Jharkhand High Court
Jai Bhadra Singh Son Of Late Basudeo ... vs M/S. Bharat Coking Coal Limited Through ... on 13 December, 2018
Equivalent citations: 2019 (2) AJR 116, (2019) 2 JCR 730 (JHA)
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.3032 of 2015
Jai Bhadra Singh son of Late Basudeo Singh, resident of Qr. No. B/251,
Bhuli, P.O. Bhuli Nagar, P.S. Bhuli (Bank More), District Dhanbad.
...... Petitioner
Versus
1. M/s. Bharat Coking Coal Limited through its Chairman-cum-Managing
Director, Koyla Bhawan, Koyla Nagar, P.O. & P.S. Saraidhela, District
Dhanbad.
2. Director Personnel (Head Quarter), M/s. B.C.C.L., Koyla Bhawan, Koyla
Nagar, P.O. & P.S. Saraidhela, District Dhanbad.
3. General Manager, (P & IR) Headquarter, M/s. B.C.C.L., Koyla Bhawan,
Koyla Nagar, P.O. & P.s. Saraidhela, District Dhanbad.
4. General Manager, Kusunda Area Office (Area-VI), M/s. B.C.C.L., P.O.
Kusunda, P.S. Kenduadih, District Dhanbad.
5. Chief Personnel Manager, Kusunda Area Office (Area-VI), M/s. B.C.C.L.,
P.O. Kusunda, P.S. Kenduadih, District Dhanbad.
6. Project Officer, Dhansar Industry Colliery, M/s. B.C.C.L., P.O. and P.S.
Dhansar, District Dhanbad.
7. Personnel Manager, Dhansar Colliery, M/s. B.C.C.L., Dhansar, P.O. and P.S.
Dhansar, District Dhanbad.
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. P.K. Mukhopadhyay, Advocate For the Respondents (BCCL) : Mr. Vijay Kant Dubey, Advocate
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08/Dated 13th December, 2018
1. This writ petition is filed for issuance of appropriate direction upon the respondent management to consider the case of the petitioner for promotion to the post of Excavation Grade-B w.e.f. 06.09.1993 since the another similarly situated employee namely, Kameshwar Singh was granted the aforesaid benefit of promotion with effect from that date with a further direction upon the respondent management to shift the date of 2 promotion of Supervisory Grade-B from 04.05.2013 to the date when the said Kameshwar Singh has been granted promotion upon the aforesaid post.
2. The brief facts in brief as per the pleadings made in the writ petition is that the petitioner has been appointed as Trainee Helper Fitter in Kusunda Open Cast Project, vide order dated 08.07.1983 along with one Kameshwar Singh.
The petitioner as also the said Kameshwar Singh had been promoted to the post of Grade-D category vide order dated 06.03.1990 and thereafter the said Kameshwar Singh has been promoted from Excavation Grade-D to Excavation Grade-B w.e.f. 06.09.1993 but the petitioner has been granted promotion as Excavation Grade-C by virtue of the same order.
The petitioner, thereafter has been granted promotion to the subsequent post and ultimately on 04.05.2013, he has been granted promotion in Supervisory Grade-B. The grievance of the petitioner is that in the cadre of Supervisory Grade-B, the said Kameshwar Singh has been promoted sometime in the year 2008 and thereafter, the petitioner, since was appointed and promoted along with the said Kameshwar Singh, he should also have been granted promotion in the Supervisory Grade-B with effect from the date when the said Kameshwar Singh had been promoted.
The petitioner being aggrieved with the alleged arbitrariness of the authority has represented before them but when no decision has been taken, then writ petition has been filed.
Mr. P.K. Mukhopadhyay, learned counsel appearing for the petitioner submits that the petitioner has been subjected to hostile discrimination, thereby, the Article 14 of the Constitution of India has been violated.
He further submits that when the petitioner vis-a-viz the said Kameshwar Singh had been appointed on the same day and also promoted to the subsequent post, thereafter, on the said date, then not granting promotion to the petitioner in Grade-C along with said Kameshwar Singh by virtue of order dated 06.09.1993 as Grade-B, and therefore, the discrimination starts from 06.09.1993 and by virtue of that the petitioner has been made to suffer in the subsequent 3 promotional avenues.
3. Mr. Vijay Kant Dubey, learned counsel representing Bharat Cooking Coal Limited by placing reliance upon the counter affidavit, has submitted that the cause of action of the petitioner has started way back on 06.09.1993 and therefore the petitioner in the year 2015 cannot invoke the jurisdiction of writ Court, since it is hopelessly barred by principle of delay and laches and therefore on this ground alone, the writ petition is fit to be dismissed.
In support of this contention reliance has been placed upon the judgment rendered by the Hon'ble Supreme Court in the case of Chennai Metropolitan Water Supply and Sewerage Board and Others Vs. T.T. Murali Babu reported in 2014 (4) SCC 108. It has been submitted by him that once the cadre of the petitioner vis- a-viz Kameshwar Singh has been changed way back on 06.09.1993 which the petitioner has chosen not to challenge within the reasonable period, hence, the consequence comes granting promotion to said Kameshwar Singh to the higher post and therefore the petitioner has been given promotion as Supervisory Grade-B on 04.05.2013 while the said Kameshwar Singh has been given promotion in the Supervisory Grade-B sometime in the year 2008, hence, it cannot be said that the petitioner has been subjected to hostile discrimination rather case of the promotion of the said Kameshwar Singh has been considered taking into consideration the fact that he has been given promotion in the Grade-B on 06.09.1993 whereas the petitioner has been granted promotion on 06.09.1993 in Grade-C and hence, on that date, only there was change in the cadre of the service of the petitioner, therefore, there is no arbitrariness on the part of the petitioner.
4. Heard learned counsel for the parties and appreciating their arguments, it is evident from the material available on record that the petitioner has been appointed on 08.07.1983 along with one Kameshwar Singh.
Both of them have been granted promotion on 06.03.1990 as Grade-D (Annexure-2). The said Kameshwar Singh has been granted promotion to Grade-B by virtue of Office Order dated 06.09.1993 while the petitioner has been granted promotion to the Grade-C 4 (Annexure-3).
It is evident from the Office Order dated 06.09.1993 that the said Kameshwar Singh was granted promotion to Grade-B from Grade-D while the petitioner had been granted promotion from Grade-D to Grade-C meaning thereby, even before granting the promotion to Grade-B the said Kameshwar Singh was in the cadre of Grade-C while the petitioner was in the cadre of Grade-D. However, the order with respect to grant of promotion of petitioner to Grade-C or Grade-D has not been brought on record but he same is evident from the Office Order dated 06.09.1993.
5. The said Kameshwar Singh has been granted promotion and ultimately when he had been granted promotion as Suprevisory Grade-B cadre sometime in the year 2008, but the petitioner was granted promotion as Supervisory Grade-B vide Office Order dated 04.05.2013 and therefore the grievance has been raised by the petitioner that he has been subjected to discrimination by granting promotion to said Kameshwar Singh as Supervisory Grade-B in the year 2008 and therefore the instant writ petition.
6. It is not in dispute on the basis of the material available on record that the petitioner as well as the said Kameshwar Singh has been appointed by way of same transaction i.e., 08.07.1983. They have also been promoted to Grade-D cadre by virtue of the same transaction by virtue of Office Order dated 06.03.1990. It is evident from Anneuxre-3 i.e., Office Order dated 06.09.1993, that said Kameshwar Singh in the meanwhile has been posted in Grade-C cadre while the petitioner remained in Grade-D cadre and therefore the said Kameshwar Singh has been promoted from Grade-C to Grade-B while the petitioner has been granted promotion from Grade-D to Grade-C.
7. Thus, it is evident that prior to 06.09.1993, the cadre of the petitioner vis-a-viz Kameshwar singh has been changed but the same has not been questioned by the petitioner at that time, save and except the representation filed by the petitioner in the year 1995 as claimed questioning the promotion of the said Kameshwar Singh to Grade-B while the promotion of petitioner to Grade-C. It is settled that the question of inter se seniority depends upon 5 the cadre and once the cadre has been changed, the question of seniority will depend upon the position of one or other employee on the basis of their position in the cadre, an employee working in a cadre cannot claim parity with the employee working in another cadre.
8. Here in the instant case, ultimately the petitioner's cadre has been changed from that of the said Kameshwar Singh, the day when the said Kameshwar Singh has been placed in Grade-C which is prior to the date of promotion of petitioner to Grade-C as would be evident from the Office Order dated 06.09.1993. The respondent management thereafter has granted promotion to said Kameshwar Singh to the higher post prior to the consideration of the case of petitioner which is on the basis of the promotion given to Kameshwar Singh in the higher cadre prior to that of the petitioner.
9. The petitioner has been granted promotion as Supervisory Grade-B on 04.05.2013 while the said Kameshwar Singh has been granted promotion in the aforesaid cadre sometime in the year 2008.
According to the considered view of this Court that the day when the cadre of the petitioner vis-a-viz the said Kameshwar Singh has been changed, the petitioner cannot claim parity with the said Kameshwar Singh and therefore if the said Kameshwar Singh has been granted promotion as Excavation Grade-B sometime in the year 2008, is not available to the petitioner to question his promotion on the ground that he has been granted promotion in the aforesaid cadre on 04.05.2013, it is for the reason that the same has been given on the basis of the change in the cadre i.e., by granting promotion to said Kameshwar Singh in the higher cadre and therefore the cause of action of the petitioner occurred on the date when the said Kameshwar Singh has been given promotion in the Grade-C, but the petitioner has not challenged it.
10. Petitioner has tried to impress upon the Court that his cause of action has started in the year 2013, the day when he has been granted promotion in the Supervisory Grade-B while the said Kameshwar Singh has been granted promotion in the same cadre sometime in the year 2008 but the said promotion according to my considered view is the consequence of change in the cadre which has taken way back in the 6 year 1993. The consequence cannot be questioned unless and until its origin will be challenged, meaning thereby, the petitioner is questioning the action of the authority treating the cause of action arisen w.e.f. 04.05.213 but this notion of the petitioner is not fit to be accepted for the reason that the promotion granted to him on 04.05.2013 on Supervisory Grade-B is the consequence of change in his cadre which took place way back prior to 06.09.1993, the day when the said Kameshwar Singh had been promoted to Grade-C and the petitioner had been granted promotion as Grade-C subsequent to him.
Therefore, cause of action which arose way back on 06.09.1993 he is questioning it in the year 2015, hence the writ petition is hopelessly barred by the Principle of delay and laches, as per the settled position of law that if there is delay in approaching the Court of equity the same may not be influenced with. Reference in this regard may be made to the judgment rendered by the Hon'ble Supreme Court in the case of Chennai Metropolitan Water Supply and Sewerage Board and Others Vs. T.T. Murali Babu (supra), pr.14, 15 & 16 which are quoted hereinbelow:-
"14. In State of Maharashtra v. Digambar, while dealing with exercise of power of the High Court under Article 226 of the Constitution, the court observed that: (SCC p. 692, para 19) "19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct."
15. In State of M.P. v. Nandlal Jaiswal the Court observed that:
(SCC p. 594, para 24) "24. ...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 the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic."
It has been further stated therein that: (Nandlal Jaiswal case, SCC p. 594, para24) 7 "24. ...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 its writ jurisdiction."
Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice.
16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the court would be under legal obligation to scrutinise whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis."
11. Therefore, this Court refrain itself in entertaining the writ petition for passing positive order in favour of the petitioner, hence the writ petition fails and it is dismissed.
(Sujit Narayan Prasad, J.) Saurabh