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2014 DIGILAW 630 (JHR)

Ratneshwar Prasad Singh v. State of Jharkhand

2014-05-15

APARESH KUMAR SINGH

body2014
ORDER Heard learned counsel for the parties. 2. The petitioner who was appointed as a Clerk in the year 1970 in the establishment of Judgeship of Muzaffarpur got transferred to Hajipur and served there till 1996. He was thereafter, transferred on administrative ground by General Order No. 74/96 to the Judgeship of Lohardagga (Ranchi). Thereafter the petitioner preferred a writ petition being C.W.J.C. No. 7823 of 1999 before the Patna High Court challenging his transfer. However, the said writ petition was dismissed for default after being transferred to this Court upon bifurcation of the parent State of Bihar. The other writ petitions challenging the similar orders of transfer preferred by the other petitioners were also dismissed by the Patna High Court. The petitioner after joining the judgeship of Lohardagga retired on 31.06.2002 in the scale of Rs. 4000-6000/-. It is also not in dispute that the petitioner got the benefit of ACP at the transferred place i.e. at Lohardagga and has also got his retiral benefits and pension fixed accordingly under the scale of pay so drawn. 3. The petitioner’s grievance in the present writ petition was that the respondents have not given him promotion in his service career while those who were at Vaishali, his erstwhile place of posting, were considered and granted promotion vide Office Order No. 42 of 98. The petitioner however, has raised a claim for promotion by filing the instant writ petition in the year 2011 and given explanation that he had been representing before the respondents vide Annexure-2 in 2006 and also obtained information through R.T.I vide Annexure-4 in the year, 2009. 4. According to the learned counsel for the petitioner, he has been representing all along but his grievances were never redressed. 5. The respondent State of Bihar has appeared and filed counter affidavit in which it has been stated that the petitioner was transferred in the year 1996 and promotional exercise were conducted on those employees who were on rolls in the Judgeship of Vaishali in the year 1998, some of whom got promotion by virtue of Order No. 42/98. The petitioner’s last pay slip and service records were already sent to Judgeship of Lohardagga and, therefore, the case of the petitioner could not have been considered at Vaishali at the relevant point of time. The petitioner’s last pay slip and service records were already sent to Judgeship of Lohardagga and, therefore, the case of the petitioner could not have been considered at Vaishali at the relevant point of time. It has also been stated on their part, that there were certain adverse remarks against him which were communicated by the District Judge, Vaishali vide Confidential Letter No. 43/96 to the Patna High Court which led to his transfer vide Hon’ble Court’s letter dated 3rd June, 1996. 6. The respondents-State of Jharkhand has also filed their affidavit in which it has been stated that petitioner retired as a Nazir. He has been given benefit of first ACP in the scale of Rs. 5000-150-8000 w.e.f 09.08.1999 though after his retirement i.e. on 31st June, 2002 vide order No. 40 A dated 22.07.2003 issued by District Judge, Lohardagga. He has also been granted the benefit of second ACP in the scale of Rs.5500-175-9000/-.w.e.f. 09.08.99 vide order No. 43A dated 1st February, 2008. 7. Counsel for the petitioner has placed reliance upon the judgment rendered by the Hon’ble Patna High Court in the case of Shashi Kumar Singh and others vs. The State of Bihar and others [ 2000 (4) PLJR 320 ] where the order of transfer challenged by the similarly situated employees were, negatived however, with certain observations. The sum and substance of the observations that has been relied upon by the petitioner from the said judgment is that if a transfer has been made on administrative exigency under the relevant Rules i.e. Bihar Civil Courts Staff (Class III and IV) Rules, 1992, then transferred employee would not lose their seniority. They will also not be looser of the financial benefit. However, it is not in dispute that the petitioner’s seniority has not been affected as a result of his transfer. The petitioner got desired scale on his transfer and retired in June, 2002 and has got retiral benefits as well as the benefits of first and second ACP in the proper scale and his retirement benefits have also been fixed thereupon. The ACP benefits are ordinarily granted in a case where no promotion substantively has been given to the employee. 8. The ACP benefits are ordinarily granted in a case where no promotion substantively has been given to the employee. 8. Under the aforesaid factual background of this case, the grievance, that has been raised by the petitioner, in relation to his promotion, with a cause of action said to have occurred in 1998, by filing the present writ petition in 2011 which however, appears to be suffering from unexplained delay and laches. The march of time does not get arrested merely by filing representations. In that regard the opinion of the Hon’ble Mr. Justice Dipak Misra in the judgment reported in SC 2013 (11) SCALE 56, is being quoted hereunder: “13. We have no trace of doubt that the Respondents could have challenged the ad hoc promotion conferred on the junior employee at the relevant time. They chose not to do so for six years and the junior employee held the promotional post for six years till regular promotion took place. The submission of the learned Counsel for the Respondents is that they had given representations at the relevant time but the same fell in deaf ears. It is interesting to note that when the regular selection took place, they accepted the position solely because the seniority was maintained and, thereafter, they knocked at the doors of the tribunal only in 2003. It is clear as noon day that the cause of action had arisen for assailing the order when the junior employee was promoted on ad hoc basis on 15.11.1983. In C. Jacob v. Director of Geology and Mining and Anr. (2008) 10 SCC 115 , a two-judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter. In that context, the court has expressed thus: “Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim. 14. In Union of India and Ors. V. M.K. Sarkar (2010) 2 SCC 59, this Court, after referring to C. Jacob (Supra) has ruled that when a belated representation in regard to a “stale” or “dead” issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the “dead” issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court’s direction. Neither a court’s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. 15. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time. In Karnataka Power Corporation Ltd. Through its Chairman and Managing Direction V.K. Thangappan and Anr. (2006) 4 SCC 322, the Court took note of the factual position and laid down that when nearly for two decades the Respondent-workmen therein had remained silent mere making of representations could not justify a belated approach. 19. There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and Kashmir and Anr. (2009) 15 SCC 321 . 20. In New Delhi Municipal Council v. Pan Singh and Ors. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and Kashmir and Anr. (2009) 15 SCC 321 . 20. In New Delhi Municipal Council v. Pan Singh and Ors. (2007) 9 SCC 278 , the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the Respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction. 21. Presently, sitting in a time machine, we may refer to a two-judge Bench decision in P.S. Sadasivasway v. State of Tamil Nadu (1975) 1 SCC 152 , wherein it has been laid down that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. 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.” 9. In a case of promotion, grievance of employee is required to be raised within a reasonable period, from the date of cause of action as has been indicated in the said judgment but not after a delay of 12 to 13 years. The reason for not entertaining such grievance in relation to promotion is that the rights of other persons which might have been created in the meantime would have been crystalized due to the efflux of time and if the petitioner’s grievance is allowed, many things which may have settled might get unsettled. The reason for not entertaining such grievance in relation to promotion is that the rights of other persons which might have been created in the meantime would have been crystalized due to the efflux of time and if the petitioner’s grievance is allowed, many things which may have settled might get unsettled. Such a course therefore would not advance the interest of justice either. Therefore, in exercise of extra ordinary jurisdiction of this Court, this Court is not inclined to issue any order or direction upon the respondents to consider the petitioner’s claim for promotion at such belated stage. 10. Accordingly, writ petition is dismissed.