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2012 DIGILAW 1349 (PNJ)

Dwarka Dass v. Financial Commissioner

2012-10-01

AUGUSTINE GEORGE MASIH

body2012
JUDGMENT Mr. Augustine George Masih, J.: - Petitioner has approached this Court praying for issuance of a Writ of Mandamus directing the respondents to promote the petitioner as District Family Welfare Education Officer with all consequential benefits from the date his junior, namely, Sham Sunder stood promoted. 2. Petitioner was appointed as a Family Planning Field Worker on 7.3.1973 through the Haryana Staff Selection Board. He was adjusted against the post of Block Extension Educator on 21.4.1976 in his own payscale. He was not granted the regular pay-scale of Family Planning Extension Educator from the date of his appointment i.e. 21.4.1976 for which claim he filed CWP No.14250 of 1990 which was allowed by this Court vide order dated 15.2.1991. SLP preferred by the respondents was dismissed by the Supreme Court on 15.11.1991. On filing contempt petition, petitioner was granted the benefit of the judgment passed in his favour. Petitioner retired on 28.2.1999. 3. As per the gradation list of Family Welfare Extension Educators which was circulated as on 10.7.1995, petitioner’s name was mentioned at Sr.No.55 whereas that of Sham Sunder-respondent No.4 was at Sr.No.57. Sham Sunder was appointed as a Family Planning Field Worker on 1.10.1970 on ad hoc basis. His services were regularized vide order dated 15.2.1973. While working against the post of Family Welfare Extension Educator in his own pay-scale, Sham Sunder-respondent No.4 was promoted as a District Family Welfare Education Officer on 15.3.1995. On his promotion, petitioner has asserted that he being senior to Sham Sunder-respondent No.4 should have been promoted to the post of District Family Welfare Education Officer and should now be promoted w.e.f. 15.3.1995. 4. Reply on behalf of the respondents have been filed wherein they have stated that the petitioner is junior to respondent No.4. It has been asserted that neither the petitioner nor respondent No.4 were ever promoted to the post of Family Welfare Extension Educator but were adjusted against the said post. As a matter of fact, petitioner is junior to respondent No.4 on the post of Family Planning Field Worker as the services of respondent No.4 were regularized w.e.f. 15.2.1973 whereas the petitioner was appointed on regular basis on 7.3.1973. Seniority of the petitioner, on the basis of the gradation list relied upon by the petitioner, has been denied. As a matter of fact, petitioner is junior to respondent No.4 on the post of Family Planning Field Worker as the services of respondent No.4 were regularized w.e.f. 15.2.1973 whereas the petitioner was appointed on regular basis on 7.3.1973. Seniority of the petitioner, on the basis of the gradation list relied upon by the petitioner, has been denied. It has further been stated that respondent No.4 being senior to the petitioner was promoted to the post of Family Planning Extension Educator vide order dated 13.2.1992. It has been, on this basis, asserted by the counsel for the respondents that the writ petition deserves to be dismissed. 5. I have considered the submissions made by the counsel for the parties and with their assistance have gone through the records of the case. The original service records of the petitioner and respondent No.4 were retained by this Court when the judgment was reserved as there were discrepancies in the pleadings which appeared to be self contradictory at some places. 6. I have perused the records of both the petitioner and respondent No.4 and a perusal of the same would show that the petitioner was appointed on regular basis as a Family Planning Field Worker vide order dated 27.2.1973 and joined as such on 7.3.1973. Petitioner was adjusted against the post of Block Extension Educator temporarily in his own payscale on 21.4.1976 and he joined on 1.5.1976. He continued as such till the date of his retirement i.e. 28.2.1999. 7. As per entries recorded in service book of respondent No.4, he was initially appointed on ad hoc basis as a Family Planning Field Worker on 1.10.1970 and was appointed on regular basis vide order dated 26.2.1973. He was promoted to the post of Family Planning Extension Educator vide order dated 13.2.1992. Thereafter, he was further promoted to the post of District Family Welfare Education Officer vide order dated 28.3.1995. 8. In the light of the above, it is clear that respondent No.4 is senior to the petitioner as a Family Planning Field Worker as the date of appointment of the petitioner is 27.2.1973 and joined on 7.3.1973 whereas respondent No.4 was appointed on 26.2.1973 and joined on 2.3.1973. Both on the basis of the order of appointment and the date of joining, respondent No.4 is senior to the petitioner. Both on the basis of the order of appointment and the date of joining, respondent No.4 is senior to the petitioner. Although petitioner was adjusted against the post of Family Welfare Extension Educator vide order dated 21.4.1976 in his own pay-scale initially but was granted the regular pay-scale of Family Welfare Extension Educator w.e.f. 21.4.1976 in the light of the judgment passed by this Court in CWP No.14250 of 1990 decided on 15.2.1991 whereas respondent No.4 continued as a Family Planning Field Worker but that does not confer seniority on the petitioner above respondent No.4. The official respondents promoted respondent No.4 to the post of Family Planning Extension Educator vide order dated 13.2.1992 as he was senior to the petitioner and rightly so. It would not be out of way to mention here that the petitioner was never promoted regularly to the post of Family Welfare Extension Educator but continued on the post of Block Extension Educator on the basis of his adjustment order dated 21.04.1976. 9. The gradation list as circulated by the respondents as on 10.07.1995 showed the petitioner senior to respondent No.4 as petitioner’s name existed at Sr.No.55 and that of respondent No.4 at Sr.No.57 but that is not correct on facts. If that be so, the petitioner did not have a right for consideration and promotion to the post of District Family Welfare Education Officer prior to respondent No.4, who is senior to the petitioner. The claim, thus, made by the petitioner in the present writ petition deserves to be rejected. 10. Another reason why the claim made by the petitioner at this stage cannot be granted is the unexplained inordinate delay in approaching this Court. Respondent No.4 was promoted as District Family Welfare Education Officer on 28.03.1995. Petitioner was well aware of this fact as he has based his claim for promotion on the basis of the gradation list as on 10.07.1995 (Annexure P-2) which mentions this fact. Petitioner as per his pleadings in para 5 of the writ petition made requests for his promotion from the due date but no dates or even year has been mentioned. Petitioner as per his pleadings in para 5 of the writ petition made requests for his promotion from the due date but no dates or even year has been mentioned. He served a notice through counsel on 03.02.2010 (Annexure P-1) which can thus safely be said to be his first effort to assert his claim for promotion, which is almost 15 years after respondent No.4 was promoted and after 11 years of superannuation of the petitioner as he retired on 28.02.1999. No further elaboration or emphasis is required to be asserted to hold that the claim as made by the petitioner is stale and thus cannot be entertained at this belated stage. The writ petition deserves to be dismissed solely on this ground itself. 11. In view of the above, finding no merit in the present writ petition, the same stands dismissed. 12. Original records retained by the Court be returned to Mr.Harish Rathee, Sr.DAG, Haryana. ---------0.B.S.0------------