Meghalaya High Court
Samir Chandra Kar vs . Union Of India & Ors on 5 August, 2019
Bench: Ajay Kumar Mittal, H.S. Thangkhiew
Serial No.03
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WA No.17/2019
Date of Order: 05.08.2019
Samir Chandra Kar Vs. Union of India & ors
Coram:
Hon'ble Mr. Justice Ajay Kumar Mittal, Chief Justice
Hon'ble Mr. Justice H.S. Thangkhiew, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. H Abraham, Adv
For the Respondent(s) : Mrs. R Dutta, Adv
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Per Ajay Kumar Mittal, 'CJ': (ORAL):
1. This intra-court appeal is directed against the judgment and order dated 16.08.2018 passed in WP (C) No.161 of 2013, whereby the learned Single Judge of this Court has dismissed the writ petition.
2. The appellant has pleaded that he was appointed as Lower Division Assistant (LDA) in the respondent Department on 20.08.1981 and promoted to the post of Upper Division Assistant (UDA) on 01.03.1992. Thereafter, he was promoted to the post of Head Assistant on 01.01.2006 and as Senior Accountant on 01.01.2009.
3. According to the appellant no rules had been formulated which were prevalent for promotion. The Ministry of Home Affairs framed the rules and notified on 06.09.2001 vide G.S.R. 502 [Assam Rifles Field Officers (Group „C‟) Civilian Ministerial Posts Recruitment Rules, 2001] (in short "the Rules of 2001"). Rule 4 of the Rules of 2001 is relevant for the purposes of this appeal which reads thus:-
"4. Initial Constitutions- The incumbents of the posts of Group "C" non combatised posts, who were appointed to the posts before the commencement of these rules shall be deemed to have been appointed under these rules and the services rendered by them in 1 the said posts shall be taken into account for deciding their eligibility for promotion to the next higher grade." The aforesaid rule postulates that the interest of the officials who were appointed before the commencement of these rules shall be protected. In other words, they shall be deemed to have been appointed under the said rules with the protection that the services rendered by them on a post, shall be taken into account in deciding their eligibility for promotion to the next higher grade. In accordance with the Schedule appended to the said rules, LDA gets a right to be promoted to the post of UDA after completion of 8 years of regular service as LDA. UDA becomes entitled for promotion to the post of Head Assistant after having completed 5 years of regular service as UDA, whereas, Head Assistant is eligible for promotion to the post of Senior Accountant after completion of 3 years of regular service as Head Assistant.
4. The appellant applying the said rules claimed that he was eligible to be promoted to the post of UDA in the year 1989 i.e., date when he had completed 8 years of regular service as LDA and thereafter, on completion of 5 years of regular service as UDA, he ought to have been promoted to the post of Head Assistant w.e.f. 1994. The next promotion of Senior Accountant was due after 3 years of regular service as Head Assistant in the year 1997.
5. We have heard learned counsel for the parties.
6. The appellant was promoted to the post of Head Assistant on 01.01.2006 and thereafter, promoted to the post of Senior Accountant on 01.01.2009 on the basis of the Rules of 2001. According to the appellant as per the Rules of 2001, he was entitled to the promotion as UDA in the year 1989, as Head Assistant w.e.f. 1994. In 1997 he was to be promoted as Senior Accountant, whereas, illegally he was granted promotion as Head Assistant on 01.01.2006 and to Senior Accountant on 01.01.2009.
7. The learned Single Judge refused to interfere and allow relief to the appellant on the ground of delay and laches as the appellant had failed to tender any satisfactory explanation for not seeking redressal of his grievance at the appropriate time. The delay in the peculiar facts and 2 circumstances of the present case is attributable to sheer negligence of the appellant. Firstly, in term of the Rules of 2001, the cause of action arose to the appellant in 2001 when these rules were notified, thereafter the appellant could have challenged, his promotion to the post of Head Assistant on 01.01.2006 and again on promotion to the post of Senior Accountant on 01.01.2009 whereas, the appellant approached this Court in 2013 by way of WP (C) No.161 of 2013. The appellant did not challenge his promotion at the appropriate time and had allowed the seniority to crystallize. The learned Single Judge in paras 4, 5 and 9 of his judgment had observed as under:-
"4. Learned counsel for the respondents has rightly pointed out that the petition as belated, if relief is granted to the petitioner that will have multidimensional ramification because seniority fixed from time to time at the respective levels will totally get disturbed. He has also rightly pointed out that the petitioner was promoted to the post of Head Assistant on 01.01.2006 and then, promoted to the post of Senior Accountant on 01.01.2009 in accordance with the rules of 2001. The petitioner has not challenged in the year 2006 or in the year 2009 his promotion to the post of UDA on completion of his 8 years of regular service as LDA nor he has challenged or represented for his promotion as Head Assistant in terms of the rules of 2001. There was an occasion for him to challenge in the year 2006 then again, the petitioner‟s misfortune for having not challenged his due dates of promotion in the years 2001, 2006 and 2009 now, latches stand in his way.
5. Delay, in fact, is condonable provided sufficient cause for same is projected in the petition. No cause whatsoever has been projected which would justify in-action in representing for getting whatever was due to the petitioner. To condone the delay shall be a step in direction for advancing the cause for justice because when substantial justice and technical justice are pitted against each other, former has to be preferred provided sheer negligence is not attributable to the seeker thereof. The agony of the petitioner is compounded by two factors; (1) the petitioner has not exhibited alertness in redressal of his grievance though learned counsel for the petitioner tried to project that the Rules of 2001 were not within the knowledge of the petitioner but such a contention is negated by the fact that it is under the Rules of 2001 he was promoted from the post of UDA to Head Assistant and then, from the post of HA to the post of Senior Accountant in the years 2006 to 2009 respectively. Instant petition is filed in the year 2013, initially cause accrued to the petitioner in the year 2001 when rules were notified, then in the year 2006 and again in 3 the year 2009; so delay is of considerable period, without any justified cause forthcoming, cannot be overlooked.
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9. It is unfortunate that the petitioner has not projected his grievance regarding due dates of his promotion at the level of UDA, HA and Senior Accountant. Initially, cause had accrued to him when the Rules of 2001 were notified, then, again in the years 2006 and 2009 when he was promoted as Head Assistant and Senior Accountant respectively. He has slept over the matter till 2013 i.e., date of filing the instant petition."
8. Further, the disturbance in the seniority list at this belated stage would result in displacing the seniority at various levels i.e. UDA, Head Assistant and Senior Accountant. The Apex Court in Shiba Shankar Mohapatra and Others v State of Orissa and Others: (2010) 12 SCC 471 delving into similar issue had declined to disturb the seniority list on the ground of delay and laches. It was recorded in para 30 as under:-
"30. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal, this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case some one agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation."
9. After hearing learned counsel for the parties and perusing of the record, we are of the opinion that no error could be pointed out by the learned counsel for the appellant in the judgment impugned herein. Accordingly, finding no merit in the appeal, same is dismissed.
(H.S. Thangkhiew) (Ajay Kumar Mittal)
Judge Chief Justice
Meghalaya
05.08.2019
"Lam AR-PS"
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