Bhoop Alleged Son Of Sheo vs Matadin Bhardwaj Son Of Lakmi Chand on 4 December, 1990
Non consideration of the request of the applicant to retain him at Doordarshan
Kendra, Trivandrum, is quite insensitive and against the spirit of O.M. dated
15.02.1991. True, the respondents have modified the order of posting on
15.01.2009. It is not clear from the order whether they acted in compliance
with the order of this Tribunal to consider his representation to retain him at
Trivandrum or not. The delay in considering the representation of the
applicant in the light of the O.M. dated 15.02.1991 is solely attributable to the
respondents. The delay on the part of the respondents cannot be permitted to
recoil on the applicant in the form of ineligibility for appearing in the LDCE
for the post of Assistant Engineer in 2010 against the vacancies arise in 2009-
10, as per the ratio of the decision of the Apex Court in Bhoop vs. Matadin
Bharadwaj, 1991 (2) SCC 128. In the above case, the Apex Court has held
that "The mistake or delay on the part of the department, therefore, should not
be permitted to recoil on the appellants". It should be remembered that there
were 2 posts of Senior Engineering Assistant lying vacant at Trivandrum when
the applicant was posted to Bangalore. It is stated in the impugned order that
any relaxation to an individual will amount to favouritism and malefic action.
Again, in the reply statement, it has been stated by the respondents that any
relaxation to the applicant will amount to favouritism and malefic action and
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may be an injustice to the similarly placed persons in the past. It would mean
that if no relaxation was given in the past, it can never be given. This amounts
to perpetuation of injustice. If justice was not given to a similarly placed
person in the past, it cannot be a reason to deny relaxation to the applicant in
this case if there are justifiable grounds to do so. The relaxation in the form of
ante-dating the promotion of the applicant as Senior Engineering Assistant for
the purpose making him eligible to appear in the LDCE for promotion to the
post of Assistant Engineer in the year 2010 against vacancies of 2009-10 is not
likely to adversely affect any other employee or cause financial burden. Not
doing so would cause irreparable loss and injury to the applicant. The need for
the above relaxation has arisen only because of the delay caused by the
respondents in deciding the representation of the applicant for his retention at
Trivandrum in the light of the O.M. dated 15.02.1991.