Punjab-Haryana High Court
Satyendra Kumar Gupta vs The State Of Haryana And Others on 19 April, 2012
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.6980 of 2012
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.6980 of 2012
Date of Decision: 19.04.2012
Satyendra Kumar Gupta
..... Petitioner
Versus
The State of Haryana and others
..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Pankaj Maini, Advocate,
for the petitioner.
RAJIV NARAIN RAINA, J.
1. Multiple prayers have been made in this petition including issuance of a writ of certiorari quashing the order dated 03.03.2000 (P-7) and 21.06.2000 (P-8) by which the cadre of the petitioner has been changed from permanent employee of the Haryana Power Generation Corporation Limited (HPGCL) to the Haryana Vidyut Parsaran Nigam Limited (HVPNL).
2. The first representation of the petitioner for allocation and transfer to HVPNL in terms of the Second Transfer Scheme dated 01.07.1999 (P-5) was rejected on 03.03.2000. The petitioner's allocation and transfer to HVPNL continued. The decision of the Committee was appealable to State Government. The Secretary to Government Haryana, Power Department-cum-Appellate Authority rejected the appeal vide order dated 21.06.2000 (P-8).
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3. Inter alia against both these orders, the present writ petition has been filed after 12 years on 17.04.2012. The petitioner claims that both these impugned orders are anti thesis to the terms and conditions of the appointment letter dated 02.05.1990 which says that cadre of the petitioner would be maintained as combined cadre of chemist. On the basis of the appointment letter a joint seniority of Assistant Chemists was maintained and a seniority list dated 17.09.1992 was issued showing the petitioner at sr. No.8 in the joint seniority. In his effort to return to GENCO, the petitioner relies on instructions dated 18.08.1998 (P-4) which according to the petitioner show that the cadre of the petitioner would remain with GENCO. The post of chemist is said to be a single isolated post in HVPNL on which the petitioner has been working since the last 22 years. There is no promotional post from the post of chemist in HVPNL. For these reasons as well the petitioner claims repatriation to his "Parent Cadre." The other claims set out in the petition are with regard to first ACP not having been granted from the due date. The petitioner claims that the due date was 16.05.2000 but the benefit has percolated to him as late as on 01.02.2010 (P-21). He claims removal of anomaly. The further claim is that he is entitled to benefits in the same terms as his juniors promoted out of the combined cadre in terms of the joint tentative seniority list dated 17.09.1992. A direction is sought to treat the petitioner as an employee of the combined cadre with consequential benefits including team audit of promotions of his erstwhile juniors in the sister organization. A portmanteau direction has been sought that all his pending representations made from time to time for grant of time scale to the petitioner as granted to the other CWP No.6980 of 2012 -3- employees working in the technical cadre of HVPNL should be decided.
4. Learned counsel for the petitioner has made the memo dated 18.08.1998 the main plank of his argument in support of the claim of the petitioner. The memo refers to the transfer scheme rules w.e.f. 14/8/1998 and by virtue of those rules the personnel working at Thermal Power Stations at Faridabad, Panipat Hydel Project at Yamunanagar, Thermal Design Panchkula are stated to be assigned to Haryana Power Generation Corporation (HPGC) or GENCO while the remaining personnel stated are assigned to HVPN or TRANSCO while those personnel working in the offices of HPGC and HVPN would remain assigned to the respective entities on as is where is basis. The learned counsel has drawn my attention to Clause 3 which deals with personnel assigned to GENCO. These included incumbents of the post of Chief Chemist, Deputy Chemist and Chemist. On the basis of this, he submits that while there is a hierarchy of posts in GENCO he is left in the lurch on a solitary post in HVPNL with no promotional opportunities. This may be cause for despair and frustration yet no real relief can be granted to the petitioner by lapse of time. Learned counsel has also sought help from the letter dated 2.5.1990 (P-1) offering appointment as officiating chemist in the erstwhile Haryana State Electricity Board. He relies on Clause 6 thereof to show that then petitioner's appointment was of combined cadre of chemist in the erstwhile Board and the terms of his appointment cannot be varied to his disadvantage; however find that the present petition suffers from delay and laches. There is no explanation for delay in approaching Court. Merely because there are no avenues of promotion would not be sufficient reason to interfere in the CWP No.6980 of 2012 -4- matter. Right to promotion is not a fundamental right but is surely an incidence of service. Repeated representations do not create a fresh cause of action. Learned counsel for the petitioner had to admit that in case, if a civil suit was brought in a Civil Court with the multiple prayers as in this petition, the same would have been barred by limitation. It would not be proper to unsettle settled things, however grave the concern may be. In P.S. Sadasivaswamy v. State of Tamil Nadu, AIR 1974, S.C. 2271 it has been held as under:-
"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 Articles 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 petition 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."
5. The ultimate claim of the petitioner rests on seniority vis-a-vis erstwhile juniors in the sister organization. If the petitioner's claim for repatriation has no legal basis at this distance of time, nothing else remains to be decided.
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6. For the foregoing reasons, I do not find sufficient ground to entertain this petition and would dismiss it in limini.
7. However, before parting with the judgment and looking to the anguish and frustration the petitioner may be experiencing to be left stranded on a solitary post of chemist, respondent Nos.1 to 3 are directed to consider the possibility of alleviating the petitioner's hardship in accordance with law and by applying the principle laid down by the Supreme Court that at least one promotion should be granted to an employee in a span of service to make it worth his while to serve the employer failing which he may lose interest in work. In Council of Scientific and Industrial Research vs. K.G.S. Bhatt, (1989) 4 SCC 635 it has been held that:-
"9. That then is the scope of bye-law 71(b) (ii). But that does not mean that we should interfere with the relief granted to respondent
1. By pointing out the error that crept into the decision of the Tribunal, we need not to take to its logical end which will defeat justice. Respondent 1 is not a layman. He is a highly qualified engineer. Although he joined service with a diploma in engineering, he later passed Bachelor of Engineering (B.E.) and also acquired M. Tech. degree and one more diploma (D.P.M.). He was however, left without opportunity for promotion for about twenty years. This is indeed a sad commentary on the appellant's management. It is often said and indeed, adroitly, an organization public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for CWP No.6980 of 2012 -6- promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors. There cannot be any modern management much less any career planning, manpower development, management development etc. which is not related to a system of promotions. The appellant appears to have overlooked this basic requirement of management so far as respondent 1 was concerned till NR & AS was introduced."
8. The respondents would also look into prayers and take a final decision within three months from the date of receipt of certified copy of this order.
9. Dismissed with the above directions.
(RAJIV NARAIN RAINA) JUDGE 19.04.2012 manju