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Judgment
This petition calls in question various orders of promotion passed by respondents at various stages. The first promotion order was passed on
18.10.1980. Subsequent promotion orders were passed on 18.12.1983, 12.6.1984,5.11.85, 21.1.1986 and 9.4.1986. In all these orders some
of the respondents 5 to 80 were working as conductors and all of them were Junior to the petitioner. Petitioner right from 18.10.80 was dropped.
He went on making representations but the same yielded no result. Thus he filed the present petition on 22.08.1990 before this Court wherein
orders of promotion passed, in so far as the same related to promotions of petitioner's juniors, were challenged. The main ground of challenge was
that the actions of the respondents were discriminatory and violative of Article 14 of the Indian Constitution.
Detailed counter has been filed wherein two fold defence has been taken:
that the petition is barred by laches;
that the petitioner having been visited with two punishments of fine on 24.07.70 and 08.10.1983 could not be considered as he was not eligible
for promotion.
I want to place on record that according to the respondents version in the counter affidavit, the punishment imposed upon the petitioner at these
two occasions was a fine of Rs. 30/ and Rs. 50/ respectively.
I have heard the learned counsel for the parties and gone through the pleadings. I propose to dispose of the point in controversy in the following
manner
1 LACHES:
A motion can be barred by doctrine of laches if the petitioner have wilfully slept over his right for a considerable period of time and allowed the
impugned action to get perfected through its implementation. There is no prescribed period of limitation for filing a writ petition. However, courts
have evolved this doctrine for placing an embargo on filing a writ petition after expiry of a considerable period of time. The object being to
disentitle a seeker of the relief to dislodge an action which must have assumed finality, through its perfected execution. The doctrine, as such, does
not have any mathematical formal in its armoury to lay fetters on the discretionary powers of the Court. In matters before the courts of extra
ordinary jurisdiction courts themselves have to consider as to what can be the practical approach which in the circumstances of the case just result
in satisfying the ends of justice. This is how in one case higher courts hold that the doctrine will apply in the other, which may be having some
distinct features, its application is not accepted. However, in every case the cardinal principle to be taken care of by the courts is to see as to
whether or not the petitioner has wilfully slept over his right The doctrine of laches emanates from doctrine of waiver because one who sleeps over
his right will be presumed to have waived that right. A waiver for a considerable period of time estops the petitioner from raising the claim denovo.
In my opinion this is the sum total of the doctrine of laches.
The Supreme Court in Ramchandra Shankar Deodhar and others Vs. State of Maharastra and others, reported in AIR 1974 SC 259 clarified the
position with regard to laches and powers of the Court. The rule saying that belated petitions should not be entertained, was held to be a rule of
practice based on sound and proper exercise of discretion and not a rule of law. The Apex court did dismiss the petition, having been filed
afterlO/12 years of the alleged omission. A distinction was also made between ordinary writs and those alleging violation of fundamental rights
guaranteed under Article 16 of the constitution. It was held that right to equal opportunity in matters of service and employment could not be said
to have been defeated by the doctrine of laches. Their lordships held as under:
We do not think this contention should prevail with us. In the first place, it must be remembered that the rule which says that the court may not
inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no
inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The
question s pointed out by Hidayatullah C. J. in Tilockchand Motichand Vs. H.B. Munshi (1969) 2 SCR 824=( AIR 1970 SC 898) is one of
discretion for this court to follow from case to case. There is no lower limit and there is no upper limit.......It will all depend on what the breach of
the fundamental right and remedy claimed are and how the delay arose.
What will be the position where a representation is made? The apex court, as also the High Courts, have held that while dealing with this point it
should be noticed as to whether or not any representation was made. The standards were sometimes straighthacked. At times courts held that a
representation, in order to relax the doctrine of laches must be a statutory representation. Where the representation was a non statutory one, courts
ordinarily decline to apply the doctrine of laches on basis of a representation having pended before the employer. However in general terms filing
and pendency of a representation if not denied is a consideration for the court in taking a view with respect to application of doctrine of laches.
A Division Bench of Punjab and Haryana High Court, in case State of Punjab and Haryana Vs. Gurnam Singh, reported in 1991 (1) SLR 411, has
elaborated this point and held that where a representation was pending, the same was never considered and the results of the representation were
not communicated to the maker, the petitioner was very much justified in waiting for the answer and filing of a writ petition, after a period of eight
years. In such circumstances that case was not held to be a case barred by doctrine of laches.
A Single Bench of Rajasthan High Court in case, All India Locorunning Staff Association Us. Union of India, reported in All India Service Law
Journal page 398 held that where other employees filed a writ against the same action/omission, a petition by another person, after the decision of
the pending writ petition could not be thrown out on the ground of laches because the petitioner was waiting for decision of the petition filed by his
coemployees.'
In the present case it is not denied that consideration for promotion was refused. What Mr. Nanda submits is that the representations were not
properly addressed as those were addressed to the General Manager of the organisation and not to its Chairman. Admittedly the representation
were not decided and nor was result of such decision ever communicated. I am not satisfied with the argument of Mr. Nanda because once a
representation is made, the respondents did know the case of the petitioner and the representations could have easily been communicated to the
competent authority.
In the circumstances of the case I find that the orders impugned have the effect of abridging petitioner's right of equal opportunity in state
employment. His juniors have been promoted, whereas he was not considered for such promotion. He made representation, which were not
considered. The matter has been finally argued. Therefore the petition cannot be thrown out on the simple ground of laches. It is better to decide a
case on its merits rather than to dismiss it on a technical ground like laches. In this view I am also fortified by a case decided by the apex court of
the country, titled collector land Acquisition Anantnag Vs Mst. Khatji, reported in AIR 1987 SC 1353.It was laid down in this Judgment that when
substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other
side cannot claim to have a vested right in injustice being done because of a non deliberate delay.
On the analogy of observations made above, I find that doctrine of laches is not applicable in the present case and accordingly I dismiss the
first objection of the respondents.
The petitioner is only a Conductor in J and K State Road Transport Corporation. It is usual for a conductor to get challaned. The petitioner
was challanded twice and imposed a fine of Rs.30/ and Rs.50/respectively. The fine of first punishment is dated
24.12.1979. The first order of promotion, impugned in this petition, was passed on 8.10.1980. In other words on 18.10.1980. the only
punishment dated 24.12.1970 (a fine of Rs. 30/).sic Between the date of this punishment and date of the first order of promotion impugned
(18.10.80) a period of ten years had eslapsed. There is nothing to show that there was anything adverse against the petitioner. Under normal
service law, his A.P.Rs of previous three years are to be considered.
The Supreme Court in a case, Brijbeharilal Vs High court of Madhya Pardesh and others, reported in AIR 1981 SC 5Q4 laid down the law
with regard to importance of the confidential reports. It was held that confidential reports pertaining to the years immediately preceding such
consideration should be relied upon. Reasoning was also given. Their lordships found it possible that a Government Servant might be erotic in the
beginning of his service but with the passage of time, he may have so greatly improved. While relying upon AIR 1971 SC 40, AIR 1977 SC 3411
and AIR 1980 SC 563, their lordships held that the APRs of latter years are not only of direct relevance but also of utmost importance.
It is strange that the consideration of the petitioner on 18.10.1980 was refused only because he had been fined Rs. 30/ ten years back. If this
reasoning is accepted this will be an absurd joke. Even otherwise the assumption that promotion of the petitioner could be refused on basis of the
two punishments is bad.
Learned counsel for the petitioner has placed alongwith the petition an order No. JKSRTC/EC111/7107 dated. 21.01.86. Under this order the
Departmental Promotion Committee seems to have taken a categorical decision that Matriculate conductors in whose case more than five
punishments were not recorded be considered for promotion. If this is the policy one fails to understand as to why was the petitioner not
considered when on 18.10.1980 he had only one punishment to his discredit. I am conscious that this decision was taken at late as on 21.01.1986.
Even then I feel that the legal position of non consideration of APRs. beyond five years lends imperfection to the order dated 18.10.1980. Right
from that date the petitioner, despite his representations, has never been considered upto 30.1.1997. Had he been promoted on 18.10.1980 he
would not have been punished on 8.10.1983.
Learned counsel for the petitioner has produced a judgement delivered by a coordinate Bench of this court (Mr. M.A. Shah J, as His lordship
then was) in OWP No. 261 of 1984 titled Mohd Yaqoob Vs Managing Director SRTC and others. In this petition also order dated 18.10.1980
was challenged. His Lordship in that case has also taken a view on the same analogy of nonconsideration, allowed the petition and directed the
respondents to promote one Mohd Yaqoob as a Junior Assistant w.e.f. 18.10.1980 with all consequential benefits. This is a judgment which I
must keep in mind. I cannot take a contrary view unless I am satisfied that the view is erroneous. I find this judgment to be perfectly in accordance
with law. Therefore, I find myself in total agreement with the view taken in that case.
In our system, the Constitution is the supreme. Article 14 is the life blood of our Constitution. It provides for equal opportunity of law and equal
protection by law. On all fours the petitioner was similarly situated with respondents 5 to 80. He was a matriculate. He belonged to the same class.
He had an additional advantage of being senior to them. Even then he was not considered and those junior to him were allowed to steal a march
over him. I find it to be a clear case of naked discrimination and admittedly a violation of Article 14 of the Constitution.
Accordingly, I, on the strength of the foregoing reasoning's ,hold that the petition must succeed. Same is allowed. I refrain from quashing the
orders impugned or dislodging the arrangement made by those orders simply because that may cause administrative inconvenience for the
respondents.
I, therefore, without quashing any of the impugned orders, allow this petition and direct respondents 1and2 to promote the petitioner with effect
from 18.10.1980, the date when his juniors were so promoted, and grant him all consequential benefits, as was done in Mohd. Yaqoob Khan's
case (supra).
No order as to costs.