Allahabad High Court
Hira Lal vs State Of U.P. And Others on 19 November, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- WRIT - A No. - 23175 of 2012 Petitioner :- Hira Lal Respondent :- State Of U.P. And Others Counsel for Petitioner :- Govind Krishna,Abhishek Krishna Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
1. Heard Sri Govind Krishna, learned counsel for the petitioner at great length.
2. The writ petition is directed against orders dated 10.3.2003 and 28.11.2011 whereby petitioner has been denied benefit of promotional pay scale on the ground that since he was actually promoted on higher post but voluntarily forgo his promotion, therefore, in view of Government Order dated 12.5.1997, clarification no.3, promotional scale is not admissible to him.
3. Sri Govind Krishna, learned counsel for the petitioner submitted that petitioner forgo promotion only for the time being and that too for a certain period. It cannot be construed so as to disentitle him for promotional scale, for all times to come.
4. The facts in brief necessary for proper adjudication of this case are as under:
5. The petitioner was appointed as Junior Clerk on 23.7.1973 in the office of District Saving Officer, Ghazipur. In ordinary course of functioning, he became due for promotion to the post of Assistant Saving Officer. The competent authority, vide order dated 17.9.1992, promoted him on the post of Assistant Saving Officer and posted him at Basti. The petitioner, who was working at Ghazipur, by letter dated 22.9.1992, informed respondents competent authority that due to his family circumstances, he is not inclined to go on promotion and therefore, is forgoing promotion for a period of three years. Thereafter, his promotion on the post of "Senior Clerk" was made by competent authority vide order dated 21.9.1994 but the petitioner, by letter dated 28.9.1994, again requested competent authority not to compel him to go on promotion and allow him to forgo the said promotion. Consequently promotion order dated 21.9.1994 was cancelled vide order dated 7.10.1994.
6. It is not in dispute that matter of forgoing promotion twice attained finality and the petitioner never felt aggrieved thereto.
7. The State Government issued Government Order (hereinafter referred to as "G.O.") dated 8.3.1995 for providing benefit of personal promotional scale and one additional increment to the employees satisfying certain conditions provided therein, read with earlier Government Order dated 3.6.1989. Some amendment was made by Government Order dated 5.2.1997. However, there appears to be some anomaly/difficulty in implementing the aforesaid Government Order and certain clarifications were required, which were so clarified by Government vide G.O. Dated 12.5.1997. The clarification no.3 thereof categorically provides that if a person is actually promoted on a higher post but declined to take over charge on the promoted post, such person would not be entitled for the benefit of promotional pay scale on the basis of length of service for the reason that personal promotional scale and increments have been made admissible vide G.O. dated 8.3.1995 and 5.2.1997, to give relief to employees suffering on account of stagnation and lessor promotional avenues but where such opportunity actually became available to an employee but he voluntarily declined to accept such promotion, it cannot be said that such an employee is suffering on account of stagnation.
8. Para 3 0f G.O. Dated 12.5.1997 reads as under:
=qfV Li"Vhdj.k izksUufr in ij dk;Z&Hkkj xzg.k djus ls budkj djus okys deZpkfj;ksa dks Hkh oS;fDrd :i ls lsok vof/k ds vk/kkj ij izksUufr osrueku dh =qfViw.kZ Lohd`frA 3& fdlh deZpkjh dh okLrfod izksUufr mPp in ij gksus dh n'kk esa ;fn og izksUufr ds in dks xzg.k ugh djrk gS vFkok izksUufr ds in ij tkus ls budkj djrk gS rks ml frfFk rFkk mlds i'pkr~ dh frfFk ls lsok vof/k ds vk/kkj ij lsysD'ku xzsM ds ykHk ds :i esa ,d osru&o`f) vFkok oS;fDrd izksUufr@vxyk osrueku dk ykHk vuqeU; ugh gksxkA bl laca/k esa ;g Hkh Li"V fd;k tkrk gS fd lsysD'ku xzsM@lsysD'ku xzsM ds ykHk ds :i esa ,d vfrfjDr osru&o`f) rFkk oS;fDrd izksUufr osrueku@vxys mPp osru eku laca/kh ykHk deZpkfj;ksa dks izksUufr ds volj ds vHkko dks n`f"Vxr j[krs gq, iznku fd;s x;s gS] vr% okLrfod izksUufr ls budkj djus okys deZpkfj;ksa ds ekeys esa lsok esa o`f)jks/k ugh ekuk tk ldrkA
9. It appears that ignoring G.O. Dated 12.5.1997, Additional Director, National Savings, U.P. Lucknow, passed an order on 18.10.2000 giving personal promotional scale of Rs.1200-2040 to petitioner w.e.f. 1.5.1990 and further extended benefit of one additional increment w.e.f. 1.5.1995. The petitioner's salary was fixed at the stage of Rs.1380 w.e.f. 1.5.1995. The aforesaid order was passed with specific reference to G.O. dated 8.3.1995 and 5.2.1997, which clearly show that clarification provided by State Government vide G.O. dated 12.5.1997 stood omitted or ignored by Additional Director while passing order dated 18.10.2000.
10. The petitioner having availed one promotional pay scale and one additional annual increment, proceeded to request for second promotional scale which was admissible to an employee who has completed 24 years of satisfactory service, as provided by subsequent G.O. Dated 3.9.2001. This request was considered favourably by Assistant Director (Saving) Ghazipur. He recommended for second promotional scale vide letter dated 14.3.2002, to the Additional Director, National Saving, U.P. Lucknow. A similar recommendation was also made by District Saving Officer, Ghazipur by letter dated 9.10.2002 and 22.2.2003, sending recommendatory letters to Additional Director, National Saving, U.P. Lucknow.
11. It is with reference to the aforesaid letters, the matter came to be reconsidered by Additional Director, National Saving, U.P., who noticed glaring error/mistake he had committed while issuing order dated 18.10.2000. Consequently, Additional Director passed order dated 10.3.2003 (Annexure 4 to the writ petition) cancelling his order dated 18.10.2000 and directing for recovery of salary, already paid to the petitioner.
12. It is not in dispute by learned counsel counsel for the petitioner that order dated 10.3.2003 was not challenged by petitioner before any appropriate forum.
13. After about four years, petitioner submitted a representation dated 26.8.2008 for grant of time bound scale/promotional pay scale. This representation as such was recommended by District Saving Officer, Ghazipur, with a covering letter dated 28.8.2008, sent to Additional Director, National Saving, U.P. Lucknow. The Deputy Director, National Saving, U.P. Lucknow sought an explanation from District Saving Officer, Ghazipur stating that petitioner made a similar request by letter dated 27.3.2008, in reference whereto Directorate issued a letter dated 9.4.2008. Despite it and without complying the same, in what circumstances petitioner's representation dated 26.8.2008 again was recommended by District Saving Officer to the Directorate, on this aspect, his explanation was called upon. The Directorate's letters dated 9.4.2008 in on record at page 44 of the counter affidavit. It says that petitioner's representation/letter dated 27.3.2008 was carefully considered but rejected being without any merits. The District Saving Officer was requested to inform the petitioner accordingly.
14. The petitioner then made representation dated 5.10.2008 to the Additional Director and a reminder dated 3.12.2010. Thereupon, it appears that Joint Director (Administration) National Saving, U.P. Lucknow permitted petitioner to appear in his office and after hearing him, Joint Director (Administration), National Saving, U.P., on his own, made recommendation to the State Government vide letter dated 16.3.2011 requesting to communicate guidance about petitioner's claim for time bound scale/promotional scale on completion on 19 and 24 years of service. Reminders were also sent by Joint Director on 12.7.2011, 5.9.2011 and 9.11.2011. State Government reiterating its stand, as provided in G.O. Dated 12.5.1997, informed Additional Director, vide letter dated 22.11.2011, (Annexure 23 at page 65 of counter affidavit), that since petitioner has forgone his promotions, therefore, he is not entitled for time bound scale/Assured Career Promotion pay scale. It is this decision of State Government, which has been communicated by Joint Director (Administration), National Saving U.P. to the petitioner by his letter dated 28.11.2011.
15. Sri Govind Krishna, learned counsel for the petitioner, despite repeated query, could not explain as to how petitioner became entitled for time bound scale/ promotional scale in the light of clarification issued by State Government by G.O. dated 12.5.1997. He also could not dispute that Additional Director's order dated 18.10.2000, whereby time bound scale was allowed to the petitioner w.e.f. 1.5.1990 was cancelled by order dated 10.03.2013. The said order was never challenged by petitioner before any appropriate forum. In effect, the order dated 10.3.2003 has attained finality.
16. It is true that after about four years, petitioner sought to reagitate the matter by making representation and the authorities have reiterated their stand but these representations or reiteration of earlier stand by respondents, in my view, would not provide a fresh cause action to petitioner so as to cover up one of the important hurdle, which the petitioner has to face i.e. undue delay and laches.
17. Undue delay and laches are relevant factors in exercising equitable jurisdiction under Article 226 of the Constitution of India. Following the cases of Government of West Bengal Vs. Tarun K. Roy and others 2004(1) SCC 347 and Chairman U.P. Jal Nigam and another Vs. Jaswant Singh and another 2006(11) SCC 464, the Apex Court in New Delhi Municipal Council Vs. Pan Singh and others J.T.2007(4) SC 253, observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/S Lipton India Ltd. And others vs. Union of India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993, it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed recently in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423.
18. As already discussed above, repeated representations or subsequent orders cannot renew cause of action and also will not furnish a fresh cause of action so as to cover up entire undue delay and laches. In my view, writ petition, in so far as it has challenged order dated 10.3.2003, is bound to fail only on the ground of delay and laches. Once this order is not to be interfered by this Court, subsequent order, as communicated by second impugned order dated 28.11.2011 also cannot be interfered since it only reiterates what has already been said in 2003.
19. Even otherwise, coming on merits, it is evident that explanation 3, provided in G.O. Dated 12.5.1997, disentitle petitioner, benefit of time bound scale/promotional scale for the reason that he has forgone promotion and therefore, not a person, who has suffered on account of stagnation due to lack of promotional avenues. In my view, grievance of petitioner that he should be given higher scale ignoring his voluntarily forgoing promotion and that too twice, lacks substance and is not tenable either on equity or in law, otherwise. It is not a case where petitioner can be said to have suffered on account of any laxity on the part of respondents but looking to policy, object and purpose of grant of time bound scale/promotional scale i.e. to avoid stagnation and open higher avenues to the employees, who are not able to avail actual opportunity of promotion to higher post, to be compensated by giving higher pay scale. The petitioner having not suffered the same for his own volition, cannot be allowed to complain. Since it is for something he deserve to blame himself.
20. In the entirety of the facts and circumstances, petitioner is not entitled for any relief.
21. Dismissed.
Order Date :- 19.11.2013 KA