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2020 DIGILAW 788 (MP)

Ashok Kumar Sharma v. State of M. P.

2020-08-10

G.S.AHLUWALIA

body2020
ORDER 1. Heard on the question of admission through video conferencing. 2. This petition under Article 226 of the Constitution of India has been filed seeking the following relief(s) : 1. That, the impugned order dated contained in Annexure P/1 may kindly be quashed or the respondents may kindly be directed to conduct review DPC and grant promotion to the petitioner from a day before the promotion of the respondents No. 3 to 7 along with all consequential benefits including senior, over and above to the respondents No. 3 to 7 and ancillary benefits, in the interest of justice. 2. Any other order or directions deemed fit in the circumstances of the case be issued in favor of the petitioner. 3. It is the case of the petitioner that the respondents No.3 to 7 were junior to him, but still they have been promoted from the post of Sub-Engineer to the post of Assistant Engineer by order dated 22.1.2016. 4. Clause 4 of the writ petition reads as under : 4. Delay, if any, in filing the petition and explanation thereof That, the petitioner declares that the facts with regard to impugned action on part of the respondents promoting the juniors to the petitioner vide Annexure P/1 dated 22.1.2016 have been brought in to the knowledge of the petitioner by persual of the gradation list dated 2.3.2020 circulated by the department. As such, there is no delay in filing the present petition. 5. Similarly in para 5(5) of the Writ petition it has been mentioned as under : 5) That, even though the petitioner was entitled for considering his promotion to the post of Assistant Engineer on both the criteria as his ACRs for the period from 2007 to 2014 are 'excellent', yet the respondents have superseded the petitioner promoting the respondents no. 3 to 7 vide order Annexure P/1, about which the petitioner came to know after perusal of the gradation list of Assistant Engineers published by the respondents on 2.3.2020...... 6. Thus, in order to show that the petition doesnot suffer from delay and laches, the contention of the petitioner is that he came to know about his supersession only after the publication of gradation list of Asstt. Engineers. 7. Considered the submissions made by the counsel for the petitioner on the question of delay and laches. 8. 6. Thus, in order to show that the petition doesnot suffer from delay and laches, the contention of the petitioner is that he came to know about his supersession only after the publication of gradation list of Asstt. Engineers. 7. Considered the submissions made by the counsel for the petitioner on the question of delay and laches. 8. The Supreme Court in the case of P.S. Sadasivasway v. State of Tami Nadu reported in (1975) 1 SCC 152 has held as under : "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. The petitioner’s petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right indismissing the appellant’s petition as well as the appeal. The Supreme Court in the case of Ghulam Rasool Lone v. State of J&K, reported in (2009) 15 SCC 321 has held as under : 11. There cannot be any doubt whatsoever that keeping in view the equal protection clause contained in Article 14 of the Constitution of India as also Article 16 thereof, all the employees should be treated equally. Equality clause, however, must be enforced in legality and not illegality. 12. There cannot furthermore be any doubt that Article 14 is a positive concept. The Constitution does not envisage enforcement of the equality clause where a person has got an undue benefit by reason of an illegal act. Equality clause, however, must be enforced in legality and not illegality. 12. There cannot furthermore be any doubt that Article 14 is a positive concept. The Constitution does not envisage enforcement of the equality clause where a person has got an undue benefit by reason of an illegal act. In Panchi Devi v. State of Rajasthan this Court held: (SCC p. 591, para 9) “9. … Article 14 of the Constitution of India has a positive concept. Equality, it is trite, cannot be claimed in illegality. Even otherwise the writ petition as also the review petition have rightly not been entertained on the ground of delay and laches on the part of the appellant.” 13. The Court in a given case may be inclined to pass similar order as has been done in the earlier case on the basis of equality or otherwise. The discretionary jurisdiction under Article 226 of the Constitution may, however, be denied on the ground of delay and laches. 14. It is now well settled that who claims equity must enforce his claim within a reasonable time. For the said proposition, amongst others, we may notice a decision of a three-Judge Bench of this Court in Govt. of W.B. v. Tarun K. Roy, wherein it has been opined: (SCC pp. 359-60, para 34) “34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar. The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate Courts of law, no order should be passed which would prejudice their cause. The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate Courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a Court of law.” (emphasis supplied) The Supreme Court in the case of State of Uttaranchal v. Shiv Charan Singh Bhandari and others by order dated 23.8.2013 passed in Civil Appeals NO. 7328-7329 has held as under : 21. Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivasway v. State of Tamil Nadu, wherein it has been laid down that 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. 22. 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. Any one 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. 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. 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. Not for nothing, it has 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. The word “Reasonable” has been explained by the Supreme Court in the case of Veerayee Ammal v. Seeni Ammal, repored in (2002) 1 SCC 134 as under : 13. The word “reasonable” has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word “reasonable”. The word “reasonable” has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word “reasonable”. The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the “reasonable time” is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar’s The Law Lexicon it is defined to mean: “A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than ‘directly’; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.” 9. If the pleadings of the petitioner are seen, then it is clear that the petitioner has tried to project that he gathered the knowledge of his supersession only when the gradation list of Asstt. Engineers was published on 2-3-2020. The petitioner is working on the post of Sub-Engineer and is seeking promotion to the post of Asstt. Engineer on the ground that his juniors have been promoted. Therefore, the gradation list of Sub-Engineer is essential for deriving the knowledge with regard to promotion of his juniors. The petition is completely silent with regard to the gradation list of Sub-Engineer. It is not the case of the petitioner, that the gradation list of Sub-Engineer was never published prior to the promotions of his junior by order dated 22.1.2016. Thus, it is clear that in the year 2016 itself, the petitioner was aware of the fact that his juniors have been promoted to the post of Asstt. Engineer, but he did not take any action but was sleeping over his rights. Thus, it is clear that in the year 2016 itself, the petitioner was aware of the fact that his juniors have been promoted to the post of Asstt. Engineer, but he did not take any action but was sleeping over his rights. Now after more than 4 years, the petitioner wants to unsettle the things by opening an old and stale case. 10. As the petitioner has not given plausible explanation for not filing the petition immediately after the order dated 22.1.2016 was issued and has also not given any plausible explanation as to why he could not challenge the promotion of the private respondents during the last more than 4 and a half years, this Court is of the considered opinion, that now, the stale and old case cannot be reopened in order to unsettle the things. 11. Accordingly, this petition is dismissed on the ground of Delay and Laches.