B RAM PRAKASH GANDOTRA Vs. STATE

JUDGEMENT

(1.) THE grievance of the petitioners in this writ petition was that they were refused the special grade which had to be given to them in accordance with the provisions of the Cabinet Order No. 142 -C of 1956 dated 14 -1 -1956 inasmuch as they had the necessary qualifications to be promoted to the special grade in the same way as a number of others who had been so promoted and also deserved to be promoted in preference to some of the appointees who were not qualified at all for that promotion As alleged the petitioner No. 1 was appointed as overseer class II (75 -5 -100) vide order of the Chief Engineer PWD, Jammu No. 2177 -79 dated 29 -7 -1948. The petitioner No. 2 similarly was appointed as workcharge in the grade of 75 -5 -100 by the order of the Chief Engineer, PWD Jammu dated 10 -2 -1949. Both the petitioners were confirmed on 16 -7 -1953. Both of them held diploma from the Government Engineering College, Ludhiana. It was in 1956 that the Government created special grade, first grade and 2nd grade officers with special grade for each category by virtue of Cabinet Order No. 142 -C of 1956 dated 14 -1 -1956. Because the petitioners possessed the necessary qualifications, which were required under the said Cabinet order for such promotions, they were entitled to be placed in the special grade, but according to the petitioners the respondent failed to give effect to the said Cabinet Order so for as they were concerned on the wrong assumption that the institute of Ludhiana College of Engineering was not a recognized institute and thus in consequence was of the view that the diploma issued by Ludhiana College could not be held to be a diploma from a recognised institute. The petitioners represented their cases before the Honble Minister for Works and power J&K Govt. and prayed that they be placed in the special grade and subsequently be given such promotion as they deserved according to the place in special grade. This representation was however dismissed vide Order impugned No. PW 10 -B/72 dated 6 -7 -1973. The petitioners case was that the sole ground on which the respondents refused to confer on them the special grade was with regard to its inability to accept the request that the Ludhiana College is a recognised institute. The petitioners have in this connection referred to a Division Bench case of this court which was given in appeal No. 1 of 1965 decided on 28.9.1965 in which it had been held that the Ludhiana College was recognised institute. The petitioners have alleged that the State has not acted upon the judgment of this court in having said that the Ludhiana College was not a recognised institute. The petitioners further contended that their representations were rejected without assigning any reason and that the order rejecting their representations was not a speaking one and did not contain the reasons and grounds for such rejection. In the end it was therefore, prayed by the petitioners that the Govt. order rejecting their representation be quashed and the State respondent be directed to give effect to the judgment of the Honble High Court of J&K and record the petitioner duly qualified for promotion and be duly placed in the grade retrospectively and thereafter be considered for promotion to the post of Assistant Engineers.

(2.) THE State in its reply affidavit has raised two important preliminary issues which are firstly, that the writ petition is barred because of laches and secondly that all the necessary parties have been arrayed in the petition as parties. Besides, it has been stated further in the reply affidavit that the alms and objects of the Government Order No. 142 -C of 1956 dated 14 -1 -1956 and Government Order No. 1 -24/Deve -lopment of 1960 dated 6 -5 -60 were to give preference to the incumbents having the certificate of three years diploma course for appointment to the special category of overseers. After having given such preference for appointment to three year diploma holders, the remaining vacancies, if any, are to be filled up from two year diploma holders on the consideration of their work and technical qualifications. Even though the petitioners, according to the reply affidavit, had not obtained the diploma from the recognised Engineering College, indulgence and leniency was shown to them as a result of which they also were given special grade from 29 -9 -1967. Refence in this regard has been made to a letter from Secy., to Govt. Punjab PWD address ed to Dy. Secy. Govt. of J&K Works and Power Srinagar in which the Secy. Govt. of Punjab has informed the State Govt. that the Ludhiana Engineering College was not a recognised institute. It has been further stated in the reply affidavit that pursuant to the first and 2nd Cabinet orders referred to above a number of overseers since year 1962 have been promoted. The petitioners however did not choose to file any representation against those promotions or pursue the matter in any other manner under the J&K Civil Services (Classification, Control and Appeal) Rules, 1956. According to the reply affidavit it was only after the promotion of the petitioners themselves in 1967 to special grade that they appear to have suddenly get up from the long and deep slumber and thus came to file the representation for the redress of the alleged grievances. It was therefore, apparent, the reply goes on to say, that the petitioners have allowed the grass to grow under their feet for about 5 to 7 years and have now come to challenge the promotion to special grade of some overseers which promotions were given effect to in 1960 or even earlier. It has next been prayed that the writ petition deserves to be dismissed on the ground also that the the proper and necessary parties have not been impleaded in the petition as in case of success of the writ petition a number of overseers promoted to the special grade are likely to be affected but none of them has been made party by the petitioners.

(3.) THOUGH the petitioners have alleged that they have made representations to the respondent against their suppression and against the failure of the respondent to promote them to the special grades, yet from the petition as well as from the annexures attached hereto it was. not possible to find out as to when such a representation if at all was made by the petitioners. This matter had to be necessarily stated as one of the main objections of the respondents was that the writ petition suffered from laches as the representation made allegedly to the State by the petitioners against orders passed in 1960 was so made only in 1967, though it has been conceded by the learned counsel for the State that the writ petition itself has been filed immediately after the impugned order was conveyed to them. The first thing therefore, to ascertain here was as to when the representation was made by the petitioners to the State. Having failed to find out any thing in this regard from the petition we now turn to the reply affidavit. From a perusal of this, it appears that the representations by the petitioners have been made in 1967. i. e. about 11 years after passing of the Cabinet Order creating posts of special grades and after 5/7 years of the first appointments and promotions ordered in this grade, it is alleged that some overseers were promoted to this grade in 1961 and some others in 1962 and also some more in 1967. The petitioners also have been promoted to this grade in 1967. Obviously therefore the petitioners have not been vigilant and careful enough to file representations to the respondent in time or even after a period that might have been construed reasonable under the circumstances. They have taken 5 to 7 years to file representations which of course were rejected in the year 1973. The petitioners are guilty of having committed laches in sleeping over their rights for 5 to 7 years and then filing the representations to the respondent. They allowed much grass to grow under their feet during this long period and therefore gave an impression to the State and to the incumbents who were promoted to the special grade that the position and the situation that has emerged was acceptable to the petitioners. Of course the petitioners were quick enough to file this writ after the impugned order was conveyed to them but the main point that is to be gone into here is not their quick and swift reaction on the rejection of the representations (but the reaction on the rejection of the representations) but the inaction and their silence amounting to acquiescence that followed the actual promotions and appointments to the special grade and continued for a number of years. In my view this inaction is an important matter and goes against the petitioners. Each of the petitioners is presumed to have known the facts immediately the same came into existence. It cannot be pleaded and has not been pleaded that the petitioners were not aware of the promotion given to the respondents. See 1973 (1) SLR 227. In 1964 (6) SLR 261, it has been laid down that "the court may consider the delay unreasonable even if it is less than the period of limitation prescribed for the civil action for the remedy - - - - -As a general rule if there has been unreasonable delay the Court ought not ordinarily lend its aid to a party by the extraordinary remedy of mandamus. Even if there is not such delay, in cases where the opposite party raises a prima facie issue as regards the availability of such relief in the merits on grounds like limitation the court should ordinarily refuse to issue a writ of mandamus"