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Madhya Pradesh High Court · body

2010 DIGILAW 166 (MP)

RAM BABU RAJAK v. MP. MADHYA KSHETRA VIDYUT VITRAN CO. LTD.

2010-02-09

S.C.SHARMA

body2010
Judgment S.C.Sharma, J. ( 1. ) The petitioner before this Court has filed this present writ petition being aggrieved by the promotion order of the respondent No. 5 on the post of Daftary. He is also claiming seniority over and above the respondent No. 5. The contention of the petitioner is that he was appointed by the respondents vide an order dated 19-06-1978 on the post of peon on a fixed pay and thereafter vide an order dated 21-06-1980 he was granted a regular pay scale of Rs. 275- 395/-. The petitioner has further stated that the respondent No. 5 was appointed on 20th December, 1980 as Class-IV employee and therefore, the respondent No. 5 was junior to the petitioner as Class-IV employee. The petitioner has further stated that the respondent No. 5 was promoted to the post of Daftary by an order dated 18-01-1988 and was also granted a higher pay scale and the petitioner being aggrieved by his supersession to the post of Daftary preferred a representation and the respondents after taking into consideration the representation preferred by the petitioner have promoted the petitioner to the post of Daftary vide an order dated 05-03-1990 in the pay scale of Rs. 970-1600/-. The petitioners contention is that the respondent No. 5 was junior in the cadre of peon and now as both the persons have been promoted to the post of Daftary, the petitioner should be granted stepping up of pay and should also be placed over and above in the gradation list of Daftary. The petitioner has also submitted various representations before the authorities, however, nothing has been done in the matter. The petitioner has further stated that he has also by filing a rejoinder has brought on record representation dated 01-06-1989, representation dated 18-01-2007, the representation dated 14-09-2006 and representation dated 06-10-2006 submitted by him from time to time in respect of his supersession of the year 1988 and also in respect of stepping up his pay. Learned counsel for the petitioner has relied upon a judgment by the Apex Court in the case of M.R. Gupta Vs. Union of India and others AIR 1996 SC 669 wherein the Apex Court has held that the matter of fixation of pay is a continuing wrong of action and the question of limitation does not arise. Learned counsel for the petitioner has relied upon a judgment by the Apex Court in the case of M.R. Gupta Vs. Union of India and others AIR 1996 SC 669 wherein the Apex Court has held that the matter of fixation of pay is a continuing wrong of action and the question of limitation does not arise. Learned counsel for the petitioner has also relied upon a judgment delivered by Apex Court in the case of The State of Madhya Pradesh Vs. Bani Singh and another AIR 1990 SC 1308 and his contention is that the delay in filing the present writ petition is not a bar to grant relief to the petitioner as his representations were pending before the competent authority. The learned counsel for the petitioner has also relied upon a judgment delivered by the Apex Court in the case of T. Aruna and others V. The Secretary, Andhra Pradesh, Public Service Commission AIR 2001 SC 2114 wherein in the matter of promotion, the Apex Court has observed that as seniority list was published in the year 1996 and therefore, the effected parties have got a right to challenge the same, even though the promotions were of the year 1984. Learned counsel for the petitioner has also relied upon a judgment delivered by the Apex Court in the case of J.N. Ganatra, Vs. Morvi. Municipality. Morvi AIR 1996 SC 2520 and his contention is that as the power has not been exercised by the M.P.S.E.B. following prescribed procedure, the matter can be entertained by this Court. ( 2. ) A reply has been filed on behalf of the respondents MPSEB and it has been admitted by the respondents that the petitioner was appointed as work charged peon on 19-04-1978 and the respondents have also admitted that he was absorbed in regular establishment on 21-06-1980 and the respondent No. 5 was appointed initially in regular establishment on 15-12-1980 on the post of Farrash. The respondents have also stated that the petitioner was superseded in the year 1988 and he has filed the present writ petition has been filed after about 19 years in the year 2007. The respondents have also stated that the petitioner was superseded in the year 1988 and he has filed the present writ petition has been filed after about 19 years in the year 2007. The respondents have also stated that the panel was drawn in the year 1984 for promoting the persons to the post in question and on the basis of recommendation of panel of the year 1984, the respondent No. 5 was promoted on the post of Daftary on 18-01-1988. The respondents have stated that the petitioner was also promoted by an order dated 05-03-1990. The respondents have categorically stated that after a lapse of about 23 years from the date of drawal of panel as the record is not available, no comments can be offered as to why, the respondent No. 5 was found fit for promotion and as to why the petitioner was not granted promotion along with the respondent No. 5. Learned counsel for the respondents has relied upon a judgment delivered by the Apex Court in the case of New Delhi Municipal Council vs. Pan Singh and others (2007) 9 SCC 278 . The contention of the learned counsel for the respondents is that in the light of the judgment delivered by the Apex Court in the aforesaid case, the question of exercising discretionary jurisdiction under Article 226 of the Constitution does not arise as the petitioner has approached this Court after a lapse of about 19 years. The respondents have prayed for dismissal of the present writ petition on the ground that the petitioner is filed this present writ petition after a lapse of about 19 years challenging his supersession. ( 3. ) Heard learned counsel for the parties at length and perused the record. ( 4. ) The petitioner before this Court was appointed as peon on 19-04-1978 as work charged peon and was absorbed in regular establishment only on 21-06-1980. The respondent No.; 5 was appointed initially in regular establishment on 15-12- 1980 on the post of Farrash. A panel was prepared in the year 1984 and the respondent No. 5 was found fit for promotion to the post of Daftary and a promotion order was issued on 18-01-1988. The petitioner was also promoted later on by an order dated 05-03-1990 which is on record as Annexure P/3. A panel was prepared in the year 1984 and the respondent No. 5 was found fit for promotion to the post of Daftary and a promotion order was issued on 18-01-1988. The petitioner was also promoted later on by an order dated 05-03-1990 which is on record as Annexure P/3. Though the petitioner has stated in the writ petition that after the promotion of the respondent No. 5 dated 18-01-1988 he submitted representations claiming promotion at par with the respondent No. 5, however, the order promoting the petitioner dated 05-03-1990 does not reflect about the representation of the petitioner nor it does reflect that the petitioner is being promoted on account of the fact that a junior was promoted earlier to the petitioner. The order dated 05-03-1990 simply reflects that the petitioner has been promoted to the post of Daftary in the pay scale of Rs. 970-1600/-. Thus it is an admitted fact that the respondent No. 5 has been promoted much prior to the promotion of the petitioner on 18-01-1988. The petitioner as stated by him has submitted representation before the authority and finally a representation dated 24-07-2006 has been filed by the petitioner along with the writ petition. The petitioner has later on along with the rejoinder has enclosed representation representation dated 01-06-1989, the representation dated 18-01-2007, representation dated 14-09-2006, dated 06-10-2006 and from the representations enclosed along with the rejoinder, it is evident that the petitioner for first time has submitted a representation on 01-06-1989 prior to his promotion and later on he has submitted representation only in the year 2006. The respondents have categorically stated in the return that no record of the year 1984 panel is available with them. Not only this, the petitioner is challenging the supersession of the year 1988 in the present writ petition. The judgment relied upon by the learned counsel for the petitioner in the case of J.N. Ganatra. Vs. Morvi. Municipality, Morvi AIR 1996 SC 2520 was relating to a case wherein the Municipality in question has framed conduct, discipline, dismissal and appeal Rules for its employees provided under the Gujrat Municipalities Act, 1964 and the rules were not followed, whereas in the present case, there is no such allegation the recruitment rules was not followed by the respondents while considering the case of the respondent No. 5 to the post of Daftary in the year 1984. Not only this, the aforesaid case was a case relating to dismissal and it was not a case relating to supersession and therefore, the keeping in view the aforesaid, the judgment relied upon by the learned counsel for the petitioner is distinguishable on facts. The learned counsel for the petitioner has also relied upon a judgment delivered by the Apex Court in the case of T. Aruna and others V. The Secretary. Andhra Pradesh. Public Service Commission AIR 2001 SC 2114 . In the aforesaid case, promotion to the post of Senior Assistant was done from two cadre namely Junior Assistant and typist and the ratio of 1:4 from the categories of Typists and Junior Assistants was adopted by the respondents therein for the purposes of the promotion and a seniority list was issued by the respondents therein in the year 1996 and in those circumstances the Apex Court has held as under:- "11. The Counsel for the appellants urged that some of the appellants who Were given promotion to the cadre of Senior Superintendents long back and subsequently to still higher cadres are to be reverted to lower category in view of the directions contained in the impugned judgment. It was submitted that promotions effected long back should not be disturbed as they were not challenged. Admittedly, the Commission was not following any rule and the promotions were effected based on a policy. No seniority list was either published. The affected parties got the opportunity to challenge these promotions only when a seniority list was published in 1996. Under the above circumstances, the reasons for delay, if any, cannot be put at the door of the respondents who were seriously affected by the way in which promotions were being done. We are however, told that seniority list has now-been finalised after giving due consideration to the individual representation." ( 5. ) In the present case, the petitioner was very much aware about his supersession in the year 1988 and has approached this Court by filing the present writ petition only in the year 2007 i.e. after a lapse of about 17 years and after a lapse of about 24 years from the date of preparation of the panel and therefore, the petitioner is not entitled for any relief on the basis of the judgment relied upon by the learned counsel for the petitioner. Learned counsel for the petitioner has also relied upon a judgment delivered by Apex Court in the case of The State of Madhya Pradesh Vs. Bani Singh and another AIR 1990 SC 1308 and in the aforesaid case the screening committee met in the year 1979-80 and an application was preferred before the Administrative Tribunal under Section 19 of the Administrative Tribunals Act only 19-12-1986. In the aforesaid case the representation in the year 1980 was pending till 1986 and the Officer therein was representing the matter to the Government continuously and was also granted selection grade during the pendency of the representation w.e.f. 04-03-1982 and under those circumstances the Tribnal has declined to dismiss application on the ground of latches and has decided the case on merits. The Apex Court also keeping in view the aforesaid declined to interfere with the order of Tribunal on the ground of delay and latches. In the present case, the supersession is of the year 1988, the petitioner was very much aware of his supersession in the year 1988 and he was promoted on 05-03-1990 and has slept over the matter almost 17 years and therefore, keeping in view the judgment delivered by the Apex Court the petitioner is certainly not entitled for any relief on the ground of delay and latches. Learned counsel for the petitioner has relied upon a judgment by the Apex Court in the case of M.R. Gupta Vs. Union of India and others AIR 1996 SC 669 wherein the Apex Court has held that the matter of fixation of pay is a continuing wrong and the question of limitation does not arise. In the present case, the dispute certainly does not relates to fixation of pay. It is a simple case of supersession as the respondent No. 5 was promoted in the year 1988 and the petitioner was promoted on 05-03-1990 and therefore, the respondent No. 5 is bound to receive higher pay than the petitioner. It is not a case of erroneous fixation of pay and therefore, no case for interference is made out in the matter in the peculiar facts and circumstances of the case. The Apex Court in the case of New Delhi Municipal Council vs. Pan Singh and others (2007) 9 SCC 278 in paragraphs 17 and 18 has held as under:- "17. The Apex Court in the case of New Delhi Municipal Council vs. Pan Singh and others (2007) 9 SCC 278 in paragraphs 17 and 18 has held as under:- "17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. vs. Union of India and M.R. Gupta v. Union of India.) 18. In Shiv Dass v. Union of India this Court held: (SCC p.277, paras 9-10) "9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K. V. Rajalakshmiah Setty V. State of Mysore. There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay.In State of Orissa V. Pyarimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See also State ofOrissa V. Arun Kumar Patnaik) 10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that scope alone." ( 6. ) Keeping in view the aforesaid judgment delivered by the Apex Court, the present writ petition certainly suffers from delay and latches and even though there is no period of limitation provided for filing the writ petition, the same should have been filed within the reasonable time. In the present case, the writ petition has not been certainly filed within a reasonable time and it has been filed after a lapse of about 17 years. In the present case, the writ petition has not been certainly filed within a reasonable time and it has been filed after a lapse of about 17 years. The Hon.ble Apex Court in the case of C. Jacob vs. Director of Geology and Mining and another, (2008) 10 SCC 115 while dealing with the question of delay and latches in service matters has declined to grant a relief to a person who has approached the Court after two decades of termination. The apex Court while treating the case before it as a typical example of representation and relief has deprecated issuance of direction directing consideration of such State claims. In the present case, keeping in view the law laid down by the Apex Court in the case of C.Jacob (supra) , the question of granting any relief in the present petition does not arises, resultantly, the present writ petition is dismissed. No order as to costs. Petition dismissed.