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2025 DIGILAW 622 (GAU)

Lijum Karbak and Anr Son of Late Goli Karbak v. State of Arunachal Pradesh

2025-04-07

KALYAN RAI SURANA

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JUDGMENT : KALYAN RAI SURANA, J. Heard Mr. D. Soki, learned counsel for the petitioners and Mr. L. Perme, learned standing counsel for the Agriculture Department representing all the respondents. 2. By an order dated 11-11-1998, the petitioners were appointed along with several others in the post of Village Level Workers (Junior), issued by the Director of Agriculture, Government of Arunachal Pradesh. The names of the petitioners appear at Sl.Nos. 26 and 28 respectively in that order. It is not in dispute that the petitioners have joined the said post. In course of time, the post of Village Level Workers was re-designated as Agriculture Field Assistant (AFA for short) vide order dated 19-05-2000. It is projected that the promotional post of AFA (Junior) is AFA (Senior) and the promotional post is projected to be filled up only by way of promotion from amongst AFA (Junior) having 5 years of regular service in the grade with 2 years of training in GTC, Pasighat. 3. It is the case of the petitioners that by an order dated 30-03-2001, the Government of Arunachal Pradesh created 10 numbers of post of Assistant Marketing Inspector (AMI for short). Accordingly, the petitioners along with others who were then AFA (Junior) were appointed to the post of AMI. It is alleged that those appointments were made on pick and choose basis. The petitioners claimed that they were initially appointed on adhoc basis and thereafter, their services were regularised by impugned order dated 15-10-2004. 4. The learned counsel for the petitioners has submitted that the alteration of the service conditions of the petitioners was made without any notice or intimation to the petitioners and their appointments were made without giving any opportunity to the petitioners to submit any representation. 5. It is stated in paragraph 12 of the writ petition that the petitioners had made a representation for their promotion from the post of AMI to the post of MI, i.e., Marketing Inspector on 20-09-2010 i.e. after those 4 (four) posts were created vide order dated 30-03-2021. The petitioners submitted another representation on 03-03-2017 for upgradation of pay of AMI. 6. The petitioners submitted another representation on 03-03-2017 for upgradation of pay of AMI. 6. It is submitted by the learned counsel for the petitioners by referring to the annexed documents that although the respondents had created the post of AMI and AFA (Senior) of equivalent status, but persons holding the post of AFA (Senior) are getting higher pay then what the petitioners got as AMI. The learned counsel for the petitioners has also submitted that from the RTI application, the petitioners have come to know that till date no Recruitment Rules or any notifications have been issued by the Department to regularise the services of AMI and MI. Accordingly, it is submitted that without any basis, the petitioners are given salary, which is less than their juniors who have since been promoted to the post of AFA (Senior). Accordingly, claiming that the petitioners are agitating the disparity in pay as the selection of the petitioners for the appointment to the post of AMI was followed without following any procedure know to law by random selection, the petitioners have assailed the impugned order dated 15-10-2004 (Annexure-3). The learned counsel for the petitioners has submitted that the alteration of the terms and conditions of services is prejudice to the petitioners and accordingly prays that the impugned order dated 15.10.2004 be quashed and that a direction be issued to the respondent authorities to promote the petitioners to the post of AFA (Senior) from the date wherein their immediate juniors were promoted. 7. In support of his submissions that even if there is delay in approaching the Writ Court, the delay would not be a bar to the Court to exercise jurisdiction under Article 226 of the constitution of India, in case of Ram Autar Singh Yadav Vs. The State of Uttar Pradesh & Others, Civil Appeal No. 13806 of 2024, decided on 04.12.2024 has been cited, reported in (2024) 0 Supreme (SC) 1311 has been cited. 8. The learned standing counsel for the Agriculture Department has made his submissions on the basis of the affidavit filed by the respondents. 9. Perused the writ petition and the documents annexed there to, affidavit-in- opposition and also considered the submission made at the Bar as well as the case cited by the learned counsel for the petitioners. 10. 8. The learned standing counsel for the Agriculture Department has made his submissions on the basis of the affidavit filed by the respondents. 9. Perused the writ petition and the documents annexed there to, affidavit-in- opposition and also considered the submission made at the Bar as well as the case cited by the learned counsel for the petitioners. 10. At the outset, it is noted that by the initial appointment order dated 11- 11-1988, 89 persons were temporarily appointed as Village Level Workers (Junior). From the contents of the said order, it does not appear that though the appointments were made temporarily, the appointment was not permanent in nature because from condition No. 2 of the said appointment order, it is seen that a condition was prescribed that the appointments were subject to condition that their retention in their service will depend on their successful completion of Gram Sevek Training (GST). The names of the petitioners are entered in the order dated 25.05.1989, sending them to undergo training at GTC, Pasighat. The petitioners have not annexed any order by virtue of which their services were regularised on completion of training at GTC, Pasighat. 11. It appears from the contents of the impugned order dated 15-10-2004, that the petitioners were appointed on adhoc basis as AMI and that by the said impugned order, the petitioners were promoted to the post of MI and their services were regularised from the date of joining as MI. 12. There is nothing on record to show that the petitioners had raised any objections before accepting the appointment of this as MI by virtue of which their adhoc service was regularised. There is also no explanation in the writ petition that when the petitioners had already been promoted to the post of MI by the order dated 15-10-2004, why they have pleaded in paragraph 12 and 13 of the writ petition that the petitioner had submitted representation on 20-09- 2010 to promote them from AMI to MI, the post which they had already been promoted to. There is also no explanation that when the petitioners were promoted from the post of AMI to MI, why they had submitted a representation on 03.03.2017 to upgrade the pay of AMI, as pleaded in paragraph 14 of the writ petition. 13. There is also no explanation that when the petitioners were promoted from the post of AMI to MI, why they had submitted a representation on 03.03.2017 to upgrade the pay of AMI, as pleaded in paragraph 14 of the writ petition. 13. Therefore, having accepted the impugned order dated 15-10-2004, merely because the petitioners have made representations purportedly on 20-09-2010 and 03-03-2017, the Court cannot accept this as a sufficient ground for assailing the order of their regularisation of service in the post of MI, which was made way back on 15-10-2004 i.e., on a challenge made after 20 years of accepting the fruits of the said regularisation order. This reminds us of the story of Rip Van Winkle by Washington Irving, published in 1819, about a Dutch-American villager who falls asleep in Catskill Mountains and awakens 20 years later to a changed world. In this case the petitioners were asleep with eyes wide open since 15.10.2004 and got awakened on 20.01.2024, when this writ petition was filed. 14. There is another aspect of the matter. If at this stage, the Court interferes with the impugned order dated 15-10-2004, the Court would relegate the petitioners back to the post of AMI and that appointment would have to be treated as adhoc basis. Therefore, the petitioners would have to face a hurdle of getting their service regularised. Therefore, to relegate a permanent employee with regular service to a service on adhoc basis would rather do more injustice to the petitioners than give any benefit to the petitioners. 15. In the case of Shiv Dass vs. Union of India, (2007) 9 SCC 274 , the Supreme Court of India has held that 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 it was further observed that 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 third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. It was held that if a writ 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. 16. In the case of Union of India Vs. Tarsem Singh, (2008) 8 SCC 648 , the Supreme Court of India had summarised the law relating to a belated service- related claim by holding that such a claim, where remedy is sought by filing a writ petition, will be rejected on the ground of delay and laches or limitation, where remedy is sought by an application to the Administrative Tribunal. One of the exceptions carved to the said rule is cases relating to a continuing wrong. It was held that 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. However, it was also held that there is an exception to the exception and if the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening 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. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, 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. 17. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, 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. 17. In the present case, if the prayer of the petitioner is accepted, then they will have to be relegated to a position existing prior to 15.10.2004, and the appropriate Government will have to treat the petitioners as AMI. Then the petitioners will have to be further relegated back to treat them as AFA (Junior). Then the petitioners will have to be promoted to the post of AFA (Senior), Thereafter, their pay will have to be re-fixed. Thus, there is likely that such an exercise would have unfathomable ripple effect on several employees as only the case of the petitioners alone cannot be singled out. There would be cadre review, which will relate from the date when the petitioners were still AFA (Junior). 18. The learned counsel for the petitioners has referred to the entertaining of a Petition for Special Leave to Appeal (Civil) before the Supreme Court of India, which was filed on 2023, which had a cause of action on 13-03-1986. In this regard, the petitioners are relying on the observations made in paragraph 20 onwards. 19. Perused the case of Ram Autar Singh Yadav Vs. The State of Uttar Pradesh & Others, Civil Appeal No. 13806 of 2024, decided on 04.12.2024, cited by the learned counsel for the petitioners. It would be relevant to briefly refer to the facts of the said case. In the said case, the appellant was returning from the Headquarter to the Thana in a bus on 13-03-1986 and the bus was accosted by dacoits. At that juncture, the appellant used his service revolver and, in the encounter, a hardened criminal dacoit was shot and he succumbed to the injuries. His act of courage and valiance resulted in a commendation made by the Additional Superintendent of Police, Banda. Two years later, the Superintendent of Police, Banda recommended the name of the appellant for a Gallantry Award. For reasons mentioned in the said judgment, for one reason or the other, the President's Gallantry Award did not materialize for the appellant. His act of courage and valiance resulted in a commendation made by the Additional Superintendent of Police, Banda. Two years later, the Superintendent of Police, Banda recommended the name of the appellant for a Gallantry Award. For reasons mentioned in the said judgment, for one reason or the other, the President's Gallantry Award did not materialize for the appellant. In the meanwhile, the appellant had superannuated and turned septuagenarian by then. He approached the Public Service Tribunal only to have his application dismissed. However, the appellant kept on pursuing the matter up to the office of the President of India and thereafter, approached the High Court. The High Court, while dismissing the writ petition, recorded that the appellant was 83 years of age and he would not gain any benefit on account of the police medal, if awarded today. The said S.L.P.(C) was listed on 20-02-2004. On considering the various aspects of the matter, the Supreme Court of India went on to refer to the inherent lack of jurisdiction by the Tribunal and on facts, the delay and laches in the case of the appellant was found to not come in the way for the Court to entertain the said appeal with a specific finding in paragraph-21 of the said judgment that a vital factor to be borne in mind is, whether grant of relief in a belated claim is likely to cause confusion and public inconvenience like unsettling matters which have long settled and thereafter, the Supreme Court of India had observed that by entertaining the said matter, nobody else would have been affected. The said observation of the Supreme Court of India is a distinguishing factor in the present case in hand. 20. As stated hereinbefore, the impugned appointment letter was issued on 15-10-2004, by which the petitioners are 2 out of 8 persons who are appointed. If the petitioners are relegated back to their original posts of AMI and then to make them AFA (Junior) and thereby, to make their service adhoc. It is hard to comprehend that what could be the fallout of such an order to relegate the petitioners to an uncertainty of an adhoc appointee as AFA(Junior). If the petitioners are relegated back to their original posts of AMI and then to make them AFA (Junior) and thereby, to make their service adhoc. It is hard to comprehend that what could be the fallout of such an order to relegate the petitioners to an uncertainty of an adhoc appointee as AFA(Junior). Moreover, the petitioners having accepted the said promotional appointment as MI from 15-10-2004, the natural query of the Court would be that what would happen to the pay which the petitioners have got as MI when they are deemed to be AMI and/or AFA (Junior) w.e.f. prior to 15-10-2004. The Court, at this stage, cannot comprehend as to who would be the likely persons whose seniority would be affected by relegating the petitioners to said uncertainty of adhoc post of AMI and then to AFA (Junior), then for the Government to promote the petitioners as AFA (Senior). Moreover, these 8 posts of MI, which were filled up, would become vacant w.e.f. 15-10-2004 and therefore, how the Government will deal with actions taken by the petitioners as MI. Therefore, it would be a cascading effect on the administration if an appointment order, which was accepted by the petitioners on 15-10-2004, without any demur before joining, is terminated at this stage and unsettle the settled position of service in respect of the petitioners and others who might be affected by this exercise. 21. Therefore, the case of Ram Autar Singh Yadav (supra), that was cited by the petitioner cannot be applied in a service matter, because in connection with service matters, the case of Shiv Dass (supra) and Tarsem Singh (supra) would be binding precedent. 22. Accordingly, Court finds no merit in the writ petition and the same is dismissed.23. Under such circumstances, there shall be no order to cost.