MIGHCOURT OFCHHATTISGARM: BIUASPUR v. Department

Judgment

5. Tribal through the State of Chhattisgarh, Tribal Department Secretary, Development, D.K.S. Bhawan, Raipur (CG). Commissioner, The Development, Raipur (CG). The Chief Secretary, Ghhattisgarh Government, Tatha Adim Anusuchit Jati Vikas, Raipur (CG). The Secretary, Tribal Development, Madhya Pradesh, Bhopal (MP). The Developmerit, Bhopal(MP).. Commissioner, Madhya Tribal Pradesh, Jati

(writ Petition under Article 226 of the Constitution of India. SB: Hon'ble Mr. Satish K. Agnihotri, J. Present: Mr. H.S. Patel, counsel for the petitioner. Mr. Arun Sao, Govt. Advocate forthe State. ORAL ORDER (Passed on this27th day of March, 2009) 1) The petitioner, by this petition, seeks the following reliefs B. c. That, the Hon'ble Court may kindly be pleased to direct the respondents authorities to give promotion from the year 1991 instead of 1997 on the post ofAssistant Commissioner with all consequential benefits along with suitable interest. That, the Hon'ble Co.urt may kindlybe pleased to direct the respondents authorities to give arrears bfsalary from the year 1991 with iriterest. 2) The brieffacts, in nutshell, as projected by the petitioner arethat, the petitioner was appointed on the post of District Organizer by order dated 5-9-1981 (Annexure P/1). Thereafter, the department prepared -.. T.- gradation list 6f District Organizer by Order dated 20-12-1990 (Annexure P/2) in which the name of the petitioner finds place at Srl.No.27. By order dated 26-11-1991 (Annexure P/3) the respondents promoted junior employees to the petitioner on the post of Assistant Commissioner/Deputy Director, after constituting a departmental promotion committee. The name of the petitioner was not added in the said list. Against the said promotion order given to the junior employees, the petitioner made several representations on 5-1-1991, 15-1-1992, 20-2-1992, 2-3-1993, 26-3-1993 and 15-3-1999 for promdtion on the post of Assistant Commissioner. However, the petitioner was promoted on the post ofAssistant Commissioner in the year 1997. The petitioner had objected the same as he was entitled for the promotion on thesaid post since 1991. Thereafter, the petitioner

1..^ i e' made an application on 27-6-2008 and 14.8.2008underthe provisiohs of Right to InformationAct, 2005 before the respohdent- authorities for furnishing information regarding departmental promotion committee held in the year 1991. The respondent-authorities have given information to the petitioner, stating that the petitidner hadnot fulfilled requisite criteria for promotion to the post of Assistant Commissioner. The respondent-authorities have communicated to the petitioner regarding adverse remarks made in his corifidehtial report, mentioned in theyear 1988-1989. 3) Learned counsel appearing for Mt. the petitioner submits that respdndents have not taken any action on the representations made by the petitioner and the action of the respondent-authorities in not considering the name of the petitioner for promotion on the post 6f Assistant Commissioner in the year 1991 and consKlering the samein the year 1997, is violative to the fundamental rights. ^^^.i-^s.^lf^-'•--"••^"•;^'- •• -••:Wi.'= .^ -: • • 4) The cause ofaction arose in the year 1991, the petitioner has slept over his right when according tothe petitioner he has been kept on rnaking representations. It is well settled that more than one representation cannot arrest the limitation, as even if, the representation is not consideredand order is not passed within areasonable period of six months, the petitioner may approach the High Court. The petitioner has not done the needfulandwaited for 18 years to come to this court at - this belated stage. Thus, this petition cannot be entertained and the samedeserves to be dismissed on the ground ofdelay and laches. 5) A seven Judges of Hbn'ble Suprerne Court in S. S. Rathore Vs. State of Madhya Pradesh ,while cbnsidering the limitation in filing an application before the Tribunal against the order of dismissal observed as under: "22. It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action first accrue and where such order is not made, on the expiry of six months from the datewtien the appeal was filed or representation was made, the right to sue shall first accrue. Submission ofjust a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation." 6) Hon'ble Supreme Court in C. Jacob Vs. Director of Geology & IWining &Anr^., while considering as to how the representation made by an employee has to be dealt with by the State observed as under:- "7. Every representation to the government for relief, may not be replied on merits. Reprea^ntations relating to matters which. have become sfale or barred by limitatiQn, can be rejectedon that ground alone, withdut examining the merits of the clairn. regard to representations unrelated to the department, the reply In ' 2 {1989) 4SCC 582 (2008 AIR SCW 7233) i!l»iJiU:-3JJ;i-1..i^ K» p-1 ^ may be only to inform that the matter did not concern the department infoi-m the appropriate department. Representation with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnisha fresh cause of action or revive a stale or dead claim." 7) The law on the prineiple of waiver and acquiescence iswell settled that, if the person sleeps over his rights and is not vigilant of his rights and acquiesces with the situation, he may not be entitled to the sarne relief as was granted to other vigilant persons. 8) In the matter of R.N. Bose vs. Unjon of India ,it was observed that no relief can be given to the petitioner who without any reasonable explanation approaches the Court after inordinate delay. 9) In the matter ofState of IVI.P. vs. Nandlal it was observed that that , the High Court in exercise df its discretion does notordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactory explained, the High Court may decline to intervene and grant reliefin exercise of its writ jurisdiction. It was also observed that if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When writjurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantirrie is an importantfactor which also weighs with the HighCourtin deciding ^st- whether or nbt to exercise such jurisdiction 10) The Supreme eourt in the matter of....U.P. Jal Nigam and ariother vs. JashwgntSingh and another , observed as under: