Jharkhand High Court
Smt.Sakuntala vs Central Coalfields Ltd. & Ors. on 11 July, 2014
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
W.P.(S) No. 4983 of 2005
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In the matter of an application under Article 226 of the Constitution of India.
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Smt. Sakuntala ......... Petitioner
Versus
Central Coal Field Ltd. & others ............ Respondents
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For the Petitioner : Mr. Sujit Narayan Prasad
For the Respondent : M/s A.K.Mehta, A.K. Sinha, Sharad Kaushal
Present: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
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By Court:- Heard counsel for the parties.
2. The original petitioner namely D. Chandra Gupta died during the pendency of the writ application and his widow namely Smt. Sakuntala has been substituted, thereafter by order dated 13.1.2011, who is prosecuting the instant writ petition with following prayers:-
i) for issuance of writ or direction upon the respondents to promote the petitioner on the post of Upper Division Clerk(U.D.C) w.e.f. the date his junior namely B.N.Sinha has been promoted to the post of U.D.C.
ii) for direction upon the respondents to promote the petitioner on the post of Mining Sardarship w.e.f 1982 and on the post of Overman w.e.f. April 1987.
iii) directing the respondents to release the entire monetary benefit in consequence of the promotion on the higher post and fix the pension on enhanced scale and release the arrears of dues along with interest.
3. The petitioner was recruited as Lower Division Clerk in the year 1963. He was impleaded in a criminal case being R.C. Case No. 7/74 in the year 1974 registered against him. It is the contention of learned counsel for petitioner that one person namely B.N.Sinha was promoted to the post of U.D.C by office order dated 14.4.1976. It is his contention that though the said B.N.Sinha was appointed temporarily on 9.7.1955, petitioner was directly recruited as L.D.C in 1963 and confirmed on 1.6.1964 on the said post. Petitioner was admittedly in the clerical cadre as per his appointment as L.D.C, however during his service career, he was sent to Bhurkunda Training Institute for Mining and Mine Survey Course in the 2 year 1977. He completed the said course in the year 1982 and in 1983 he completed the course of Mining Sirdarship and Gas testing examination conducted by DGMS. Thereafter, he was promoted to the post of Production Chaser in Grade D (T&S) and was allowed to join vide office order dated 12.5.1982. The consequential benefits of such promotion was also accorded to him. At this stage, it is not in dispute that the clerical cadre of the petitioner got changed to Mining cadre, which has different line of promotion i.e. Mining Sirdarship and Overman. Petitioner was thereafter given the post of Overman on adhoc basis w.e.f. 7.5.1987. The regular promotion of the petitioner was not considered due to the pendency of the criminal case against him. Petitioner, in fact was acquitted in the criminal case on 13.9.1995. Thereafter, petitioner was given the benefit of service linked Up-gradation w.e.f. 1.1.1997 as he had been on the same post of Overman for the period of 8 years and his basic pay was fixed accordingly in the scale of Rs.2220-4240. Petitioner, thereafter retired on 1.2.2003. On these undisputed facts, it has been contended by the learned counsel for the petitioner that after his acquittal in September,1995 he made representation for consideration of his case for promotion from the date his junior B.N.Sinha was promoted as U.D.C. i.e. 14.4.1976. He also was eligible for promotion to the post of Mining Sirdarship w.e.f. 1982 and Overmen w.e.f. April 1987, which was not being considered.
4. The petitioner has annexed the representations at Annexure-3 which appears to be undated representations. However, with the aforesaid grievances, after three years of his retirement, he has preferred the instant writ application in the year 2005.
5. Learned counsel for the petitioner submits that denial of the petitioner's claim for promotion by the respondents even after his acquittal in a criminal trial was a continuing wrong and therefore, there was no delay or latches on his part for seeking the aforesaid relief while preferring the writ application. He has relied upon a judgment rendered in the case of Union of India and others vs. Tarsem Singh [(2008) 8 SCC 648]. Therefore, according to him, 3 respondents ought to have considered his claim for promotion either to the post of Upper Division Clerk with effect from 1976 or to the post of Mining Sardar with effect from 1982 or for the post of Overman with effect from April 1987, which could have consequential effect upon the revision of the pensionery benefits of the deceased employee and the family pension being drawn by the substituted petitioner, his widow along with any other arrears of salary due on such promotion.
6. Respondents have appeared and filed their counter affidavit. Learned counsel for the respondents submits that the petitioner was initially appointed in the clerical cadre as Lower Division Clerk and when another person B.N. Sinha was promoted to the post of Upper Division Clerk, the petitioner was already implicated in a criminal case being R.C. Case No. 7/1974 registered against him. Therefore, his case for promotion could not be considered at the relevant point of time. It is further submitted that upon acquisition of technical qualification during the course of service, the petitioner was promoted to the post of Production Chaser on 12.5.1982 and was also given the charge to the post of Overman on ad-hoc basis on 7.5.1987 and thereafter was given the Service Linked Up-gradation in January 1997 as he had remained on the same post of Overman for the period of eight years. He also got the pay of Overman which was fixed on such up-gradation which he enjoyed till his retirement. It is submitted that the claim of the petitioner for promotion to Upper Division Clerk raised after three years of his retirement and ten years of his acquittal and that too with effect from April 1976, is grossly barred by unexplained delay and latches. Apart from that, since the cadre of the petitioner was changed from clerical to mining in 1987, the said plea is not maintainable. In the mining cadre also, he has been granted the service linked Up-gradation in the scale of Overman as aforesaid and therefore, at this stage, such a claim for promotion in the mining cadre is not sustainable. Learned counsel for the respondents have relied upon a judgment rendered in the case of Vijay Kumar Kaul and others vs. Union of India and others [(2012) 7 SCC 610] in support of his 4 contention that the belated challenge to a claim of seniority or promotion is impermissible as the claim of seniority must be put forth at earliest or within reasonable time. The petitioner having been given the aforesaid service benefits during the period of his service, as aforesaid, has only chosen to stake such a claim after three years of his retirement in 2005. Therefore, the writ petition is fit to be dismissed.
7. I have heard learned counsel for the parties and gone through the relevant materials on record. From the facts which are not in dispute, it is evident that initially, the petitioner was appointed in the clerical cadre in 1963 and got implicated in a criminal case in 1974 which ended in his acquittal in 1995 only. Therefore, the petitioner could not have been considered for promotion as Upper Division Clerk in the year 1976. But thereafter, in the year 1982, cadre of the petitioner was changed to Mining Sirdar on acquisition of technical qualification and thereafter, he was given the post of Production Chaser and promoted on ad-hoc basis as Overman and then got Service Linked Up-gradation to the post of Overman on 01.01.1997 on which scale, he continued till the date of his retirement on 01.02.2003. Therefore, the petitioner's claim for promotion to the post of Upper Division Clerk in the clerical cadre is not only inconsistent with the alternative claim for promotion in the mining cadre, but the same are barred by gross delay and latches as well.
8. So far as the claim of promotion to the post of Mining Sirdar and Overman is concerned, since the petitioner was facing criminal trial in which he was acquitted only in September 1995, his case for substantive promotion to the said post could not have been considered given the subsistence of the criminal trial. However, he was given ad-hoc promotion to the post of Overman in the year 1987 itself and also the benefit of Service Linked Up- gradation in the said scale on 01.01.1997 in which he continued till his retirement. In effect, the scale of Overman has been granted to the petitioner by the respondents by way of financial up-gradation in January 1997 itself to which post he was claiming regular promotion. If the petitioner had a 5 grievance relating to a promotion to such post after his acquittal, the same apparently was not raised within the reasonable time and has been staked after ten years of his acquittal and that too, 3 years after his retirement. Such a claim of promotion therefore, cannot be entertained on account of delay and latches on the part of the petitioner as well. In the judgment relied upon by the petitioner in the case of Union of India & others (Supra), it appears that it was a case of recurring wrong in the matter of grant of disability pension which the said employee had raised in the year 1999, though he was declared invalid in November 1983 itself. In such circumstances, after the survey of decision on the point, the Hon'ble Supreme Court held that the claim for such a continuing / recurring wrong should not be rejected on the point of limitation or on the ground of delay or latches, except in the cases where such delay has created an interest of the third party or in the case of seniority or promotion.
9. Counsel for the respondent, on the other hand, had relied upon a judgment in the case of Vijay Kumar Paul (Supra) in which the belated claim for seniority was negated on the ground that in the meantime, interest of third party had ripened and that equity which existed at any one point of time melts into insignificance and becomes extinct with passage of time. The Hon'ble Supreme Court in the recent judgment in the case of State of Uttaranchal v. Shiv Charan Singh Bhandari reported in (2013) 12 SCC 179, while considering the question relating to delay in making a claim for promotion, had the occasion to observe that the claim for promotion ought to have been made within the reasonable time since if it is entertained after belated period, it would have the effect of un-settling the rights which have crystallized in favour of others in the meantime, while at the same time, imposing unnecessary burden on the financial exchequer of the employer if such a relief is granted from much anterior date. The opinion of the Hon'ble Supreme Court in the aforesaid judgment is reproduced herein below:-
" Para 24:- There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of J&K. 6 Para25:- In NDMC v. Pan Singh the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction.
Para 26:- Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivaswamy v. State of T.N., wherein it has been laid down that: (SCC p. 154, para 2) "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 where 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."
Para 27:- We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled.
There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Anyone who sleeps over his right is bound to suffer. As we perceive neither the Tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion.
Para 28:- Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the Tribunal and accepted by the High Court.
Para 29:- True it is, notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation of pay and the pension. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadagi. But equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, has it been said that everything may stop but not the time, for all are in a way 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".
10. In the instant case, from the facts which are evident, the petitioner got the desired scale of Overman in January 1997 and retired in the same scale to which he is claiming promotion. Therefore, it cannot be alleged that the petitioner has suffered seriously on account of non-consideration of his case for regular promotion during his service career either. Therefore, in the facts 7 and circumstances of the case, I do not find that the petitioner has made out a case for interference in the writ application or for issuance of any writ or direction to grant him promotion as claimed. The writ petition is accordingly dismissed.
(Aparesh Kumar Singh, J.) Jharkhand High Court, Ranchi The 11th day of July,2014 Ranjeet / A. Mohanty