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2017 DIGILAW 775 (JK)

Sudesh Kumar Gupta v. State

2017-08-31

ALOK ARADHE, B.S.WALIA

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JUDGMENT : Alok Aradhe, J. In this intra-Court appeal, the appellant has assailed the validity of order dated 13.10.2016 passed by the learned Single Judge by which the writ petition preferred by the appellant had been dismissed. 2. Facts giving rise to the filing of this appeal briefly stated are that the appellant was as a Public Law Officer in the law Department of the State of Jammu and Kashmir in the year 1974 and subsequently his services were transferred to the Police Department as Prosecuting Officer in the year 1980. The appellant was promoted to the post of Senior Prosecuting Officer in the year 1998 and subsequently, as Chief Prosecuting Officer in the year 2000. Vide Government order dated 14.07.2006, five Chief Prosecuting Officers were placed as Incharge Deputy Directors Prosecution in their own pay and grade with charge allowance including one Mangat Ram. It is the case of the appellant that in the seniority list, the name of the appellant figured at serial No.20 whereas the name of Mangat Ram figured at serial No.30. In other words, a person junior to the appellant was made Incharge Deputy Director Prosecution. Being aggrieved, the appellant submitted a representation which was allowed and subsequently in the year 2011, the State Government made recommendation to the Public Service Commissioner for according consideration to the case of the appellant for promotion to the post of Deputy Director Prosecution on substantive basis w.e.f. 14.07.2006 i.e. the date when Mangat Ram was made Incharge Deputy Director Prosecution. It is pertinent to note that the appellant superannuated in the month of July, 2007. On the basis of recommendation made by the State Government, the respondents made promotion to the post of Deputy Director Prosecution vide order dated 25.11.2011. However, the prayer of the appellant was not acceded to. 3. In the aforesaid factual background, the appellant approached the learned Single Judge by filing a writ petition for issuance of a writ in the nature of mandamus seeking directions to the respondents to consider the case of the appellant for promotion to the post of Deputy Director (Prosecution) in Jammu and Kashmir Police Gazetted service (Prosecution Wing) retrospectively w.e.f. 14.07.2006 with all consequential benefits. The learned Single Judge vide impugned judgment dated 13.10.2006 dismissed the writ petition inter alia on the ground that the appellant had at no point of time challenged order dated 14.07.2006 which was passed prior to his superannuation. It was further held that the writ petition filed by the appellant suffered from delay and laches and accordingly, the same was dismissed. In the aforesaid factual background, this appeal has been filed. 4. Mr. Pant, learned counsel for the appellant, submitted that the learned Single Judge had grossly erred in law in dismissing the writ petition filed by the appellant on the principle of delay and laches. It is further submitted that it ought to have been appreciated that the seniority list was revised on 15.11.2010 on the basis of the representation submitted by the appellant and the State Government had recommended the case of the appellant to the Public Service Commission in the year 2011 for according him promotion to the post of Deputy Director Prosecution. Thereafter, the appellant obtained information under RTI which was made available to him by the Public Service Commissioner and thereafter the writ petition was filed, therefore, the learned Single Judge grossly erred in holding that the writ petition suffered from delay and laches. 5. On the other hand, learned senior counsel for respondent No.2 has submitted that in the writ petition, the appellant has prayed for a writ of mandamus to consider his case for promotion to the post of Deputy Director Prosecution w.e.f. 14.07.2006. While inviting attention of this Court to the averments made in paragraph No.1 of the preliminary objections filed on behalf of the Public Service Commissioner, it is pointed out that the recommendation made in favour of the appellant was considered by the Public Service Commission alongwith three other officers. However, four officers including the appellant were not found entitled to promotion/regularization in terms of order dated 28.06.2007 which provides that the promotion to the government employee has to be given from the date, from which he has been formally put Incharge of the higher post. It is argued that the appellant was never promoted as Incharge Deputy Director Prosecution. It is also submitted that in the absence of challenge either to the order dated 28.06.2007 or the order dated 14.07.2006, no relief can be granted to the appellant. It is argued that the appellant was never promoted as Incharge Deputy Director Prosecution. It is also submitted that in the absence of challenge either to the order dated 28.06.2007 or the order dated 14.07.2006, no relief can be granted to the appellant. In support of the aforesaid submissions, learned Senior counsel for respondent No.2 referred to the decision of the Supreme Court in the case of ‘State of Madhya Pradesh Vs. Bhailal Bhai & Ors. AIR 1964 SC 1006 ’ as well as in the case of ‘Saqib Saleem & Ors. Vs. State & Ors. 2017 (2) JKLT 142 (J&K)’. 6. Mr. Nargal, learned Sr. AAG for respondent No.1, has invited attention of this court to paragraph No.21 of the order passed by the learned Single Judge and has supported the stand taken by learned senior counsel for respondent No.2. 7. We have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, when the appellant was in service, vide order dated 14.07.2006, five officers were posted as Incharge Deputy Director Prosecution which included the person namely Mangat Ram, who was junior to the appellant. However, the appellant waited for four long years for the seniority list to be revised in the year 2010. It is pertinent to mention here that that in the instant writ petition, the appellant has not assailed the validity of order dated 14.07.2006. Appellant was not holding the post of Incharge Deputy Director Prosecution and therefore, in view of Government Order dated 28.06.2007, the appellant could not have been promoted to the post of Incharge Deputy Director Prosecution. 8. The Supreme Court in the case of Bhailal Bhai’s case (supra) in paragraph No.21 has held that the provisions of Limitation Act do not apply to the grant of relief under Article-226. However, 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 remedy under Article-226 can be measured. However, 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 remedy under Article-226 can be measured. It has further been held that the Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. 9. In the instant case, the promotions to the post of Incharge Deputy Director Prosecution were made on 14.07.2006, when the appellant was in service. However, the appellant did not challenge the aforesaid promotions and superannuated in the year 2013. Therefore, the claim of the appellant was clearly hit by doctrine of delay and laches. In this connection, reference is made to the decisions of the Supreme Court in the cases of ‘State of Orissa vs Pyarimohan Samantaray & Ors., (1997) 3 SCC 396’, ‘Dayaram Asanand Gursahani vs. State of Maharashtra & Ors., (1984) 3 SCC 36 ’, ‘Rajendra Pratap Singh Yadhav & Ors. State of U.P. & Ors., AIR 2011 SC 2737 ’. 10. For yet another reason, no relief can be granted to the appellant as the only relief which the appellant has sought in the writ petition was to consider his case for promotion to the post of Deputy Director Prosecution. Respondent No.1 in paragraph No.1 of his preliminary objections has taken categorical stand that the case of the appellant was considered alongwith three other similarly situated officers and they were not found entitled for promotion in terms of Government order dated 28.06.2007 issued by the General Administration Department. Thus, in terms of the relief prayed for by the petitioner/appellant herein, his case for promotion was already considered by respondent No.1 and respondent No.1 did not find the appellant suitable for promotion. 11. In view of the proceedings analysis, we do not find any ground to differ with the view taken by learned Single Judge. In the result, the appeal fails and is hereby dismissed.