Allahabad High Court
Archana & Others vs State Of U.P. Thru. Prin. Secy. Medical & ... on 8 August, 2019
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 20 Case :- SERVICE SINGLE No. - 21575 of 2019 Petitioner :- Archana & Others Respondent :- State Of U.P. Thru. Prin. Secy. Medical & Health,Lko & Ors. Counsel for Petitioner :- Krishan Kanhaya Pal,Pooja Pal Counsel for Respondent :- C.S.C.,Anupras Singh Hon'ble Abdul Moin,J.
1. Heard learned counsel for the petitioners, learned Standing Counsel appearing for respondent nos. 1 and 2 and Sri Anupras Singh, learned counsel appearing for respondent nos.3 to 7.
2. By means of the present petition, the petitioners have prayed for the following reliefs:-
"(i) Issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned order of promotion dated 04.06.2016 issued by the Director of R.M. Lohia Institute (as contained in Annexure No.1 to this petition).
(ii) Issue a writ, order or direction in the nature of Mandamus directing the respondents to stay the operation and implementation of the impugned order of promotion dated 04.06.2016 issued by the Director of R.M. Lohia Institute (as contained in Annexure No.1 to this petition).
(iii) Issue a writ, order or direction in the nature of Mandamus directing the opposite party no.4 to promote the petitioners from the date of promotion order dated 04.06.2016, and to pay the petitioners, salary admissible to a Sister Grade-I in the RML Institute from the date of promotion order dated 04.06.2016 (as contained in Annexure No.1 to this petition).
(iv) Issue a writ, order or direction in the nature of Mandamus directing the respondent no.1 to conduct the independent inquiry with regard to promotion order dated 04.06.2016 passed by opposite party no.4 by which the opposite party no.4 filled the reserve category (Backlog post) by way of General Candidates, which were advertised vide Advertisement No.298/Bharti/RML IMS/2009, by General Category Candidates, at Dr. Manohar Lohia Institute of Medical Sciences Gomti Nagar, Lucknow.
(v) Issue any other appropriate writ, order or direction as the Hon'ble Court may deem just, proper and necessary in the circumstances of the case; and
(vi) Award the costs of the petition, in favour of the petitioners."
3. From perusal of the pleadings and the arguments as raised by learned counsel for the petitioners, it is apparent that the petitioners have challenged the promotion order of private respondents dated 04.06.2016, a copy of which is Annexure-1 to the petition. The instant petition has been filed after a period of more than three years. The laches are sought to be explained orally on the ground that the petitioners had been representing to the respondents for redressal of their grievances and when no heed was paid on the said representations, they have approached this Court. No such specific plea has been taken in the petition.
4. It is admitted that the petitioners are approaching this Court after a period of more than three years of the order of promotion having been issued.
5. Hon'ble the Supreme Court in the case of P.S. Sadasivaswamy vs. State of Tamil Nadu-(1975) 1 SCC 152 has held that if a person is aggrieved by an order of promotion of his junior over his head, he should approach the Court at least six months or at the most a year of such promotion. For the sake of convenience, the observations of the Supreme Court in the case of P.S. Sadasivaswamy (supra) are reproduced 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 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."
6. The aforesaid judgment has been followed by the Supreme Court recently in Civil Appeal No.1577 of 2019 in re: Union of India and others vs. C. Girija and others, decided on 13.02.2019 wherein after considering the judgment of P.S. Sadasivaswamy (supra), it has been held as under:-
"15. This Court referring to an earlier judgment in P.S. Sadasivaswamy Vs. State of Tamil Nadu, (1975) 1 SCC 152 noticed that 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. In Paragraph No. 26 and 28, following was laid down:-
"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., (1975) 1 SCC 152, 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."
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."
7. As regards the plea taken by the petitioners of having repeatedly represented the respondents for redressal of their grievances through various representation to which no heed was paid the same does not persuade this Court to take a different view from what has been laid down in the case of P.S. Sadasivaswamy (supra) as well as the Apex Court in the case of C. Girija (supra) which has considered this aspect of the matter and has categorically held that merely representing to the respondents for redressal of grievances would not explain the laches in filing the petition challenging the order of promotion after a period of several years. For the sake of convenience, the relevant observations in the case of C. Girija (supra) are reproduced below:-
"12. This Court had occasion to consider the question of cause of action in reference to grievances pertaining to service matters. This Court in C.Jacob Vs. Director of Geology and Mining and Another, (2008) 10 SCC 115 had occasion to consider the case where an employee was terminated and after decades, he filed a representation, which was decided. After decision of the representation, he filed an O.A. in the Tribunal, which was entertained and order was passed. In the above context, in paragraph No.9, following has been held:-
"9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any "decision" on rights and obligations of parties. Little do they realise the consequences of such a direction to "consider". If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to "consider". If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."
13. This Court again in the case of Union of India and Others Vs. M.K. Sarkar, (2010) 2 SCC 59 on belated representation laid down following, which is extracted below:-
"15. When a belated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches."
14. Again, this Court in State of Uttaranchal and Another Vs. Shiv Charan Singh Bhandari and Others, (2013) 12 SCC 179 had occasion to consider question of delay in challenging the promotion. The Court further held that representations relating to a stale claim or dead grievance does not give rise to a fresh following was laid down:-
"19. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix.
Similarly, a mere submission of representation to the competent authority does not arrest time.
23. In State of T.N. v. Seshachalam, (2007) 10 SCC 137, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: (SCC p. 145, para 16) "16. ... filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."
8. From perusal of the aforesaid judgments in the case of P.S. Sadasivaswamy (supra) followed by C. Girija (supra), it clearly comes out that a person aggrieved by an order of promotion of his junior should approach the Court at the most within a year of such promotion. In the present case, it is apparent that the petitioners have approached this Court after a period of three years and thus challenge to the said promotion order cannot be said to be sustainable keeping in view the aforesaid propositions of law. The reason for approaching this Court after a period of almost three years is orally sought to be explained on the ground of the petitioners having submitted various representations. However, no such representations have been brought on record and even otherwise even if the petitioners had been submitting repeated representations the same would not persuade this Court to interfere in the promotion order after a long passage of time as repeated representations would not give rise to a fresh cause of action in a cause which is long dead as a period of more than three years have lapsed since the date of alleged promotion of the petitioners' juniors. Thus, no ground is made out for interference with the impugned order. The writ petition is dismissed.
Order Date :- 8.8.2019 A. Katiyar