B.N. Ghildyal vs The Union of India (UOI) and Others

C.R. Thakur, J.—By this writ petiton the Petitioner has prayed for a direction to be issued to Respondents 1 to 3 to prepare the gradation list restoring his seniority in Class II with effect from 28th August, 1962 vis-a-vis I.F.S. year of allotment at its initial constitution and placing him below Sarvshri R.S. Gujral and A.K. Mukerji his batchmates of 1956-59 Indian Forest College Course serving in Himachal Pradesh. He has further made a prayer for a direction to allot 1962-1/2 as his year of allotment in the Indian Forest Service as that of his class-fellows referred to above, who were also selected under the same set of rules and conditions of service, and further that he be declared to be entitled to all consequential benefits accruing therefrom.

The facts leading to the filing of this petition are as under:

The Petitioner after having passed his M. Sc. (Botany) in the year 1955, was selected by the Union Public Service Commission (Respondent No. 5) along with Sarvshri R.S. Gujral and A.K. Mukerji for the course (1956-59) in the Indian Forest College at Dehradun for Class II Service under the then Government of Himachal Pradesh. He joined the course in the year 1956 and completed the same in the year 1959 along with the aforesaid two persons. After having qualified the course he joined service as Class II Officer in the Forest Department of Himachal Pradesh.

It has been averred in the petition that the Respondents Nos. 6 to 26 joined the service after the Petitioner and as such were junior to him in all respects. He gave the details of the service of Respondents 6 to 26 as under:

(i) Respondents 6 and 7 belong to 1957-60 Indian Forest College batch recruited initially as Class II.

(ii) Respondent No. 8 belong to 1959-61 Indian Forest College batch and was allocated to Himachal Pradesh from Punjab during re-organisation of States.

(iii) Respondents No. 9 and 10 taken in by the U.P.S.C. in Class I during 1962 along with Petitioner''s batchmates when the Petitioner was not selected for Class I, because of adverse entries recorded in C.R.

(iv) Respondents 11 to 20 joined Himachal Pradesh during re-organisation.

(v) Respondents 21 to 24 got Indian Forest College Training during 1962-64, for Class I, the same training which the Petitioner along with S/Sh. R.S. Gujral and A.K. Mukerji got in the Indian Forest College Dehradun for Class II. The advertisement for 1962-64 course was initially advertised for Class II. The same was modified to Class I.

(vi) Respondents 25-26 are the promoted officers from the rank of Range Officers to Class II.

After the re-organisation of the erstwhile State of Punjab, a final joint seniority list of all Himachal Pradesh Forest Service Class II officers was drawn up on 20-6-1970 representing the position as it stood on 1-11-1966 and in that seniority list all the Respondents excepting at Nos. 21-24 have been shown junior to the Petitioner. Further it is averred that at the time of selection by the Union Public Service Commission of the Petitioner along with Sarvshri R.S. Gujral and A.K. Mukerji for training as Class II officers in the Indian Forest College, the Petitioner was assigned first place as is indicated in Annexure A. The Petitioner was appointed as Divisional Forests Officer in Suket Forest Division, Sundernagar, on 10th January, 1961 vide Annexure C. However, on the basis of the training at the Forest Training College, Sarvshri Gujral and Mukerji were made senior to the Petitioner. Since there were no rules for recruitment /promotion, the appropriate authority was empowered to fill the posts in Himachal Pradesh Forest Service Class I in accordance with the administrative instructions as contained in Annexure D to the petition.

In the year 1961 the Petitioner made a representation to the Lt. Governor of Himachal Pradesh to the effect that his claim may be considered for promotion to the Himachal Pradesh Forest Class I Service against the vacant post existing then. In 1962 when the administration wanted to fill certain Class I posts; in the Himachal Pradesh Forest Service at that time amongst the Class II officers the Petitioner along with Respondents 6, 7 and 10 who were his batchmates were eligible for consideration. The Petitioner was accordingly asked to appear for interview before the Union Public Service Commission (hereinafter called tie Commission) on 16th August, 1962, but in the interview the Petitioner was not selected although Respondents 6, 7, 9 and 10 along with his batchmates Sarvshri Gujral and Mukerji were selected. According to the Petitioner he believed that his exclusion from selection was made on the basis of some adverse remarks which had been incorporated in his character roll for the year 1961-62 in a very calculated manner. The Petitioner was never informed of those remarks. It was during the perusal of the file, No. Ft. 11-2/61 (A)-MS. No. 143/63 (3) which was made available officially to him. The rating is to the following effect:

"Shri Raina has alleged that I requested him to improve the G.R. of Sh. Ghildyal. The allegation is false and fantastic. The C.R. of Sh. Ghildyal is placed below. I have myself mentioned that fact of illicit felling in the C.R. and said that the case is under enquiry and it is not possible to express an opinion about it today. The C.R. was perused by the L.G. on 6th August, 1962. Sd/- V.P. AGARWALA, Chief Conservator of Forests�

According to the Petitioner, Respondents 1 to 5 had wrongly utilised these remarks in excluding the Petitioner from selection to the Himachal Pradesh Forest Class I Service, although Respondent No. 5 had adjudged the Petitioner as No. 1 out of approximately 75 candidates at the time of initial selection for Class II. He has contended that the production of the C.R. of the Petitioner containing mala fide remarks for 1961-62 before Respondent No. 5 on 16 August 1962 has been done in violation of the Government of India instructions, copy of which are Annexures F and G to the petition. The aforesaid remarks made in the confidential report were expunged by the Lt. Governor, Himachal Pradesh, suo motu in the year 1965, but by that time the damage had already been done to the Petitioner and, therefore, all this resulted in denial of equality of opportunity to the Petitioner in the matter of employment and selection and the action was violative of Articles 14 and 16 of the Constitution. Despite the expunction of these adverse remarks the claim of the Petitioner had not been considered for promotion to Class I Service. However, he was selected in Class I post in the scale of Rs. 700-1250 by the Ministry of External Affairs for deputation in the India Aid Mission, Nepal, on the recommendation of the Government of Himachal Pradesh, vide notification, dated 5th February, 1965 Annexure H. While the Petitioner was still working on deputation he was given proforma promotion in Himachal Pradesh Class I Service in the scale of Rs. 350-1250 vide notification, dated 16-11-1965. On his return from deputation he was posted as Divisional Forests Officer Working Plan, Rohru on Class I Forest Service vide Annexure J. dated 10th April, 1968.

It has been averred that ever since the rejection of his claim to Class I he had been continuously representing the Government of Himachal Pradesh to consider his claim for promotion to Class I post with effect from 28-8-1962, the date when his class-mates Sarvshri Gujral and Mukerji were selected. It is further submitted by him that he was informed on 15-1-1975 that the matter is very much alive and is under active consideration of the Government and the information is contained in Annexure K to the petition.

At the initial constitution of the Indian Forest Service with effect from 1-10-1966, the Petitioner was also selected and posted against a senior scale post in the Union Territory cadre vide Annexure L, dated 26-9-1970. By Annexure M, dated 9th December, 1970, the appointment of the Petitioner against a senior scale post vide Annexure L was cancelled. However, vide notification, Annexure O, dated 24-11-1972, he was again promoted to the Indian Forest Service. He was confirmed in the Indian Forest Service vide notification, Annexure P, dated 27th October, 1973, with effect from 1-10-1967.

Thereafter the Central Government issued a gradation list of the Indian Forest Service Officers of the Union territories as it stood on 1-10-1966, vide Annexure Q, dated 16-11-1972. The name of the Petitioner appears at serial No. 48 whereas the names of his batchmates Sarvshri Gujral and Mukerji appear at Serial Nos. 25 and 26 respectively. The Respondents 6 to 26 have also been shown at Serial Nos. 27 to 47 respectively. On the grant of Statehood to the Union Territory of Himacnal Pradesh in exercise of the powers u/s 39 of the State of Himachal Pradesh Act, Respondents 6 to 26 as also the Petitioner and his two batchmates were allotted to the cadre of Himachal Pradesh State. The Petitioner had been allotted 1965 as a year of allotment in I.F.S. while the other Respondents had been placed above him, and Respondent batchmates Sarvshri Gujral and Mukerji had been allotted 1962-1/2 as a year of allotment in I.F.S., despite the fact that Respondents 6 to 26 joined service later than the Petitioner. He, therefore, challenged this gradation list allotting the Petitioner the year 1965 in the I.F.S. as being wrong, illegal and without jurisdiction on the grounds mentioned under various sub-paragraphs of paragraph 15 of the petition.

In paragraph 17 of the petition, it was pleaded that on the one hand the Respondents 1 to 3 are sitting over the representation of the Petitioner and on the other hand the officers junior to the Petitioner are given undue benefits. Even in January 1975, the Petitioner had been informed that the matter is under active consideration of the Government and is still alive, but till now no decision has been communicated to the Petitioner. Therefore, he filed this writ petition for the reliefs already stated at the beginning of the judgment.

In this case as would be apparent from the facts narrated above that Respondent No. 5 held interviews for recruitment to the Himachal Pradesh Forest Service Class I posts in 1962. Admittedly the Petitioner was not selected by the Commission for this post presumably on the basis of adverse entries in his confidential record and which entries came to his notice subsequently and these adverse entries were suo motu expunged by the Respondents in 1965. The Petitioner, therefore, represented to the Respondents to reconsider his case. He had been making representations continuously eversince his claim for selection to I.F.S. Class I had been rejected. The Respondents Nos. 2 and 3 have taken up a preliminary point that the petition suffers from glaring laches. Matters which stood closed long years back could not be reopened by the representations made by the Petitioner recently. The learned Counsel for the State had invited my attention to page 208 of the file-Promotion to Class I Posts-[Past file Ft. 45-33/56-111 (E)]. This is a letter dated 11-12-1967 from the Secretary (Forests) to the Government of Himachal Pradesh addressed to Shri B.N. Ghildyal, Senior Forestry Instructor, Nepal Forestry Institute and the subject is: "Request for retrospective promotion to H.P. Forest Service Class-I". The contents of this memorandum read as under:

"Reference correspondence resting with your letter, dated 16th June, 1967.

I am directed to say that the Administrator (Lieut.-Governor), Himachal Pradesh has carefully considered your request for promotion to H.P. Forest Service Class I from 29th August, 1962 as detailed in your representation, dated 23rd February, 1966 and 15th April, 1967 and has rejected the same.

Sd/- Secretary (Forests) to the Government of Himachal Pradesh.

This letter would show that the representations were rejected by this order dated 11-12-1967. Thereafter it appears the Petitioner had been continuously making representations one after the other so much so that he submitted over forty representations till 1974. According to him, he had been informed that the matter was very much alive and was under active consideration of the Government. He has filed a communication received from the Government marked as Annexure K to this petition. This communication is in continuation of the office memorandum, dated 3rd June, 1974, with reference to the representations of the Petitioner for his promotion to Class I retrospectively. Now the question therefore in these circumstances is as to when the cause of action accrued to the Petitioner and whether these representations would be sufficient to condone the delay and laches in maintaining this writ petition after about a decade or so.

For the first time the cause of action accrued to the Petitioner in the year 1962 when he was not selected by the Commission and his batch mates and persons junior to him had been selected. Right from then he had been making representation. However, he came to know about the cause of his rejection to the Himachal Pradesh Forest Service Class I by Respondent No. 5 only in the year 1965 that it was the adverse entry in the confidential record that he had been rejected. Thereafter he had continuously been making representations one after the other although he has not filed copy of any of the representations but it appears that he had been making representations. Two of the representations had been rejected by the Respondents by their reply, dated 11-12-1967, and the Petitioner by this letter which has been quoted above from the record which was produced before this Court had been duly informed by the Respondents at Nepal where he was on deputation. Therefore, firstly the cause of action accrued to him in the year 1962, when he was rejected and his juniors and batchmates had been selected. Secondly it was in 1965, when he came to know the real cause for his rejection that the cause of action accrued. But, still the Petitioner did not elect to challenge the selections of his juniors and also did not take any action except filing unauthorised and unprovided for represenations to the authorities. Those representations were also finally rejected on 11-12-1967. The Petitioner, therefore, again had a cause of action on the rejection of his representations to come to the Court but he slept over and had again been sending representations till, 1974 when he was informed by this letter Annexure K, dated 15th January 1975. In reply to para 11 of the petition, the State has stated that the representations, dated 28-2-1972, 25-7-1973 and 10-1-1975 of the Petitioner addressed to the Secretary, MOHA Deptt. of Personnel, New Delhi, were forwarded to the said department. In view of the reply of the Commission as contained in Annexure R.C., the Government of India, Department of Personnel, were informed that the State Government find no reason to review the selection to H.P.F.S. (Class I) by direct recruitment during the year 1962 and as such it was not possible to change the seniority of the Petitioner in so far as the State Forest Service was concerned. They were requested to consider the representations which were addressed to them. In their reply, the Government of India, Personnel Department, had informed that the seniority of the Petitioner in the I.F.S. had been fixed with reference to his seniority in the Forest Department of Himachal Pradesh and it would, therefore, be not possible to change his seniority unless his seniority in the State Forest Service undergoes a change. Annexure R.G., dated 27-12-1973 to which reference has been made in the reply under paragraph 11 of the return filed by the State reads as under:

"No. F. 1/108/62-RC ''Confidential''

UNION PUBLIC SERVICE COMMISSION DHOLPUR HOUSE, NEW DELHI-ll 27-12-1973

To

The Secretary to the Govt. of Himachal Pradesh, Forest Department, Simla.

Subject.-Indian Forest Service-Representation of Shri B.N. Ghildyal I.F.S. regarding assignment of year of allotment and seniority.

Sir,

I am directed to refer to your letter No. 1-154/69-SF. (Estt)., dated the 18th October, 1973, on the subject mentioned above and to say that no formal proceedings of the Interview Board are maintained by the U.P.S.C. and that the available records do not show that the Confidential Report of Shri B.N. Ghildyal influenced the decision of the Board. It is, therefore, regretted that the selections made by the U.P.S.C. cannot be reviewed at this stage.

Yours faithfully, Sd/- (A.N. SINHA), Under Secretary, Union Public Service Commission.

As a matter of fact the State Government had finally rejected his representations on 11-12-1967 for his reconsideration for promotion to the H.P.F.S. (Class I), but he still continued to make representations which have not been provided for under the rules. Further, right from 1962 onwards several promotions, etc. might have been made and there would be distrubance of the persons who have already acquired rights by lapse of time. In these circumstances it does not appear to be just and reasonable that the Petitioner should be held entitled to maintain this petition because he had been quite negligent and indolent in asserting his right through a proper forum and he chose a method which was not provided for under the rules. His representations, as already stated before, had finally been rejected in December, 1967 and if he had been making fresh representations and getting replies that it is under active consideration that did not mean that he should have awaited for the reply without knocking at the doors of the Court because these representations were not provided for under any rule especially when he knew that his case had finally been rejected -by the Government as back as December, 1967.

The Delhi High Court in Shri S.K. Sharma v. The Union of India, through the Secretary, Ministry of External Affairs, New Delhi 1971 (2) SLR 395 has held in the case of challenge to a seniority list which was drawn up as back as 1951 and the writ petition was filed in the year 1966 that it was quite obvious that in the course of this period of years many rights must have flowed to a number of persons and if the Petitioner was allowed to re-open the matter after such a long time it would result in confusion and uncertainty. The petition, therefore, deserved to be rejected on the ground that it had been filed after a great deal of delay.

Similarly the Punjab and Haryana High Court in Smt. Joginder Kaur and Ors. v. The Financial Commissioner, Revenue, Punjab and Ors. AIR 1975 PH 15 held that unexplained delay of nine months was sufficient ground for refusing relief.

The Punjab and Haryana High Court had in Jagjit Ram Vohra and Ors. v. The State of Haryana and Ors. 1974 (2) SLR 27 also taken the same view that laches cannot be overlooked and each case will have to be examined to see whether a particular Petitioner is or is not entitled to the relief available to him in view of the Supreme Court decision in Shamsher Jang Shukla''s case. This case which has been relied upon by the Punjab and Haryana High Court is reported as The State of Haryana, Vs. Shamsher Jang Bahadur, etc. etc.,

The Supreme Court in Jagdish Narain Maltiar Vs. The State of Bihar and Others, where the services of the Government sevant had been determined for gross misconduct and he had for nearly three years been submitting one memorandum after another to the government before he filed a writ petition in the High Court to challenge the order of removal, held that the memorials presented by him to the Government were in the nature of mercy petitions and he should have realised that in pursuing a remedy which was not duly appointed under the law he was putting in peril a right of high value and significance. By his conduct he disabled the High Court from exercising its extraordinary powers in his favour. The Supreme Court, therefore, further held that the High Court was justified in refusing to entertain the petition.

Again, in Amrit Lal Berry v. Collector of Central Excise, New Delhi and Ors. 1975 (1) S.L.R. 153, Shri Amrit Lal Berry Petitioner was not confirmed and then promoted, when he ought to have been promoted. His juniors were confirmed some time earlier and they retained their seniorities. The Governlent servants who ought to have been placed below the Petitioner had been promoted as Superintendents of Central Excise in the years 1970 to 1971 in disregard to the rights of the Petitioner. He challenged the Seniority list of 1st July 1967 and alleged illegal promotions of his juniors by filing the petition in December, 1971. An objection was taken by the opposite side that the petition suffers from bias, laches and delay and their Lordships held that if a Petitioner has been so remiss or negligent as to approach the Court for relief after an inordinate and un-explained delay, he certainly jeopardises his claims as it may became inequitable with circumstances altered by lapse of time and other facts, to enforce a fundamental right to the detriment of similar claims ofinnocent third persons.

Therefore, in the face of the Supreme Court authority the only irresistible conclusion that follows is that this petition is hopelessly barred by delay and laches. The cause of action, as already stated, accrued to him in 1965 when he learnt the reasons for his rejection. He, therefore, represented, although those representations were not provided for under the rules. He should have filed his petition seeking relief immediately after he learnt that adverse entries in the C.R. had wrongly been utilised against him, although from the reply Annexure C given by the Commission to the Secretary to the Government of Himachal Pradesh, Forest Department, it is clear that the records do not show that the confidential report of Shi B.N. Ghildyal influenced the decision of the Board. This is also dated 27-12-1973. There is no doubt that this reply is subsequent to that but the fact remains that his representations had been rejected by the Lt. Governor as back as December, 1967. Therefore, he had no right to pursue a remedy which was wholly unwarranted.

The learned Counsel for the Petitioner has submitted that these representations were by way of review to the order dated 11-12-1967, whereby his representations had been rejected. It is too much to say that these were by way of review. In the first place these representations were unwarranted and if it were so then there was no question of considering the subsequent representations as review petitions.

The learned Counsel has also placed reliance on a number of authorities in order to show that this delay should not be taken into consideration because he had all along been given an impression by the Government through its replies that his case was under active consideration and he had all along been labouring under the belief that his case would be decided.

The first authority in this regard that is relied upon by Shri Inder Singh Advocate is Sh. Shamsher Singh Kanwar and Anr. v. The Union of India, etc. 1973 ILR 1016 wherein it has been laid down that to determine whether the delay is such as to amount to laches, it is necessary to examine whether there has been:

(1) acquiescence on the part of the Petitioners;

(2) any change of position which has occurred on the part of the Respondent.

In para 6, it has been observed as:

"The mere circumstance of delay, while it is an element of laches, does not of itself constitute laches. Inquiry or prejudice resulting from the grant of the relief of the adverse party is also an important element of the defence of laches. Accordingly, if in the course of inexcusable delay in the assertion of a right changes occur in the subject matter to the transaction in suit or in the relative positions of parties thereof, as a result of which it is impossible to place the party in status quo, and the enforcement of the right would work inequity, relief will be denied because of laches.

Therefore, this authority, in my opinion, does not assist the Petitioner in any way. The Respondents have taken up this plea of laches. The Petitioner was rejected by the Commission (Respondent No. 5) in the year 1962 and eversince so many changes must have taken place, and, therefore, those persons who have already got a vested right cannot be put to any jeopardy after a long period of over 13 years. The facts of the case were quite different to the facts of this case.

The second authority relied upon is Virendra Swarup v. State of U.P. and Ors. 1977(2) S.L.R. 539 wherein the Deputy Transport Commissioner had vide his letter, dated 18th May, 1970, informed the Petitioner that his representation had been forwarded to the State Government and that he would be informed of the order passed thereon in due course. It appears that the Petitioner did not receive any reply. He filed the petition on 17-1-1972. It was in these circumstances that it was held that this reply of the State Government must have generated a belief in the mind of the Petitioner that the matter was receiving consideration by the State Government. If the Petitioner knew that his representation had already been finally rejected by the State Government surely he would have filed the writ petition much earlier. It was further observed:

"It appears to us that throughout the Petitioner had been active in trying to convince the State Government about his case and that he had been labouring under the impression that the State Government was actually engaged in considering his representations. Further the delay in presenting this writ petition has been resulted in any such change in a situation that may render the consideration of Petitioner''s case on merits, inequitable. There is also nothing on the record to show that in case the Petitioner is, at this stage granted the relief to which he is entitled, it would cause any injustice or undue hardship to any one else. In the circumstances, we are not inclined to throw out Petitioner''s case merely on the ground of delay in presenting the petition.

This authority also, therefore, has got no application, inasmuch as here the representations had finally been rejected in December, 1967, no matter he continued making representations and he had been infomed that the representation was under active consideration till the last. But, that will not in any way give any right to the indolent Petitioner to invoke the extraordinary powers of this Court for this relief after such a long time when several other persons have been promoted and are holding various posts and their rights would be affected by the grant of this belated relief in favour of the Petitioner.

The learned Counsel for the Petitioner had contended that there is nothing on the record to show if the rights of other persons would be affected. No matter, it has not been so stated in their reply, but the fact remains that the things cannot remain static right from 1962 till 1975 and so many changes, promotions and postings must have taken place and therefore those persons who have already acquired rights cannot be jeopardised because of the inaction and inordinate delay and indolence on the part of the Petitioner.

The learned Counsel for the Petitioner has further tried to draw support from a case Brij Nandan Lal and Ors. v. State of U.P. 1972 S.L.R. 16 wherein it was held that Government not giving reply to the repeated representations the Petitioner does not lose his right on account of delay. This authority has got no relevancy to the facts of the present case, inasmuch as here the representations which had been filed by the Petitioner had been finally rejected on 11-12-1967 and there was, therefore, no occasion for the Petitioner to have filed repeated representations and if he had been filing and getting replies that they were under active consideration that was his vain hope for which he himself must be blamed and he has, therefore, disentitled himself to the reief because of inaction and pursuing a remedy not provided for under the rules. The Supreme Court has already laid down that memorials in the form of mercy petition could not be a justification for filing a writ petition after a good deal of delay.

Another case K.S. Game v. State of Madhya Pradesh and Ors. 1972 S.L.R. 415 has been cited by the learned Counsel to show that where the Petitioner was making representations to the State Government and his appeal was also pending before it for a considerable period, the delay in the filing of the petition is not sufficient to deprive the Petitioner of the relief which he is entitled to get. In the aforesaid authority relied upon by the learned Counsel there was an appeal filed and which was a statutory right and during the pendency of the appeal he had been making representations also. Therefore, this delay cannot be considered to be fatal, inasmuch as the appeal was pending when he had been making representations. But, here the case is altogether different. The Petitioner''s prayer for reconsideration for selection to the Indian Forest Service Class I had been rejected by the Government on 11-12-1967 and therefore there was no occasion for him to have made any representation and if he had been pursuing that was unwarranted, and if he had been labouring under a mistaken view that will not be sufficient to condone this delay. Repeated filing of the representations cannot be said to be an explanation for the delay in filing the petition.

In view of the fact that this delay is fatal, it is not necessary to consider the case on merit.

The result, therefore, is that the petition fails on the ground of delay and laches and the same is hereby dismissed. However, I pass no order as to costs.