Ashwani Kumar Sharma vs Union of India and Others

Barin Ghosh, C.J.

Delay Condonation Application No. 7328 of 2011 &

Restoration Application No. 531 of 2011:

On 6th April, 2011, the writ petition was dismissed for non prosecution. An Application has been filed for restoration of the writ petition and, since the Restoration Application was filed belatedly, an Application has also been made for condonation of delay in filing the Restoration Application. The reason for dismissal is failure on the part of the clerk, engaged by the counsel for the petitioner, to mark the matter in the list. That is also the reason for the delay in noticing that the writ petition has been dismissed for non prosecution. Failure on the part of the clerk in marking the case of the counsel is no ground for restoration of a writ petition, which has been permitted to be dismissed for non prosecution. However, having regard to the fact that, in the system prevalent in India, a litigant is entirely dependent on his chosen Advocate and a litigant should not suffer for the laches and negligence on the part of his Advocate, we allow the Application for condonation of delay in preferring the Restoration Application as well as the Restoration Application upon the counsel for the petitioner depositing a sum of Rs. 1,000/- with the State Legal Services Authority as and by way of cost within a period of four weeks from today. State Legal Services Authority is directed to utilise the amount for construction of ADR centers.

Writ Petition (S/B) No. 290 of 2004:

Heard learned counsel for the petitioner and the learned counsel for the respondents and considered the writ petition on its merit.

Facts, to which there appears to be no dispute, are that on 7th January, 1974, petitioner was appointed by Indian Military Academy (hereinafter referred to as "IMA") as a Lower Division Clerk (hereinafter referred to as "LDC"). On 9th April, 1975, petitioner was declared as a surplus LDC in IMA and was asked to join the Central Ordnance Depot, Agra, as LDC. Since then, petitioner discharged his duties as LDC in Central Ordnance Depot, Agra. Prior to 10th June, 1977, Army Cadet College was in existence and the same was situate at Pune. The President of India, on 10th June, 1977, directed Army Cadet College to move to Dehradun and, at the same time, directed that, w.e.f. 1st July, 1977, Army Cadet College will become a wing of IMA. It appears that Army Cadet College moved from Pune to Dehradun and continued to be administered by those, who had been administering the same until before the said order of the President of India, dated 10th June, 1977, was passed. At his own request, petitioner obtained a transfer from Central Ordnance Depot, Agra, to Army Cadet College, Dehradun, on 12th July, 1977. On 1st May, 1978, persons, purportedly administering Army Cadet College, promoted the petitioner to the post of Upper Division Clerk (hereinafter referred to as "UDC"), purportedly available in the Army Cadet College. There is a document dated 3rd June, 1978, which suggests provisional merger of Army Cadet College with IMA and there is another document dated 18th September, 1979, which suggests final merger of Army Cadet College with IMA w.e.f. 1st May, 1979. On 25th February, 1980, an order was passed by IMA whereby the promotion of the petitioner to the post of UDC was reverted on the ground that the petitioner did not work as LDC for three years with Army Cadet College. This decision was successfully challenged by the petitioner up to the Hon''ble Supreme Court, when the Hon''ble Supreme Court held that the experience of the petitioner, while working as LDC in the Central Ordnance Depot, Agra, should also be considered for the purpose of ascertaining the eligibility of the petitioner for being promoted to the post of UDC. Accordingly, a review DPC was held, which upheld the promotion of the petitioner to the post of UDC w.e.f. 1st May, 1978.

Soon thereafter, a representation was made by respondent No. 4 to IMA holding out that the case of promotion of the petitioner should be considered proceeding on the basis that Army Cadet College stood merged with IMA w.e.f. 1st July, 1977. Considering the said representation, a decision was taken to hold yet another review DPC. The decision to hold the said DPC was assailed by the petitioner before the Central Administrative Tribunal, which, by the judgment and order impugned in the writ petition, upheld the review DPC holding that, in fact, Army Cadet College stood merged with IMA w.e.f. 1st July, 1977. While the matter was pending before the Central Administrative Tribunal, review DPC was held when the petitioner was, once again, reverted back to the post of LDC. This order has also been assailed in the instant writ petition. It appears to us that the Tribunal as well as the respondents proceeded on the basis that the merger of Army Cadet College took place on 1st July, 1977, which is being disputed by the petitioner. According to him, the provisional merger took place on 3rd June, 1978 and the final merger on 18th September, 1979.

The fact remains that, on 1st July, 1977, in terms of the order of the President of India dated 10th June, 1977, the Army Cadet College became a branch or a wing of IMA and, accordingly, all administrative control in relation to the establishment of Army Cadet College stood vested in IMA w.e.f. 1st July, 1977. A post available for promotion in such wing of IMA could be supplied by anyone, who was associated with IMA as LDC on the basis of seniority subject to rejection of unfit. Admittedly, the post in question, where the petitioner was promoted, was not dealt with by IMA and, accordingly, none of the LDCs, who could be considered for the said post, was considered. The promotion to the post of UDC, given to the petitioner on 1st May, 1978, was by an authority, who had no existence in law at that time. We, thus, conclude the matter and, having thus concluded, find no scope of interference.

The writ petition fails and the same is dismissed.