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Judgment
Petitioner has filed this petition under Article 226 of the constitution of India making following prayers:-
To call upon the entire material record pertaining to entire controversy, for its kind perusal.
To command and direct the respondent authorities to promote the petitioner to the post Executive Engineer in the Public Works Department from the date his juniors and pears were promoted along with all consequential benefits pay, perks, status, arrears and interest arising there from.
To command & direct the respondents authorities to promote petitioner: to the post of Superintendent Engineer from the date his pears & juniors were promoted along with all consequential benefits pay, perks, status, arrears and interest arising there from.
Any other relief which this Hon’ble Court may deem just and proper in the facts and circumstances of the case may be granted in favour of petitioner.
Cost of the petition be awarded to the petitioner.
Learned counsel appearing for petitioner submitted that juniors to petitioner was promoted on the post of Superintendent Engineer but petitioner's case was not taken into consideration. Name of petitioner in seniority list dated 01.10.2012 was at Sr. No.116 whereas one Surendra Rao Gorkhede and Chakkan Singh Kharat were at Sr. No.121 and 131. Said juniors to petitioner were promoted to the post of Superintendent Engineer, however, petitioner was denied promotion. Learned counsel appearing for petitioner further submitted that only reason for not promoting petitioner was non-availability of ACRs of year 1996 to 2001. It is submitted that non-availability of ACRs for said period could not be a reason for not promoting petitioner to higher post. Learned counsel appearing for petitioner has placed reliance upon judgment passed in case of High Court of Judicature For Rajasthan Vs. Abhay Jain {Civil Appeal No.2029/2022} . Said case was decided vide order order dated 29.07.2026. Apex Court in conclusive paragraph has held as under:-
"41.Thus, for the reasons stated hereinabove, we hold that since the applicant was itself responsible for the opponent’s wrongful discharge and the resultant non-availability of the requisite number of ACRs, the said circumstance could not have been relied upon by it to deny the opponent the grant of Selection Scale or Super Time Scale. In consonance with the principles laid down by this Court in Prabhu Dayal (supra) and R.K. Jibanlata Devi (supra) respectively, we hold that where the non-availability of the requisite ACRs is attributable to the employer, the employee’s entitlement to the promotion/pay in question is required to be assessed on the basis of the remaining valid ACRs. Accordingly, we hold that the opponent’s entitlement to the Selection Scale and Super Time Scale is liable to be determined on the basis of his valid ACRs for the years 2013 and 2014 (Part I & Part II), respectively."
On strength of aforesaid, learned counsel appearing for petitioner submitted that ACRs which were available with respondents ought to have been taken into consideration for grant of promotion to petitioner on post of Superintendent Engineer. Action of respondents are illegal and same are also contrary to law, therefore, direction may be given to respondents to convene review DPC for considering the case of petitioner for the post of Superintendent Engineer from the same date when juniors to petitioner were promoted. ACRs which are available with respondents may be taken into consideration.
Learned Government Advocate appearing for State opposed the prayers and submitted that it was the duty of petitioner to fill-up the appraisal form and submit it before concerned Officer. Petitioner himself did not submit appraisal form, therefore, ACRs of petitioner were not available. For fault of petitioner, respondent cannot be blamed. It is further submitted that departmental enquiry against petitioner was pending and petitioner could not be promoted. It is further submitted that equity has been created in favour of State Government since DPC convened on 24.12.2002 and recommendation for promotion was made and promotion was also given thereafter. Petitioner did not challenge the said order before High Court for about 20 years and had filed petition before High Court on 02.08.2021, therefore, writ petition suffers from delay and laches and same may not be entertained by this Court. If writ petition is entertained then equity will be disturbed and many other employees will be adversely affected. In view of same, writ petition may be dismissed.
None appeared for respondent No.4, 5 and 6, therefore, said private respondents are proceeded ex-parte.
On considering the case of petitioner, it is found that petitioner has not challenged action of non-promotion dated 24.12.2002 within reasonable period of time. Petitioner waited for 20 long years to prefer petition before High Court. Learned counsel appearing for petitioner submitted that petitioner has preferred representation and respondent authority did not decide the said representation, therefore, delay occurred.
Apex Court in case of Damor Nanabhai Manabhai and Others Vs. The State of Gujarat and others {SLP (C) No.5619/2024} in paragraph No.8 has held as under:-
"8.This Court has repeatedly disapproved the practice of seeking to revive stale or dead claims by the device of repeated representations, followed by a prayer for a direction to “consider” and a consequential challenge to the order passed on such consideration. In Union of India v. M.K. Sarkar, (2010) 2 SCC 59, this Court held that even where a belated representation is considered and rejected pursuant to a court’s direction, the rejection does not furnish a fresh cause of action. The question of limitation, delay and laches has to be examined with reference to the original cause of action and not with reference to the date on which an order is passed on a representation in compliance with such a direction. We believe that a court or tribunal, before issuing a direction for “consideration” without examining the merits, must first satisfy itself that the claim relates to a live issue. If the claim pertains to a stale or dead issue, the court must put an end to the matter rather than enable avoidable, successive rounds of litigation."
Considering the judgment passed by Apex Court in case of Damor (supra), decision on belated representation will not give any fresh cause of action. Delay and laches is to be examined with reference to original cause and not in reference to date on which order is passed on representation. Point raised by petitioner that delay occurred due to pendency of representation cannot be accepted in view of judgment passed in case of Union of India Vs. M.K. Sarkar reported in (2010) 2 SCC 59. Petition suffers from delay and laches.
During course of argument, learned counsel appearing for petitioner also raised an issue before this Court that if petition is admitted then delay is deem to have been condoned. Considered the said argument and it is found that mere admission of petition will not amount to exoneration of delay and laches. Order of admission is to be taken into consideration. In this case, order of admission was passed on 15.03.2023 and Court has categorically mentioned "petition is admitted for final hearing". Court did not consider the question of delay and laches and same has not been condoned, therefore, there will be no automatic condonation of delay and laches. Petition is filed after long delay of 20 years. Petition suffers from delay and laches. It is also found that petitioner has earlier filed WP No.15886/2012. Said writ petition was dismissed for non-compliance of order dated 30.01.2014. Thereafter, petitioner has filed MCC No.183/2021. Said MCC was withdrawn with liberty to file fresh writ petition. Thereafter, petitioner has filed fresh writ petition before this Court. Earlier, writ petition filed by petitioner on same cause of action has been dismissed for want of prosecution. MCC has also been withdrawn, therefore, on this count also no fresh writ petition before this Court is maintainable.
In view of same, writ petition is dismissed.