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2016 DIGILAW 117 (JHR)

Pankaj Kumar Chaterjee v. State of Jharkhand

2016-01-18

APARESH KUMAR SINGH

body2016
ORDER : Heard learned counsel for the parties. 2. This writ petition in effect is the third writ petition preferred in 2015 after the earlier two writ petitions preferred in 1998 being C.W.J.C No. 6320 of 1998 before then Patna High Court and W.P.S. No. 3012 of 2010 preferred before this Court raising the claim for promotion to the post of Plant Protection Inspector w.e.f. 18.2.1992. 3. On the first instance petitioner sought consideration of his case for promotion in the light of resolution of the Government dated 18.2.1992 stating that he is entitled for the same if he is senior most person available in the department. The learned Single Judge of the Patna High Court vide order dated 28.10.1999 (Annexure-4) directed the respondent/ competent authority to decide his claim on his representation within the stipulated period in accordance with law. That representation was considered and declined by the order bearing memo no. 3678 dated 4.9.2001, (Annexure-6) which was communicated to the petitioner reportedly by Annexure-7, letter no. 3847 dated 22.10.2003 by the Deputy Director Administration, Directorate of Agriculture, Bihar. The contempt petition preferred by the petitioner for prosecution of the order passed in the said writ petition was closed by the Patna High Court vide order dated 3.11.2003 in M.J.C No. 3254 of 2000 giving him liberty to challenge the said order before appropriate forum in appropriate proceeding(Annexure-9). 4. Petitioner, thereafter was allocated to the successor State of Jharkhand in 2007 and approached this Court in W.P.S. No. 3012 of 2010 for the same relief also laying challenge to the order dated 4.9.2001 and the letter dated 22.10.2003 as aforesaid. He also sought consideration of his case for regular promotion w.e.f. 18.2.1992. That writ petition perhaps was pressed only with the prayer that his representation before the Director, Agriculture for such promotion be considered and decided as no order had been passed there upon. Learned Single Judge of this Court vide order dated 6.8.2010 was pleased to dispose of the writ petition by giving liberty to the petitioner to file fresh representation raising his claim and grievances along with supporting documents to be decided by the Director, Agriculture by a reasoned order within stipulated period. The Director, Agriculture, Jharkhand and Bihar, both have passed reasoned order which are impugned in the present writ application vide Annexure-11 and 12 bearing memo no. 1433 dated 5.5.2012 and 23.1.2013 bearing memo no. The Director, Agriculture, Jharkhand and Bihar, both have passed reasoned order which are impugned in the present writ application vide Annexure-11 and 12 bearing memo no. 1433 dated 5.5.2012 and 23.1.2013 bearing memo no. 131 respectively, apart from the order dated 4.9.2001, 22.10.2003 passed earlier by the respondent- authorities of the State of Bihar. 5. Petitioner's claim is based upon the contention that in teeth of the resolution at Annexure-1, several persons were illegally granted promotion in the year 1992, though they did not possess the requisite qualification as per the resolution dated 18.2.1992. They were neither the holder of 10+2 qualification in Science nor Diploma holder in Agriculture. Petitioner has contended that he is Agriculture Graduate and serving as Plant Protection Supervisor after completion of 5 years of service on the said post by 1992. Therefore, he is eligible for such promotion vide resolution dated 18.2.1992, having come into service as Field Operator in 1972 and promoted as Plant Protection Supervisor on 19.6.1976. This qualification and experience of the petitioner fits into the criteria laid down under the resolution at Annexure-1 dated 18.2.1992 for the purpose of promotion as Plant Protection Inspector, moreover vacancies were existing after promotion of other persons . This in sum and substance is the case of the petitioner. 6. Earlier by the order dated 4.9.2001, the respondent, Director Agriculture, Bihar had rejected the claim of the petitioner holding that the incumbent of the cadre of Plant Protection Supervisor are from two distinct source, one who are Diploma in Agriculture and other, who obtained Diploma in Agriculture during the course of their service. There was no occasion to make a distinction between these two categories of Diploma Holders. Petitioner's contention that Diploma Holders from Agricultural University should be given seniority in the cadre of Plant Protection Supervisor was therefore declined. This order remained unchallenged by the petitioner even after being communicated in the year 2003 till he preferred another writ petition in 2010. Learned Single Judge of this Court in the second writ petition for the same relief was pleased to direct the respondents to consider the petitioner's representation again in relation to his claim for promotion w.e.f. 18.2.1992. Apparently, challenge to the order of rejection was not pressed by the petitioner. Learned Single Judge of this Court in the second writ petition for the same relief was pleased to direct the respondents to consider the petitioner's representation again in relation to his claim for promotion w.e.f. 18.2.1992. Apparently, challenge to the order of rejection was not pressed by the petitioner. Apart from that petitioner did not implead any of the persons whose promotion were said to be illegally conferred on 18.2.1992 in the second writ petition. It is not clear whether any such challenge or impleadment of these persons was made in the writ petition preferred in 1998 or not. The Director, Agriculture, Jharkhand has rejected petitioner's claim after referring to the earlier rejection order passed by the corresponding authority of the State of Bihar dated 22.10.2003 also stating that claim of the petitioner for the period of 1990 is relatable to the unified State of Bihar and not fit to be considered by the successor State of Jharkhand, which came into being in November, 2000. The Director, Agriculture, Bihar has also referred to the earlier order of rejection of the petitioner in October, 2003 in refusing to consider his claim taking into account that he has retired on 30.6.2010 after allocation to the successor State of Jharkhand. 7. This relevant conspicuous facts referred to in some detail hereinabove do persuade this Court to come to the conclusion that claim for promotion w.e.f. 18.2.1992 being now raised once again in 2015 is stale and neither persons, whose promotion, he alleged to be illegal were impleaded as party earlier nor in the present writ petition. Apart from that, if the petitioner had occasion to be aggrieved upon earlier order of rejection passed by the Director, Agriculture, Bihar, communicated through letter dated 22.10.2003, he waited for 7 long years to challenge the same in 2010 and after his retirement on 30.6.2010. 8. In the matters relating to seniority and promotion, if delay is caused on the part of the person concerned, vested right get crystallized in the process, which should not be allowed to be ordinarily unsettled. Orders of rejection passed in 2012 and 2013 also assailed in the writ petition as Annexure-11 and 12 would not revive the stale cause of action, which relates back to 1992. Orders of rejection passed in 2012 and 2013 also assailed in the writ petition as Annexure-11 and 12 would not revive the stale cause of action, which relates back to 1992. In this regard, the opinion of the Apex Court, specifically in the matters of promotion as laid down is in the case of State of Uttaranchal v. Shiv Charan Singh Bhandari reported in (2013) 12 SCC 179 I is quoted hereunder:- “ Para 24:- 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 J&K. Para 25:- In NDMC v. Pan Singh 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. Para 26:- Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivaswamy v. State of T.N., wherein it has been laid down that: (SCC p. 154, para 2) “2. … 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. 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.” Para 27:- We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Anyone who sleeps over his right is bound to suffer. As we perceive neither the Tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion. Para 28:- Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the Tribunal and accepted by the High Court. Para 29:- True it is, notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation of pay and the pension. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadagi. But equality has to be claimed at the right juncture and not after expiry of two decades. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadagi. But equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, has it been said that everything may stop but not the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time”. 9. In that view of the matter, this Court is not inclined to entertain the instant writ petition for the reasons and discussion made herein above. The writ petition being devoid of merit is dismissed.