INDRADEO PASWAN v. STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR
2014-03-26
NAVIN SINHA, VIKASH JAIN
body2014
DigiLaw.ai
Order Navin Sinha, J. The present appeal arises from order dated 12.2.2013 in CWJC No. 2831 of 2013. The learned Single Judge held that officiation on current charge from 1994 on the higher post did not vest a claim for seniority and promotion from that date. The subsequent grant of substantive promotion in 2007 did not warrant any interference. The claim to be considered for subsequent promotion had to be considered in accordance with law from date of substantive promotion. The appellant was held entitled to officiating allowance under Rule 103 of the Bihar Service Code. 2. Learned Counsel for the appellant submitted that he held officiating charge on the higher post of Deputy Director of Agriculture from 1994. It was therefore not a stop gap arrangement. The appellant fulfilled all conditions of eligibility for promotion. A substantive vacancy was available. On 18.9.2007 the authorities themselves granted him such promotion with effect from the date of assuming charge. Subsequently on 28.9.2007 it was modified as effective from the date of issuance of order i.e. 18.9.2007. No opportunity was given before taking away the benefits accrued by the earlier order. Final orders were issued on 15.7.2010 granting him notional promotion with effect from 5.6.2007 modifying the earlier orders. 3. The appellant is entitled to seniority in the rank of Deputy Director of Agriculture from the date of officiation in 1994. The cause of action accrued to the petitioner after the order dated 5.8.2011 was issued granting him promotion to the Junior Selection Grade with effect from 11.3.1992. Thus rendering him eligible for substantive promotion as Deputy Director of Agriculture. 4. Learned Additional Advocate General III opposing the application submitted that the appellant became eligible for promotion to the post of Deputy Director of Agriculture only in 1997 after completing the five years duration from 11.3.1992. In the meantime the entire system and procedure for promotions changed. After 1.1.1996, promotion was only to be granted on need based posts. No person junior to the appellant has been promoted from any prior date. Even persons senior to him have been promoted only in the year 2007 as apparent from Annexures C and D to the third supplementary counter affidavit. Because of the change in procedure and abolition of Selection Grade etc., consideration of the eligible for promotion has taken time.
No person junior to the appellant has been promoted from any prior date. Even persons senior to him have been promoted only in the year 2007 as apparent from Annexures C and D to the third supplementary counter affidavit. Because of the change in procedure and abolition of Selection Grade etc., consideration of the eligible for promotion has taken time. No person has a vested right for promotion, only a right to consideration, which has not been denied to the appellant. 5. We have considered the submissions on behalf of the parties. No person has a vested right to promotion much less from any specified date. There is only a right to be considered for promotion. A current charge of a higher post does not create a vested right to promotion. If there be any such claim, it ought to be raised in reasonable time. A person cannot hold current charge for a long period without demur or protest and then turn it to his advantage to contend substantive promotion. There is no explanation forthcoming from the Appellant regarding lack of protest by him till he was granted substantive promotion on the higher officiating post in 2007. 6. In (1995) 1 SCC 152 (P.S. Sadasivaswamy vs. State of Tamil Nadu) emphasizing that claim for promotions must be raised within reasonable time it was observed :- “………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. The petitioner’s petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant’s petition as well as the appeal.” 7.
Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant’s petition as well as the appeal.” 7. Substantive promotion to the post of Deputy Director of Agriculture was granted to the appellant in September, 2007. If he was aggrieved with the date, opining that it ought to have been granted from 1994 he ought to have been vigilant and approached the Court in time. Filing of representations without pursuing legal remedies cannot be sufficient explanation especially in matters relating to promotion in service. No senior to the Appellant had been promoted also. Entertaining his belated claim will necessarily affect third party right of his seniors who have also been promoted in 2007. 8. Even if we were to accept the submission that the cause of action arose in 2011 when they granted him Junior Selection Grade with effect from 11.3.1992, still, the petitioner remains to explain a delay of two years in approaching the Court again. The writ petition has been filed in the year 2013 only. 9. The aforesaid facts, coupled with the issue that persons senior to the appellant have been granted such promotion only in the year 2007, satisfies us not to pass any orders giving him an occasion to steal a march over his seniors by virtue of judicial orders. 10. Learned Counsel for the appellant made a last submission that officiation on the higher post was not as a temporary stop gap arrangement but continuously for long years from 1994 till 2007. It entitles him to salary of the higher post as he had to discharge higher and more onerous responsibilities. The submission again on the ground of delay does not appeal to us. If the contention had been raised in 2007 when promotion came to be granted different considerations may have arisen. 11. In conclusion we find no reason to interfere with the order under appeal. 12. The Appeal stands dismissed.