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2018 DIGILAW 54 (MEG)

Samir Chandra Kar v. Union of India

2018-08-16

MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : Mohammad Yaqoob Mir, J. 1. The case set up by the petitioner is that he was appointed as Lower Division Assistant (LDA) in the respondent Department on 20.08.1981, stand promoted, to the post of Upper Division Assistant (UDA) on 01.03.1992, to the post of Head Assistant on 01.01.2006 and to the post of Senior Accountant on 01.01.2009. 2. From the pleadings of the parties, it appears that no rules were in vogue providing for promotion, confronted with that position, the rules were framed by the Ministry of Home Affairs notified on 06.09.2001 vide G.S.R. 502 [Assam Rifles Field Officers (Group 'C') Civilian Ministerial posts recruitment Rules, 2001 hereinafter, for short referred to as Rules of 2001]. In accordance with the Schedules appended to the said rules, LDA is eligible for promotion to the post of UDA after completion of 8 years of regular service as LDA, UDA is eligible for promotion to the post of Head Assistant after having completed 5 years of regular service as UDA, whereas, Head Assistant is eligible for promotion to the post of Senior Accountant after having completed 3 years of regular service as HA. Rule 4 of the said Rules of 2001 protect the interest of the officials, who were appointed before commencement of the rules i.e., they are deemed to have been appointed under the said rules with a further protection that the Serial No. 01 Supplementary List services rendered by them in the said posts, shall be taken into account in deciding their eligibility for promotion to the next higher grade. Rule 4 of the Rules of 2001, is relevant to be quoted: "4. Initial Constitutions-The incumbents of the posts of Group "C" non combatised posts, who were appointed to the posts before the commencement of these rules shall be deemed to have been appointed under these rules and the services rendered by them in the said posts shall be taken into account for deciding their eligibility for promotion to the next higher grade." 3. Lucid language of the rule clearly protects the services rendered by the officials prior to the commencement of the rules. Lucid language of the rule clearly protects the services rendered by the officials prior to the commencement of the rules. Strictly applying the rules, the petitioner was eligible to be promoted to the post of UDA in the year 1989 i.e., date when he had completed 8 years of regular service as LDA then, on completion of 5 years of regular service as UDA, he was eligible to be promoted to the post of Head Assistant w.e.f. 1994, thereafter, on completion of further 3 years of regular service as HA was eligible to be promoted as Senior Accountant which according to the services rendered by him was due in the year 1997. 4. Learned counsel for the respondents has rightly pointed out that the petition as belated, if relief is granted to the petitioner that will have multidimensional ramification because seniority fixed from time to time at the respective levels will totally get disturbed. He has also rightly pointed out that the petitioner was promoted to the post of Head Assistant on 01.01.2006 and then, promoted to the post of Senior Accountant on 01.01.2009 in accordance with the rules of 2001. The petitioner has not challenged in the year 2006 or in the year 2009 his promotion to the post of UDA on completion of his 8 years of regular service as LDA nor he has challenged or represented for his promotion as Head Assistant in terms of the rules of 2001. There was an occasion for him to challenge in the year 2006 then again, the petitioner's misfortune for having not challenged his due dates of promotion in the years 2001, 2006 and 2009 now, latches stand in his way. 5. Delay, in fact, is condonable provided sufficient cause for same is projected in the petition. No cause whatsoever has been projected which would justify in-action in representing for getting whatever was due to the petitioner. To condone the delay shall be a step in direction for advancing the cause for justice because when substantial justice and technical justice are pitted against each other, former has to be preferred provided sheer negligence is not attributable to the seeker thereof. To condone the delay shall be a step in direction for advancing the cause for justice because when substantial justice and technical justice are pitted against each other, former has to be preferred provided sheer negligence is not attributable to the seeker thereof. The agony of the petitioner is compounded by two factors; (1) the petitioner has not exhibited alertness in redressal of his grievance though learned counsel for the petitioner tried to project that the Rules of 2001 were not within the knowledge of the petitioner but such a contention is negated by the fact that it is under the Rules of 2001 he was promoted from the post of UDA to Head Assistant and then, from the post of HA to the post of Senior Accountant in the years 2006 to 2009 respectively. Instant petition is filed in the year 2013, initially cause accrued to the petitioner in the year 2001 when rules were notified, then in the year 2006 and again in the year 2009; so delay is of considerable period, without any justified cause forthcoming, cannot be overlooked. 6. Seniority at every level is stated to had been finalised and acted upon, now at this juncture, if any relief is granted to the petitioner so as to link the date of his promotion from the dates as were due to him will result in disturbing the seniority at various levels which includes at the level of UDA, Head Assistant and Senior Accountant. Learned counsel for the respondents has rightly placed reliance on the judgment rendered in the case of Shiba Shankar Mohapatra and Others v. State of Orissa and Others, (2010) 12 SCC 471 , paragraph 30 of the said judgment is advantageous to be quoted: "30. 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, 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. In K.R. Mudgal, 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 some one 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." 7. Applying the law as had been laid down, there is no scope for allowing this petition that too in the peculiar fact and circumstances and sheer negligence exhibited by the petitioner. 8. In the petition, the petitioner has also prayed for extending the benefit as is available to other employees (combatant personnel of the respondent department) that grievance was also agitated by the petitioner along with similarly situated officials in separate writ petitions bearing Nos. 365 of 2014, 84 of 2015 and 120 of 2014, which were dismissed vide judgment dated 15.09.2017 and WA No. 2 of 2018 filed against the said judgment dated 15.09.2017 was also dismissed by the Division Bench of this Court vide judgment dated 13.06.2018. Therefore, such an issue is not now open to be looked into in this petition. 9. It is unfortunate that the petitioner has not projected his grievance regarding due dates of his promotion at the level of UDA, HA and Senior Accountant. Initially, cause had accrued to him when the Rules of 2001 were notified, then, again in the years 2006 and 2009 when he was promoted as Head Assistant and Senior Accountant respectively. He has slept over the matter till 2013 i.e. date of filing the instant petition. 10. In the final analysis, there is no scope for allowing this petition. For the reasons and the law as stated hereinabove, petition is destined to be dismissed, as such dismissed.