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2022 DIGILAW 1340 (GUJ)

DALABHAI DEVSIBHAI CHAVDA v. STATE OF GUJARAT

2022-10-11

A.S.SUPEHIA

body2022
JUDGMENT : A.S. SUPEHIA, J. 1. RULE. Learned AGP waives service of notice of Rule. 2. By way of the present writ petition under Article 226 of the Constitution of India, the petitioner has, inter-alia, sought a direction upon the respondents authority to grant promotion to the petitioner in the cadre of Senior Clerk w.e.f. 1994 and consequently to effect further promotion of the petitioner as Head Clerk, Office Superintendent and Accounts Officer, as per his seniority, consequent upon re-fixing the seniority of the Senior Clerk in the year 1993. 3. The brief facts of the case as enumerated in the petition are that: 3.1 The petitioner was appointed on the post of Junior Clerk with respondent No. 2-Board w.e.f. 12.01.1983. After completion of nine years of service in the cadre of Junior Clerk, the petitioner was conferred with the benefit of the first higher grade pay, as per the policy of the respondents w.e.f. 29.06.1992. After the petitioner completed 15 years of service in the cadre of Junior Clerk, the petitioner was further granted the second higher pay-scale w.e.f. 12.01.2007. 3.2 After the petitioner was granted the second higher pay-scale, for the first time on 02.03.2009, he was granted promotion in the cadre of Senior Clerk. The petitioner was thereafter further promoted as a Head Clerk and was posted on the equivalent post i.e. of Port Supervisor w.e.f. 21.11.2016. 3.3 As a Junior Clerk in the year 1983, the petitioner was placed at S. No. 80 in the general seniority list of Junior Clerks. He was placed at S. No. 5 in the category of Scheduled Caste. By the Office Order dated 14.02.1992, in all 12 candidates were given promotion from the cadre of Junior Clerk to Senior Clerk. Out of the said 12 candidates, 07 candidates belonging to general category, whereas 05 candidates belonging to the Scheduled Tribe category. 3.4 By an Office Order dated 19.09.1992, in all 06 candidates were given promotion, out of which 04 candidates were Scheduled Tribe category, 01 candidate was general category and 01 candidate was from Scheduled Caste category. On 18.02.1993 02 Scheduled Tribe category candidates were granted promotion. On 20.12.1994 06 Scheduled Tribe candidates were given promotion. On 18.02.1993, 11 candidates from the Scheduled Tribe category were given promotion. 4. On 18.02.1993 02 Scheduled Tribe category candidates were granted promotion. On 20.12.1994 06 Scheduled Tribe candidates were given promotion. On 18.02.1993, 11 candidates from the Scheduled Tribe category were given promotion. 4. It is the case of the petitioner that the petitioner, who was positioned at S. No. 5 as a Scheduled Caste in the seniority list of Junior Clerk, was required to be given promotion as per the reservation policy of the State Government, and if the same would have been followed, he would have got the promotion in the year 1993. 5. Learned Advocate Mr. Deepak Dave appearing for the petitioner has submitted that as per the Roster Policy of the State of Gujarat, the respondents are required to maintain reservation of 7% for Scheduled Caste category and 14% in Scheduled Tribe category. It is stated that in the year 2000, the said ratio of reservation was changed to 7% for Scheduled Caste category and 15% for Scheduled Tribe category. It is submitted that even the candidates appointed in the year 1994 were given promotion ahead of the petitioner. It is submitted that one Shri J.K. Dabgar was given promotion in the year 1984 as a Senior Clerk, who was appointed in the year 1980 as a Junior Clerk. Similarly, one Shri R.K. Chavda was given promotion as a Senior Clerk on 06.10.1998, while he was appointed as a Junior Clerk on 19.02.1981. Similarly, one Shri P.B. Asari, who was appointed as a Junior Clerk on 31.01.1994 i.e. after the petitioner, was granted promotion as a Senior Clerk on 04.07.1997 as a Scheduled Tribe category. The petitioner, who was appointed in the year 1983, was granted promotion for the first time in the year 2009 i.e. 02.03.2009 as a Senior Clerk. 5.1 Learned Advocate Mr. Dave has submitted that the respondent Nos.2 and 3 have not maintained the Roster and have thoroughly failed to follow the reservation policy of the State on this behalf. The petitioner if would have been granted promotion in the year 1993, the petitioner, who has been thereafter promotion further as Head Clerk and that would have been within 10 years from his promotion as Senior Clerk. Thus, in the year 2003 the petitioner would have become Head Clerk and consequently the petitioner would have further promotional avenue as Office Superintendent and thereafter as Accounts Officer. 5.2 Learned Advocate Mr. Thus, in the year 2003 the petitioner would have become Head Clerk and consequently the petitioner would have further promotional avenue as Office Superintendent and thereafter as Accounts Officer. 5.2 Learned Advocate Mr. Dave has submitted that the petitioner has time and again represented to the respondents with regard to the said invidious discrimination meted out to the petitioner. It is submitted that on 11.02.1991, the petitioner made a representation to the respondent No. 2. He has further submitted that the petitioner has from time to time made representations and the petitioner also made representation on 16.04.2005 to the Office of respondent No. 2, with a copy to respondent No. 3. In response to the said representation of the petitioner dated 16.04.2005, the Office of respondent No. 3 informed the petitioner that he should not take up his cause with the Head Office. It is submitted that the petitioner again made representations on 15.07.2020, 10.08.2020, 25.08.2020 and 21.09.2020. It is submitted that even persons appointed after the petitioner and far more junior i.e. appointed in the year 1994 in the Scheduled Tribe category were granted further promotions ahead of the petitioner. 6. The aforesaid facts and submissions advanced by learned Advocate Mr. Dave suggest that the petitioner is claiming promotion in the cadre of Senior Clerk w.e.f. 1994 and consequently to effect further promotion of the petitioner as Head Clerk, Office Superintendent and Accounts Officer, by re-fixing the seniority of Senior Clerks in the year 1993. It is not in dispute that the petitioner has retired by reaching the age of superannuation on 30.06.2021. 7. The petitioner was appointed on the post of Junior Clerk with respondent No. 2-Board w.e.f. 12.01.1983. He was conferred the benefits of the first higher grade pay scales in 1992 and 2007. He was also promoted as a Head Clerk and was posted on the equivalent post i.e. of Port Supervisor w.e.f. 21.11.2016. The entire case of the petitioner is premised on the promotions, which are granted to other candidates in the year 1992 onwards. The petitioner was very well aware of his seniority position when the seniority list of the Junior Clerks was published. The petitioner did not raise any grievance at the relevant time. He did not initiate any legal proceedings in any form challenging such action of promotion of other persons. The petitioner was very well aware of his seniority position when the seniority list of the Junior Clerks was published. The petitioner did not raise any grievance at the relevant time. He did not initiate any legal proceedings in any form challenging such action of promotion of other persons. The petitioner, after his retirement, is claiming promotion w.e.f. 1993 by seeking a direction of re-fixing his seniority of 1993. If such a prayer is accepted, the same will have grave repercussions on the seniority and promotion of other candidates. The promotion and seniority is sought on the ground of violation of reservation policy. Thus, the seniority and promotion of the candidates cannot be disturbed after passage of so many years that too on the ground that the reservation policy is not implemented properly. This Court cannot use its discretionary powers, which will unsettle the seniority, after passage of so many years, that too on the ground that while giving promotions the State authority has not followed the reservation policy. 8. The Supreme Court in the case of Rushibhai Jagdishbhai Pathak vs. Bhavnagar Municipal Corporation, JT 2022 (5) SC 470, while examining the aspect of delay in filing the writ petition has observed thus: “11 Relying upon the aforesaid ratio, this Court in the case of Union of India and Others vs. Tarsem Singh, (2008) 8 SCC 648 while referring to the decision in Shiv Dass vs. Union of India and Others, (2007) 9 SCC 274 quoted the following passages from the latter decision: “8.......The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of thirdparty rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. xxx xxx xxx 10. In the case of pension the cause of action actually continues from month to month. xxx xxx xxx 10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition......If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years.” In Tarsem Singh (supra), reference was also made to Section 22 of the Limitation Act, 1963 and the following passage from Balakrishna Savalram Pujari Waghmare and Others vs. Shree Dhyaneshwar Maharaj Sansthan and Others, AIR 1959 SC 798 which had explained the concept of continuing wrong in the context of Section 23 of the Limitation Act, 1908, corresponding to Section 22 of the Limitation Act, 1963, observing that: “31......It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.” Accordingly, in Tarsem Singh (supra) it has been held that principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes. A continuing wrong refers to a single wrongful act which causes a continuing injury. Recurring/successive wrongs are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. Having held so, this Court in Tarsem Singh (supra) had further elucidated some exceptions to the aforesaid rule in the following words: “To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc. affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” 9. Thus, the Supreme Court has held that if the claim involves issue affecting the third party rights such as seniority and promotion, etc. the delay would render the claim stale and doctrine of laches will be applied. 10. In view of the above, the present petition lacks merits and hence deserves to be dismissed, hence the same is dismissed. Rule discharged.