Himachal Pradesh High Court
Aman Sood vs High Court Of Himachal Pradesh And ... on 2 January, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 9175 of 2012 Reserved on: 10.10.2023 Date of Decision: 02.01.2024 .
Aman Sood .....Petitioner.
Versus
High Court of Himachal Pradesh and others .....Respondents.
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
of Hon'ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Sunil Mohan Goel, Advocate.
rt For the respondents : Mr. Rajiv Jiwan, Senior Advocate with Mr. Vikas Rathore, Advocate, for respondent No.1.
Mr. Vinay Kuthiala, Senior Advocate with Mr. Devi Singh Verma, Advocate, for respondents No. 2 to 5, 7 and 8.
None for respondent No.9 though served for 28.09.2021.
Bipin Chander Negi, Judge The petitioner was appointed as a Civil Judge (Jr. Div.) on 10.06.1999. The petitioner was confirmed on the aforesaid post on 10.06.2002. Service of the petitioner is governed by the Himachal Pradesh Judicial Service Rules, 2004. The next promotional post for the petitioner is that of a Civil Judge (Sr. Div.). For being considered for promotion to the post of Civil Judge (Senior Division) minimum five years experience in the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 02/01/2024 20:33:31 :::CIS 2cadre of Junior Civil Judge is required. Promotion to the post of Civil Judge (Senior Division) is made on the basis of merit-cum-
seniority (Selection post). In the aforesaid backdrop, the .
petitioner became eligible for promotion on 10.06.2004.
2. Vide letter dated 07.10.2004, the present petitioner was communicated an advisory/adverse remark contained in the confidential report of the petitioner for the year 2003-2004. A of Perusal of the letter reflects that the petitioner qua his efficiency was informed that he required improvement in so far as disposal rt of cases is concerned. Besides the aforesaid, the petitioner was informed that in the ACR for the year 2003-2004 he had been graded average. By virtue of the aforesaid letter, the petitioner was informed that he could make a representation against the same within 60 days of the receipt of the said letter. It is an admitted position that no representation was made by the petitioner with respect to the aforesaid communication.
3. In so far as the petitioner is concerned the ACR for the years 1999-2000 was rated as good, 2000-2001 was rated as reasonably good, 2001-2002 was rated average, 2002-2003 for the period 01.04.2002-21.09.2002 was rated as good and for the period 23.09.2002-31.03.2003 was rated as average and for the year 01.04.2003-31.03.2004 was rated as average.
::: Downloaded on - 02/01/2024 20:33:31 :::CIS 34. The Hon'ble Chief Justice on 07.10.2005 had constituted a Committee to evaluate the service record of eligible Judicial Officers of the cadre of Civil Judge (Jr. Div.) for .
promotion to the cadre of Civil Judge (Senior Division). The Committee so constituted, considered the record of the present petitioner alongwith all other eligible candidates. On a perusal of the record of the petitioner, the Committee so constituted was of of the view that the petitioner was not suitable for promotion. The aforesaid report of the Committee was considered by the Hon'ble rt Full Court on 14.07.2006. The Hon'ble Full Court taking into account the report of the Committee resolved that the petitioner was not fit for promotion as a Civil Judge (Senior Division).
5. In pursuance to the aforesaid resolution a Notification dated 19th July, 2006 was issued, whereby promotions were effected to the post of Civil Judge (Senior Division). In the said Notification six promotions were made. Out of the six promotees only Sh. Pune Ram was senior to the present petitioner. All balance (remaining) five candidates promoted to the Civil Judge (Senior Division) were junior to the present petitioner. Feeling aggrieved by the aforesaid promotions, whereby the petitioner had been superseded, the petitioner made a representation dated 13.08.2006 (Annexure P-3) seeking review of the ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 4 Notification dated 19th July, 2006. The same was placed before the Hon'ble Full Court. The Hon'ble Full Court in its meeting held on 15.12.2006 considered and rejected the representation of the .
petitioner, being devoid on merit and a communication in this respect was made to the petitioner vide letter dated 21 st/22nd December, 2006 i.e. Annexure P-4.
6. Subsequent to the aforesaid, the name of the of petitioner was yet again not recommended for promotion as a Civil Judge (Senior Division) keeping in view his service record.
rt The same is evident from proceedings of the Committee dated 30.11.2006 and 01.10.2007. Yet again two juniors namely Sh.
Hans Raj and Sh. Barinder Thakur were promoted. Hence, this was the second occasion when the petitioner had been superseded. No representation against the aforesaid supersession was filed by the petitioner.
7. Vide office order dated 22.06.2007 it was ordered by the High Court that an 'Average' remarks in the ACR was to be treated an adverse entry henceforth. Accordingly, it was ordered to communicate the same to the concerned Officer in order to enable him /her to made an appropriate representation.
8. On 15.02.2008, the present petitioner through proper channel submitted a representation, thereby highlighting undue ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 5 hardship being caused to the petitioner on account of the fact that his juniors in the gradation list of 01.01.2007 were drawing a higher salary. Thereafter, on 18.09.2008, the present petitioner .
submitted yet another representation seeking a review of his annual confidential report for the year 2003/2004 which as has already been stated supra had been communicated to the present petitioner vide letter dated 07.10.2004. It is here for the of first time the petitioner raised a plea qua non supply of ACRs' other than the aforesaid.
rt
9. The present petitioner vide Notification dated 31.01.2009 was promoted as a Civil Judge (Senior Division) (Annexure P-8). Vide Notification dated 02.12.2009 promotions effected on adhoc basis of Civil Judge (Senior Division) dated 19.07.2006 were made regular.
10. In the aforesaid facts and attending circumstances, initially, the petition was filed on 08.09.2012. The following two reliefs were sought, at that stage:
1. That this Hon'ble Court may be pleased to issue a writ of Certioreri quashing communication dated 21/22 December, 2006 ( Annexure P-4) ( Page 30) vide which the petitioner was informed that representation of the petitioner dated 13.08.2006 was considered and rejected.
2. That this Hon'ble Court may be pleased to issue a writ of directing the respondent to ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 6 promote the petitioner to the post of Civil Judge(Junior Division) on adhoc basis, w.e.f.
19th July, 2006 with all consequential benefits i.e. the date when six Civil Judges(Junior Division) were ordered to be promoted as Civil Judge (Senior Division) on adhoc basis .
including officers junior to the petitioner and thereafter promote the petitioner as such on regular basis w.e.f. October, 2009 i.e. the date when officers junior to the petitioner were promoted as such on regular basis vide Notification dated 02.12.2009 with all consequential benefits."
of Conspicuous by absence was a challenge/mention to the promotions of Sh. Hans Raj, Barinder Thakur who were rt admittedly juniors to the petitioner and had superceeded the petitioner on the 2nd occasion.
11. Thereafter, in the year 2015, an application for impleading the private respondents, who had superseded the petitioner, was filed. Alongwith the same, an application for amendment of the petition was sought. The aforesaid applications for impleadment and amendment of the petition were allowed vide order dated 23.08.2021. Post amendment, the below mentioned additional relief was sought:
" That the respondent No.1 may kindly be directed to consider the case of the petitioner for promotion to the post of Additional District & Sessions Judge from the date respondents No. 2 to 7 were promoted with all consequential benefits and further petitioner may be placed above respondents No.2 to 7 in the seniority list."::: Downloaded on - 02/01/2024 20:33:31 :::CIS 7
The relief now being sought would otherwise have been covered by the doctrines of lis pendence.
12. Other than aforesaid yet another application was filed .
by the petitioner to place on records ACRs of the relevant years obtained by the petitioner under the Right to Information Act. The same were taken on record vide the aforesaid order dated of 23.08.2021.
13. In the aforesaid factual matrix, the main argument by rt the learned counsel appearing for the petitioner is that since 'Good' report in a particular year which, in a succeeding one and without his knowledge was reduced to the level of 'Average' without any communication to him, it was certainly adverse, therefore, the same was compulsorily communicable. It was further contended that the same has had civil consequences because it has affected his chances for promotion. According to the learned counsel for the petitioner, the same should not have been taken into consideration for being considered for promotion to the higher grade.
14. In support of his contention, learned counsel appearing for the petitioner has placed reliance upon U.P. Jal Nigam v. Prabhat Chandra Jain, (1996) 2 SCC 363 , Dev Dutt v. Union of India (2008) 8 SCC 725, Abhijit Ghosh Dastidar v.
::: Downloaded on - 02/01/2024 20:33:31 :::CIS 8Union of India (2009) 16 SCC 146, Sukhdev Singh v. Union of India, (2013) 9 SCC 566.
15. In the aforesaid backdrop, learned counsel for the .
petitioner has further argued that as has been enunciated in Dev Dutt vs. Union of India (2008) 8 SCC 725 fairness and transparency in public administration require that all entires in the ACRs of a Judicial Officer must be communicated to him within a of reasonable period so that he can make a representation for its up-
gradation. AS per learned counsel for the petitioner the aforesaid rt principle has been observed more in its breach rather than its observance. Hence a patent illegality has occurred.
According to the counsel for the petitioner since no third party rights have crystallized therefore corrective action needs to be taken. In this respect he has placed reliance on LPA No. 74 of 2017, titled as Rajinder Kumar vs. High Court of H.P. & ors., 2022 (12) SCC 579, titled as Ajay Kumar Srivastava vs. Arvind Rai & Ors. Alongwith others connected matters.
Besides the aforesaid it has been contended by the petitioner that though he had been superseded on two occasions in the year 2006, 2007 and representation qua the first supersession stood rejected in December, 2006 even though he had filed the petition in September, 2012 the same did not suffer ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 9 from any delay and laches as no third-party rights had accrued during the interregnum. He has placed reliance on 1974 (1) SCC 317, titled as Ram Chandra Shankar Deodhar & ors vs. State .
of Maharashtra & ors. and AIR 2010 SC 706, titled as Shiba Shankar Mahapatra & ors. vs. State of Orissa & others to canvass that 3-4 years is a reasonable period to challenge seniority. Hence, the same parameter should be applied in case of of supersession of the petitioner.
He has further contended that not looking into a stale rt claim is a Rule of prudence based on sound and proper exercise of discretion. In this respect he has placed reliance on 1975 (3) SCC 459, titled as Joginder Nath & Ors. vs. Union of India & Ors. and 1984 (4) SCC 329, titled as G.P. Doval vs. Chief Secretary, Govt. of U.P. According to him, it is not just the length of delay but also the nature of acts done during the interval. In the case at hand, it is argued that his acquiescence will not matter as no third-party rights accrued during the interval. In this respect, reliance is placed on LPA No. 74 of 2017, titled as Rajinder Kumar vs. High Court of H.P. & ors. and 2022 (2) SCC 301, titled as Chairman State Bank of India & another vs. M.J. James.
::: Downloaded on - 02/01/2024 20:33:31 :::CIS 10Lastly, it is contended that if the inception is bad then the subsequent acts must go. To buttress the said contention, reliance is placed on 2011 (14) SCC 770, titled as State of .
Punjab vs. Devinder Pal Singh Bhullar & Ors. and 2000 (8) SCC 395, titled as Badrinath vs. Govt. of T.N.
16. Per contra, learned counsel appearing for the Hon'ble High Court has argued that the petition suffers from delay and of laches and, therefore, the same is liable to be dismissed on the sole account alone. The contention of the counsel is that the rt petitioner had been superseded initially on 19 th July, 2006.
Representation with respect to the same stood dismissed in December, 2006 itself. The ACRs entry for the year 2003-2004 had been communicated to the present petitioner on 07.10.2004.
The petitioner chose not to make any representation. Even otherwise initially when the petitioner had been superseded had he been vigilant he would have sought for the relevant record and initiated appropriate necessary action. But in the case at hand according to the learned counsel the petitioner slept over his rights. Moreover, till the filing of this petition private respondents had been promoted superseding the present petitioner and hence, according to the counsel third-party rights had accrued which would be to the detriment of the present petitioner.
::: Downloaded on - 02/01/2024 20:33:31 :::CIS 11According to the learned counsel appearing for the High Court, no challenge has been made by the petitioner to the orders, whereby he had been superceded and further the orders .
whereby the Officers so superceding the petitioner had been regularized.
According to learned counsel appearing on behalf of the High Court a perusal of entry No.6 in all ACRs relevant for the of period, in question, which have been placed on record by the petitioner it is evident that the petitioner has been graded on rt account of low disposal of cases. The counsel for the private respondents have adopted the arguments made by the counsel representing the High Court.
17. Heard learned counsel for the parties and perused the records.
18. Before dealing with the principal contention of the petitioner, it would be appropriate to discuss the law declared by the Apex Court in the judgments relied upon by the petitioner.
19. In U.P. Jal Nigam v. Prabhat Chandra Jain, (1996) 2 SCC 363 before the High Court, the petitioners' plea was that downgrading entries in confidential reports cannot be termed as adverse entries so as to obligate the Nigam to communicate the same to the employee and attract a representation. This ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 12 argument was turned down by the High Court. The High Court to justify its view gave an illustration that if an employee legitimately had earned an 'Outstanding' report in a particular year which, in a .
succeeding one and without his knowledge, is reduced to the level of 'Satisfactory' without any communication to him, it would certainly be adverse and affect him at one or the other stage of his career.
of
20. In the aforesaid backdrop, Apex Court was of the view that the extreme illustration given by the High Court may reflect rt an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'Very Good' to 'Good' that may not ordinarily be an adverse entry since both are a positive grading. All that is required by the authority recording confidential in the situation is to record reasons for such downgrading on the personal file of the Officer concerned, and inform him of the change in the form of an advice.
21. Subsequent to the aforesaid in Union of India v.
Major Bahadur Singh (2006) 1 SCC 368, wherein a Division Bench of the Apex Court sought to distinguish U.P. Jal Nigam stated as follows:
'8. As has been rightly submitted by the learned counsel for the appellants U.P. Jal Nigam case has no universal application. The judgment itself shows that it was ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 13 intended to be meant only for the employees of U.P. Jal Nigam only.'
22. Thereafter in Dev Dutt v. Union of India (2008) 8 SCC 725, the Supreme Court had an occasion to consider the .
question about the communication of the entry in the ACR of a public servant (other than military service). A two-Judge Bench on elaborate and detailed consideration of the matter and also after of taking into consideration the decision of this Court in U.P. Jal Nigam and principles of natural justice exposited by the Apex rt Court from time to time concluded that every entry in the ACRs of a public servant must be communicated to him within a reasonable period whether it is Poor, Fair, Average, Good or Very Good entry.
23. On account of the inconsistency in the decisions in U.P. Jal Nigam v. Prabhat Chandra Jain and Union of India v.
Major Bahadur Singh referred (supra) the matter was heard by a Larger Bench reported as Sukhdev Singh v. Union of India, (2013) 9 SCC 566, wherein it was noticed that a three-Judge Bench of this Court in Abhijit Ghosh Dastidar v. Union of India (2009) 16 SCC 146, followed by Dev Dutt had held that the entry of 'Good' should have been communicated as in the previous year the entry was 'Very Good'. In such circumstances, it was held, non-communication of entries in the ACRs of a public servant ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 14 whether he/she is in Civil, Judicial, Police or any other service (other than the Armed Forces), has civil consequences because it may affect his chances for promotion or getting other benefits. It .
was further held that the same should not be taken into consideration for being considered for promotion to the higher grade. Thereby over-ruling U.P. Jal Nigam case (supra).
24. Reliance placed by the learned counsel appearing for of the petitioner on Dev Dutt's case, is mis-conceived. The Law in vogue when the ACR's in question had been prepared was U.P. rt Jal Nigam v. Prabhat Chandra Jain, (1996) 2 SCC 363. As stated supra the Universal applicability of the U.P. Jal Nigam had been denied in Union of India v. Major Bahadur Singh (2006) 1 SCC 368 by categorically stating that the law declared in U.P. Jal Nigam was intended to be meant only for the employees of U.P. Jal Nigam. Non-communication of entries in the ACRs of the petitioner in question was, therefore, in consonance with the law in vogue at the relevant time.
Even otherwise, if the law declared in U.P. Jal Nigam had universal applicability even then in terms of the law laid down in U.P. Jal Nigam, the graded entry in the case at hand is of going a step down, like falling from 'Good' to 'Average' that may ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 15 not ordinarily be an adverse entry, since both are a positive grading.
25. Even if the plea based on Dev Dutt's case (supra) be .
considered, the cause of action based thereon accrued on 12.5.2008. There has to be a difference between a cause of action and what is perceived as materials in support of the cause of action. A subsequent pronouncement by this Court could not of enthuse a fresh lease of life, or furnish a fresh cause of action to what was otherwise clearly a dead and stale claim.
rt In this respect, reference is made to the decision of Hon'ble Supreme Court in (2018) 5 SCC 798, titled Union of India vs. Chaman Rana, alongwith connected matter.
26. For the forgoing reasons, non-communication in the case at hand was not illegal. All subsequent acts can, therefore, not be faulted with.
27. Reliance has been placed upon judgment in Rajinder Kumar's case, passed by this High Court. Based on the same, it has been contended that delay and laches, if any, on the part of petitioner in filing the petition should not come in the way of the petitioner to do substantial justice, as promotions in the present case were ordered vide order dated 19.7.2006. The petitioner had represented against the same on 13.8.2006, which ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 16 representation was rejected on 21.12.2006/ 22.12.2006. The petitioner had approached the Court on 8.9.2012 and, therefore, he had approached the Court within a period of less than four .
years for redressal of his grievance.
28. Facts of the present case are not similar to the facts of Rajinder Kumar's case. In Rajinder Kumar's case, issued involved was with respect to interse merit of two appointees of of one and the same selection process. Out of the same Select List, but by different notifications, candidate with higher merit was rt appointed in the subsequent Select List. This had been done despite availability of the post and communication of the High Court to the Government to make appointment against the said post before the issuance of first notification. On account of appointment by way of a subsequent notification, the subsequent appointee was reflected junior to the appointees of first list despite the first list appointee having lower merit in the Select List.
Besides the aforesaid, the Tentative List was never published. A gradation list was finally published in 2010 and immediately thereafter subsequent appointee had submitted her representation on 29.9.2010. The incumbents shown senior to her, at that time, were in the same status and were promoted on adhoc basis only in October 2010, i.e. after submission of ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 17 representation by the subsequent appointees, and her representation was accepted by the High Court, rectifying the mistake. In that case, it was admitted by the High Court that .
neither Tentative Seniority List was published nor objections were invited and Final Seniority List was never published at any point of time.
29. In the present case, petitioner was superseded by his of juniors vide Notification dated 19.7.2006. The petitioner made a representation dated 13.8.2006. The representation made was rt considered by the High Court on 21.12.2006 and was rejected.
Communicated thereof was made to the petitioner vide letter dated 21.12.2006/22.12.2006. Thereafter, two juniors of the petitioner were also promoted, superseding the petitioner, against which no representation was made by the petitioner. The petitioner had preferred a representation dated 15.2.2008 for reconsideration of notification dated 19.7.2006 therein a prayer for review of rejection of the earlier representation of the petitioner made on 21.12.2006 was also sought. Thereafter, petitioner remained silent till 2012 and by that time his juniors were further promoted. Therefore, facts and circumstances of present case are entirely different than the facts and circumstances of Rajinder ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 18 Kumar's case and, thus, plea, based on judgment in Rajinder Kumar's case, raised on behalf of petitioner is misconceived.
30. In the given facts and circumstances of the present .
case, on account of accrual of right in favour of juniors due to their further promotion prior to filing of the petition, it would not be equitable to consider the claim of the petitioner which shall have an adverse impact on the private respondents who were not even of made party at the time of filing of the petition initially in the year 2012, but they have been arrayed as respondents in the year rt 2015.
31. In the case at hand promotions have been effected twice i.e. in 2006 and in 2007. On both occasions, the petitioner has been superceded. Hence admittedly third party rights have accrued. A challenge to the said third party rights is actually made in 2015 when the said individuals who have superceded the petitioner are impleaded as party respondents though initially the petition is filed in 2012. Hence, the judgments cited by the petitioner to the effect that Stale claims can be worked into if no third party rights have accrued, are of no help to the petitioner in the case at hand. It is a well settled position of law that supersession needs to be challenged within six months to a year.
In this respect, reference is made to the decision of Hon'ble ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 19 Supreme Court in (1975) 1 SCC 152, titled P.S. Sadasivaswamy vs. State of T.N., (para-2).
32. A reference to Union of India v. Tarsem Singh, .
(2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765, at page 652, with respect to delay in filing the claim in the case at hand, it would suffice to state, normally, a belated service related claim will be rejected on the ground of delay and laches. One of the of exceptions to the said Rule is a case relating to a continuing wrong, which creates a continuing source of injury. But, there is rt an exception to the exception. If the grievance is in respect of any order or administrative decision which relates to or affects several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted inspite of delay as it does not affect the rights of third parties. But, if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied.
33. In service matters especially with regard to promotion there is always an urgency. The entire factual matrix noticed above, depicts the casual approach unmindful of the law of ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 20 limitation/delay and laches despite being aware of the position of law. That apart when there is such a long delay and there is no proper explanation, laches would also come into play while .
noticing as to the manner in which the petitioner has proceeded before filing the present petition. The aggrieved must approach the Court at the earliest opportunity or within a reasonable time, thereafter, as third-party rights accrue in the meantime to those of who are subsequently promoted. Manifestly, the cause of action first arose to the petitioner on the date of initial supersession and rt again on the date when rejection of his representation was communicated to him. As has already been stated supra, in the start of 2007, the petitioner was yet again superseded. Belated interference is bound to have an adverse effect on those already promoted affecting their morale in service. Additionally, to promote the petitioner with retrospective effect, after a considerable time is bound to have serious administrative implications apart from financial burden that would follow by such orders of promotion. It is settled that a period of six months or at the utmost a year would be reasonable time to approach a Court against denial of promotion and it would be a sound and wise exercise of discretion not to entertain such claims by persons like the petitioner, who tried to unsettle the settled matters. Petitions like the present case ::: Downloaded on - 02/01/2024 20:33:31 :::CIS 21 only clog the work of Court impeding it in considering genuine grievances.
34. In the case at hand, the present petitioner has making .
repeated representations. The same would not be a sufficient explanation for delay in approaching the Court for grant of relief.
The claim in the present case according to us, is a dead "stale issue". The modus operandi of the representation syndrome to of revive what a clearly dead and stale claims has been deprecated by the Hon'ble Apex Court.
rt
35. Interference at the behest of the petitioner would result in affecting several others and resultantly would affect settled rights of third-party. Hence, we are of the firm opinion that no interference is called for, at this stage.
The present petition is accordingly dismissed, so also, the pending application, if any.
(Vivek Singh Thakur) Judge (Bipin Chander Negi) Judge 2nd January, 2024 (Nisha) ::: Downloaded on - 02/01/2024 20:33:31 :::CIS