held and also the remark and findings of the Chief Engineer, PHE against the Petitioner in the same letter. In the absence of the relief for setting aside the said letter of the Chief Engineer dated 14.6.1995 by assailing the same, the Petitioner cannot collaterally challenge the same in the present writ petition. It is well settled law that irregularity or validity of an order can be challenged by the right person in the right proceedings brought at the right time. Reference: (1) Panjak Bhargava and Anr. v. Mohinder Nath and Anr., AIR 1991 SC 1233 , (2) Dr. Ku Nilofar Insaf v. State of M.P. and Ors., AIR 1991 SC 1872 . 14. The Apex Court in Krishna Priya Ganguly and Ors. v. University of Lucknow and Ors., (1984) 1 SCC 307 held that a relief should be confined to those specifically prayed for in the writ petition. The Apex Court in State of Mysore v. G.N. Longappa and Ors. 1969 SLR 709 (SC) held that the court cannot grant the relief in the writ petition in the absence of proper plea and any prayer to that effect. The Apex Court in State of Mysore v. G.N. Longappa and Ors. 1969 SLR 709 (SC) held that the court cannot grant the relief in the writ petition in the absence of proper plea and any prayer to that effect. The Apex Court further, in Hindustan Petroleum Corporation Ltd. v. Sunita Mehra and Ors., (2001) 9 SCC 344 held that the order not even challenged in the writ petitions cannot be quashed by the High Court in writ jurisdiction. 15. In the present case, in the absence of proper relief in the writ petition, this Court cannot grant the relief, which is brought to the notice of this Court in the course of hearing of the present writ petition, for setting aside the adverse entries in the ACR for the period indicated above, and also by holding review DPC for promotion to the post of Assistant Engineer held in the year 1995, the Petitioner should be promoted to the post of Assistant Engineer as early as 1995, even prior to the date of promotion of the private Respondent Nos. 6 to 9 who were promoted to the post of Assistant Engineers in the year 1995. For the foregoing discussions, writ petition is devoid of merit, accordingly dismissed. Petition dismissed