A N MEMAN Vs. HIGH COURT OF GUJARAT

JUDGEMENT

(1.) . In this petition under Article 226 of the Constitution, the petitioner who is working as Assistant in the office of this court has brought in challenge the grant of selection grades to respondents Nos. 2 to 10 herein and the promotions given to them as senior clerks-cum-Assistants by this court on its administrative side.

(2.) . In order to appreciate the grievance of the petitioner, it is necessary to note the salient features of the service bio-data of the petitioner vis-a-vis contesting respondents Nos. 2 to 10 herein. The petitioner was appointed as a section writer in 1967 in the office of his court. He is now working as Assistant in the same office. The petitioner was appointed as section writer on 24-10-1967. He was promoted as junior clerk on 15-11-1967 and he was confirmed as junior clerk on 1-3-1972. He passed the lower standard departmental examination, (hereafter referred to as the said examination) on 30-10-1974. 10% of the posts of junior clerks were upgraded and made section grade post in the pay-scale of Rs.190-290 in May 1974. Respondents Nos.2 to 10 were given selection grade by order dated 5-6-1974, Exhibit A, pre sumably because all of them by that time had passed the said examination By the said order, they were given selection grades from diverse dates retrospectively from 1-4-1972. So far as the petitioner is concerned, he passed the said examination on 30-10-1974. Consequently, by an order dated 7-12-1974, the petitioner was granted section grade. Thus respondents Nos. 2 to 10 were fixed in the selection grades earlier as compared to the petitioner. There after concerned respondents Nos. 2 to 10 were promoted to the cadre of Assistants-cum-Senior Clerks on different dates from 1-10-1973 to 19-3-1976. Respondent No. 2 was promoted as senior clerk on 1-10-1973. Respondent Nos. 3, 4 and 5 were promoted on 2-7-1975 :res-pondents Nos. 6 and 7 were promoted on 9-2-1976 while respondent No.10 was promoted on 19-3-1976. So fir as the petitioner concerned, he came to be promoted as senior clerk-cam-Assistant on 16-8-1976. So far as seniority in the junior clerks cadre is concerned, admittedly, the petitioner was senior to these respondents and there is no dispute on this aspect. It is in the background of these facts concerning the relevant bio-data of the oncerned contesting parties that the twin question posed for my consideration by Mr. Hathi for the petitioner will have to be considered and decided.

(3.) . .... The only grievance which survives for consideration in the present petition is the centering round the grant of promotions to respondents Nos. 2 to 10 between 1-10-1973 and 19-3-1976 and claim of the petitioner that he should be given deemed date of promoting as senior clerk from 1-3-1973 or latest from 2-7-1975. So far as this grievance is concerned, the question of delay and laches assumes great importance. It cannot be disputed that the respondent No. 2 was promoted as senior clerk on 1-10-1973 while respondent Nos. 2 to 10 were promoted from posts of junior clerks to higher posts of Senior clerks between 1-10-1973 and 19-3-1976. All of them were earlier working as junior clerks in the same offence in the High Court The petitioner naturally must have known about those promotions at that very time. It it therefore, obvious that nothing prevented the petitioner from challenging thesaid decision of this court on administrative side by filing a writ petition at least in 1976 itself when respondent No. 10 being the junior most clerk was promoted as senior clerk. It is to be kept in view that the petitioner representation against non-granting of selection grade to him as per order in June 1974 alongwith his juniors-respondents Nos. 2 to 10 was turned down by the court on administrative side in 1974 itself and by a communication dated 23-7-1974, the petitioner was informed accordingly. The munication re-cording this decision is found at page 23 of the paper-book at Annexure C. This representation obviously had nothing to do with the petitioners grievance regarding grant of promotion to respondents Nos. 2 to 10 and especially respondents Nos. 3 to 10 in particular as respondents Nos.3 to 10 cam to be promoted as senior clerks only from 2-7-75 onwards upto 19-3-1976. Nothing has been brought on record to show that the petitioner made any representation in connection with promotions of respondents Nos. 3 to 10 as senior clerks for number of years after 1976 till wel-come 11-10-1982 when he made a representation in connection with fixation of his seniority as senior clerk on the basis that promotions given to respondents Nos. 2 to 10 were not correct. Mr. Shelat for respondents was right when he contended that even representation dated 11-10-1982 was grossly belated as the lAst of the said promotions with which the petitioner was aggrieved was of respondent M.10 and it was dated on 19-3-1976.Thus, after 6 years and 7 months the said representation was moved and even this representation came to be rejected by this court on administrative fide in April 1983 and the result them of was communicated to the petitioner by a letter dated 22-4-1983 at Annexure F. It was, therefore, rightly contended by Mr. Shelat that in the first instance, this belated representation cannot entitle the petitioner to file the petition at such a late. stage. But even that apart after that representation was turned down on 22-4-1983, the petitioner waited for further one year and or month and them and the present petition. Thus from stage to stage, the petitioners grievance as ventilated in this petition is shown to be grossly belated and hence this grievance cannot be entertained on the ground of gross delay and lacks The aforesaid contention of the learned Advocate for the respondents is unassailable. It is difficult to appreciate to why the petitioner did not respondents Nos. 2 to 10 at the relevant time when they were given to them. He was in the same office. No one prevented him from filing the writ petition challenging these promotions in 1976. But even assuming that he would have been justified in not rushing to this court Immdiately and he would haw expected justice to be done on administrative fide, nothing prevented him from filing a written epresentation immediately after promotions were effected of the respondents between 1973 and 1976. Instead, he waited for all these years before he moved written representation in October 1982 and even though such belated representation was rejected by the High Court on administrative arose, he waited for more than one year before he filed the present petition. The preliminary objection as canvassed by the learned advocates for the respondents on the ground of gross delay and laches has to be accepted and the grievance centering round the question of granting deemed date to him as a senior clerk has to be rejected at the threshold on the ground that it is grossly belated and it reflects a stale claim.It is necessary to note one contention of Mr. Hathi in this connection. He submitted that respondents Nos. 2 to 10 were promoted as senior clerks between 1973 3nd 1976. Petitioner also was promoted in 1976 though in August as senior clerk. His real grievance arose when he is sought to be treated as junior to respondents Nos. 2 to 10 in the cadre of senior clerks while considering their claims for further promoting to the posts of section officers. Then this question arose only in 1986. Hence, the petitioners grievance cannot be treated to be stale. It is not possible to countenance this submission. The petitioner is treated as junior to respon dents Nos. 2 to 10 as senior clerks as a consequence of earlier promotions of respondents Nos. 2 to 10 as senior clerks years back. Claims of further promotions as section officers would be decided as a consequence of earlier promotions of respondents Nos. 2 to 10 as senior clerks. That would not give a a fresh cause of action to the petitioner to challenge earlier promotions of respondents Nos. 2 to 10 as senior clerks in 1986. It is a mere fortuitous circumstance that no further promotions as section officers from senior clerks were being effected in 1986. If they were to be effected say ten more years hence 1996, could the petitioner in such circumstance have legitimately waited till 1996 for the filing of petition for challenging promotions of respondents Nos.2 to 10 as senior clerks effected years back between 1973 and 1976? The contention of Mr. Hathi on this basis has to be rejected as devoid of any merit. In this connection, it is profitable to refer to a latest decision of the Supreme Court in the case of K.R. Mudgal and Others v. R. P. Singh and Others AIR 1986, SC 2086. In the case before the Supreme Court, the question was regarding inter-se seniority between the petitioners who were directly appointed as Assistants in the Intelligence Bureau of the Government of India in the year 1957 and certain other Assistants in the Intelligence Bureau of whom some had been appointed prior to 1-2-1954 and the remaining had been appointed or absorbed as Assistants prior to the induction of the petitioners into service as Assistants. The Supreme Court noted that although in the first draft seniority list of the Assistants issued in the year 1957, the petitioners had been shown below the other Assistants. No objections were raised by the petitioners against the seniority list nor any objection was raised by the petitioners against the seniority lists issued in 1961 and 1965. It is only after 18 years that a writ petition came to be filed by the petitioners. Petition was filed 18 years after the first draft seniority list published in the year 1958 which was held to be grossly belated and liable to be dismissed on the ground of laches. In para 7 of the report, in the light of the aforesaid factual position, Venkataramiah, J. made the following ertinent observations: