Punjab-Haryana High Court
Harwinder Singh vs Punjab State Power Corporation Limited on 12 December, 2024
Neutral Citation No:=2024:PHHC:166489
1
CWP-32320
32320 of 2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-32320
32320 of 2024
Reserved on: 29.11.2024
Pronounced on: 12.12.2024
Harwinder Singh @ Harwinder Singh Taneja and another
......Petitioners
Versus
Punjab State Power Corporation Limited and others
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by:: - Mr. Ashish Gupta, Advocate,
for the petitioners.
Mr. Sushane Puri, Advocate,
for respondents No.1 and 2.
NAMIT KUMAR, J.
1. The petitioners have invoked the writ jurisdiction of this Court by filing the present petition under Articles 226/22 226/227 of the Constitution of India, India seeking quashing of the seniority list dated 29.09.2023 (Annexure P-5) P 5) and the order dated 05.09.2024 (Annexure P-8), whereby the claim of the petitioners petitioners seeking seniority over and above respondent No.3, No.3 has been rejected. Further, a writ of mandamus has been sought for placing the petitioners above respondent No.3 in the seniority list.
2. The brief facts, as have been pleaded in the petition, are that petitioner No.1 was appointed as LDC on 25.11.1997 and petitioner No.2 was appointed as Steno-typist Steno typist on 09.09.1997 in the 1 of 21 ::: Downloaded on - 15-12-2024 02:21:51 ::: Neutral Citation No:=2024:PHHC:166489 2 CWP-32320 32320 of 2024 erstwhile Punjab State Electricity Board (now PSPCL) and thereafter they were promoted to the post of Revenue Accountant on 220.12.2002 and 23.12.2002, respectively, after qualifying the SAS SAS-I examination.
3. Respondent No.3 was recruited as Apprentice Revenue Accountant on 27.01.2000 and was promoted as Revenue Accountant on 10.02.2003.
10.02.2003. The tentative seniority list dated 10.03.2005 of Revenue Assistants was circulated by the erstwhile PSEB wherein the names of petitioners were at serial numbers 700 and 701 701, whereas the name of respondent No.3 was at serial number 707. Respondent No.3 passed SAS (Part II) examination in October, 2007 and was promoted as Accountant (now Assistant Accounts Officer/Accounts) vide order dated 14.09.2009 (Annexure P-6).
P 6). Petitioner No.1 passed the SAS (Part II) examination in August, 2015 and petitioner No.2 passed the same in February, 2016 and thereafter they both were promoted as Assistant Accounts Officer/Accounts vide orders dated 23.12.2015 and 20.05.2016 (Annexures P-3 P and P-4),
4), respectively. Next promotion from the post of Assistant Accounts Officer/ Accounts is to the post of Accounts Officer and is governed by Regulation 7(d)(i) of the Punjab State Electricity Board Accounts and General Services (Class I and II Officers) Regulations, 1972 and the same reads as under: -
"70% of the total cadre posts by promotion from qualified SAS Accountants (who have actually cleared SAS Part Part-I and Part-II II Examination) having rendered minimum of 5 years as such."
4. Thereafter, respondent No.3 was promoted as Accounts Officer vide order dated 29.09.2023 (Annexure P P-5). The petitioners 2 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 3 CWP-32320 32320 of 2024 served legal notice dated 26.07.2024 (Annexure P P-7) claiming seniority over and above respondent No.3 as Assistant Accounts Officer by stating that since they were senior as Revenue Account Accountants, therefore, they be assigned seniority over over and above respondent No.3 as passing of SAS (Part II) examination is irrelevant for the purpose of fixing of seniority. The said legal notice has been replied by the respondents vide their letter dated 05.09.2024 (Annexure P P-8) wherein it has been stated ted that petitioners were promoted as Revenue Accountants on 20.12.2002 2 and 23.12.2002, respectively and respondent N.3-Deepak Gupta was promoted as Revenue Accountant on 10.02.2003. However, for next promotion as AAO/Accounts, respondent No.3 had passed SAS (Part II) examination in the year October, 2007 whereas petitioners had cleared the said examination much later in August, 2015 and February, 2016. Clause 8(A) 8(A) Sr. No.1 of the Accounts Services Class-III III Regulations, 1991 1991, stipulates that Revenue Accountants/Divisional ountants/Divisional Accountants (now redesignated as Superintendent Divisional/Accounts)/Revenue Superintendent become eligible for promotion as SAS Accountant (now redesignated as AAO/Accounts) only after passing SAS (Part II) examination with minimum five five years' service as Revenue Accountant/Divisional Accountant. A reference of circular dated 17.02.1972 has also been given, which provides that on occurrence of a vacancy in a cadre, the senior-most most eligible person on that date should be considered for promotion on the basis of seniority-cum seniority cum-merit and the appointing authority should not wait for senior persons to acquire eligibility. If on 3 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 4 CWP-32320 32320 of 2024 the date of occurrence of vacancy, no one attains eligibility, the employee becoming eligible eligible earliest thereafter, in order of seniority, should be considered for promotion. In other words, eligibility on the date of occurrence of a vacancy or earliest thereafter shall be taken determining factor for ordering promotion against an existing vaca vacancy in departmental promotions. Consequently, respondent No.3 although junior to the petitioners as Revenue Accountant, became eligible much earlier for next promotion as AAO/Accounts after passing SAS (Part II) examination and accordingly he was rightly promoted as AAO/Accounts on 14.09.2009 against available vacancy. On the date of promotion of respondent No.3, petitioners had not passed SAS (Part II) examination and they were unqualified and hence ineligible for next promotion as AAO/Accounts and since as per 1991 Regulations, seniority inter se of members in a particular cadre is to be determined by the date of their continuous appointment in that post, therefore, respondent No.3, who was promoted as AAO/Accounts prior to the petitioners, was therefore, therefore, ranked senior as AAO/Accounts than the petitioners, who became eligible as AAO/Accounts much later after the promotion of respondent No.3 and accordingly, petitioners were assigned seniority as AAO/Accounts after respondent No.3. Hence, the present petition peti has been filed by the petitioner impugning promotion of respondent No.3, No.3 made to the post of Accounts Officer Officer, vide order dated 29.09.2023 (Annexure P-5) P and for claiming seniority over and above respondent No.3.
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5. Learned counsel for the petitioners has submitted that since the petitioners were senior to respondent No.3 as Revenue Accountants, therefore, promotion of respondent No.3 to the post of Accounts Officer, Officer vide order dated 29.09.2023 29.09.2023, is totally illegal and arbitrary and is liable to be set aside and further directions may be issued to the respondents to assign seniority to the petitioners over and above respondent No.3 as AAO/Accounts and promote the petitioners to the post of Accounts Officer.
Officer
6. Per contra,, learned counsel for respondents No.1 and 2 contended that claim raised by the petitioners is baseless baseless. He further contended that respondent No.3 has rightly been promoted as AAO/Accounts on 14.09.2009, 14.09.2009 against available vacancy and on the date of promotion of respondent No.3, No.3, petitioners had not passed SAS (Part II) examination and they were unqualified and hence ineligible for next promotion as AAO/Accounts and respondent No.3 has rightly been promoted to the next higher post of Accounts Officer Officer.
7. I have heard learned counsel nsel for the parties and perused the record.
8. The facts are not in dispute that petitioner No.1 was appointed as LDC on 25.11.1997 and petitioner No.2 was appointed as Steno-typist typist on 09.09.1997 and thereafter they were promoted to the post of Revenue Accountant Accountant on 20.12.2002 and 23.12.2002, respectively, after qualifying the SAS-I SAS I examination. Respondent No.3 was recruited as Apprentice Revenue Accountant on 27.01.2000 and was promoted as Revenue Accountant on 10.02.2003. Respondent 5 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 6 CWP-32320 32320 of 2024 No.3 passed SAS (Part-II) II) examination in October, 2007 and was promoted as Accountant (now AAO/Accounts) vide order dated 14.09.2009 (Annexure P-6).
P . Petitioner No.1 passed the SAS (Part (Part-II) examination in August, 2015 and petitioner No.2 passed the same in February, 2016 and thereafter both of them were promoted as AAO/Accounts vide orders dated 23.12.2015 and 20.05.2016 (Annexures P-3 P and P-4). Thereafter, respondent No.3 was promoted as Accounts Officer vide order dated 29.09.2023 (Annexure P P-5).
9. From the perusal off the facts stated above, it is clear that firstly there is considerable delay in filing the present writ petition. Respondent No.3 was promoted to the next higher post of AAO/Accounts vide order dated 14.09.2009 (Annexure P P-6) and the said promotion was never challenged by the petitioners. Thereafter, the petitioners were also promoted as AAO/Accounts vide orders dated 23.12.2015 and 20.05.2016 i.e. much after the promotion of respondent No.3. Since respondent No.3 was senior to the petitioners as AAO/Accounts, ccounts, therefore, he has rightly been promoted as Accounts Officer vide order dated 29.09.2023. The cause of action, if any, had accrued to the petitioners in the year 2009, 2009, when respondent No.3 was promoted as AAO/Accounts, AAO/Accounts but the petitioners never ra raised any grievance at that point of time and rightly so because of the fact that the petitioners were not eligible on the said date as they passed the SAS (Part-II) II) examination in the years August, 2015 and February, 2016, respectively. Therefore, they cannot nnot be allowed to rake up the stale issue at this point of time after a period of 15 years.
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10. The Hon'ble Supreme Court in Yunus (Baboobhai) A Hamid Padvekar Vs. State of Maharashtra Through its Secretary and others : 2009 (2) SCT 24, 24, while referring tto the issue of delay and latches, had held as follows:-
follows:
"8. Delay or laches is one of the factors which is to be borne in mind by the High Courts when they exercise their discretionary powers under Article 226 of the Constitution of India, 1950 (in short 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 re 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 (AIR 1970 SC 769).. Of course, the discretion has to be exercised judicially and reasonably.
9. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurde etc. (1874) 5 PC 221 at page 239 was approved by this Court in Moon Mills Ltd. v. Industrial Courts (AIR 1967 SC 1450) and Maharashtra State Transport port Corporation v. Balwant Regular Motor Service (AIR 1969 SC 329)
329), Sir Barnes had stated:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most 7 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 8 CWP-32320 32320 of 2024 material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must bee tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice iin taking the one course or the other, so far as relates to the remedy."
10. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article
226. It was observed in R.N Bose v. Union of India (AIR 1970 SC 470) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court underr Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions titions filed after inordinate delay.
11. It was stated in State of M.P. v. Nandlal (AIR 1987 SC
251) that the High Court in exercise of its discretiondoes not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is iinordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. Thee High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its trail new injustices, and if writ jurisdiction is exercised after unreasonable delay, it 8 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 9 CWP-32320 32320 of 2024 may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an im important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
12. In view of the aforesaid position we are not inclined to interfere in this appeal which is dismissed accordingly."
11. Further the Hon'ble Supreme Court in State of Uttaranchal and another Vs. Sri Shiv Charan Singh Bhandari and others, 2013(6) SLR 629, 629, while considering the issue regarding delay and laches and referring to earlier judgments on the issue, opined that repeated ed representations made will not keep the issues alive. A stale or a dead issue/dispute cannot be revived even if such a representation has been decided either by the authority or by getting a direction from the court as the issue regarding delay and lache laches is to be decided with reference to original cause of action and not with reference to any such order passed. Delay and 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 Constitution of India, in a situation of that nature, will not be attracted as it is well known that law leans in favour of those who are alert and vigilant. Even equality has to be claimed at the right juncture and not on expiry of reasonable time. Even if there is no period prescribed for filing the writ petition under Article 226 of the Constitution of India, yet it should be filed within a reasonable time. An order promoting a junior should normally be challenged within a 9 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 10 CWP-32320 32320 of 2024 period of six months or at the most in a yyear of such promotion. Though it is not a strict rule, the courts can always interfere even subsequent thereto, but relief to a person, who allows things to happen and then approach the court and puts forward a stale claim and try to unsettle settled matters, matters, can certainly be refused on account of delay and laches. Any one who sleeps over his rights is bound to suffer. An employee who sleeps like Rip Van Winkle and got up from slumber at his own leisure, deserves to be denied the relief on account of delay and laches. Relevant paragraphs from the aforesaid judgment are extracted below:
"13. 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 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 ccepted 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 promo promoted on ad hoc basis on 15.11.1983. In C. Jacob v. Director of Geology and Mining and another, (2008) 10 SCC 115 115, a two-Judge Bench was dealing with the concept of representations and the directions issued by the court or tribunal to consider the representations tions and the challenge to the said rejection thereafter. In that context, the court has expressed thus:
thus:-
10 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 11 CWP-32320 32320 of 2024 "Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred ed 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 app 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."
12. In Bharat Sanchar Nigam Limited Vs. Ghanshyam Dass (2) and others, others (2011) 4 SCC 374, a three--Judge Bench of the Hon'ble Supreme Court reiterated the principle stated in Jagdish Lal Vs. State of Haryana, (1997) 6 SCC 538 and proceeded to observe that as the respondents therein preferred preferred to sleep over their rights and approached the tribunal in 1997, they would not get the benefit of the order dated 07.07.1992.
13. In State of T. N. Vs. Seshachalam, (2007) 10 SCC 137, the Hon'ble Supreme Court, testing the equality clause on the bbedrock of delay and laches pertaining to grant of service benefit, has ruled thus:-
"11... 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 art of a government servant may deprive him of the benefit which had been given to 11 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 12 CWP-32320 32320 of 2024 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 an and vigilant."
14. In New Delhi Municipal Council Vs. Pan Singh and others,, (2007) 9 SCC 278, 278, the Hon'ble Supreme 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, as stated earlier, took note of the delay and laches as relevant factors and set set aside the order passed by the High Court which had exercised the discretionary jurisdiction.
15. In a recent judgment by the Division Bench of this Court in "Ram Kumar Vs. State of Haryana and others", 2022 (3) SCT 346, while rejecting the claim of the the petitioner for counting of his ad hoc service, for the purpose of seniority/pension and regularization in service on completion of 02 years as per policy, held that the petition filed by him suffered from gross, inordinate and unexplained delay in approaching ching the High Court. In the said judgment, it has been held as under:-
"10. What we wish to emphasize, in particular, is that services of the appellant were regularized w.e.f. 01.04.1997. And, he was assigned a specific seniority position in the cadre. Whereafter, he continued to serve the department for nearly twenty five yea years, before attaining the age of superannuation in January, 2022. Needless to assert that during all these years, he availed 12 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 13 CWP-32320 32320 of 2024 all admissible benefits, promotions, and retired as Inspector. Thus, it rather appears that institution of the petition by the appellant lant was speculative and an attempt to resurrect a stale and dead claim. The Supreme Court, in New Delhi Municipal Council v. Pan Singh & Ors., 2007(9) SCC 278, observed:
"15. There is another aspect of the matter which cannot be lost sight of. Respondent Respondents herein filed a Writ Petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off off date have been granted the said scale of pay. After such a long time, therefore therefore, the Writ Petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the Court after a long time. Delay and laches are relevant factor factors for exercise of equitable jurisdiction. See Govt. of W.B. v. Tarun K. Roy And Others [(2004) 1 SCC 347], Chairman, U.P. Jal Nigam & Anr. v. Jaswant Singh And Anr. [2006 (12) SCALE 347] and Karnataka Power Corpn. Ltd. through its Chairman & Managing Director tor and Another v. K. Thangappan and Another [(2006) 4 SCC 322] 322]"
11. Similarly, in Jagdish Lal & Ors. Vs. State of Haryana & Ors., (1997) 6 SCC 538,, it was held by the Supreme Court:
13 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 14 CWP-32320 32320 of 2024 "That apart, as this Court has repeatedly held, the delay disentitles the he party to the discretionary relief under Article 226 or 32 of the Constitution. It is not necessary to reiterate all catena of precedents in this behalf. Suffice it to state that the appellant kept sleeping over their rights for long and elected to wake up when they had the impetus from Vir Pal Chauhan and Ajit Singh's ratios.....................
Therefore, desperate attempts of the appellants to re-do do the seniority had by them in various cadres/grades though in the same services according to 1974 Rules or 19 1980 Rule, are not amenable to judicial review at this belated stage...."
12. In the wake of the position as sketched out above, we are dissuaded to interfere with the impugned order and judgment rendered by the learned single Judge. The appeal being bereft off merit is, accordingly, dismissed."
16. The Co-ordinate ordinate Bench of this Court in "Prem Nath and others Vs. State of Punjab and others", 2018(2) SCT 687, while rejecting the claim of additional increments on acquisition of higher qualifications has held as under:-
"3. It is the case set up on behalf of the petitioners that they had all been appointed before 19.02.1979 and had even improved/acquired higher qualifications before 19.02.1979 and as such there would be no difference between the employees working with the Punjab Government, holding corresponding post and the employees like the petitioners who have worked for Punjab Privately Managed Recognised Aided Schools. It is also the assertion made by counsel representing the petitioners that their claim wou would be covered in terms of 14 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 15 CWP-32320 32320 of 2024 decision dated 02.07.2013 rendered by this Court in a bunch of writ petitions including CWP No.8083 of 1989 titled as Radha Krishan Narang and others vs. State of Punjab and others.
4. Having heard counsel for the petitioners at length, this Court is of the considered view that the claim of the petitioners would not require any consideration on merits and the writ petition deserves to be dismissed on the sole ground of delay and laches.
5. Placed on record and appended at Annexure P-1 are the particulars of the petitioners. The tabulation at Annexure P-11 would show that all the petitioners stand retired on various dates between the years 1995 to 2012. Out of 32 petitioners in all, 22 petitioners superannuated more than 10 years back.
6. There is no justification coming forth as regards the inordinate delay in having approached the Writ Court. There is also no explanation put forth by the petitioners as to why the claim raised in the instant petition was not agitated by the petitioners rs while they were in service. The entire thrust of the submissions advanced by counsel is that similarly situated employees had approached this Court ourt and have been granted rel relief.
7. The issue regarding delay in invoking the extraordinary writ jurisdictionn under Article 226 of the Constitution of India was considered by the Hon'ble Supreme Court in Chairman, U.P. Jal Nigam and another v. Jaswant Singh and another (2006)11 SCC 464
464. In such case, certain employees raised the issue that they were not liable too be retired at the age of 58 years but should be permitted to continue in service till they attain the age of 60 years. Such employees were still in service when the writ petitions were filed. The writ petitions were ultimately 15 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 16 CWP-32320 32320 of 2024 allowed. Placing reliance upon pon such judgment, some of the employees, who had already superannuated, filed writ petitions seeking the same benefit. Even such petitions were allowed by the High Court in terms of following the earlier judgment. The judgment of the High Court was challenged nged before the Apex Court and wherein while referring to earlier judgments in Rup Diamonds v. Union of India, (1989)2 SCC 356; "Jagdish Lal v. State of Haryana, (1997)6 SCC 538 and Government of West Bengal v. Tarun K. Roy, (2004)1 SCC 347 347, it was opined that persons who approached the Court at a belated stage placing reliance upon the order passed in some other case earlier, can be denied the discretionary relief on the ground of delay and laches. The relevant observations made by the Supreme Court are co contained in Paras 5, 6 and 16 of the judgment and are extracted here under:
under:-
"5. So far as the principal issue is concerned, that has been settled by this court. Therefore, there is no quarrel over the legal proposition. But the only question is grant of relief lief to such other persons who were not vigilant and did not wake up to challenge their retirement and accepted the same but filed writ petitions after the judgment of this court in Harwindra Kumar v. Chief Engineer, Karmik, (2005) 13 SCC 300.. Whether they are entitled to same relief or not? Therefore, a serious question that arises for consideration is whether the employees who did not wake up to challenge their retirement and accepted the same, collected their post-retirement retirement benefits, can such persons be given the relief in the light of the subsequent decision delivered by this court?
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6. The question of delay and laches has been examined by this court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years. A chart has been supplied to us in which it has been pointed out that about 9 writ petitions were filed by the employees of the Nigam before their retirement wherein their retirement was somewhere between 30.6.2005 and 31.7.2005. Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order. Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004 and 2005, woke up to file writ petitions in 2005 and 2006 much after their retirement. Whether such persons should be granted the same relief or not? xx xx xx
16. Therefore, in case at this belated stage if similar relief is to be given to the persons who have not approached the court that will unnecessarily overburden the Nigam and the Nigam will completely collapse with the liability of payment to these personss in terms of two years' salary and increased benefit of pension and other consequential benefits. Therefore, we are not 17 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 18 CWP-32320 32320 of 2024 inclined to grant any relief to the persons who have approached the court after their retirement. Only those persons who have filed the writ petitions when they were in service or who have obtained interim order for their retirement, those persons should be allowed to stand to benefit and not others."
[Emphasis supplied]
8. The issue of delay was also dealt with by this Court in Tarsem Pal al vs. Punjab State Power Corporation Limited and others, 2013 (3)SLR 314
314. In the case of Tarsem Pal(supra), the petitioner was serving as a Clerk with the respondent-Corporation Corporation and had retired on 31.03.2005. Claim in the writ petition was to grant to him the benefit of proficiency set up in the pay scale on completion of 23 years of service from the due date as per policy of the Corporation. During the service career, he had not agitated the claim for increments. For the first time, such claim had been made de on 28.02.2005 i.e. just one month prior to superannuation. While non non-suiting the petitioner on account of delay and laches it was held as follows:
follows:-
"11. In the aforesaid judgments, it has been clearly laid down that discretionary relief in a writ jurisdiction iction is available to a party who is alive of his rights and enforces the same in court within reasonable time. The judgment in another case does not give a cause of action to file a writ petition at a belated stage seeking the same relief. Such petitions can be dismissed on account of delay and laches. As has already been noticed above in the present case as well, the petitioner joined service in the year 1965 and retired in the year 2005, but raised the issue regarding benefit of proficiency step up in tthe pay scale on completion of 23 years of service from 18 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 19 CWP-32320 32320 of 2024 the due date more than five years after his retirement referring to a judgment of this court and filed the petition claiming the same relief.
12. The petitioner retired from service on 31.3.2005 and thee claim pertaining to the benefit of proficiency step up, which may be admissible to the petitioner during his service career, was sought to be raised more than five years after his retirement, the claim made at such a late stage deserves to be dismissed onn account of delay and laches only. The petitioner could raise a grievance about the pay scales admissible to him or the last pay drawn by him within a reasonable time after his retirement. He cannot be permitted to raise the same at any time on the plea that hat the same is recurring cause of action.
13. Considering the enunciation of law, as referred to above, in my opinion, the petitioner herein is not entitled to the relief prayed for and the petition deserves to be dismissed merely on account of delay and laches."
9. At this stage, counsel appearing for the petitioners would make an attempt to overcome the obstacle of delay by placing reliance upon a Full Bench Judgment of this Court in Saroj Kumar vs. State of Punjab, 1998(3) SCT
664. Counsel would argue that as per dictum laid down in Saroj Kumar's case(supra), matters of pay fixation involve a recurring cause of action and as such, writ petitions for such claim cannot be dismissed on the ground of delay and laches and the Court at the most, may restrict the arrears upto 38 months from the date of filing of the petition and disallow the arrears for the period for which even a suit had become time barred.
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10. The reliance placed by counsel upon the judgment in Saroj Kumar's case, is wholly misplaced. The ob observations and aspect of delay in Saroj Kumar's case, were in the light of the judgment of the Supreme Court in M.R. Gupta vs. Union of India and others, 1995(4) RSJ 502
502. In M.R. Gupta's case(supra), it had been categorically held that so long as an employee ee "is in service" a fresh cause of action arises every month when he is getting his monthly salary on the basis of a wrong calculation made contrary to rules. It was further held that the claim to be awarded the correct salary on the basis of a proper pay fixation "is a right which subsists during the entire tenure of service".
11. In the present case, however the petitioners choose not to agitate their claim while in service. It is much subsequent to their superannuation that they have woken up and seek too gain impetus from certain decisions that may have been rendered in the case of similarly situated employees.
12. Considering the dictum of law as laid down in Chariman, U.P. Jal Nigam's case (supra), the petitioners herein are not entitled to any releif as prayed for and the petition deserves to be dismissed on the sole ground of delay and laches.
13. Ordered accordingly."
17. The Division Bench of this Court in "H.S. Gill vs Union of India and others", 2016(2) SCT 477,, has held that an employee cannot claim the revised pay scale after retirement once he has been receiving the pay scale granted by the employer for the last 09 years. The relevant portion from the said judgment, reads as under:
under:-
"14. The petitioner is also not entitled to any relief on account ount of principle of delay and laches. He has been receiving the pay in the pay scale of Rs.6500 Rs.6500-10500 right 20 of 21 ::: Downloaded on - 15-12-2024 02:21:52 ::: Neutral Citation No:=2024:PHHC:166489 21 CWP-32320 32320 of 2024 from his transfer to CSIO, Chandigarh i.e. 2.7.2002. For the first time, he moved the representation on 29.8.2011, so, he kept mum for about 9 year years. Thus, the claim of the petitioner is highly belated and stale."
18. Even on merits also the petitioners have no ca cause to challenge the promotion of respondent No.3 to the post of Accounts Officer, which has been made vide order dated 29.09.2023 (Annexure P-5), as respondent No.3 is much senior to the petitioners as AAO/Accounts.
19. In view of the above, there is no merit in the present petition and the same is hereby dismissed, with no order as to costs.
(NAMIT KUMAR)
12.12.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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