Pushpa Pandita & Anr vs J&K SRTC & Ors

Sanjeev Kumar, J

1 This appeal under clause 12 of Letters Patent is directed against the judgment dated 03.06.2011 passed by the learned Single Judge [“the Writ Court”] in SWP No. 2294/2002 titled „Pushpa Pandita & Ors vs. J&K SRTC & Ors, whereby the writ petition filed by the appellants seeking quashment of promotion of respondent No.4 to the post of Sr. Typist and grant of the same in favour of the appellants, has been dismissed by the Writ Court.

2 Before adverting to the grounds of challenge urged by the appellants in support of their appeal, it is necessary to set out brief resume of the factual antecedents leading to filing of this appeal. At the relevant point of time, the appellants and respondent No.4 were serving as Junior Assistants in J&K SRTC [“the Corporation”]. The General Manager (Admn.) of the Corporation vide order No. JKSRTC/MD/RHQJ/1293-97 dated 03.05.1997 promoted respondent No.4 as Sr. Assistant in the then pay scale of Rs.1200-2140 (pre-revised). The appellants, claiming to be senior to respondent No.4, were left out. The appellants claim that they figured at S.No.257 and 258 respectively in the seniority list of Jr. Assistants issued in the year 1991, whereas respondent No.4 was shown at S.No.371 in the said list.

3 Feeling aggrieved by the promotion of their junior as Sr. Assistant, the appellants filed SWP No. 2294/2002 seeking, inter alia, a Writ of Certiorari for quashing the order of promotion of respondent No.4 as also a Writ of Mandamus for directing the Corporation to promote the appellants also as Sr. Assistants w.e.f the date respondent No.4 had been so promoted. The appellants also challenged the authority of respondent No.3 to issue an order of promotion in favour of respondent No.4. The order of promotion of respondent No.4 which was issued on 03.05.1997 was called in question in the writ petition filed in the year 2002 and, therefore, to explain the delay, the appellants in their writ petition pleaded that since the Corporation had kept the promotion of respondent No.4 as guarded secret and, therefore, it took them a lot of time to have access to the impugned order and, therefore, the delay.

4 The writ petition was opposed by the Corporation, who in their written objections, took a plea that respondent No.4 was working as a Jr. Assistant/Typist and had gained sufficient experience in typing and it is because of this reason, he was promoted as Sr. Assistant/ Typist on the basis of recommendations made by the Departmental Promotion Committee. It was also pleaded by the Corporation that respondent No.4 was better qualified as compared to the writ petitioners- appellants herein.

5 The Writ Court considered the matter and found that there was unexplained delay of five (5) years to challenge the impugned order. The Writ Court came to the conclusion that the appellants and respondent No.4 were not only borne on the same cadre, but were working in the same Organization and, therefore, there was no reason or justification with the appellants to wait for five years to call in question the order of promotion made by the Corporation in favour of respondent No.4. The Writ Court, relying upon the judgment of the Supreme Court in the case of P.S.Sadasivaswami vs. State of Tamil Nadu, (1975) 1 SCC 152, came to the conclusion that the writ petition challenging the promotion filed after one year should not be entertained. The writ Court, accordingly, vide order impugned, dismissed the writ petition.

6 The appellants are aggrieved of the order impugned and have assailed the same primarily on two grounds;

(i). That, admittedly, respondent No.4 was junior to the appellants as Junior Assistant and, therefore, could not have been promoted prior to the promotion of the appellants to the post of Sr. Assistant/Typist; and,

(ii). That, the appellants and respondent No.4 were Jr. Assistants borne on the same cadre and, therefore, there was no reason or justification with the Corporation to carve out a case in favour of respondent No.4 on the ground that he had gained sufficient experience in typing and, therefore, better suited for the post of Sr. Assistant.

7 Having heard learned counsel for the parties and perused therecord, we are of the view that the writ petition suffered from delay and laches and has been rightly dismissed by the Writ Court.

8 It may be true that the appellants were senior to respondent No.4 in the cadre of Junior Assistant/Typist as is otherwise evident from the seniority list of Jr. Assistants issued in the year 1991. There are many other Junior Assistants even senior to the appellants, who, too, have been superseded. In that view of the matter even if we find appellants entitled to promotion on parity with respondent no.4, yet we will not be in a position to issue any direction to the Corporation to promote the appellants also from the date, respondent no.4 had been promoted for the reason that, by doing so, we shall be directing the promotion of the appellants in supersession of better and superior claim of those, who, as per the seniority list, are senior to the appellants. That apart, we do not find that the delay in approaching this Court has been sufficiently explained.

9 We have perused the original service book of respondent No.4 produced by Mr. Koul, learned counsel appearing for the respondents. While going through the service book, we find that respondent No.4, who was initially appointed as Conductor, was promoted as Jr. Assistant/Typist vide order dated 25.11.1986. He was given promotion to the post of Sr.Typist in terms of order impugned in the writ petition and right from his promotion as Sr. Typist, respondent No.4 continued to work in the Corporation and, therefore, it is not imaginable that the appellants were not aware that respondent No.4 had been promoted. Respondent No.4 was even promoted to the post of Stenographer by the Corporation vide its order dated 04.09.2010 i.e during the pendency of the writ petition. The order aforesaid has not been called in question by the appellants. From the service book, we also noticed that respondent No.4 has since retired on superannuation on 31.03.2014. The explanation tendered by the appellants to explain the delay is neither cogent, nor satisfactory. The contention of the appellants that they were not possessed of the impugned order and, therefore, could not lay challenge within time, cannot be accepted, more-so, when the appellants were serving in the same Organization. The appellants have appended with the writ petition not only the seniority list issued in the year 1991, but have also placed on record, a copy of the impugned order whereby the promotion of respondent No.4 from the post of Jr. Assistant/Typist to the Post of Sr. Typist was made without disclosing as to how the impugned order ultimately landed in their possession.

10 In P.S.Sadasivaswami’s case (supra), relied upon by the Writ Court, the Supreme Court has held that a Government employee, who is aggrieved by the promotion, must approach the Court within a period of six months or latest within a year. The relevant extract of the observations made in para (2) of the said Judgment, reads thus:

“A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner’s petition should, therefore, has been dismissed in limine. Entertaining such petition is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work”.

11 In the instant case, by keeping silent for a period of five (5) years, the appellants have allowed respondent No.4 to work as Sr. Typist in the cadre different from the cadre of Sr. Assistant. He even earned eligibility to be promoted to the next higher post in the cadre i.e Stenographer against which post he was subsequently promoted in the year 2010. During the pendency of this appeal, respondent No.4 has even retired on superannuation. Even if, we were to entertain this appeal and quash the promotion of respondent No.4, it would not be possible to do so, unless his further promotion to the post of Stenographer, which is not even assailed, is also quashed. Otherwise also, by quashing the promotion of respondent No.4, it may not be appropriate to issue a direction to the respondents to promote the appellants instead, for the reason that there are other candidates senior to the appellants, who have better and superior right than the appellants.

12 On the conspectus of the aforesaid facts and circumstances, we are of the considered view that it is too late in the day to interfere with the promotion of respondent No.4 as Sr. Typist made in the year 1997. The Writ Court has rightly declined to interfere with the promotion of respondent No.4 on the grounds of delay and laches.

13 In view of the foregoing analysis, we find no merit in this appeal. Same is, therefore, dismissed.

Original record be returned to Mr. Koul, learned counsel for the respondents.