Himachal Pradesh High Court
Manohar Lal vs H.P. Vidhan Sabha And Others on 10 January, 2017
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
LPA No. 69/2015
.
Reserved on: 27.12.2016
Decided on: January 10, 2017
___________________________________________________
Manohar Lal. ...Appellant.
Versus
H.P. Vidhan Sabha and others. ...Respondents.
_____________________________________________________________
of
Coram:
Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice
rt
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1 Yes
For the Appellant: Mr. P.D. Nanda, Advocate.
For the Respondents: Mr. Dushyant Dadwal, Advocate for
respondents No. 1 and 2.
Mr. Shrawan Dogra, A.G. with Mr. Anup
Rattan, Mr. Romesh Verma, Addl. A.Gs.
and Mr. J.K. Verma, Dy. A.G. for
respondent No.4.
Respondent No.3 ex parte.
_________________________________________________________
Justice Tarlok Singh Chauhan, Judge:
The writ petitioner is the appellant, who aggrieved by the judgment rendered by the Writ Court 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 2whereby it denied the quashing of the promotion order of respondent No.3, has filed the instant appeal.
.
2. Briefly stated the facts, as pleaded, are that respondent No.1 created an additional post of Senior Assistant and for filling up the said post, Departmental Promotion Committee (for short 'DPC') of was held on 31.8.2007 and on the basis of Recruitment and Promotion Rules prevalent, it was rt respondent No.3, who came to be promoted vide order dated 1.9.2007.
3. This promotion was challenged by the petitioner on the ground that the post in question was reserved for Scheduled Caste candidate and, therefore, respondent No.3 who is belonging to general category, could not have been promoted to the post.
4. Obviously, this position was not only disputed but contested by the respondents and consequently, the petition came to be dismissed vide impugned judgment dated 2.4.2015.
5. We have heard the learned counsel for the parties and have gone through the material placed on record.
::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 36. We really wonder why the Writ Court took the trouble and ventured to go into the merits of the .
case when admittedly the promotion was made on 1.9.2007 and the instant petition came to be filed after a lapse of more than four years thereafter only on 12.9.2011 and in such circumstances, the writ of petition was clearly barred by delay and laches and ought to have been dismissed at that stage itself.
7. rt Normally, delay itself may not defeat the party's claim or relief unless the position of the opposite party has been irretrievably altered or would be put to undue hardship. Delay is not absolute impediment to exercise judicial discretion and rendering of substantial justice and such matters lie in the exclusive discretion of the Court, which discretion obviously has to be exercised fairly and justly. The underlying principle behind dismissal of petition on the ground of delay and laches is to discourage agitation of stale claim and has to be construed from the perspective of the opposite party being prejudiced especially when the delay effects others' ripened rights, which may have attained finality. Each case will have ::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 4 to be decided on its own facts and merits. There may be cases where the demand of justice is so compelling .
that the Court would be inclined to interfere inspite of delay. Ultimately, as observed above, it would be a matter within the discretion of the Court.
8. However, as regards the service matters, of more particularly, pertaining to seniority and promotion, the delay is to be strictly construed or else rt it would amount to unsettling the settled matters after a lapse of time. A person aggrieved by an order of promotion 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 of the Constitution of India in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then ::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 5 approach the Court to put forward stale claims and try to unsettle 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 of normal work. (Refer: P.S. Sadasivaswamy vs. State of Tamil Nadu, AIR 1974 SC 2271).
9. Hon'ble rt The judgment rendered by a Bench of two Judges in P.S. Sadasivaswamy's case (supra) was thereafter reaffirmed by a Bench of three Hon'ble Judges in case S.I. Paras Kumar and others vs. S.I. Ram Charan and others, (2004) 6 SCC 88.
10. If the appellant wanted to invoke jurisdiction of a writ-Court, he should have come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the ::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 6 rights of third parties have accrued in the meantime.
(Refer: Tridip Kumar Dingal and others vs. State of .
West Bengal and others, (2009) 1 SCC 768)
11. It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the of relief as a matter of right as one of the grounds for refusing relief is that the person approaching the rt Court is guilty of delay and the laches. The Court exercising public law jurisdiction does not encourage agitation of stale claims where the right of third parties crystallises in the interregnum. (Refer: Shiba Shankar Mohapatra and others vs. State of Orissa and others, (2010) 12 SCC 471).
12. At this stage it shall be profitable to refer to the following observations of the Hon'ble Supreme Court in Vijay Kumar Kaul and others vs. Union of India and others, (2012) 7 SCC 610 as under:
"[23] It is necessary to keep in mind that claim for the seniority is to be put forth within a reasonable period of time. In this context, we may refer to the decision of this Court in P.S. Sadasivaswamy v. State of Tamil Nadu, 1974 AIR(SC) 2271, wherein a two-Judge Bench has held thus: -::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 7
"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 courts to put forward stale claims and try to of unsettle matters."
[24] In Karnataka Power Corporation Ltd. & Anr. v. K. Thangappan & Anr., 2006 AIR(SC) 1581 this Court had rt held thus that delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports, 1970 AIR(SC) 769. Of course, the discretion has to be exercised judicially and reasonably.
[25] In City Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala & Ors., 2009 AIR(SC) 571 this Court has opined that one of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the ::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 8 rights of third parties may have accrued in the interregnum.
[26] From the aforesaid pronouncement of law, it is .
manifest that a litigant who invokes the jurisdiction of a court for claiming seniority, it is obligatory on his part to come to the court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy.
of [27] The acts done during the interregnum are to be kept in mind and should not be lightly brushed aside. It becomes an obligation to take into consideration the rt balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time."
13. A stale claim of getting promotional benefits normally should not be entertained and reference in this regard can conveniently be made to the judgment rendered by the Hon'ble Supreme Court in State of Uttaranchal and another vs. Shiv Charan Singh Bhandari and others, (2013) 12 SCC 179, wherein it was held as under:
"[14] The centripodal issue that really warrants to be dwelled upon is whether the respondents could have been allowed to maintain a claim petition before the tribunal after a lapse of almost two decades inasmuch ::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 9 as the said Madhav Singh Tadagi, a junior employee, was conferred the benefit of ad hoc promotion from 15.11.1983. It is not in dispute that the respondents .
were aware of the same. There is no cavil over the fact that they were senior to Madhav Singh Tadagi in the SAS Group III and all of them were considered for regular promotion in the year 1989 and after their regular promotion their seniority position had been maintained. We have stated so as their inter-se seniority in the promotional cadre has not been of affected. Therefore, the grievance in singularity is non- conferment of promotional benefit from the date when the junior was promoted on ad hoc basis on rt 15.11.1983.' [15] It can be stated with certitude that when a junior in the cadre is conferred with the benefit of promotion ignoring the seniority of an employee without any rational basis the person aggrieved can always challenge the same in an appropriate forum, for he has a right to be considered even for ad hoc promotion and a junior cannot be allowed to march over him solely on the ground that the promotion granted is ad hoc in nature. Needless to emphasise that if the senior is found unfit for some reason or other, the matter would be quite different. But, if senior incumbents are eligible as per the rules and there is no legal justification to ignore them, the employer cannot extend the promotional benefit to a junior on ad hoc basis at his whim or caprice. That is not permissible.
[16] We have no trace of doubt that the respondents could have challenged the ad hoc promotion conferred on the junior employee at the relevant time. They chose not to do so for six years and the junior employee held the promotional post for ::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 10 six years till regular promotion took place. The submission of the learned counsel for the respondents is that they had given representations at the relevant .
time but the same fell in deaf ears. It is interesting to note that when the regular selection took place, they accepted the position solely because the seniority was maintained and, thereafter, they knocked at the doors of the tribunal only in 2003. It is clear as noon day that the cause of action had arisen for assailing the order when the junior employee was promoted on ad of hoc basis on 15.11.1983.
17. In C. Jacob v. Director of Geology and Mining and another, 2008 10 SCC 115 a two-Judge rt Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations and the challenge to the said rejection thereafter.In that context, the court has expressed thus: -
"Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim."
[18] In Union of India and others v. M.K. Sarkar, 2010 2 SCC 59 this Court, after referring to C. Jacob has ruled that when abelated representation in regard to a "stale" or "dead" issue/dispute is considered and ::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 11 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, of nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
rt [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.
20. In Karnataka Power Corpn. Ltd. through its Chairman & Managing Director v. K. Thangappan and another, 2006 4 SCC 322 the Court took note of the factual position and laid down that when nearly for two decades the respondent-workmen therein had remained silent mere making of representations could not justify a belated approach.
[21] In State of Orissa v. Pyarimohan Samantaray, 1977 3 SCC 396 it has been opined that making of repeated representations is not a satisfactory explanation of delay. The said principle was reiterated in State of Orissa v. Arun Kumar Patnaik, 1976 3 SCC
579. ::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 12 [22] In Bharat Sanchar Nigam Limited v. Ghanshyam Dass (2) and others, 2011 4 SCC 374 a three-Judge Bench of this Court reiterated the .
principle stated in Jagdish Lal v. State of Haryana, 1997 6 SCC 538 and proceeded to observe that as the respondents therein preferred to sleep over their rights and approached the tribunal in 1997, they would not get the benefit of the order dated 7.7.1992. [18] In State of T.N. v. Seshachalam, 2007 10 SCC 137 this Court, testing the equality clause on the of bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: -
"....filing of representations alone would not save the rt 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."
[24] There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and Kashmir and another, 2009 15 SCC 321.
[25] In New Delhi Municipal Council v. Pan Singh and others, 2007 9 SCC 278 the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, ::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 13 as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary .
jurisdiction.
[26] Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivasway v. State of Tamil Nadu, 1975 1 SCC 152 wherein it has been laid down 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 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 rt 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. [27] We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Any one who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion.
::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 1428. 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."
of
14. Even on merits, it would be noticed that the claim put forth by the appellant was that the rt promotional post of Senior Assistant was reserved for Scheduled Caste category and, therefore, should have been filled up from that category alone. Learned Writ Court rejected the plea raised by the appellant on the ground that the benefit of reservation for promotion to the post of Senior Assistant could not be granted as there is no reservation in promotion.
15. When the case had come earlier before this Court, learned counsel for the appellant had vehemently argued that the benefit of reservation is also available in promotion and would impress upon us that there are instructions to this effect issued by the State and Central Governments. It was then on 11.5.2016, the State of Himachal Pradesh through ::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 15 Secretary (GAD) was ordered to be arrayed as respondent No.4 and directed to seek instructions in .
the matter. Respondent No.4 has filed a detailed affidavit extracting therein the complete history of reservation wherein it has been mentioned that the Hon'ble Supreme Court in Himachal Pradesh of Scheduled Tribes Employees Federation and another vs. Himacahal Pradesh Samanaya Varg rt Karamchari Kalayan Mahasangh and (2013) 10 SCC 308 had directed the State Government others, to take necessary policy decision on the question of providing reservation to the members of Scheduled Caste and Scheduled Tribe in the matter of promotion.
16. Notably, at the earlier stage, it was decided that in view of ongoing process of Constitution (117th Amendment) Bill, 2012 in the Union Government, the matter regarding implementation of Constitution (85th Amendment) Act, 2001 may be deferred and the existing reservation system be continued till finalization of the matter relating to Constitution (117th Amendment) Bill, 2012 and accordingly instructions in this behalf were issued on 31.1.2013.
::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 1617. However, the Hon'ble Supreme Court on 13.9.2013 in Himachal Pradesh Scheduled Tribes .
Employees Federation's case (supra) directed the State Government to take final decision in the matter within a period of three months and pursuant to such directions the matter was placed in the meeting of of Council of Ministers on 26.10.2013 wherein it was decided that the reservation in promotion to the rt members of Scheduled Caste and Scheduled Tribe as per Constitution (85th Amendment) Act, 2001 may not be granted.
18. The said instructions have been placed with the affidavit as Annexure R-3 and the relevant portion whereof reads as under:
"In view of the above, reservation in promotion to the members of the Scheduled Castes and Scheduled Tribes categories as per the Constitution (85th Amendment) Act, 2001 may not be granted. These instructions will also supersede the instructions issued vide this department's letter No. PER(AP)-C-E(3)-2/2009-III, dated 11.01.2013 and No. PER(AP)-C)F(1)-2/2011, dated 31.01.2013 in this regard earlier."
19. Even otherwise prior to the pronouncement of the judgment in Indra Sawhney vs. Union of India, AIR 1993 SC 477 reservation and promotions ::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 17 were permitted under the law as interpreted by the Hon'ble Supreme Court in General Manager, .
Southern Railway and another vs. Rangachari, AIR 1962 SC 36. However, Indra Sawhney's case over ruled Rangachari's case and specifically addressed the question whether reservation can be of permitted in the matter of promotion under Article 16 (4) and the majority held that the reservation in rt promotions are not permitted under our constitutional scheme.
20. This position of law has been reiterated in a recent judgment of the Hon'ble Supreme Court rendered in Rajeev Kumar Gupta and others vs. Union of India and others, AIR 2016 SC 3228 wherein it was observed as under:
"[14] We now examine the applicability of the prohibition on reservation in promotions as propounded by Indra Sawhney. Prior to Indra Sawhney, reservation in promotions were permitted under law as interpreted by this Court in General Manager, Southern Railway & Another v. Rangachari, 1962 AIR(SC) 36. Indra Sawhney specifically overruled Rangachari to the extent that reservations in promotions were held in Rangachari to be permitted under Article 16(4) of the Constitution. Indra Sawhney specifically addressed the question whether reservations could be permitted in matters of promotion under Article 16(4). The majority held that ::: Downloaded on - 15/04/2017 21:53:16 :::HCHP 18 reservations in promotion are not permitted under our constitutional scheme."
.
21. In view of aforesaid discussion, the judgment rendered by the Writ Court calls for no interference.
22. Consequently, the appeal is dismissed, leaving the parties to bear their own costs.
of
(Mansoor Ahmad Mir),
Chief Justice
rt (Tarlok Singh Chauhan),
Judge.
January 10, 2017
*awasthi*
::: Downloaded on - 15/04/2017 21:53:16 :::HCHP