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2017 DIGILAW 710 (HP)

Sarwan Ram v. State of H. P.

2017-06-22

SANDEEP SHARMA, SANJAY KAROL

body2017
JUDGMENT : Sandeep Sharma, J. Instant Letters Patent Appeal is directed against the judgment dated 7.9.2010, passed by learned Single Judge in CWP(T) No. 2618 of 2008, whereby the aforesaid writ petition having been filed by the appellant-petitioner (hereinafter referred to as the ‘petitioner’) came to be dismissed. 2. Briefly stated facts, as emerged from the record, are that on 30.5.1987, petitioner was promoted to the post of Senior Scale Assistant, however, he foregone his promotion, as is evident from Annexure A-5 dated 24.8.1987. Thereafter, the Departmental Promotion Committee met on 21.1.1988, 29.2.1988, 27.4.1988, 26.6.1988 and 20.6.1990, wherein incumbents, who were admittedly junior to the petitioner, came to be promoted to the post of Senior Scale Assistants. 3. Subsequently, posts of Junior Scale Assistant and Senior Scale Assistant (for short ‘JSA’ & ‘SSA’) were clubbed together vide Office Order dated 7.11.1988 and the pay scale of Assistants/Accountants (pre-revised Rs.570-1080) and SSA (pre-revised Rs.600-1120) came to be revised to Rs.1500-2640. Since the petitioner had foregone the promotion to the post of SSA, persons junior to him, who were promoted on subsequent dates as mentioned above, were assigned seniority over and above the petitioner and as such, petitioner, being aggrieved with aforesaid action of the respondents, made a representation to the Department, praying therein for assigning seniority over and above the persons, who were promoted before him as SSA’s on 8.5.1989. 4. Petitioner also represented to the Department against the final seniority list of ministerial staff, as it stood on 31.12.1988, on 10.3.1992. However, aforesaid representation, made by the petitioner, was rejected by the competent Authority on 31.3.1992. It also emerged from the record that another representation having been made by the petitioner qua the final seniority list drawn by the Department, as it stood on 31.12.1992, on 31.12.1993, also came to be rejected by the competent Authority on 14.10.1994. 5. At this stage, it may also be noticed that persons, who were promoted as SSA’s on 8.5.1989, ahead of petitioner, were further came to be promoted to the post of Superintendent Grade-II in the year, 1994. 5. At this stage, it may also be noticed that persons, who were promoted as SSA’s on 8.5.1989, ahead of petitioner, were further came to be promoted to the post of Superintendent Grade-II in the year, 1994. Since representations, as referred above, having been filed by the petitioner against final seniority list as well as promotion of private respondents to the posts of Superintendent Grade-II were rejected by the competent Authority, he preferred Original Application bearing No.1543 of 1995, which subsequently came to be registered as CWP(T) No.2618 of 2008, seeking therein following relief :- “(i). That the respondents 1 & 2 may be directed to promote the applicant as Senior Scale Assistant with effect from January 21, 1988 when officers junior to him were so promoted, with all consequential benefits, including further promotion, arrears of salary, etc. (ii) That the respondents may be directed to place the applicant above respondents No.3 to 12 in the Seniority List of Senior Assistants. (iii) That the respondents may be directed to promote the applicant as Superintendent Grade-II with effect from December 19, 1994 when respondents 3 to were so promoted with all consequential benefits. (iv) That the respondents 1 and 2 may be directed to produce the entire record pertaining to the case for the perusal of this Hon’ble Tribunal. (v) That the respondents 1 and 2 may be burdened with the costs of this Application throughout. (vi) Any other order deemed just and proper by this Hon’ble Tribunal in the facts and circumstances of the case mentioned hereinabove, may also be passed in favour of the applicant, and against the respondents.” 6. We have heard learned counsel for the parties and gone through the record of the case. 7. In nutshell, case as projected by Mr. R.K. Gautam, learned Senior Counsel duly assisted by Ms. Archana Duitt, learned counsel representing the petitioner, is that the name of petitioner should have ranked higher to the private respondents, in view of the decision taken by the Authorities vide letter dated 7.11.1988, whereby the posts of JSA and SSA were clubbed together and termed as ‘Senior Assistant’. R.K. Gautam, learned Senior Counsel duly assisted by Ms. Archana Duitt, learned counsel representing the petitioner, is that the name of petitioner should have ranked higher to the private respondents, in view of the decision taken by the Authorities vide letter dated 7.11.1988, whereby the posts of JSA and SSA were clubbed together and termed as ‘Senior Assistant’. He further stated that as per settled law, promotion foregone by the petitioner is for a period of one year, and as such incumbents who were junior to the petitioner should have ranked below him in the seniority list despite their promotion to the posts of SSA on subsequent dates. 8. Mr. Shrawan Dogra, learned Advocate General, while refuting the aforesaid claim of petitioner, contended that since the petitioner had foregone his promotion on 30.5.1987, the incumbents, who were admittedly junior to him, were rightly promoted to the post of SSA w.e.f. 30.5.1987 to 20.6.1990 and as such there is no ambiguity in the seniority list, whereby names of the private respondents were reflected above the petitioner. 9. Perusal of Annexure A-5 i.e. letter dated 24.8.1987 clearly suggests that promotion granted to the petitioner to the post of SSA in the pay scale of Rs.600-1120 vide Office Order dated 30.5.1987 was foregone by him on personal reasons, as a consequent of which persons junior to him came to be promoted by Departmental Promotion Committee in its meeting held on 21.1.1988, 29.2.1988, 27.4.1988, 26.6.1988 and 20.6.1990 as SSA’s. This Court was unable to lay its hand to any document suggestive of the fact that representation, if any, was ever made by the petitioner laying therein challenge, if any, to the aforesaid promotions effected between 30.5.1987 to 20.6.1990, rather, petitioner chose to file a representation on 8.5.1989 claiming therein that he should rank senior to private respondents in view of clubbing of posts of JSA and SSA w.e.f. 1.1.1986. However, aforesaid representation, preferred by the petitioner against tentative seniority list of ministerial staff, as it stood on 31.12.1989, was rejected on 31.4.1992, wherein there is also reference to the decision of Personnel Department of Government of Himachal Pradesh dated 23.1.1990. 10. However, aforesaid representation, preferred by the petitioner against tentative seniority list of ministerial staff, as it stood on 31.12.1989, was rejected on 31.4.1992, wherein there is also reference to the decision of Personnel Department of Government of Himachal Pradesh dated 23.1.1990. 10. Perusal of letter dated 31.3.1992 (Annexure A-15) suggests that since petitioner; namely; Sarwan Kumar failed to report for duty pursuant to his promotion to the post of SSA, persons junior to him were promoted to the post of Senior Assistant, as a result of which name of petitioner came to be figured at Sr.No.52 w.e.f. 22.7.1976 in the final seniority list of Senior Assistants. Since final seniority list of Senior Assistants category was drawn as per decision of Personnel Department to the Government of Himachal Pradesh conveyed vide their letter dated 23.1.1990, after clubbing of the post of Senior Assistants/Junior Assistants in the new pay scale of Rs.1800-3200, objection having been filed by the petitioner with regard to drawing of seniority list was rejected by Authorities concerned being not justified. As per Department, since Junior Assistants, who were promoted as Senior Assistants, gave their joining to the post of Senior Assistants in the pay scale of Rs.600-1120 in the Directorate on 21.1.1988 and 26.6.1988 and as such request of the petitioner for his adjustment in the seniority list of Senior Assistants with effect from the date of his promotion on 30.5.1987 (which was foregone by him) and as per his initial appointment in the year, 1976 on the basis of clubbing of Junior and Senior Assistants in the pay scale of Rs.1800- 3200 cannot be accepted. 11. Similarly, record suggests that representation made by the petitioner against seniority list of ministerial staff as well as subsequent promotions of the juniors to the posts of Senior Assistant was also rejected on 19.12.1994. Post of ‘JSA’ and ‘SSA’ were clubbed on 7.11.1988 and private respondents came to be promoted as Superintendent Grade-II on 19.12.1994 and as such this Court sees no illegality in the decision of respondents to place the petitioner below the persons, who were admittedly promoted before him in the pay scale of Rs.600-1120 i.e. SSA. 12. Post of ‘JSA’ and ‘SSA’ were clubbed on 7.11.1988 and private respondents came to be promoted as Superintendent Grade-II on 19.12.1994 and as such this Court sees no illegality in the decision of respondents to place the petitioner below the persons, who were admittedly promoted before him in the pay scale of Rs.600-1120 i.e. SSA. 12. True, it is, that as per settled law, promotion foregone by petitioner was for a period of one year, however, fact remains that the petitioner never raised any objection qua the promotions given to his juniors between 30.5.1987 to 20.6.1990, rather first representation dated 8.5.1989 was against circulation of seniority list after clubbing of posts of JSA and SSA. Persons, who at one point of time, were junior to the petitioner became eligible to be promoted to the post of Superintendent Grade-II, ahead of petitioner, on account of their promotion to the post of SSA on the basis of recommendations made by the Departmental Promotion Committee in its meeting held between 21.1.1988 to 27.4.1988. Though posts of JSA and SSA were clubbed on 7.11.1988, but since private respondents came to be promoted in the pay scale of Rs.600-1120, ahead of petitioner, no fault, if any, can be found with the decision of respondents-State to place the petitioner below the private respondents. Since the petitioner failed to make any representation, seeking promotion immediately after completion of one year after he had foregone his promotion, his claim, if any, on the basis of decision having been taken by the respondents with regard to clubbing of posts on 7.11.1988 of JSA and SSA as contained in the letter dated 7.11.1988 was rightly rejected by the Authorities concerned, as it would have un-settled the entire seniority list, which otherwise was rightly drawn on the basis of decision of the Government on the basis of existing seniority at that relevant time. 13. 13. Leaving everything aside, it is undisputed that posts of JSA’s and SSA’s were clubbed on 7.11.1988, meaning thereby that the petitioner, who at that relevant time, was working as a JSA also became SSA i.e. on 7.11.1988, however, fact remains that private respondents came to be promoted as SSA, pursuant to their recommendation by Departmental Promotion Committee in its meeting held on 21.1.1988 to 20.6.1990 and all such persons joined as SSA prior to aforesaid decision of clubbing and gave their joining on the posts of SSA in the pay scale of Rs.600-1120 in the Directorate of Health and Family Welfare Department of Himachal Pradesh on 21.1.1988 and 26.6.1988 and as such they became senior to the petitioner on account of clubbing of cadre of JSA and SSA. Since such persons were senior to the petitioner in the cadre of SSA, they were rightly granted promotion to the post of Superintendent Grade-II ahead of petitioner. 14. Learned Single Judge, taking note of factual matrix of the case, rightly came to the conclusion that petitioner ought to have filed representation with a reasonable period seeking his promotion and at this stage respondents cannot be directed to consider the case of the petitioner after a gap of 22 years. 15. Any claim for seniority at a belated stage is required to be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion, which have accrued to them during the intervening period. In this regard reliance is placed upon the judgment of Hon’ble Apex Court passed in Shiba Shankar Mohapatra & Ors vs. State of Orissa & Ors., AIR 2010 SC 706 , wherein the Hon’ble Court has held as under:- “16. The question of entertaining the petition disputing the long standing seniority filed at a belated stage is no more res integra. A Constitution Bench of this Court, in Ramchandra Shanker Deodhar & Ors. v. State of Maharashtra & Ors. AIR 1974 SC 259 , considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. A party should approach the Court just after accrual of the cause of complaint. A party should approach the Court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898 , wherein it has been observed that the principle, on which the Court proceeds in refusing relief to the petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless there is a reasonable explanation for delay. The Court further observed as under:- "A party claiming fundamental rights must move the Court before others' rights come out into existence. The action of the Courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court." 17. This Court also placed reliance upon its earlier judgment of the Constitution Bench in R.N. Bose v. Union of India & Ors. AIR 1970 SC 470 , wherein it has been observed as under:- "It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be defeated after the number of years." 18. In R.S. Makashi v. I.M. Menon & Ors. AIR 1982 SC 101 , this Court considered all aspects of limitation, delay and laches in filing the writ petition in respect of inter se seniority of the employees. The Court referred to its earlier judgment in State of Madhya Pradesh & Anr. v. Bhailal Bhai etc. etc., AIR 1964 SC 1006 , wherein it has been observed that the maximum period fixed by the Legislature as the time within which the relief by a suit in a Civil Court must be brought, may ordinarily be taken to be a reasonable standard by which delay in seeking the remedy under Article 226 of the Constitution can be measured. The Court observed as under:- "We must administer justice in accordance with law and principle of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. The Court observed as under:- "We must administer justice in accordance with law and principle of equity, justice and good conscience. It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set-aside after the lapse of a number of years..... The petitioners have not furnished any valid explanation whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles laid down in the Government Resolution of 1968... We would accordingly hold that the challenge raised by the petitioners against the seniority principles laid down in the Government Resolution of March 2, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition, in so far as it related to the prayer for quashing the said Government resolution, should have been dismissed." (Emphasis added) 19. The issue of challenging the seniority list, which continued to be in existence for a long time, was again considered by this Court in K.R. Mudgal & Ors. v. R.P. Singh & Ors. AIR 1986 SC 2086 . The Court held as under:- "A government servant who is appointed to any post ordinarily should at least after a period of 3-4 years of his appointment be allowed to attend to the duties attached to his post peacefully and without any sense of insecurity......... Satisfactory service conditions postulate that there shall be no sense of uncertainty amongst the Government servants created by writ petitions filed after several years as in this case. It is essential that any one who feels aggrieved by the seniority assigned to him, should approach the Court as early as possible otherwise in addition to creation of sense of insecurity in the mind of Government servants, there shall also be administrative complication and difficulties.... In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches." (Emphasis added) 20. While deciding the case, this Court placed reliance upon its earlier judgment in Malcom Lawrance Cecil D'Souza v. Union of India & Ors. In these circumstances we consider that the High Court was wrong in rejecting the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches." (Emphasis added) 20. While deciding the case, this Court placed reliance upon its earlier judgment in Malcom Lawrance Cecil D'Souza v. Union of India & Ors. AIR 1975 SC 1269 , wherein it had been observed as under:- "Although security of service cannot be used as a shield against the administrative action for lapse of a public servant, by and large one of the essential requirement of contentment and efficiency in public service is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible to ensure that matters like one's position in a seniority list after having been settled for once should not be liable to be re-opened after lapse of many years in the instance of a party who has itself intervening party chosen to keep quiet. Raking up old matters like seniority after a long time is likely to resort in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time." (Emphasis added) 21. In B.S. Bajwa v. State of Punjab & Ors. AIR 1999 SC 1510, this Court while deciding the similar issue re-iterated the same view, observing as under:- "It is well settled that in service matters, the question of seniority should not be reopened in such situations after the lapse of 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 along was sufficient to decline interference under Article 226 and to reject the writ petition". (Emphasis added) 22. In Dayaram Asanand v. State of Maharashtra & Ors. AIR 1984 SC 850 , while re-iterating the similar view this Court held that in absence of satisfactory explanation for inordinate delay of 8-9 years in questioning under Article 226 of the Constitution, the validity of the seniority and promotion assigned to other employee could not be entertained. 23. In Dayaram Asanand v. State of Maharashtra & Ors. AIR 1984 SC 850 , while re-iterating the similar view this Court held that in absence of satisfactory explanation for inordinate delay of 8-9 years in questioning under Article 226 of the Constitution, the validity of the seniority and promotion assigned to other employee could not be entertained. 23. In P.S. Sadasivaswamy v. State of Tamil Nadu AIR 1975 SC 2271, this Court considered the case where the petition was filed after lapse of 14 years challenging the promotion. However, this Court held that aggrieved person must approach the Court expeditiously for relief and it is not permissible to put forward stale claim. The Court observed as under :- "A person aggrieved by an order promoting a junior over his head should approach the Court at least within 6 months or at the most a year of such promotion." 24. The Court further observed that it was not that there was any period of limitation for the Courts to exercise their powers under Article 226 nor was it that there could never be a case where the Courts cannot interfere in a matter after certain length of time. It would be a sound and wise exercise of jurisdiction for the Courts to refuse to exercise their extra ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who standby and allow things to happen and then approach the Court to put forward stale claim and try to unsettle settled matters. 29. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation”. (pp.711-713) 16. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation”. (pp.711-713) 16. Consequently in view of above, we see no illegality and infirmity in the judgment passed by the learned Single Judge, which otherwise appears to be based upon correct appreciation of facts as well as law and accordingly, same is upheld. Therefore, this appeal fails and is dismissed, accordingly. 17. All interim orders are vacated and all the pending miscellaneous applications are disposed of.