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2014 DIGILAW 837 (HP)

Khub Chand v. State of Himachal Pradesh

2014-07-04

RAJIV SHARMA

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JUDGMENT Rajiv Sharma, J. 1. Petitioner was appointed as Clerk in the Forest Department on 1.2.1958. He was confirmed on 10.5.1962. He was promoted as Clerk Grade II on 21.3.1974 in the pay scale of Rs.160-400. B.C. Sharma, Satish Kumar, Kapil Dev and Mohan Singh Minhas were promoted as Superintendent Grade IV vide office order dated 4.6.1984 and office order dated 9.1.1985 in the pay scale of Rs.620-1200. The petitioner was also promoted as Superintendent Grade IV on 15.2.1986. The petitioner made representations against the promotion of B.C. Sharma, Satish Kumar, Kapil Dev and Mohan Singh Minhas only on 17.9.1994, 11.10.1994, 15.10.1994, 15.5.1995, 23.9.1995 and 13.2.1996. The petitioner has not explained why he has not taken any steps to assail the promotions of aforesaid four persons when they were promoted on 4.6.1984 and 9.1.1985 till 17.7.1994. It is settled law by now that promotion and seniority must be challenged at the earliest. 2. Petitioner filed O.A. No. 914 of 1996 seeking quashing of promotion orders dated 4.6.1984 and 9.1.1985 before the erstwhile H.P. State Administrative Tribunal. The O.A. No. 914 of 1996 was transferred to this Court and assigned CWP (T) No. 3200 of 2008. It was disposed of on 21.5.2010 by issuing a direction to decide representation made by the petitioner by passing a speaking order. The representation made by the petitioner has been rejected vide a detailed order dated 1.9.2010. Hence, this petition. 3. The case of the petitioner is a nutshell is that the persons, junior to him from different stream, were promoted to the post of Superintendent Grade IV. However, fact of the matter is that the promotions were made in the year 1984-85. As per the Recruitment and Promotion Rules of the Himachal Pradesh Forest Department Class-III Service (Ministerial, Technical and Non-Technical), 1966, feeder category to the post of Superintendent, Grade IV, was Clerk Grade II in the pay scale of Rs.106-200 and Circle Stenographer in the pay scale of Rs.116-250. The State Government vide notification dated 22.7.1970 revised the pay scale of non-secretariat employees and brought it at par with the pay scales allowed by the Punjab Government to the corresponding category of their employees w.e.f. 1.2.1968. The State Government vide notification dated 22.7.1970 revised the pay scale of non-secretariat employees and brought it at par with the pay scales allowed by the Punjab Government to the corresponding category of their employees w.e.f. 1.2.1968. According to memorandum dated 22.7.1970, categories of stenographer in the pay scale of Rs.116-250, circle Steno in the pay scale of Rs.116-250, Circle Steno in pay scale of Rs.106-200 and Junior Scale Stenographers in the pay scale of Rs.100-200 were merged in one pay scale of Rs.160-400 w.e.f. 1.2.1968. Thus, all the categories were merged in the pay scale of Rs.160-400, which was the pay scale of Clerk Grade II. Consequently, inter-se seniority was drawn amongst the Stenographers and Clerk Grade II being the feeder category and since the Stenographers were given pay scale w.e.f. 1.2.1968 and the petitioner was given this pay scale on his promotion on 21.3.1974, they were given seniority above the petitioner. The petitioner has not challenged the seniority assigned to the Stenographers w.e.f. 1.2.1968. The Junior Scale Stenographers w.e.f. 1.2.1968 were treated at par with Clerk Grade II for the purpose of determining inter se seniority. In sequel to the direction issued by this court on 21.5.2010, representation made by the petitioner has been rejected by the Addl. Chief Secretary (Forests) to the Government of Himachal Pradesh by passing a speaking/detailed order on 1.9.2010. The averments made by the petitioner in the representation have been taken into consideration. The petitioner has already attained age of 74 years as per his affidavit. In view of this, the court cannot issue any direction to give notional promotion to the petitioner w.e.f. 4.6.1984. It is well settled law by now that settled things should not be unsettled, more particularly, when it pertains to the seniority/promotion. 4. Their Lordships of Hon’ble Supreme Court in Jagdish Narain Maltiar vs. State of Bihar and others, AIR 1973 Supreme Court 1343, have held that the memorials presented by him to the Government were in the nature of mercy petitions and he should have realized that in pursing a remedy which was not duly appointed under the law he was putting in peril a right of high value and significance. Their Lordships have held as under:- 8. Thus it was in August, 1963 that the appellant discovered that his services were really determined for gross misconduct. Their Lordships have held as under:- 8. Thus it was in August, 1963 that the appellant discovered that his services were really determined for gross misconduct. For nearly 3 years thereafter he kept on submitting one memorandum after another to the Government and it was not until late in 1966 that he filed a Writ Petition in the High Court to challenge the order of removal. The memorials presented by him to the Government were in the nature of mercy petitions and he should have realised that in pursuing a remedy which was not duly appointed under the law he was putting in peril a right of high value and significance. By his conduct he disabled the High Court from exercising its extraordinary powers in his favour. We are therefore of the opinion that the High Court was justified in refusing to entertain the petition. 5. Their Lordships of Hon’ble Supreme Court in P.S. Sadasivaswamy vs. State of Tamil Nadu, AIR 1974 Supreme Court 2271 have held that where a government servant slept over the promotions of his juniors over his head for fourteen years and then approached the High Court with writ petition challenging the relaxation of relevant rules in favour of the juniors, the writ petition is liable to be dismissed in limine. Such an aggrieved person should approach the court at least within six months or at the most a year of promotion of his juniors. Their Lordships have held as under:- 2. The main grievance of the appellant is that the 2nd respondent who was junior to him as Assistant Engineer was promoted as Divisional Engineer in 1957 by relaxing the relevant rules regarding the length of service necessary for promotion as Divisional Engineer and that his claim for a similar relaxation was not considered at that time. The learned Judge of the Madras High Court who heard the writ petition was of the view that the relaxation of the rules in favour of the 2nd respondent without considering the appellant's case was arbitrary. In view of the statement on behalf of the Government that such relaxation was given only in the case of overseas scholars, which statement was not controverted, it is not possible to agree with the view of the learned Judge. In view of the statement on behalf of the Government that such relaxation was given only in the case of overseas scholars, which statement was not controverted, it is not possible to agree with the view of the learned Judge. Be that as it may, if the appellant was aggrieved by it he should have approached the court in the year 1957 after the two representations made by him had failed to produce any result. One cannot sleep over the matter and come to the Court questioning that relaxation in the year 1971. There is the further fact that even after respondents 3 and 4 were promoted as Divisional Engineers over the head of the appellant he did not come to the Court questioning it. There was a third opportunity for him to have come to the Court when respondents 2 to 4 were again promoted as Superintending Engineers over the head of the appellant. After fourteen long years because of the tempting prospect of the chief Engineership he has come to the Court. In effect he wants to unscramble a scrambled egg. It is very difficult for the Government to consider whether any relaxation of the rules should have been made in favour of the appellant in the year 1957. The conditions that were prevalent in 1957 cannot be reproduced now. In any case as the Government had decided as a matter of policy, as they were entitled to do, not to relax the rules in favour of any except overseas scholars it will be wholly pointless to direct them to consider the appellant's case as if nothing had happened after 1957. Not only respondent 2 but also respondents 3 and 4 who were the appellant's juniors became Divisional Engineers in 1957 apparently on the ground that their merits deserved their promotion over the head of the appellant. He did not question it. Nor did he question the promotion of his juniors as Superintending Engineers over his head, he could have come to the Court on every one of these three occasions. 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. Nor did he question the promotion of his juniors as Superintending Engineers over his head, he could have come to the Court on every one of these three occasions. 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 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. 6. Their Lordships of the Hon’ble Supreme Court in B.S. Bajwa and another vs. State of Punjab and others, (1998) 2 SCC 523 have held that the question of seniority should not be reopened in such situations after a lapse of reasonable period because that results in disturbing the settled position which is not justifiable. Their Lordships have held as under: “7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the judgments of the Single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of latches because the grievance made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of latches because the grievance made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the order aforesaid persons and the rights inter se had crystalised which ought not to have been reopened after the lapse of such a long period. At every stage the others were promoted before B.S. Bajwa and B.D. Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition.” 7. Their Lordships of the Hon’ble Supreme Court in H.S. Vankani and others vs. State of Gujarat and others, (2010) 4 SCC 301 have held that seniority once settled should not be unsettled at the instance of juniors in service. Their Lordships have further held that seniority is a civil right which has an important and vital role to play in one’s service career. Their Lordships have held as under: “38. Seniority is a civil right which has an important and vital role to play in one's service career. Future promotion of a Government servant depends either on strict seniority or on the basis of seniority-cum-merit or merit-cum-seniority etc. Seniority once settled is decisive in the upward march in one's chosen work or calling and gives certainty and assurance and boosts the morale to do quality work. It instills confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of one's junior in service is unsettled, it may generate bitterness, resentment, hostility among the Government servants and the enthusiasm to do quality work might be lost. It instills confidence, spreads harmony and commands respect among colleagues which is a paramount factor for good and sound administration. If the settled seniority at the instance of one's junior in service is unsettled, it may generate bitterness, resentment, hostility among the Government servants and the enthusiasm to do quality work might be lost. Such a situation may drive the parties to approach the administration for resolution of that acrimonious and poignant situation, which may consume lot of time and energy. The decision either way may drive the parties to litigative wilderness to the advantage of legal professionals both private and Government, driving the parties to acute penury. It is well known that salary they earn, may not match the litigation expenses and professional fees and may at times drive the parties to other sources of money making, including corruption. Public money is also being spent by the Government to defend their otherwise untenable stand. Further it also consumes lot of judicial time from the lowest court to the highest resulting in constant bitterness among parties at the cost of sound administration affecting public interest. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmental action. Legal principles have been reiterated by this Court in Union of India and another vs. S.K. Goel and others (2007) 14 SCC 641 , T.R. Kapoor vs. State of Haryana (1989) 4 SCC 71 , Bimlesh Tanwar vs. State of Haryana, (2003) 5 SCC 604 . In view of the settled law the decisions cited by the appellants in G.P. Doval's case (supra), Prabhakar and others case, G. Deendayalan, R.S. Ajara are not applicable to the facts of the case. 39. Courts are repeating the ratio that the seniority once settled, shall not be unsettled but the men in power often violate that ratio for extraneous reasons, which, at times calls for departmental action. Legal principles have been reiterated by this Court in Union of India vs. S.K. Goel, T.R. Kapoor vs. State of Haryana and Bimlesh Tanwar vs. State of Haryana. In view of the settled law the decisions cited by the appellants in G.P. Doval case, Prabhakar case, G. Deendayalan and R.S. Ajara are not applicable to the facts of the case.” 8. In view of the settled law the decisions cited by the appellants in G.P. Doval case, Prabhakar case, G. Deendayalan and R.S. Ajara are not applicable to the facts of the case.” 8. In view of analysis and observations made hereinabove, there is no merit in the writ petition and the same is dismissed. Pending application(s), if any, also stands dismissed. No order as to costs.