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Judgment
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
By filing this OA on 16.11.2021, the applicant has sought direction to the respondents to promote him to APO/AWO at par with others, who were promoted to the said post/grade vide memorandum dated 21.12.2011 with all consequential financial benefits by quashing the order of rejection dated 14.10.2014, 27.11.2014, 17.12.2014 and 30.06.2021.
Respondents filed their counter contesting the very sustainability and maintainability of this OA on the ground of delay and laches as also on merit. The applicant has also filed rejoinder to the counter filed by the respondents. The applicant has also filed MA No. 582/2021 seeking to condone the delay in exercise of power under section 21 (3) of the Administrative Tribunals Act, 1985.
Thus, keeping in mind the law laid down by the Hon’ble Apex Court in the very many cases, especially in the case of D.C.S. Negi Vs. Union of India & others [2011 SCC online SC 21], we have at the first instance heard on the MA No. 582/2021 filed by the applicant seeking to condone the delay and, while doing so, we have also heard the merit of the matter.
Ld. Counsel for the applicant in the pleadings has taken the ground that when substantial justice and technical consideration 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 the injustice being done because of a non-deliberate delay and, that where third party interest is not affected then the court can condone the delay and, in support of the said plea, he has relied on the decision of the Hon’ble Apex Court in the case of Tukaram Kanha Joshi & Ors Vs Maharastra Industrial Development Corporation and others [2013 (1) SCC 353]. The period from 15.03.2020 to 14.03.2021 needs to be excluded due to Covid-19 pandemic, has also been taken as one of the grounds for condonation of delay. The stand taken in the pleadings noted above, has also been vociferously highlighted by Ld. Counsel for the applicant in course of hearing. On the other hand, Ld. Counsel appearing for the respondents strongly and stoutly opposed the very prayer of the applicant for condonation of delay even by taking support of the decision relied on by the applicant in his pleadings and in course of hearing by pinpointedly stating that it is no doubt but true that in case the applicant is allowed promotion, the same will affect the interest of many more, which would create a complete chaotic condition among the employees as also in administration. Therefore, this OA at this belated stage needs to be dismissed on the ground of delay and laches.
We allude to the judgment of the Hon’ble Supreme Court in B.S. Bajwa Vs. State of Punjab, (1998) 2 SCC 523, wherein it was held that in service matters, question of seniority should not be reopened after lapse of a reasonable period as this results in disturbing settled positions, which is not justified. In P.S. Sadasivaswamy Vs. State of Tamil Nadu, (1975) 1 SCC 152, the Hon’ble Supreme Court held that a petition filed after 14 years, relating to seniority and promotion should not be entertained. In Ramchandra Shankar Deodhar and Others Vs. State of Maharashtra and Others, (1974) 1 SCC 317, the Constitution Bench of the Hon’ble Supreme Court held that any claim for seniority or promotion at a belated stage should be rejected as it seeks to disturb vested rights of other persons regarding seniority, rank and promotion, which have accrued to them during the intervening period. Making repeated representations and waiting for their disposal for over 2 decades can hardly be a justification to seek condonation of delay, more particularly, when the claim pertains to promotion and seniority, retrospectively from the year 2001. It is a settled law that representations do not extend or condone the limitation period. [Ref. Surjeet Singh Sahni Vs. State of U.P. & Ors., 2022 SCC Online SC 249, and State of Tripura and Others Vs. Arabinda Chakraborty and Others, (2014) 6 SCC 460. The Hon’ble High Court of Delhi in the case of Ramsharan Vs. Chairman Indian Oil Corporation Ltd., 2022 SCC OnLine Del 3982, has held as follows:-
"6.It is well settled that if a person is denied promotion at a time when he is entitled to, he has a right to approach the Court of law to ventilate his grievances, and contend that there was no legal justification to ignore him and the employer could not extend promotional benefits to others while ignoring him. However, it is also equally well settled that the employees cannot approach the Court belatedly to raise stale claims by contending that they were waiting for their representations to be considered. It has been repeatedly held that filing a representation alone will not save the Neutral Citation Number: 2023/DHC/001730 of Courts of law to determine the question as to whether the claim made by an applicant deserves consideration or not. It is also settled that delay and laches on the part of the employee might deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant [Refer : State of T.N. v. Seshachalam, (2007) 10 SCC 137].
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8.The abovementioned paragraphs were noted by the Apex Court in State of Uttaranchal v. Shiv Charan Singh Bhandari, (2013) 12 SCC 179, and the Apex Court has observed as under:
"27.We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own Central Administrative Tribunal leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Anyone who sleeps over his right is bound to suffer. As we perceive neither the Tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion.
28.Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the Tribunal and accepted by the High Court."
The Hon’ble Apex Court in the case of State of M.P. Vs. Nandlal (AIR 1987 SC 251) held that the Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic approach. If there is inordinate delay on the part of the petitioner, the Court may decline to intervene and grant relief in exercise of its writ jurisdiction.
Further, the Hon'ble Supreme Court in the case of State of Uttaranchal and another Vs. Sri Shiv Charan Singh Bhandari and others, 2013(6) SLR 629, while considering the issue regarding delay and laches and referring to earlier judgments on the issue, opined that repeated representations made will not keep the issues alive. A stale or a dead issue/dispute cannot be revived even if such a representation has been decided either by the authority or by getting a direction from the court as the issue regarding delay and laches is to be decided with reference to original cause of action and not with reference to any such order passed. Delay and laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India, in a situation of that nature, will not be attracted as it is well known that law leans in favour of those who are alert and vigilant. Even equality has to be claimed at the right juncture and not on expiry of reasonable time. Even if there is no period prescribed for filing the writ petition under Article 226 of the Constitution of India, yet it should be filed within a reasonable time. An order promoting a junior should normally be challenged within a period of six months or at the most in a year of such promotion.
In the instant case, according to the applicant, on 30.11.2011, result of the examination for formation of Group-B/Personnel Combined panel was published and, on 21.12.2011, consolidated provisional panel was issued. Supplementary list of qualified candidates to appear at the viva voce was published on 30.09.2014. On 14.10.2014, applicant and other candidates from supplementary panel were sent for medical checkup. On 08.11.2014, applicant himself examined in a private hospital at Visakhapatnam. On 05.12.2014, applicant submitted appeal to Resp. No.1 on the letter communicated to him dated 27.11.2014. On 19.03.2021, applicant submitted appeal relating to medical examination, which was rejected on 30.06.2021. Again, he filed appeal on 08.09.2021 and reminder on 07.10.2021 and, filed this OA on 16.11.2021. From the above, it is clear that even it is accepted that this OA is filed within the time limit provided under Section 21 of the AT Act, but the relief he sought in this OA, is of unsettling a settled matter of promotion and seniority of 10 years ago. Hence, we are of the considered view that this OA, in view of the law propounded by the Hon’ble Apex Court, is liable to be dismissed, also, by taking into consideration the decision of the Hon’ble Apex Court holding that it is not in the interest of the service to unsettle a settled position every now and then [vide Direct Recruit Class II Engineering ... Vs State of Maharashtra and Ors, 1990 AIR 1607].
In the result, MA 582/2021 filed by the applicant and consequently the OA are hereby dismissed. No costs.