Dudh Nath vs State of Haryana and Others

Augustine George Masih, J.—Petitioner has approached this Court impugning the order dated 09.09.2004 (Annexure P-10), vide which the claim of the petitioner for promotion as an Assistant in the head office stands rejected.

Petitioner was appointed as a Peon through Employment Exchange in the year 1975 in the office of the Executive Engineer Sewani Canal Division, Hisar. He was promoted as Temporary Clerk on 24.12.1982. His services were regularized on the post of a Clerk by the Subordinate Services Selection Board, Haryana on 07.03.1990. He was attached with the head office on 10.09.1987. He continued in the head office till his superannuation on 31.12.2013. Prior to his retirement, petitioner approached the respondents for granting him seniority and the consequential benefits in the head office and in pursuance thereto, submitted representation dated 25.03.2004 (Annexure P-7) for inclusion of his name in the seniority list of Clerks in the head office. When the said representation of the petitioner was not accepted and no decision was taken thereon, petitioner preferred CWP No. 8312 of 2004, which was disposed of by this Court vide order dated 25.05.2004 (Annexure P-9) directing the General Manager/Project, Irrigation Department, Haryana to decide the representation of the petitioner. The said representation of the petitioner, in compliance with the order passed by this Court on 25.05.2004, was considered and rejected by the General Manager/Project, Irrigation Department, Haryana vide order dated 09.09.2004 (Annexure P-10).

This order dated 09.09.2004 (Annexure P-10) was not challenged by the petitioner and had attained finality unless he preferred CWP No. 27171 of 2013. The said writ petition was withdrawn by the petitioner with liberty to file a fresh writ petition on the same or incidental or ancillary cause of action. In the said order, the Court has also observed that the petitioner would have to explain the delay in presenting the writ petition as the issue of seniority has been raised by the petitioner after 9 years when the cause of action had arisen i.e. because of the passing of the order dated 09.09.2004. The present writ petition has now been filed by the petitioner.

It is the contention of the counsel for the petitioner that the claim of the petitioner for inclusion of his name in the seniority list of the head office has been rejected on the ground that the qualification for the post of Clerk in the head office is higher i.e. 1st Division Matric or Graduate whereas qualification for the post of Clerk in the field cadre is simple Matric. Since the petitioner was simple Matric, he was ineligible for consideration for permanent absorption in the head office cadre. She, on the basis of the Statutory Rules i.e. Punjab Public Works Department (Irrigation Branch) Head Office, Clerical (State Service Class III) Rules, 1965 (hereinafter referred to as ''1965 Rules''), as applicable to the State of Haryana, contends that the said Rules do not provide for such a qualification. Further contention of the counsel for the petitioner is that the distinction between ''A'' and ''B'' Class category of posts has also been abolished by the Government of Haryana vide notification dated 02.03.1982 (Annexure P-5). Her contention thus is that the impugned order dated 09.09.2004 (Annexure P-10) cannot sustain.

This contention of the counsel for the petitioner cannot be accepted in the light of the fact that the petitioner although was serving in the head office being attached therein since 10.09.1987 but continued to be a member of the field cadre. No Rules/Instructions have been specified or pointed out which would permit such an absorption in the head office cadre. Since there are different cadres for the head office and the field office, inclusion of the name of the petitioner in the seniority list of the head office Clerks and to thereafter consider him for promotion to the post of Assistant does not arise. This is one of the reasons which has been mentioned in the impugned order dated 09.09.2004 disentitling the petitioner to the claim of inclusion of his name in the seniority list.

The operative part of the impugned order dated 09.09.2004 dealing with this aspect reads as follows:-

It is also stated that the pay scale of the clerk of head office as well as field cadre is the same. The plea taken by Sh. Dudh Nath, Clerk that he is getting salary at par with the head office clerical staff has no force for taking him at head office cadre and maintaining his seniority in the head office cadre.

Keeping in view the above discussion the claim of petitioner for taking him at head office cadre and maintaining his seniority in the head office cadre is not as per rules. Sh. Dudh Nath Clerk is a field cadre official. His name cannot be included in the seniority list of Clerks of Head Office. His seniority is being maintained in the clerical cadre of field establishment under the rules applicable to him. Thus his representation is disposed of.

I ordered accordingly. Communicate to all concerned.

Another aspect, which would disentitle the petitioner to the claim, as has been made in the present writ petition, is the fact that the impugned order dated 09.09.2004 has not been challenged by the petitioner till the filing of CWP No. 27171 of 2013 and that too, in December, 2013. While permitting withdrawal of the said writ petition, this Court, vide order dated 18.12.2013 (Annexure P-11), had categorically observed and pointed out that the delay on the part of the petitioner in approaching this Court needs to be explained. The only explanation, which has now been put forth by the counsel for the petitioner, is that the petitioner had, all through, been representing the respondents for the grant of benefit, which he was entitled to under the 1965 Rules. This explanation, as put forth by the counsel for the petitioner, would not be just and reasonable, which would permit the petitioner to raise such a plea as to come out of the delay and latches in approaching this Court.

Another aspect, which goes against the petitioner, is that the petitioner has since retired on 31.12.2013. The petitioner having slept over his claim for more than 9 years till he first approached this Court by filing CWP No. 27171 of 2013, the equity has weighed against the petitioner heavily. The settled preposition under law at this belated stage which would, if the claim of the petitioner is accepted, lead to unsettling the seniority of the head office and the consequential promotions, which may result in demoting some of the officials, cannot be permitted to be perpetuated at the behest of the petitioner who has not been conscious and vigilant enough to assert his claim.

The writ petition, therefore, stands dismissed on both counts i.e. merits and delay and latches.