Lieutenant Commander Pratik Sinha v. The Union of India & Ors.

Heard Ms. Adriana Colaco A. Sinha, the learned Counsel for the petitioner and Mr. C. A. Ferreira, the learned Assistant Solicitor General for the respondents.

2. The petitioner was commissioned in the Indian Navy in the Electrical Branch as a Commissioned Officer in the year 1992. Prior thereto, the Petitioner joined the Indian Navy under the 10 + 2 (Technical) Cadet Entry Scheme in the month of November, 1987. He was placed as a Trainee Cadet at Indian Naval Ship Mandovi. Thereafter, it appears that the petitioner remained absent on the 2 medical ground due to Branch Retinal Arterial Occlusion as a result of the cardiac catheterization. In the year 1989-90 the petitioner cleared his Semester I and II examinations and then in the year 1993 he underwent Midshipmen training. On 9.9.1993, the petitioner was posted to Indian Naval Ship Valsura and intimated about his seniority. The petitioner raised his grievance vide application dated

08.10.1993 made to the Commanding Officer about the non- consideration of seniority lost on medical grounds. According to the petitioner, he did not receive any reply from the Commanding Officer and, therefore, he forwarded another application in the month of June, 1995 to the Commanding Officer, Indian Naval Ship Valsura praying for the antedate grant of 53 weeks of seniority lost on medical grounds in terms of Regulation 125(7), Regulations for the Navy, Part III (Statutory). The said application was rejected on

21.7.1995. It is pertinent to note that by the Order dated 5.7.1995 the petitioner was promoted to the rank of substantive Lieutenant. The petitioner did not raise any grievance about his seniority for more than 5 years and thereafter again in the month of November, 2000, he raised the same grievance regarding his seniority, though invoking Section 23 of the Navy Act, 1957 read with Regulations 235-241 of the Regulations for the Navy Part II (Statutory) to the Commanding Officer, Indian Naval Ship Hansa. The petitioner also sent a copy of the grievance to the Ministry of Defence. On 31.8.2001, the Commanding Officer intimated to the petitioner that his 3 representation has been reconsidered and re-examined and that the petitioner was not eligible to any seniority as claimed because of loss of time due to hospitalization. The Central Government also communicated to the petitioner that his representation has been rejected. Three years passed thereafter. Now by filing this writ petition in the month of July, 2005 the petitioner prays for quashing of the decision of the Naval Headquarters dated 31.8.2001 and that of Government of India dated 22.1.2002 rejecting the petitioner's representation/application made under Section 23 of the Navy Act, read with Regulations 235-241 of the Regulations for the Navy Part II (Statutory) dated 20.11.2000.

3. The aforesaid facts clearly indicate that the writ petition suffers from gross laches, unexplained and inordinate delay. As a matter of fact, way back by the communication dated 21.07.1995, on the application made by the petitioner for the antedate grant of 53 weeks of seniority lost on medical grounds, he was intimated that his seniority could not be changed and that he was not entitled to the seniority lost on medical grounds. The issue, thus, was concluded by rejection of the application on 21.07.1995. Then again the same issue was raised by the petitioner after more than 5 years by making an application under Section 23 of the Navy Act, read with Regulations 235-241 of the Regulations for the Navy Part II (Statutory). On re-examination, the Naval Commander as well as the 4 Central Government intimated to the petitioner about his rejection of the application way back in the year 2001-2002. The petitioner did not pursue any legal remedy for more than three years and now the present writ petition has been filed which suffers from gross laches.

4. The learned Counsel for the petitioner relied upon three Judgments of the Supreme Court, namely (1) Kuldip Chand v. Union of India and ors. AIR 1996 SC 706; (2) K. Thimmappa and ors. v. Chairman, Central Board of Directors, State Bank of India and another, (2001) 2 SCC 259; and (3) S.K. Mastan Bee v. General Manager, South Central Railway and anr., (2003)1 SCC 184.

5. In the case of Kuldip Chand (supra) the Supreme Court held in the light of the facts obtaining therein that though the seniority list was prepared way back in the year 1982 but no vacancy had arisen thereafter and, therefore, the rejection of claim for seniority would not disentitle the petitioner to claim seniority and, therefore, the writ petition did not suffer from delay and laches. In the present case, the grievance of the petitioner has been in respect of antedate grant of 53 weeks of seniority lost on medical grounds which was rejected on 21.07.1995; before that on 05.07.1995 the petitoiner was already promoted. The case of Kuldip Chand has no application. 5

6. In the case of S.K. Mastan Bee (supra), the issue before the Supreme Court related to family pension and the Supreme Court observed that the family pension being a matter of livelihood was covered under Article 21 and, therefore, merely because the claim had been made belatedly the same could not be thrown on the ground of delay, particularly that the petitioner was illiterate widow with no resources. S.K. Mastan Bee cannot be applied to the facts of the present case.

7. In so far as the case of K. Thimmappa (supra) is concerned, the Supreme Court observed that the petition under Article 226 of the Constitution of India cannot be rejected on the ground of laches when the question of violation of fundamental right (Article 14) is involved in it. There cannot be any doubt about the legal position laid down by the Supreme Court in the case of K. Thimmappa (supra), but, it is equally well settled that the jurisdiction of the High Court under Article 226 being discretionary and extraordinary, the High Court may decline to invoke its jurisdiction when it finds that the writ petition suffers from gross laches and inordinate delay. In the case in hand, the petitioner's representation about grant of antedate seniority lost on medical grounds having been rejected way back in the year 1995, the same issue cannot be permitted to be reopened after such a long delay, particularly when 6 the Central Government re-examined the issue in the year 2001 and rejected the same and, thereafter for three years nothing was done by the petitioner.

8. As a matter of fact, the petitioner was given promotion to the post of Lieutenant on 5.7.1995 without grant of antedate grant of seniority lost on medical grounds. The representation made earlier came to be rejected on 21.7.1995 The same issue cannot be permitted to be raised at every stage of promotion.

9. The writ petition does not deserve to be admitted and is dismissed in limine. R.M. LODHA, J. N.A. BRITTO, J. ssm.