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2014 DIGILAW 3716 (ALL)

Laxmi Narayan Tiwari v. Union of India

2014-12-11

D.Y.CHANDRACHUD, P.K.S.BAGHEL

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JUDGMENT Pradeep Kumar Singh Baghel, J. This special appeal arises from a judgment and order of the learned Single Judge dated 20 November 2014 by which a writ petition that was filed by the appellant for promotion on the post of Head Constable ? Medics from the date when the juniors of the appellant were promoted, has been dismissed on the ground of laches. 2. The appellant has stated that he has been working on the post of Constable - Medics with Regimental No.940040341in the Battalion Hospital of the third respondent in the Indo Tibet Border Police (ITBP). The appellant joined service on 30 June 1994 initially as a Constable - Nursing and his case is that his designation was changed to that of Constable-Medics on 10 July 1995. The record indicates that the appellant was detected as being a patient of hypertension. The grievance of the appellant is that though the Base Hospital, Ramgarh found him fit, he was placed in the Low Medical Category. The grievance of the appellant is that his juniors were promoted to the post of Head Constable - Medics from the 1994 batch. Moreover, it has been pleaded that Constable - Medics from the 1994 to 2000 batch, have been promoted as Head Constable - Medics; the statement being made on the basis of the seniority list dated 1 January 2012 issued by the Deputy Director CMO (AC). The grievance of the appellant was that though he has been continuously working as Constable - Medics, he has not been promoted on the post of Head Constable - Medics. The appellant sent a legal notice dated 11 August 2014 to the second respondent and eventually filed a writ petition before the learned Single Judge under Article 226 of the Constitution. The writ petition has been dismissed on the ground that the appellant would have been aware when his juniors have been promoted in 1994 and in any event, after a seniority list was published on 1 November 2011. On this ground, it has been held that the petition is barred by laches and the delay has not been explained. 3. After hearing the learned counsel appearing on behalf of the appellant and the learned Assistant Solicitor General of India, we are of the view that the dismissal of the petition on the technical reason that it was barred by laches, was not justified. 3. After hearing the learned counsel appearing on behalf of the appellant and the learned Assistant Solicitor General of India, we are of the view that the dismissal of the petition on the technical reason that it was barred by laches, was not justified. The grievance of the appellant basically is that he has not been promoted on the post of Head Constable - Medics, whereas his Juniors have been promoted from time to time. The appellant has undoubtedly averred that it was in 1994 that his juniors were first promoted. Even if the appellant is found to be otherwise fit for promotion by the competent authority, that does not necessarily mean that he would be entitled to promotion with retrospective effect. 4. At this stage, the grievance of the appellant in regard to denial of promotion to him, cannot be regarded as a stale matter since the appellant continues to be in service and is admittedly holding the post of Constable - Medics. All that really remained to be directed in the writ petition was that the notice which had been issued by the appellant through his Advocate on 11 August 2014, may be treated as representation by the second respondent, on which a suitable decision in accordance with law may be taken. 5. In that view of the matter, we set aside the impugned judgment and order of the learned Single Judge dated 20 November 2014. The Court cannot, it is well settled, grant a mandamus for the promotion of an employee and the only appropriate direction can be that the representation which has been submitted by the appellant should be considered in accordance with law. 6. We clarify that we have adverted to some of the facts which have been pleaded in the writ petition but this should not be treated as a binding and conclusive finding of this Court on merits since the eligibility and entitlement of the appellant for promotion, would have to be suitably considered in accordance with law by the competent authority, in terms of the directions which have been issued above. This exercise may be completed as expeditiously as reasonably possible. The appeal is, accordingly, disposed of. There shall be no order as to costs. 7. In this view of the matter, both the special appeal and the writ petition will stand worked out in terms of the aforesaid directions. This exercise may be completed as expeditiously as reasonably possible. The appeal is, accordingly, disposed of. There shall be no order as to costs. 7. In this view of the matter, both the special appeal and the writ petition will stand worked out in terms of the aforesaid directions. The learned counsel appearing on behalf of the appellant also fairly states that with the aforesaid order, there can be no objection to the writ petition being disposed of since nothing further will survives at this stage. The writ petition (Writ ? A No.60688 of 2014), in consequence, also stands disposed of. There shall be no order as to costs.