Arab Abdulla Sulemanbhai vs Union of India (UOI) and Others

V.M. Sahai, J.—We have heard Mr Sunil L Mehta, learned Counsel appearing for the Petitioner and Ms. Sejal K Mandavia, learned Counsel for the Respondents. This writ petition has been filed challenging the order dated 16.1.2009 passed by the Central Administrative Tribunal (in short, "the Tribunal") in Review Application No. 31/2007 in O.A. No. 98/2007 with M.A No. 462 of 2007.

The facts of the case in brief are that the Petitioner joined the services of the Central Excise department on 17.6.1974 as Sepoy. As per the Recruitment Rules, the Petitioner appeared in the departmental examination for Group ''D'' post held in July 1980. He failed to clear the typing test held on 21.1.1981. Thereafter he was promoted to the post of Lower Division Clerk on 14.11.1994 i.e. after 20 years. Again he was promoted to the next higher post of Tax Assistant in the year 2003. Pursuant to the new Rules issued by the Ministry of Finance, Department of Revenue, vide order No. 162/2006 dated 8.11.2006, the Petitioner was demoted to Upper Division Clerk. The O.A. No. 98/2007 filed by the Petitioner claiming promotion to the post of LDC w.e.f. 1981 with consequential benefits, was dismissed by the Tribunal vide order dated 30.4.2007. The Petitioner preferred Review Application being No. 31/2007 on the ground that the Petitioner should have been treated as exempted in terms of OM dated 15.1.1981 as he had passed the Hindi Typewriting test conducted by Rajbhasha Vibhag and though junior to the Petitioner has been promoted, the Petitioner has not been promoted which was dismissed by the Tribunal by order dated 16.1.2009. This order is challenged in this writ petition.

It appears that the Petitioner is claiming two promotions, from 1981 to 1994 as his junior has been promoted and the second claim for promotion is from the post of Senior Tax Assistant to the post of Inspector w.e.f. 2005 till the date of retirement of the Petitioner i.e. in 2009. The first claim was made by the Petitioner in the year 1997 and further claim was made by filing OA No. 317 of 1999 which was dismissed by the Tribunal by order dated 17.1.2003. Thereafter the Petitioner was promoted from the post of LDC to the next higher post i.e. Tax Assistant in 2003 and from the post of Tax Assistant he was promoted to the next higher post of Senior Tax Assistant in the year 2005. It is not in dispute that since 1981 till 1997 the Petitioner was sleeping over his rights. Thus, we do not find that the claim of promotion in any way is justifiable.

Law is well settled that the Petitioner should not approach the court after an inordinate delay. The Apex Court in Shiba Shankar Mohapatra and Others Vs. State of Orissa and Others, held that after a lapse of a reasonable period seniority cannot be challenged. Long-standing seniority cannot be disturbed at a belated stage is no more res integra as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotions which have been accrued to them during the intervening period. In paras 18 and 29 of the judgment the Apex Court held as under:

The question of entertaining the petition disputing the long-standing seniority filed at a belated stage is no more res-integra. A Constitution Bench of this Court, in Ramchandra Shankar Deodhar v. State of Maharashtra considered the effect of delay in challenging the promotion and seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. A party should approach the court just after accrual of the cause of complaint. While deciding the said case, this Court placed reliance upon its earlier judgments, particularly in Trilokchand Motichand v. H.B. Munshi, wherein it has been observed that the principle on which the court proceeds in refusing relief to the Petitioner on the ground of laches or delay, is that the rights, which have accrued to others by reason of delay in filing the writ petition should not be allowed to be disturbed unless thee is a reasonable explanation for delay. The Court further observed as under: (Trilokchand case, SCC p 115, para 7)

7.... The party claiming fundamental rights must move the court before other rights come into existence. The action of courts cannot harm innocent parties if their rights emerge by reason of delay on the part of person moving the court.

It is settled law that fence-sitters cannot be allowed to raise the dispute or challenge the validity of the order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing relief is that the person approaching the court is guilty or delay and the laches. The court exercising public law jurisdiction does not encourage agitation or stale claims where the right of third parties crystallises in the interregnum. (Vide Aflatoon v. Ltd. Governor of Delhi, State of Mysore v. V.K. Kangan, Municipal Council, Ahmednagar v. Shah Hyder Beig, Inder Jit Gupta v. Union of India, Shiv Dass v. Union of India, APSRTC v. N. Satyanarayana and City and Industrial Development Corporation v. Dosu Aardeshir Bhinwandiwala)

We do not find any illegality in the impugned order passed by the Tribunal in Review Application No. 31/2007 in O.A. No. 98/2007 with M.A No. 462 of 2007.

In the result, this petition fails and is accordingly dismissed. Rule is discharged.