Himachal Pradesh High Court
Vinyak Kashyap & Others vs The State Of H.P. & Anr on 18 May, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 5122 of 2020
Date of Decision: 18.05.2023
.
_______________________________________________________
Vinyak Kashyap & others .......Petitioners
Versus
The State of H.P. & Anr. ... Respondents
_______________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioners: Mr. Suneel Awasthi, Advocate.
For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar
and Mr. B.C.Verma, Additional
Advocate Generals with Mr. Rahul
r Thakur, Mr. Ravi Chauhan and Ms.
Avni Kochhar Mehta, Deputy
Advocate Generals, for respondent
No.1/State.
Mr. Vikrant Thakur, Advocate, for
respondent No.2.
_______________________________________________________
Sandeep Sharma, Judge (oral):
Petitioners herein, who were appointed as Design Engineers in the Department of HPPWD in the year 2007 by way of direct recruitment were eligible to be promoted to the post of Assistant Engineer Design as per Recruitment and Promotion Rules. Since 35 posts of Assistant Engineer Design were lying vacant for so many years and no steps were taken by the respondents to fill up the vacancies, petitioners herein alongwith other similar situate persons 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 24/05/2023 20:30:00 :::CIS 2were compelled to approach this Court by way of Civil Writ Petition No.9636 of 2014, seeking therein direction to the respondents to convene the meeting of Departmental Promotion Committee.
.
Aforesaid Civil Writ Petition was disposed of vide order dated 22.12.2014 (Annexure P-4) passed by Division Bench of this Court, whereby direction was issued to respondent No.2 to constitute Departmental Promotion Committee in order to consider the cases of all the eligible persons on merit, as per the rules occupying the field.
2. Since, no steps were being taken by the department to convene the Departmental Promotion Committee despite there being aforesaid order passed by Division Bench of this Court, petitioners alongwith other similar situate persons were compelled to file Civil Original Petition Contempt No.889 of 2015, titled as Kailash Chand and others vs. Narinder Chauhan, however during pendency of aforesaid Civil Original Petition Contempt, respondents convened the meeting of Departmental Promotion Committee on 13th May, 2016 and on the basis of recommendation made by such Departmental Promotion Committee promotion, promotion orders of the petitioner as well as other similar situate persons were issued on 4th July 2016.
On account of aforesaid compliance, Civil Original Petition Contempt No. 889 of 2015 was disposed of.
::: Downloaded on - 24/05/2023 20:30:00 :::CIS 33. Now after four years of issuance of order of promotion, petitioners have approached this Court in the instant proceedings on the ground that they were to be given promotion retrospectively from .
the date vacancy of Assistant Engineer Design had become available in the department. As per the petitioners, 35 vacancies of Assistant Engineers (Design) had become available in the year 2010, but since no meeting of Departmental Promotion Committee was convened to fill up aforesaid vacancies by the department till passing of order dated 22.12.2014 by Division Bench of this Court in CWP No.9636 of 2014, great prejudice is caused to the petitioners and they are entitled to be granted promotion retrospectively w.e.f. year 2010. Petitioners herein though filed detailed representation, seeking therein relief, as have been claimed in the instant petition, to the competent authority (Annexure P-6), but since no decision was taken upon the same, they were compelled to approach this Court in the instant proceedings, praying therein for following relief:-
"(i). That writ in the nature of mandamus may kindly be issued directing the respondents to consider the case of the petitioners for promotion for the post of Assistant Engineer (Design) w.e.f. August, 2010, alongwith all consequential benefits, when the deemed vacancies arises."
4. Having heard learned counsel representing the parties and perused material available on record vis-à-vis relief prayed for in ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 4 the instant petition, this Court finds that facts, as have been noticed hereinabove, are not in dispute. It is not in dispute that 35 vacancies of Assistant Engineer Design though had become available in the .
year 2010, but no Departmental Promotion Committee was convened to fill up those posts till the time direction was issued by the Division Bench of this Court vide order dated 22.12.2014, whereby direction was issued to the department to convene meeting of Departmental Promotion Committee. It is also not in dispute that pursuant to order dated 22.12.2014, meeting of Departmental Promotion Committee was convened and pursuant to its recommendation, petitioners herein alongwith other similar situate person were promoted to the posts of Assistant Engineer Design but not with retrospective effect, rather prospectively.
5. Precisely, the grouse of the petitioner as has been highlighted in the body of the petition and has been further canvassed by learned counsel for the petitioners is that since vacancies of Assistant Engineers had become available in the year 2010, petitioners herein ought to have been promoted against the post of Assistant Engineers with effect from 2010, especially when they all had become eligible at that time. Learned counsel representing the petitioners further argued that as per Recruitment and Promotion Rules, 75% posts of Assistant Engineer Design were to be filled up by ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 5 way of promotion, out of which 5% were to be filled amongst Junior Engineers (Civil), who have been given promotion in the year 2010 itself. Learned counsel for the petitioners argued that since Junior .
Engineers were given promotion against the posts of Assistant Engineers against 5% quota in the year 2010 and no steps, if any, were taken by the department to convene Departmental Promotion Committee for promoting other eligible candidates, especially from the category of design engineers, petitioners alongwith other similar situate persons were compelled to approach this Court, which issued direction to convene the Departmental Promotion Committee. He submitted that on account of non consideration of the case of the petitioners alongwith cases of other Junior Engineers, whose cases for promotion were considered in 2010, irreparable loss has been caused to the petitioners. He submitted that since Department is solely responsible for holding Departmental Promotion Committee, coupled with the fact that one category of Junior Engineer were promoted against the post of Assistant Engineer Design in the year 2010 itself, action of the respondents in granting promotion to the petitioners to the post of Assistant Engineers w.e.f. 2015 is not only arbitrary but also effectuated by malafides.
6. In support of his aforesaid contention, he placed reliance upon the judgment rendered by Hon'ble Apex Court in K.Madhavan ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 6 and another vs. Union of India and others, (1987)4 Supreme Court Cases 566, wherein it has been held that demand for appointment to higher post with retrospective effect shall be deemed .
to be genuine in case of arbitrary or mala fide postponement of DPC meeting. At this stage, it would be profitable to reproduce para No.15 and 17 of aforesaid judgment hereinbelow:-
"15. There can be no doubt that if the meeting of the DPC scheduled to be held is arbitrarily or mala fide cancelled without any reasonable justification therefor to the prejudice of an employee and he is not considered for promotion to a higher post, the Government in a suitable case can do justice to such an employee by granting him promotion or r appointing him to the higher post for which the DPC was to be held, with retrospective effect so that he is not subjected to a lower position in the seniority list. But, if the cancellation or postponement of the meeting of the DPC is not arbitrary and is supported by good reasons, the employee concerned can have no grievance and the Government will not be justified in appointing the employee to the higher post with retrospective effect. An employee may become eligible for a certain post, but surely he cannot claim appointment to such post as a matter of right.
17. Thus, it appears from paragraph 9 of the note extracted above that three vacancies were to be filled by non- deputationist DSPs, otherwise the question of non- availability of non-deputationist DSPs with the requisite period of service would not have been mentioned. In the counter-affidavit of the respondents Nos. 1 and 2, it is also stated that at the relevant time no departmental DSP had eight years' service in that grade and, therefore, all the three vacancies then available were required to be filled by deputation of suitable State Police officers. It is, therefore, apparent that the three vacancies were meant to be filled by non-deputationists DSPs and not by deputationists, but as non-deputationist DSPs with the requisite period of service were not available, the vacancies were proposed to be filled by the deputationist DSPs. It is true that the meeting of the DPC was to be held on 13-10-1970 but the ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 7 Director of CBI appears to have considered that as the vacancies were meant for the non- deputationist DSPs and as two of such DSPs would become eligible for promotion in January and March, 1971, he postponed the meeting of the DPC scheduled to be held on 13-10-1970. We do not find any .
arbitrariness in the decision of the Director of CBI postponing the meeting of the DPC till after March, 197 1 when two non-deputationist DSPs would become eligible for promotion. There was, therefore, ample justification for the postponement or cancellation of the meeting of the DPC. The respondent No. 5 might have been eligible for being considered for appointment to the post of SP in July, 1970, but he had no right to claim such consideration when the vacancies were meant for non- deputationist DSPs. In our opinion, therefore, the Government had no reasonable justification to contend that the postponement of the DPC was arbitrary and high-handed. In July, 1971 also the respondent No. S was not found suitable by the DPC. It was only when the Senior Board found him r suitable in July, 1972 and recommended him for appointment to the post of SP that the respondent No. 5 was appointed on October 28, 1972 to the post of SP, CBI. As the foundation of the appointment of the respondent No. 5 to the post of SP with retrospective effect from 21-10-1971(FN), namely, the postponement of the meeting of the DPC in October, 1970 arbitrarily, is shaken to a great extent, there was no question of any injustice done to the respondent No. S. The retrospective appointment or promotion to a post should be given most sparingly and on sound reasoning and foundation. In the instant case, we do not find that there was any justification for the appointment of the respondent No. S to the post of SP in the CBI with retrospective effect from 2 1-10-1971 (FN) so as to make him senior to the petitioners.
7. Though, having perused aforesaid law laid down by Hon'ble Apex Court, there cannot be any quarrel with aforesaid proposition of law laid down by Hon'ble Apex Court to the effect that in case of arbitrarily or mala fide postponement of DPC meetings resulting in denial of chances of earlier promotion, person being ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 8 effected on account of delay in holding Departmental Promotion Committee would be justified in claiming promotion from retrospective effect, however, in the instant case, neither there is any material on .
record suggestive of arbitrariness or mala fide postponement of Departmental Promotion Committee, if any, nor learned counsel for the petitioners has been able to point out any single circumstance that department purposely with a view to defeat claim of the petitioners postponed the meeting of Departmental Promotion Committee.
Though, learned counsel for the petitioner attempted to carve out a case that since Junior Engineers were granted promotion against the post of Assistant Engineer Design in the year 2010, action of the respondents in not giving promotion to the petitioners herein, who belongs to the cadre of design, can be said to be arbitrary, but this Court is not impressed with aforesaid submission of learned counsel for the petitioners for the reason that Recruitment and Promotion Rules specifically provides for 5% quota to the cadre of Junior Engineers for promotion to the post of Assistant Engineers. It is not in dispute that none from the category of design, to which petitioner belongs, was ever considered till the time convening of the meeting in the year 2016 pursuant to the direction issued by this Court.
8. Learned counsel for the petitioners also placed on record judgment rendered by Hon'ble Apex Court in Union of India and ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 9 others vs. N.R.Banerjee and others (1997) 9 Supreme Court Cases 287, wherein direction came to be issued to the State for preparation of penal every year. In the aforesaid judgment, Hon'ble Apex Court .
held that preparation of panel every year is a mandatory requirement unless appointing authority certifies about non-availability of vacancy or eligible candidates. Most importantly, in the aforesaid judgment Hon'ble Apex Court held that inclusion of name in the panel does not create any right to be appointed and government is free not to fill up the vacancy. Relevant para No.12 of the judgment is as under:-
"12. Considered from that perspective, the question arises:
whether the view taken by the Tribunal is justified in law? It is true that filling up of the posts are for clear or anticipated vacancies arising in the year. It is settled law that mere inclusion of one's name in the list does not confer any right in him/her to appointment. It is not incumbent that all posts may be filled up. But the authority must act reasonably, fairly and in public interest and omission thereof should not be arbitrary. In Shankarasan Dash v. Union of India [(1991) 2 SCR 567], the Constitution Bench had held that inclusion of the name of a candidate in a merit list does not confer any right to be selected unless the relevant recruitment rules so indicate. The State is under no legal duty to fill up all or any of the vacancies even thought he State acts in arbitrary manner. In Babita Prasad & Ors. v. State of Bihar & Ors. [(1993) Supp. 3 SCC 268] it was held that mere inclusion of one's name in the panel does not confer on him/her any indefeasible right to appointment. It was further held that the purpose of making panel was to finalise the list of eligible candidates for appointment. The preparation of the panel should be to the extent of the notified or anticipated vacancies. Unduly wrong panel should not be operated. In Union Territory of Chandigarh v. Dilbagh Singh & Ors. [(1993) 1 SCC 154] it was held that the mere fact that a candidate's name finds a place in the select list as a selected candidate for appointment to a post, does not confer on him/her an indefeasible right to be appointed in such post in the absence of any specific rule entitling him to such appointment. In State of Bihar & Ors. v. Secretariat Assistant Successful Examinees Union 1986 & Ors. [(1994) 1 SCC 126] it was held that a person who is selected and empanelled does ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 10 not on account of empanelment alone acquire any indefeasible right to appointment. Empanelment is, at the best, a condition of eligibility for the purposes of appointment and that by itself does not amount to selection or creation of a vested right to appointment unless relevant rules state to the contrary. However, in the light of the above principles and in the light of .
the clear rules extracted hereinbefore, it is seen that the exercise of preparation of the panels is undertaken well in advance to fill up the clear vacancies of anticipated vacancies. The preparation and finalisation of the yearly panel, unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. If the annual panel could not be prepared for any justifiable reason, yearwise panel of all the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith. In Nagar Mahapalika, Kanpur v. Vinod Kumar Srivastava [AIR 1987 SC 847], this Court had pointed out with respect to the prescription of the limitation of one year of the waiting list thus.r "The reason underlying the limitation of the period of list for one year is obviously to ensure that other qualified persons are not deprived of their chances of applying for the post in the succeeding year and being selected for appointment."
9. Having perused aforesaid judgment in its entirety, this Court finds no application of the same in the instant case. Admittedly, in the case at hand, Departmental Promotion Committee was not being convened for promotion to the post of Assistant Engineers, but subsequently same was convened pursuant to the direction issued by Division Bench of this Court. Question which needs to be determined in the instant case is "whether petitioners were required to be given promotion from retrospective date or from the date of recommendation of the Departmental Promotion Committee".
10. Similarly, another judgment pressed into service titled as Major General H.M.Singh, VSM versus Union of India and ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 11 another (2014) 3 Supreme Court Cases 670, has no application in the present case because in that case question for consideration before the Hon'ble Apex Court was that "whether person on .
extension can claim promotion qua the vacancy, which had arisen prior to his retirement?". In the aforesaid judgment Hon'ble Apex Court held that if an officer attains the age of retirement without there being a vacancy for his consideration to a higher rank, even though he is eligible for the same, such an officer, who is granted extension in service, cannot claim consideration for promotion against a vacancy, which has become available during the period of his extension in service. Hon'ble Apex Court further held in the aforesaid judgment that vacancy, for which appellant was seeking consideration, if was available well before his retirement on superannuation, he should be entitled to be considered against them. Question decided in aforesaid case is not an issue, which needs determination in the case at hand.
11. At this stage, it would be apt to reproduce para Nos.27 and 28 of aforesaid judgment hereinbelow:-
"27. It is not a matter of dispute, that the appellant was promoted to the rank of substantive Major General with effect from 7.1.2004. It is also not a matter of dispute, that the substantive vacancy in the rank of Lieutenant General, against which the appellant was eligible for consideration, became available with effect from 1.1.2007. Even though the appellant had nearly 14 months of military service remaining at the aforesaid juncture, the procedure contemplated for making promotions to the rank of the Lieutenant General was initiated for the first time just two days before the date of retirement of ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 12 the appellant, on 27.2.2008. Although it is the contention of the learned senior counsel for the respondents, that the delay in convening the Selection Board and conducting its proceedings was not deliberate or malafide, yet there can be no doubt about the fact, that the appellant was not responsible for such delay. For all intents and purposes, he was repeatedly seeking .
consideration orally as well as in writing. He had been repeatedly informing the authorities about the approaching date of his retirement. In response, he was always assured, that if found suitable, he would be actually promoted prior to the date of his retirement. It was for the respondents to convene the meeting of the Selection Board. Since the Selection Board came to be convened for the vacancy which had arisen on 1.1.2007 only on 27.2.2008, the respondents must squarely shoulder the blame and responsibility of the above delay.
28 . The question that arises for consideration is, whether the non- consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition, that the respondents were desirous of filling the vacancy of Lieutenant General, when it became available on 1.1.2007. The factual position depicted in the counter affidavit reveals, that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the senior most serving Major General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view, that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential order dated 29.2.2008, and thereafter, by a further Presidential order dated 30.5.2008. The above orders clearly depict, that the aforesaid extension in service was granted to the appellant for a period of three months (and for a further period of one month), or till the approval of the ACC, whichever is earlier. By the aforesaid orders, the respondents desired to treat the appellant justly, so as to enable him to acquire the honour of promotion to the rank of Lieutenant General, (in case the recommendation made in his favour by the Selection Board was approved by the Appointments Committee of the Cabinet), stands affirmed. The action of the authorities in depriving the appellant due consideration for promotion to the rank of the Lieutenant General, would have resulted in violation of his fundamental right under Article ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 13 14 of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary.
12. In the aforesaid case though Hon'ble Apex Court while .
negating the contention of the respondent-department that delay in convening the Selection Board and conducting its proceedings was not deliberate or malafides, held that there can be no doubt about the fact that the appellant was not responsible for such delay because repeatedly he was seeking consideration orally as well as in writing.
In the instant case recommendation of Departmental Promotion Committee to promote petitioner w.e.f. the year 2016 was made in the year 2016 and without any demur accepted the promotion from the date given in the promotion order. Suddenly, in the year 2020, few days prior to filing of the petition at hand petitioner filed representation to the department claiming therein promotion w.e.f.
2010. Since petitioner himself was not vigilant or cautious about his right, court cannot come to his rescue at this stage, especially when there is no material suggestive of the fact that meeting of Departmental Promotion Committee was purposely not convened to defeat the claim of the petitioner.
13. Division Bench of this Court in case tilted Prakash Chand vs. State of H.P., and another alongwith connected matter passed in CWP No.9271 of 2013 decided on 17th May 2014, held that normal rule of law is that nobody can be promoted from a ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 14 retrospective effect except when there exist facts which necessitate so or there is a rule which permits so. Most importantly, it has been categorically ruled in the aforesaid judgment that due to .
administrative reasons D.P.C cannot be held in a year, then the person cannot claim retrospective promotion in the absence of malafides since malafied taints every act requiring a person wronged to be placed in the position but for the malafides or tainted exercise of power. Relevant para No.9 to 10 of the judgment are as under:-
"9. Normally, the promotion to the post should be from the date the promotion is granted and not from the date on which such post falls vacant. This was so held by the Hon'ble Supreme Court in Union of India & Ors. vs. K.K.Vadera & Ors.
1989 Supp (2) SCC 625 which reads thus:-
"5......We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post. After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion...."
10. In Baij Nath Sharma vs. Hon'ble Rajasthan High Court at Jodhpur & Anr. 1998 (7) SCC 44, the Hon'ble Supreme Court relying upon the law declared in K.K.Vadera's case (supra) held that a member of the Rajasthan Judicial Service could not be promoted from the date when the vacancy accrued in the Rajasthan Higher Judicial Service against which vacancy he was ultimately promoted.
11. This view was reiterated in the decisions reported in Sanjay K.Sinha & Ors. vs. State of Bihar & Ors. AIR 2004 SC 3460, State of ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 15 Uttaranchal & Ors.vs. Dinesh Kumar Sharma 2006(13) Scale 246, Nirmal Chandra Sinha vs. Union of India & Ors. 2008 (14) SCC 29. In State of Uttaranchal & Anr.vs. Dinesh Kumar Sharma (2007) 1 SCC 683, it was held that a person appointed on promotion would not get .
seniority of any earlier year but would get seniority of year in which his/her appointment is made.
12. From the aforesaid discussion, the following legal position can be culled out:-
i) The normal rule of law is that nobody can be promoted from a retrospective effect except when there exist facts which necessitate so or there is a rule which permits so.
ii) ii) If due to administrative reasons D.P.C. cannot be held in a year, then the person cannot claim retrospective promotion in the absence of malafides since malafides taints every act requiring a person wronged to be placed in the position but for the malafide or tainted exercise of power.
14. Recently, Hon'ble Apex Court in case titled Union of India and another versus Manpreet Singh Poonam and others ,(2022) 6 Supreme Court Cases 105, held that mere existence of vacancy per se will not create right in favour of employee for retrospective promotion when vacancies in promotional posts are specifically provided under rules, which also mandate clearance through selection process. The relevant Para No.18,19 and 20 of aforesaid judgment are as under:-
"18. A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process. It is also to be borne in mind that when we deal with a case of promotion, there can never be a parity between two separate sets of rules. In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 16 promoted post facilitating further promotion which is governed by a different set of rules.
19. In the present case, the authority acting within the rules has rightly granted promotion after clearance of DPC on 17.04.2012 with effect from 01.07.2011, when the actual vacancies arose, which in any case .
is a benefit granted to the Respondent in Civil Appeal No.518 of 2017.
In our view, this exercise of power by the authority of granting retrospective promotion with effect from the date on which actual vacancies arose is based on objective considerations and a valid classification.
20.This Court in the case of Union of India v. KK Vadhera and Ors., 1989 Supp (2) SCC 625 has clearly laid down that the promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen, and has observed that:
"5....We do not know of any law or any rule under which a promo- tion is to be effective from the date of creation of the promotional post After a post falls vacant for any reason whatsoever, a promo- tion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the cir-
cumstances, it is difficult to sustain the judgment of the Tribunal."
15. Otherwise also, Hon'ble Apex Court as well as this Court have repeatedly held that fence sitter, if any, cannot be granted any relief. In the instant case, petitioner remained mute spectator for almost four years that too without there being any plausible justification.
16. The Hon'ble Apex Court in case titled as State of Uttar Pradesh and others vs. Arvind Kumar Srivastava and others, 2014 AIR SCW 6519, held that relief cannot be extended to the persons, who have approached the Court after long delay, that too, ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 17 who are fence-sitters. It is apt to reproduce para 24 of the judgment herein:
"24. Viewed from this angle, in the present case, we find that the .
selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above."
17. Even Division Bench of this Court, while placing reliance upon the aforesaid judgments passed by Hon'ble Apex Court, has held in LPA No.604 of 2011, titled Karan Singh Pathania vs. State of H.P. and Others that "fencer cannot be held entitled to any relief"
18. In I. Chuba Jamir & Ors. versus State of Nagaland & Ors., reported in 2009 AIR SCW 5162, the Apex Court has held that the inordinate delay is a very valid and important consideration.
It is apt to reproduce para 17 of the judgment herein:
"17. On a careful consideration of the materials on record and the submissions made by Mr. Goswami we are unable to accept the claims of the appellants-writ petitioners. In our view the inordinate delay of 7 or 8 years by the appellants-writ petitioners in approaching the High Court was a very valid and important consideration. This aspect of the matter was also brought to the notice of the Single Judge but he proceeded with the matter without saying anything on that issue, one way or the other. It ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 18 was, therefore, perfectly open to the Division Bench to take into consideration the conduct of the appellants-writ petitioners and the consequences, apart from the legality and validity, of the reliefs granted to them by the learned single Judge."
19. In Banda Development Authority, Banda vs. Moti Lal .
Agarwl and Ors., 2011 AIR SCW 2835, similar principle has enunciated by Hon'ble Apex Court, wherein it has been held as under:
"15. In our view, even if the objection of delay and laches had not been raised in the affidavits filed on behalf of the BDA and the State Government, the High Court was duty bound to take cognizance of the long time gap of 9 years between the issue of declaration under Section 6(1) and filing of the writ petition and declined relief to respondent No.1 on the ground that he was guilty of laches because the acquired land had been utilized for implementing the residential scheme and third party rights had been created. The unexplained delay of about six years between the passing of award and filing of writ petition was also sufficient for refusing to entertain the prayer made in the writ petition.
xxx xxxx xxx
25. In this case, the acquired land was utilized for implementing Tulsi Nagar Residential Scheme inasmuch as after carrying out necessary development i.e. construction of roads, laying electricity, water and sewer lines etc. the BDA carved out plots, constructed flats for economically weaker sections and lower income group, invited applications for allotment of the plots and flats from general as well as reserved categories and allotted the same to eligible persons. In the process, the BDA not only incurred huge expenditure but also created third party rights. In this scenario, the delay of nine years from the date of publication of the declaration issued under Section 6(1) and almost six years from the date of passing of award should have been treated by the High Court as more than sufficient for denying equitable relief to respondent No.1."
20. Recently, Hon'ble Apex Court in Union of India and others versus Chaman Lal, (2018) 5 Supreme Court Cases 798, has held as under:-
"9. As far back as in P.S. Sadasivaswamy vs. The State of Tamil Nadu, (1975) 1 SCC 152, considering a claim for promotion belated by 14 years, this Court had observed ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 19 that a period of six months or at the utmost a year would be reasonable time to approach a court against denial of promotion and that it would be a sound and wise exercise of discretion not to entertain such claims by persons who tried to unsettle the settled matters, which only clog the work of the court impeding it in considering .
genuine grievances within time in the following words :
"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 here 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 rpetition 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 in dismissing the appellant's petition as well as the appeal."
10. Mere repeated filing of representations could not be sufficient explanation for delay in approaching the Court for grant of relief, was considered in Gandhinagar Motor Transport Society vs. Kasbekar AIR 1954 Bom.202, by Chief Justice Chagla, observing as follows : (SCC Online Bom: AIR P.203, para
2).
"(2)...... Now, we have had occasion to point out that the only delay which this Court will excuse in presenting a petition is the delay which is caused by the petitioner pursuing a legal remedy which is given to him. In this particular case the petitioner did not pursue a legal remedy.
The remedy he pursued was extralegal or extra- judicial. Once the final decision of government is given, a representation is merely an appeal for mercy or indulgence, but it is not pursuing a remedy which the law gave to the petitioner..."
11. The appellant, in its counter affidavit before the High Court, had specifically taken the objection that the claim was highly belated, and that any direction for a retrospective consideration would have a destabilising effect in unsettling the settled position which would lead to complete chaos apart from ::: Downloaded on - 24/05/2023 20:30:00 :::CIS 20 other administrative consequences. The High Court failed to consider the objection. In Union of India vs. M.K. Sarkar, (2010) 2 SCC 59, this Court observed as follows:(SCC p.66, para 16).
"16. A court or tribunal, before directing 'consideration' of a claim or representation should .
examine whether the claim or representation is with reference to a 'live' issue or whether it is with reference to a 'dead' or 'stale' issue. If it is with reference to a 'dead' or 'stale' issue or dispute, the court/ tribunal should put an end to the matter and should not direct consideration or reconsideration...."
12. In Dev Dutt (supra), the DPC was held on 16.12.1994. The appellant therein, aggrieved by his supersession moved the High Court with utmost expedition leading to the pronouncement by the Single Judge on 21.08.2001 and by the Division Bench on 26.11.2001. The appeal was instituted before this Court in the year 2002. If that were not sufficient to distinguish the case of the respondents, reference may also be made to the observations in paragraph 36 as follows: (SCC p.737). r "36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation."
13. The High Court erred in placing absolute reliance on Dev Dutt (supra) and Sukhdev (supra) without noticing the fact situation of the respondents. In Union of India and another vs. Bahadur Singh, (2006) (1) SCC 368, it was observed: (SCC p.373 para 9).
'9. The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclid's theorem s nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments...."
::: Downloaded on - 24/05/2023 20:30:00 :::CIS 2114. A subsequent pronouncement by this Court could not enthuse a fresh lease of life, or furnish a fresh cause of action to what was otherwise clearly a dead and stale claim. In State of Uttaranchal vs. Shiv Charan Singh Bhandari, (2013) 12 SCC 179, it was observed that SCC p.186, para
29).
.
"29.... Not for nothing, has it been said that everything may stop but not the time, for we are all 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."
15. The observations with regard to the modus operandi of the representation syndrome to revive what are clearly dead and stale claims as discussed in C.Jacob vs. Director of Geology and Mining, (2008) 10 SCC 115, and the caution to be exercised by the Court are also considered apposite in the facts of the present case.
16. In the facts and circumstances of the present case, any direction to consider retrospective promotion of the respondents at such a belated passage of time of over 17 to 20 years, would virtually bring a tsunami in the service resulting in administrative chaos quite apart from the financial implications for the government. The order of the High Court is therefore held to be unsustainable and is set aside."
21. Consequently, in view of the detailed discussion made herein above as well as law taken into consideration, this court finds no merit in the present petition and accordingly same is dismissed being devoid of any merit. Pending application(s), if any, also stand(s), disposed of accordingly.
(Sandeep Sharma), Judge May 18,2023 (shankar) ::: Downloaded on - 24/05/2023 20:30:00 :::CIS