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2016 DIGILAW 562 (JHR)

Bharti Prasad Roy v. State of Jharkhand

2016-04-05

PRAMATH PATNAIK

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JUDGMENT : Pramath Patnaik, J. 1. In the accompanied writ application, the petitioner has inter alia prayed for issuance of writ of mandamus commanding upon the respondents to provide the benefit of notional promotion on the post of Super Time Selection Grade and fix the pay scale thereof for the purpose of determination of retiral benefit and to pay the difference amount in lieu thereof within a specified period. 2. Sans details, the facts, as disclosed in the writ application is that petitioner was initially appointed on 29.04.1960 as Lower Division Assistant (Clerk) in Singhbhum Collectorate, Chaibasa. The respondent no.2 was the appointing as well as the super controlling officer. By resolution dated 30.12.1981 the undivided State of Bihar directed implementation of the benefit accrued to its employees with effect from 01.04.1981 and accordingly, the basic pay of the Stenographers Service Cadre was fixed at Rs.680-965/- and the petitioner also became entitled to the same scale of pay with effect from 01.04.1981. In the year 1985 a seniority list of Stenographer seniority cadre was published wherein the name of the petitioner found place at Serial no.3. By letter dated 13.09.1985 the petitioner was granted Junior Selection Grade on the pay scale of Rs.730-1080/- instead of Rs.1400-2600/- by way of Second Time Bound Promotion with effect from 29.04.1985 on completion of 25 years of service and the resolution was issued by the Government on 18.12.1989 for implementation of the revision of pay replacing the pay scale of Rs.730-1080 to 1400-2300/-. It has been stated in the writ application that the petitioner being the senior most member of the cadre service after getting the first promotion to Junior Selection Grade w.e.f. 01.04.1981 was entitled to Senior Selection Grade w.e.f. 01.04.1985 but despite continuous services rendered by the petitioner, the petitioner did not get such benefit. On 30.04.1997 the petitioner retired from service on attaining the age of superannuation from the post of Stenographer from the office of respondent no.2. After retirement from the said post, the petitioner submitted representation before the respondent no.2 for re-fixation of pay on the basis of recommendation of Pay Anomaly Committee vide Annexure-1 to the writ application. The representation of the petitioner did not evoke any response from the respondents. After retirement from the said post, the petitioner submitted representation before the respondent no.2 for re-fixation of pay on the basis of recommendation of Pay Anomaly Committee vide Annexure-1 to the writ application. The representation of the petitioner did not evoke any response from the respondents. Due to such inaction on the part of the respondents in fixing the Super Time Selection Grade, the petitioner left with no alternative, has approached this Court under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for redressal of his grievance. 3. Heard Mr. A.K. Sahni, learned senior counsel appearing for the petitioner as well as Mr. Ravi Kumar, J.C. to S.C.II, appearing for the respondents. 4. Learned counsel appearing for the petitioner submits that in pursuance to the representation filed by the petitioner before respondent no.2 regarding re-fixation of pay on the basis of the recommendation of the Pay Anomaly Committee, the respondent no.2 sought guidelines for grant of the pay scale for the post of Junior Selection Grade, Senior Selection Grade and Super Time Selection Grade from the Finance Department, Government of Bihar. But the representation of the petitioner fell on the deaf ears and the case of the petitioner has not been considered by the respondents, which is wholly unlawful, improper and without authority of law. 5. Per contra, a counter affidavit has been filed on behalf of the respondents controverting the averments made in the writ application. In the counter affidavit, it has been submitted that the petitioner was drawing salary of pay scale of Rs.680-965 (revised scale 1320-2040) and he has been granted Junior Selection Grade with effect from 01.04.1981 and thereafter he was promoted to the post of Senior Selection Grade with effect from 29.04.1985. Since Super Time Selection Grade i.e. 2.5% of the sanctioned 26 post was not available in the district, the petitioner was not promoted to the Super Time Selection Grade, in view of the foresaid notification and orders of the Finance Department. Since Super Time Selection Grade i.e. 2.5% of the sanctioned 26 post was not available in the district, the petitioner was not promoted to the Super Time Selection Grade, in view of the foresaid notification and orders of the Finance Department. Moreover, the petitioner after more than 17 years of retirement has filed this writ application for grant of notional promotion on the post of Super Time Selection Grade and for fixation of pay scale thereof and payment of difference of pay and such a long unexplained delay cannot be entertained in accordance with law and as such this writ application is liable to be dismissed on that score. 6. Mr. Ravi Kumar, J.C. to S.C.II., appearing for the respondents during course of hearing has assiduously submitted that the prayer of the petitioner is grossly barred by limitation. 7. After hearing the learned counsel for the respective parties at length and on perusal of the records, I am of the considered view that the petitioner has not been able to make out a case for interference, due to the following facts and reasons: (I) In the matter relating to 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. In the instant case, the petitioner retired from services on attaining the age of superannuation from the post of Stenographer from the office of the respondent no.2 on 30.04.1997 and the representation was submitted to the respondent no.2 vide Annexure-1 in the year 1998. After almost 16 years of filing of the representation, the petitioner has filed the present writ application which would not revive to stale cause of action, relating to the year 1997-98. In this regard, the opinion of the Apex Court, specifically in the matters of promotion as laid down in the case of State of Uttaranchal & Anr. vs. Shiv Charan Singh Bhandari & Ors. reported in (2013) 12 SCC 179 is quoted hereinunder:- “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. 25. 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. 25. In NDMC vs. 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 not of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction. 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. 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. 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. 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. 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. 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 Mahadev 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.” (II) Admittedly, after retirement of the petitioner representation was submitted in the year 1998 but the same did not evoke any response as alleged by the petitioner. The petitioner waited for long period of almost one and half decades and after long inordinate delay, no reason has been assigned by the petitioner, which is not acceptable at all. The Hon’ble Apex Court in the case of C. Jacob vs. Director, Director of Geology and Mining & Anr. The petitioner waited for long period of almost one and half decades and after long inordinate delay, no reason has been assigned by the petitioner, which is not acceptable at all. The Hon’ble Apex Court in the case of C. Jacob vs. Director, Director of Geology and Mining & Anr. as reported in (2008) 10 SCC 115 and catena of judgments has held that the repeated representations will not save limitation. Therefore, the petitioner is guilty of laches and acquiescence. 8. Viewed thus, this Court is not inclined to entertain the instant writ application for the reasons and discussions made hereinabove. Resultantly, the writ petition is dismissed.