Amar Singh Bisht vs Director General ITBP Force And Others

Ramesh Ranganathan, CJ

The application, seeking condonation of the delay of 43 days in preferring this appeal, is not opposed by Mr. V.K. Kapruwan, learned Standing Counsel for the Union of India-respondents, and the delay is, therefore, condoned. Delay condonation application is, accordingly, disposed of.

This appeal has been preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No. 2721 of 2017 dated 05.03.2019. The appellant-writ petitioner filed Writ Petition (S/S) No. 2721 of 2017 seeking a writ of certiorari to quash the office memorandum dated 20.06.2017, issued by the second respondent, whereby the appellant-writ petitioner's claim for promotion had been rejected on the ground that Standing Order dated 13.10.1977 was not in force; a writ of mandamus calling for the entire records with regard to the promotion of the appellant-writ petitioner, as well as other similarly situated employees, for the post of Lance Naik and Sub-Inspector; a writ of mandamus to promote the appellant-writ petitioner to the post of Lance Naik w.e.f. August, 1985, considering the additional professional qualification i.e. black belt in judo and his two years' satisfactory service rendered as constable, as provided in the Standing Order dated 13.10.1977; a writ of mandamus directing the respondents to promote the appellant-writ petitioner to the post of Sub-Inspector w.e.f. the date when his promotion was due as Sub-Inspector; and a writ of mandamus directing the respondents to grant all consequential benefits to the appellant-writ petitioner after promoting him to the post of Lance Naik as well as Sub-Inspector.

The appellant-writ petitioner's claim, in short, is that, in terms of the Standing Order dated 13.10.1977, the candidate should have completed three years' minimum satisfactory service in the post of Constable to be considered for promotion to the post of Lance Naik; relaxation may, however, be granted in favour of constables with matriculation or higher qualification; the appellant-writ petitioner possesses intermediate qualification, which is higher than matriculation; he should, therefore, have been given the benefit of relaxation of service; since he had completed two years' satisfactory service as Constable in the year 1985, and possesses a black belt in judo/karate with two years' satisfactory service, he was eligible for promotion as a Lance Naik; he was thereafter eligible to be promoted to the post of Sub-Inspector (List-D) as he held black belt in judo/karate; and, despite the repeated representations submitted by him, he was not granted promotion.

The impugned order dated 20.06.2017 records the reasons for rejecting the appellant-writ petitioner's claim holding that Standing Order No. 7/77 is no longer in force, and the appellant-writ petitioner was not entitled to claim promotion from the year 1985. In the counter affidavit, filed to the writ petition, the respondents state that the appellant-writ petitioner was claiming seniority protection after a lapse of 32 years; most of the records had been weeded out, after completion of its prescribed retention period; the Standing Order No. 7/77 was not in operation; and the additional qualification, possessed by the appellant-writ petitioner, did not confer on him any right to claim promotion.

In the order under appeal, the learned Single Judge found substance in the submissions urged on behalf of the respondents, and held that the appellant-writ petitioner was promoted as a Lance Naik in the year 1988, and was thereafter promoted as Sub-Inspector and Inspector in subsequent years; he had accepted all promotions given to him without demur; he slept over his rights all these years, and had then filed a representation; the representation is barred by acquiescence and estoppel; and, even otherwise, the writ petition suffered from delay and laches, for which there was no satisfactory explanation.

The relief sought for by the appellant-writ petitioner, in effect, is that he ought to have been promoted as a Lance Naik from the year 1985 instead from the year 1988, in as much as Standing Order No. 7/77 enabled persons, who hold a black belt in judo/karate, to be considered for promotion if they possess education qualification of matriculation or above. While it is admitted that Standing Order No. 7/77 prescribes a minimum period of three years' service as Constable to be considered for promotion to the post of Lance Naik, the appellant-writ petitioner claims that, since there is a power of relaxation, of the minimum years of service for promotion, in favour of candidates who possess the educational qualification of matriculation or above, he should have been granted relaxation; and since he had completed two years' service by 1985, he ought to have been promoted as a Lance Naik in the year 1985, and not three years thereafter in the year 1988.

The appellant-writ petitioner has sought the aforesaid relief by way of a writ petition filed in the year 2017 i.e. 32 years after the date on which he claims that he is entitled to have been promoted in the year 1985. While we find considerable force in the submission urged by Mr. Shailendra Nauriyal, learned counsel appearing on behalf of the appellant-writ petitioner, that the mere fact that the Standing Order was not in force as on date would not disable the appellant-writ petitioner's claim from being considered for promotion as Lance Naik in the year 1985 when Standing Order No. 7/77 was in force, we cannot ignore the fact that the appellant-writ petitioner has approached this Court after an inordinate delay of 32 years.

The appellant-writ petitioner claims that he had submitted several representations to the concerned authorities. Mere submission of representations would not enable the appellant-writ petitioner to overcome the inordinate delay and laches in invoking the writ jurisdiction of this Court. The Supreme Court, in State of M.P. Vs. Nandlal Jaiswal : (1986) 4 SCC 566, observed:

".................Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction....."

(emphasis supplied)

The writ petition is hit by undue delay and laches. In the light of the law declared by the Supreme Court, in State of M.P. Vs. Nandlal Jaiswal : (1986) 4 SCC 566, this Court would not come to the aid of the indolent and the lethargic. The learned Single Judge has exercised his discretion and non-suited the appellant-writ petitioner on the ground of inordinate delay and laches also.

The scope of interference, in an intra-Court appeal, is extremely limited; and, save cases where the order under appeal suffers from a patent illegality, no interference is called for. We are satisfied that the order under appeal does not suffer from any such infirmity.

The Special Appeal fails is, accordingly, dismissed. No costs.