Sarju Sharan vs The State of Bihar and Others

S.B. Sinha, J.—This writ petition is directed against an order dated 1.11.1975 as contained in Annexure 1 to the writ petition and the impugned portion whereof has been mentioned as Annexure 2 thereto and further for a direction for payment of arrears of salary for the period 30th March, 1963 to 22nd October, 1964 and 17th July, 1967 to 21st January, 1971. The facts of the case lie in a very narrow compass.

Admittedly the petitioner was senior to various persons named in Annexure 1 i.e. Satya Narain Prasad and Hira Lal Tiwari.

By an order dated the 30th March, 1963 the aforementioned Satya Narain Prasad and another were promoted to the post of Executive Engineer from the post of Assistant Engineer.

The petitioner has stated in this application, which facts are not disputed, that after the promotion of the aforementioned two persons, the petitioner made a representation claiming promotion in Bihar Engineering Service Class 1 as admittedly he was senior to them. It is alleged that thereafter the petitioner was posted as Incharge of a Division which are held by Class I Officers of Bihar Engineering Service. The petitioner took charge of the Division with effect from 5.6.64 in addition to his own duties which he was performing, as a P.A. to Superintending Engineer, P.W.D., Chotanagpur Circle which was a post in the cadre of Class II service in Bihar Engineering Service.

The petitioner, however, was promoted on a regular basis in Class I of the Bihar Engineering Service with effect from 23.10.64.

However, the respondents by a notification dated 31.7.67 extended the period of promotion of the petitioner in Class I post only up to 16.6.67 but he was allowed to continue on the said post as Incharge of the Division upto 30th March, 1968.

The petitioner, was posted as Assistant Engineer of Ganga Bridge Project, Patna with effect from 30th March, 1968 afternoon on which post the petitioner joined on 11.4.1968. The petitioner thereafter was, however, allowed to hold the charge of a Division with effect from 5.6.64 to 30th March, 1968 although by a notification the respondent was notified as Executive Engineer which as stated herein fore is a Class I post in Bihar Engineering Service from 16.10.64 to 16.6.67.

Thereafter a combined seniority list was prepared which was published by a notification dated the 17th February, 1969. The said notification was challenged in the High Court of Judicature at Patna by persons who were similarly situated to that of the petitioner. The said notification was struck down by this Court in C.W.J.C. No. 290 of 1969 and the respondents were directed to prepare a fresh seniority list fixing the seniority of the petitioners thereof who were direct recruits and the respondents of the said writ petition which were promotees, in the light of the observation made therein. The respondents of the said writ petition against the aforementioned judgment passed by this Court in C.W.J.C. No. 290 of 1969 preferred an appeal before the Hon''ble Supreme Court of India which was dismissed.

It is alleged that the State of Bihar after the pronouncement of the aforementioned judgment of the Supreme Court issued a seniority list which is contained in Annexure 7 to the writ petition as a result whereof the petitioner was again promoted to the post of Bihar Engineering Service Class I by a notification dated the 26th July, 1972. By the said notification the petitioner was given promotion with retrospective effect with effect from 21.1.71. The said notification is contained in Annexure 8 to the writ petition.

The petitioners position in the combined seniority list as contained in Annexure 7 to the writ petition was 71.

The petitioner in paragraph 23 of the writ petition has stated that the petitioner and the persons similarly situated made many representations to the Government for fixation of pay and payment of arrears treating them promoted in Bihar Engineering Service Class 1 Service from the date when the junior officer''s position at serial Nos. 87 and 89 were promoted in Class I i.e. 30th March, 1963. By the impugned order dated the 1st September, 1975, the State of Bihar pursuant to the aforementioned representation directed the Accountant General of Bihar to fix the pay of the petitioner treating bis promotion to be with effect from 30th March, 1963, but, however, directed that no arrears of salary would be paid by reasons thereof.

Mr. N.K. Prasad, learned counsel appearing on behalf of the petitioner submitted that from a perusal of Annexure 1 to this writ petition itself it would appear that the petitioner was not promoted with effect from 30th March, 1963 for no fault to his,. He further submitted that the petitioner cannot be made to suffer for the mistakes on the part of the respondents. Mr. Prasad further submitted that the very fact that the petitioner was promoted with retrospective effect from 30th March, 1963, he cannot, in law, be denied the right to get the salary with effect from the aforementioned date as evidently the same was done owing to a mistake on the part of the respondents. In this connection Mr. Prasad has placed strong reliance upon a decisions of Kerala High Court in Alappat Narayana Menon v. State of Kerala & Ors, reported in 1977 2 Services Law Reporter 626 and a decision of Punjab and Haryana High Court in Shri Charan Das Chadha v. The State of Punjab and another reported in 1980 Vol 3, Services Law Reporter page 702.

The decisions relied upon by Mr. Prasad although apply in the facts and circumstances of the case but in view of the order proposed to be passed, it is not necessary to examine the said decision in depth.

13A. It would appear from the statements made herein before that the petitioner did not challenge the earlier seniority list. The petitioner admitted that the earlier writ petition was filed at the Instance of some other persons. It is also admitted in the writ petition that combined gradation list was prepared, in accordance with the judgment of this Court which was confirmed by the Supreme Court on or about 26.7.72.

The petitioner, however by a notification dated 27.1.72, as contained in Annexure 3 to the writ petition was promoted with effect from 21.1.71.

In the instant case those persons, who were junior to the petitioners were placed at serial Nos. 87 and 88, wherein the petitioner was placed at serial No. 71 in the seniority list dated 26.7.72 as contained in Annexure 7 to the writ petition, were promoted as far back as on 30th March, 1963. The petitioner even thereafter although was allowed to hold the charge of a Division for a limited period, he was made to petform the jobs of Assistant Engineer from 30th March, 1963 to 4.6.64. The petitioner has again worked as Assistant Engineer in charge of a Division from 5.6.64 to 22.10.64.

Although he worked as Executive Engineer from 23.10.64 to 16.6.67, he was again posted as Assistant Engineer Incharge of a Division from 17.6.67 to 30th March. 1968 and again from 31st, March, 1968 to 21st January, 1971, the petitioner worked as Assistant Engineer. From the facts as stated hereinbefore it would appear that the petitioner worked either as Assistant Engineer or Assistant Engineer Incharge of Division for a long time. He was promoted to the Bihar Engineering Service Class I on a regular basis before 27.1.72.

As stated hereinbefore the petitioner even did not challenge the earlier seniority list nor challenged the orders passed by the State of Bihar whereby and whereunder he was made to perform the jobs of Assistant Engineer.

Although the impugned order was passed on 1st November, 1975 but this writ petition was filed on 30th January, 1981 and was admitted by this Court by an order dated 5.3.81.

By the impugned order the petitioner has been granted the reliefs substantially by the State of Bihar. There is no doubt that in law of the petitioner might have been entitled to the salary from 30th March 1963, but, in my opinion, the petitioner cannot be granted any relief by this Court in this writ petition in view of the gross latches on his part.

Mr. N.K. Prasad, however, relied upon two decisions of the Supreme Court for the proposition that delay by itself cannot be fatal for granting any relief. The said decisions are Haryana State Electricity Board Vs. State of Punjab and Haryana and Others, and Arun Kumar Chatterjee Vs. South Eastern Railway and Others,

The case of Haryana State Electricity Board arose out of a matter with regards to confirmation of some officers from a later date within the date of confirmation of others. In that decision it was found that the discrimination made was wholly without any basis and was made on irrelevant grounds. In the facts and circumstances of that case it was held that as the petitioner had been making representations before the appropriate authorities and was finally denied reliefs departmentally whereafter the petitioner filed a writ petition the same should not have been thrown out on the ground of delay and latches.

In Arun Kumar Chaterjee''s case (supra) the Supreme Court held that the petitioner was entitled to the reliefs as the South Eastern Railway Administration did not give effect to the Railway Boards Circular dated the 16th October, 1964 wherein it was provided that if a person had been promoted on the date on which he should have been promoted due to some administrative errors, then employees should be assigned correct seniority vis-a-vis his juniors already promoted irrespective of the date of promotion and further made a provision that the pay of such employees in higher grade on promotion would be fixed at proforma at the stage which he would have reached if he had been promoted at the proper time.

In the instant case also from the impugned order it would appear that the State of Bihar directed that in view of the error committed by it the petitioner should be placed in the same scale of pay as if he was promoted on 30th March, 1963 but only the arrears salary of the petitioner was not directed to be paid.

In the instant case it would appear that by the impugned order as contained in Annexure 1 substantial justice has been done to the petitioner. It is an admitted fact that the petitioner did not work for a long time in the post of Bihar Engineering Service, Class I.

He although, was denied promotion with effect from 30th March, 1963 but he never challenged the seniority list nor did he take any other action against the Government. He has merely reaped the benefit of the judgment of this Court in the aforementioned writ petition which was filed by other persons.

The State of Bihar has corrected its mistake at an early date and even has given substantial reliefs to the petitioner on the basis of his representation by the impugned order dated the 1st November, 1975, as contained in Annexure 1 to this writ petition.

The petitioner did not even challenge the said order within a reasonable period.

In the writ petition the petitioner has stated that the Accountant General even issued the pay slip in October, 1978. In the writ petition the petitioner has rot given the details of his alleged representation but merely mentioned that his last representation was sent on 1.10.80.

From the aforementioned facts it would be evident that the petitioner has also not seriously tried to explain the delay. The very fact that only one such representation has been annexed which was also made on 1.10.80, it is a clear proof of latches on the part of the petitioner. I am, therefore, of the opinion that the petitioner is guilty of serious delay and latches and on that ground he is not entitled to any relief.

In K.V. Rajalakshmiah Setty and Another Vs. State of Mysore and Another, a writ petition was dismissed on the ground of delay alone. In the aforementioned decision the Supreme Court held as follows:--

There is also a good delay of force behind the contention that the appellants are guilty of latches. After the passing of the order of May 17, 1950, they should have made an application within a reasonable time thereafter. Merely because the Chief Engineer had espoused their cause and was writing letters from time to time to the State Government to do something for them did not mean that they could rest upon their oars if they were really being discriminated against.

Recently the Supreme Court again in State of M.P. and Others Vs. Nandlal Jaiswal and Others, held as follows:--

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 or 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.

Recently, this Court also in Dr. Mrs. Malti Rohatgi Vs. The State of Bihar and others, after taking into consideration various decisions of the Supreme Court in Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, Jagdish Narain Maltiar Vs. The State of Bihar and Others, and M.K. Krishnaswamy, etc. Vs. The Union of India (UOI) and Another, held that a writ petition should be dismissed if the petitioner approaches the High Court after long and unexplained delay. The same view has also been adopted by the Division Bench decision of this Court in Keshav Pal and Others etc. Vs. State of Bihar and Others,

In any event, in my opinion, as the petitioner''s grievances have been substantially met by the State of Bihar while passing the orders as contained in Annexure 1 and the discrimination which the petitioner would have faced with regards to the scale of pay vis-a-vis his juniors has also been wiped out by the impugned order, I am not inclined to exercise my jurisdiction under Articles 226 and 227 of the Constitution in favour of the petitioner.

In any event by the impugned order only some monetary relief has been denied to the petitioner and in the facts and circumstances of the case, I do not think it expedient to interfere with the order impugned in this writ petition. This writ petition is, therefore, dismissed. There will be no order as to costs.