Patna High Court
Ram Naresh Singh vs The State Of Bihar And Ors. on 12 December, 1991
Equivalent citations: 1992(2)BLJR919
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. The petitioner by way of this application under Articles 226 and 227 of the Constitution of India prays for issuance of an appropriate writ for quashing an order dated 18-6-1990, as contained in Annexure-2 to the writ application whereby his prayer to rank him in the seniority list of the Forester has been finally rejected.
2. The basic facts of the case are admitted.
The petitioner and the respondent Nos. 11 to 13 were appointed in the posts of Forest Guard on 5-5-1973, 24-4-1974, 24-1-1974, and 5-9-1974 respectively.
3. According to the petitioner, the posts of Forester and Forest Guard belong to one cadre being that of the subordinate forest service and are governed by Clause 3.19 of the Bihar Forest Manual, which read as follows:
The Subordinate Forest Service comprises of:
(i) Forest Rangers,
(ii) Foresters,
(iii) Forest Guards.
(iv) Other subordinates, namely, Surveyor, Amin, Marking Officer, Felling Observer, Depot Officer, Coupe Overseer, Mines Muharrir, Naka Guard etc.
4. It is further the case of the petitioner that appointment to the post of Forester is governed by Clause 3.21 thereof.
The petitioner contended that the authorities of the State of Bihar in violation of all norms and in an arbitrary manner sent respondent No. 11 for obtaining training in the Department Guards' Training School on 27-4-1978 (Annexure-8) and relieved him for that purpose on 22-5-1978 Annexure- 3/A) ; relieved respondent No. 12 in the year 1980 and respondent No. 13 in the year 1981 whereas, he was relieved for undergoing, the said training in 1984 and was posted as a Forester on 2-4-1985.
5. Admittedly, the respondent No. 11 chained Honours in Forest Guards' training on 5-10-1978 ; the respondent No. 12 stood first with Honours in Forest Guards' training on 6-10-1980 and the respondent No. 13 stood First with Honours in Forest Guards' Training on 26-7-1981.
6. According to the petitioner, he being [senior to Respondent Nos. 11 and 13 ought to have given an opportunity to undergo the forest guards' training prior to the said respondents.
The petitioner has further contended that he had made representations before the authorities concened on 8-6-1980 (Annexure-11) ; 7-1-1981 (Annexure-11/A) and 19-11-1981 (Annexure-11/B), to the effect that he should have been sent for undergoing training in Forest Guards' training prior to the said respondents but no order was passed therein.
7. On 14-5-1982, the petitioner was relieved for undergoing Foresters' training, but on 18-5-1982, as would appear from Annexure-9, he was sent back in the ground that he had not been promoted to the post of Forester. The petitioner ultimately was relieved for training in the Departmental Guards' Training School in the year 1984-85 and stood first with honours in the examination held in the said training School.
8. The respondent No. 11 joined as a Forester in the year 1988 but on a representation made by him, by an order dated 16-3-1989 he was given seniority with retrospective effect from 5-10-1978.
9. The respondent No. 12 joined as a Forester on 13-7-1982 and in the year 1989 he was given seniority with retrospective effect from 6-10-1980. Similarly, the respondent No. 13 joined as a Forester on 21-5-1982 and he was given seniority with retrospective effect from 6-7-1981.
The petitioner, as noticed hereinbefore, was posted as Forester on or about 2-4-1985.
10. Mr. R.N. Das, the learned Counsel appearing on behalf of the petitioner raised various contentions in support of this application.
According to the learned Counsel, as the posts of Forester and Forest Guard belong to the same cadre, the seniority of employees in the said cadre should relate back from the date of his joining the said cadre.
The learned Counsel, in this connection, has relied upon a decision of the Supreme Court in Bindeskwari Ram v. The State of Bihar and Ors. .
11. It was next contended by the learned Counsel that as the petitioner was posted in different Divisions, he was not aware that respondent Nos. 11 to 13 had been sent for training prior to 1980 and thus he could not make representations earlier.
12. According to the learned Counsel, in view of the policy decision dated 6th December, 1989 as contained in Annexure-3 to the writ application, the petitioner should have been held to be senior to respondent Nos. 11 to 13 on the basis of the joining of their respective post as Forest Guards.
13. The learned Counsel further submitted that the petitioner cannot be made suffer for laches on the part of the respondents and by reason of the impugned order (Annexure-2) his fundamental rights, as contained in Articles 14 and 16 of the Constitution of India has been affected.
The learned Counsel, in this connection, has relied upon in State of Maharashtra v. Jagannath Achyatkarandikar AIR 1989 SC 1133.
14. The learned Counsel also submitted that it is not a case where the petitioner's application should be dismissed on the ground of delay or laches alone, as he had been pursuing his departmental remedy before the authorities concerned.
The learned Counsel, in this connection has placed strong reliance upon in Ramchandra Shankar Deodhar and Ors. v. The State of Maharashtra and Ors. ; U. P. State Agro Industrial Corporation Ltd. v. The Labour Court, U.P. and Ors. 1989 (59) FLR 660 (All) ; G. P. Goyal and Ors. v. Chief Secretary, Government of U.P. and Ors. ; Mahadev Kalekar and Ors. v. State Bank of Hyderabad and Ors. ; Vimla Sharma v. State of Uttar Pradesh 1990 (Supp) SCC 770 ; K. Prasad and Anr. v. Union of India and Ors. 1988 (Supp) SCC 269 at 273 ; Sushil Kumar Yadunath Jha v. Union of India and in R.M. Ramual v. State of Himachal Pradesh and Ors. .
15. It was further submitted that in any event as the petitioners representations had been finally rejected in 1990 (Annexure-2) and as two of his juniors, namely, respondent Nos. 11 and 12 had been given seniority with retrospective effect from the date of passing of their examination in the year 1989, it must be held that cause of action for filing the writ petition has arisen recently.
16. In this case, a counter-affidavit has been filed on behalf of the State and another counter-affidavit has been filed on behalf of the respondent No. 13.
Respondent No. 13, in his counter-affidavit has merely stated the legal position and has not disputed the statement of facts made in the writ application.
17. No counter-affidavit has been filed on behalf of the respondent Nos. 11 and 12.
18. Mrs. M. M. Pal, the learned Standing Counsel No. 2 has drawn my attention to Paras 11, 12 and 14 of the counter-affidavit and submitted that respondent Nos. 11 to 13 attended the Forest Guards' Training School in the years 1977, 1980 and 1981 respectively and in view of the fact that the petitioner completed his training only in the year 1984-85, all persons have been granted promotion with retrospective effect from the date of successful completion of their examination.
19. It was further contended that in this case the policy decision of the State as contained in the letter dated 20-8-1987 (Annexure-B to the counter-affidavit), wherein it has been stated all Forest Guards' who rank first and pass theirs examinations with Honours may be given a notional promotion from the date of the their passing of the examination but should be given monetary benefit only from the date they joined their office has been followed.
20. My attention has further been drawn to the Circular letter dated 11-1-1991, as contained in Annexure-F to the counter-affidavit wherein it has been stated that the persons who stand first in the examination in Forest Guard shall be appointed directly to the post of Forester.
In that Circular letter, it has further been stated that 16-7-1990 would be considered to be the cut off date for the purpose of appointment in the posts of Forest Guard obtaining honours in the examination.
21. It was further stated therein that if any person prior to that date has been promoted in the cadre of Forester and/or Forest Officer upon having stood first in the examination or having obtained honours therein, he will be deemed to have been directly appointed.
It was further stated that the seniority of those persons so directly appointed would be reckoned from the year in which they had been appointed.
21. However, it was mentioned that by reason of such appointments ; quota of filling up the posts of Foresters by way of promotion shall not be affected.
22. Mr. Das is not correct in his submission that the posts of Forester Guard constitute one cadre. In terms of Clause 3.19 of the Bihar Forest Manual only it has been stated as to what would constitute the subordinate forest service.
23. The very fact that in view of Clause 3.21 of the said Manual, permanent and temporary appointments to the class of Foresters can be made only by promotion from Forest Guards and other branches is pointer to the fact that the cadres of Forest Guards and Foresters are two different cadres and not the same cadre.
24. The decision of the Supreme Court in Bindeshwari Ram's case (supra) has no application in the facts and circumstances of the case, inasmuch as, in that case, it terms of Clause 9.9.3 of Rule 35 the inter se seniority of the rangers having been appointed substantively to the service if order of promotion is passed at the same time, their respective seniority shall be reckoned on the basis of their inter se seniority rangers, The Supreme Court in that decision held in order to determine the inter se seniority of the Assistant Conservators of Forest, who were appointed at the same time, the respective seniority held as rangers shall be the determining factor.
25. Such is not the position here.
26. In this case, the petitioner himself has in his rejoinder to the counter-affidavit quoted a letter dated 11-7-1989 issued by the Divisional Forest Officer, Ranchi whereby the petitioner's case for giving him seniority in the post of Forester was recommended.
27. It appears from a perusal of the said letter that as many as 31 persons had been sent for training prior to the petitioner although they joined in the post of Forest Guards later than him.
In this writ petition, the petitioner has question the promotion of the respondent Nos. 11 to 13 only and not of any other persons who were also sent for obtaining training to the petitioner.
28. The submission of Mr. Das, to the effect that the petitioner had no knowledge about the fact that the respondent Nos. 11 to 13 had been sent for obtaining training prior to the petitioner is also not borne out from the records of the case, inasmuch as, the petitioner himself has stated that he made three representations to that regard which are contained in Annexure-11 series, namely, on 8-6-1980, 7-1-1981 and 19-11-1981.
The petitioner also cannot be heard to say that he was not aware of the orders of promotion granted to the respondent Nos. 12 and 13 much earlier to his promotion as a Forester.
29. As noticed hereinbefore, the respondent No. 13 joined the post of Forester on 21-5-1982 whereas the respondent No. 12 joined the post of Forester on 13-7-1982.
30. It is, however, true that so far as respondent No. 11 is concerned, he joined the post of Forester in the year 1987 i.e. after the petitioner.
In my opinion, therefore, the petitioner at this juncture cannot be permitted to question the promotion of the concerned respondents after such a long time.
31. The petitioner under went the training in the year 1984-85 in Forest Guards* Training School without any demur whatsoever. He is, therefore, in my opinion, estopped and precluded from contending that the respondent Nos. 11 to 13 should not have been sent for training earlier to him as he has approached this Court more than after a decade from the said date.
32. In Ramchandra Sharikar Deodhar's case (supra), the Supreme Court was considering the case where the promotions were given to the respondents c.. provisional basis and as such no employee had derived any substantive right to hold to said post.
33. In the instant case, the respondent Nos. 12 and 13 had been promoted much prior to the petitioner on a substantive basis. They have, therefore, derived right to hold the said posts.
In Deodhar's case (supra), the Supreme Court held:
In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion and there is no invoidable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend own its on facts.
The Supreme Court in Deodhar's case further referred to its earlier decision in Trilokchand Motichand and Ors. v. H.E. Munshi, Commissioner of Sales Tax, Bombay and Anr. , wherein it has been held as follows:
The party claiming Fundamental Rights must move the Court before other rights come into existence. The action of courts cannot harm innocent parties if their rights emerge by reason of delay on the part of the person moving the Court.
It further relied upon the decision of R. N. Bose v. Union of India , wherein, it has been held as follows:
It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.
35. In Deodhar's case (supra), the Supreme Court distinguished its aforementioned two decisions holding:
Here, as admitted by the State Government in Paragraph 55 of the affidavit in reply, all promotions that have been made by the State Government are provisional and the position has not been crystallised to the prejudice of the petitioners.
36. It is, therefore, clear that in that decision, the Supreme Court has taken into consideration that in a case where the action would harm other parties and would affect the promotion of others in petition filed after a long time should not be entertained.
37. In U. P. State Agro Industrial Corporation Ltd. v. The Labour Court, U.P. and Ors. 1987 (59) FLR 660 (All), the Allahabad High Court was considering a case where an employee was superseded by another employee in another Division although they belonged to the same cadre. In this case, question of petitioner's suspension on that ground is not in question.
38. Sushil Kumar Yadunath Jha v. Union of India and Anr. AIR 1986 SC 136, is not relevant for the purpose of this case, inasmuch as, the Supreme Court, therein was considering a case where an employee in adverse circumstances had to accept the offers of re-appointment with a stipulation in his contract of service that he would not be entitled to continue in service and in the facts and circumstances of the case thereof, it was held that the appellant was entitled to condonation of the break in his service despite the terms to the contrary in his fresh appointment.
39. The case of G. P. Doyal and Ors. v. Chief Secretary, Government of U.P. and Ors. was a case where again only a provisional seniority list was challenged after 12 years. The Supreme Court further noticed that the petitioner's repeated representation had not been elicited any relief, the application under Article 32 should not be rejected on the ground of delay alone.
40. In K. Prasad and Ors. v. Union of India and Ors. 1988 (Supp) SCC 269, the Supreme Court did not dismiss the writ petition on the ground of laches because of complicated questions involved therein which had an all India repurcussions.
In that case, it was held that there had been no proper compliance of Rule and it was directed that all the 82 eligible officers as of October, 1966 should be considered afresh for promotion to the higher post.
41. In R. M. Ramual v. State of Himachal Pradesh and Ors. , the Supreme Court held that an application under Article 226 should not be dismissed on the ground of delay and laches where prejudice was caused to the appellant by the seniority list which was prepared in the year 1971 and he was prejudiced only when the order impugned therein was passed on 28th April, 1982.
Further, in that case, the Government had been accepting the recommendations and had been directing that inter se seniority of the appellant and all the concerned respondents be determined on the basis of their substantive rank on November 1, 1966 and in that situation, it was held that there has been no unreasonable delay on the part of the appellant to challenge the order dated 28th April, 1982.
42. In Mahadev Kalekar and Ors. v. State Bank of Hyderabad and Ors. , the writ petition was not dismissed on the ground of delay holding:
The petitioners were pursuing their remedy and having not received any relief, the matter was taken up by the Association. The petitioners have annexed Annexure-P-9 record of discussions held with the representative of Associate Bank Officers' Association Unit (SBH) at Hyderabad on December 1, 1988 in which the issue regarding national seniority to Group 'A' promotions of 1984 batch was one of the issues to be considered in the aforementioned meeting. Thus, it cannot be said that the petitioners have not explained the period from 1984-89 till the writ petition was filed on the High Court. It may be further noted that the petitioners were not at all at fault and it was only on account of a general stay granted by the High Court in the writ petit ion filed by the SC/ST candidates that promotions in entire Group 'A' were stayed.
(Underlining is mine for emphasis) This decision is also not applicable in the facts and circumstances of the present case.
The aforementioned decisions relied upon by the learned Counsel for the petitioner have thus not much relevance in the facts and circumstances of the present case.
43. It is now well-known that this Court in exercise of its writ jurisdiction may refuse to grant a relief, if the petitioner approached the Court after an unreasonable delay. The conduct of the petitioner is also relevant.
(See.--H.R. Club v. The State of Bihar and Ors. 1986 PLJR 110).
Reference in this connection may also be made to a recent decision of the Supreme Court in B.M. Bharti v. L.M. Sud and Ors. 1991 (62) FLR 227.
44. In Vimla Sharma v. State of Uttar Pradesh 1990 (Supp) SCC 770, the Supreme Court granted relief to the appellant on the ground that although she was recommended for regular appointment on 10th November, 1975 but work has been attracted from her although the Management did not make any order in her favour and she had been made to continue in Junior High School all through.
In the facts and circumstances of that case, it was held that it would be discreminatory and unjust to deny her the post and regular appointment.
Thus, in that case also, the question of any person acquiring any right to hold a post did not arise
45. In Sarju Sharan v. State of Bihar and Ors. 1988 BLJ 494, I have held as follows:
From the aforementioned facts it would be evident that the petitioner has not seriously tried to explain the delay. The very fact only one such representation has been annexed which was also made on 1-10-1980, it is a clear proof of laches on the part of the petitioner. I am, therefore, of the opinion that the petitioner is guilty of serious delay and laches and on that ground he is not entitled to any relief.
In V.K. Rajalakshmi Setty and Anr. v. State of Mysore and Ors. 1967 SC 993 a writ petition was dismissed on the ground of delay alone. In the aforementioned decision the Supreme Court held as follows:
There is also a good deal of force behind the contention that the appellants are guilty of laches. After the passing of the order of May 17, 1950, they should have made an application within a reasonable time thereafter. Merely because the Chief Engineer had empoused their cause and was writing letters, from time to time, to the State Government to do something for them did not mean that they could rest upon their bars if they were really being discriminated against.
Recently the Supreme Court again in State of M.P. v. Nandlal Jaiswal and Ors. held as follows:
Now, it is well-settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and that the indolent or the acquiescent and the lathargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of is writ jurisdiction.
Recently, this Court also in Dr. (Mrs.) Rahtogi v. The State of Bihar 1986 PLJR 1160 after taking into consideration various decisions of the Supreme Court in and held that a writ petition should be dismissed if the petitioners approaches the High Court after long and unexplained delay. The same view has also been adopted by the Division Bench decision of this Court in and 1985 PLJR 1148.
In Dr. Amar Nath Singh and Ors. v. The State of Bihar and Ors. 1991 (2) PLJR 609, a Division Bench of this Court while considering the matter of appointment of the Additional District Judges by this Court refused to grant relief to those petitioners as they appeared in the written examination but did not qualify, on the ground that the same would cause hardships to the candidates called for interview stating:
Further, there is a long delay in assailing the advertisements i.e. in October 1990, whereas the advertisements are dated 8-2-1985 and 20-9-1989. In CWJC No. 6582 of 1990 the petitioners are candidates, who have not been called for interview, though participated in the written test. They allowed the examination to be held without protest pursuant to the advertisements. It is, therefore, too late for them to turn ground and assail the advertisements See : ; Om Prakash Shukla v. Akhilesh Kumar Shukla. It is true that in CWJC No. 6700 of 1990 the petitioner did not participate in the examination, but even in a public interest litigation delay will not be allowed when parties have changed their respective position and more than two thousand candidates have participated in the examination. This would cause hardship to the candidate called for interview.
47. In S.S. Rathore v. State of Madhya Pradesh , the Supreme Court while considering the question of limitation for filing a suit held that limitation cannot be saved on the ground the representation had been filed which are not statutory in nature nor would the same have limitation if futile representations are made by the petitioners.
48. In Munindra Kumar and Ors. v. Rajiv Govil and Ors. , the Supreme Court refused to grant any relief to the petitioners thereof, who challenged the marks allotted for group discussion and interviews after unsuccessfully trying their luck by appearing before the Interview Board ; holding:
The next question which arises for consideration is as to what direction would be just and proper in the circumstances of this case. We do not agree with the High Court to quash the entire selection made by the Board for the post of Assistant Engineer (Civil). It may be noted that Rajiv Govil, Vivek Aggrawal and Gyandra Srivastava who remain unsuccessful had filed writ petitions after taking chance and fully knowing the percentage of marks kept for interview and Group discussions. It is no doubt correct that they cannot be estopped from challenging the rule which is arbitrary and violative of Article 14 of the Constitution, but in modulating the relief, their conduct and they equity of those who have been selected are the relevant consideration. The appellants have joined the posts on 28th December, 1989 and after completing the training are discharging their duties at different places. It has been submitted on their behalf that some of them had left their earlier job and have also become overage. Thus, we do not consider it proper in the interest of justice to set aside the selection of the appellants.
49. As indicated hereinbefore, thus, the petitioner having approached to this Court after undue and unreasonable delay, cannot get any relief from this Court, particularly, in view of the fact that on his own showing at least 31 persons had been sent for training prior to him, although, he was the senior-most,
50. The petitioner did not file any writ application immediately after he came to learn that the respondent Nos. 11 to 13 had been sent for training before him as far back as in the year 1980. Further, he joined the training School without any demur whatsoever.
51. Further, a promotion is to be granted to those Forest Guards who stood first with honours at Forest Guard Training School and have been put in at least five years of satisfactory service.
The petitioner cannot contend that had he been sent for training in 1978, 1980, 1981 alongwith respondent Nos. 11 to 13, he would have stood first with honours at the examinations.
52. The petitioner, therefore, cannot automatically be granted seniority with effect from 1978, in view of the fact that the respondent Nos. 12 and 13 were promoted on 21-5-1982 and 13-7-1982 respectively.
However, one aspect of the matter cannot be over looked.
53. The respondent Nos. 11 and 12 had been granted promotion with retrospective effect only in the year 1989. Respondent No. 11 joined the post of Forester in the year 1987 i.e. after the petitioner.
In the year 1978, the respondent Nos. 11 even did not complete five years' of service so as to entitle him to be promoted to the post of Forester on that date.
54. The respondents in their counter-affidavit have also not stated as to why the respondent No. 11 was promoted to the post of Forester in the year 1987 although, he had completed his training in the year 1978. It has also not been disputed that the Respondent No. 11 got only honours but did not stand first in training.
The stands of the respondents are also inconsistent and contradictory to each other in so far as whereas in terms of Annexure-F, they contend that the persons having successfully completed their examination with honours would be deemed to have been directly appointed from the date on which they are promoted but from Annexure-B, it appears that a circular letter had been issued to the effect that a notional seniority can be given to a candidate from the date he passed the said examination.
55. The respondent-State thus cannot rely upon both the Annexure-B is merely an executive instruction and cannot superseed the statutory rules as contained in Clause 3.21 of the Bihar Forest Manual.
56. In order to promote an eligible candidate with retrospective effect, the respondents were bound to consider the conditions precedent: thereof as laid down under Clause (b) of Rule 3.21 aforementioned.
57. Further, as noticed hereinbefore, the respondent No. 11 was not even eligible for being promoted in the year 1978.
In this view of the matter, the respondents are directed to reconsider the case of respondent Nos. 11 to 13 so far as seniority granted to them from the date of passing of the examination and in particular, the case of the respondent Nos. 11 and 12 as they were given such seniority only in 1989 over the head of the petitioner, keeping in view the provisions of the statutory rules and in accordance with law.
58. This writ application is thus allowed to the aforementioned extent only.
However, in the facts and circumstances of the case, there will be no order as to costs.