Vijay Kumar vs State Of H.P And Another

Jiya Lal Bhardwaj, J

By way of present petition, the petitioner has prayed for the following substantive reliefs:-

“(i) That the order dated 6.7.2015 at annexure A-6 whereby the claim of the applicant for promotion of Jr. Scale Stenographer w.e.f. 2002 has been rejected, may kindly be quashed and set aside.

(ii) That the respondents may further be directed to grant promotion to the applicant post of Jr. Scale stenographer w.e.f due date when the vacancy of Jr. Stenographer became available with the respondent department during the year 2002, with all consequential benefits.”

As per pleadings in the writ petition, the petitioner was appointed as Steno Typist with the respondent Department on 01.09.1990. Thereafter, he was promoted to the post of Junior Scale Stenographer in August, 2010. The grievance of the petitioner in the writ petition is that two posts of Junior Scale Stenographers had become available for promotion in the year 2002 and the petitioner was eligible and qualified for promotion and was in the zone of consideration, as is evident from the vacancy position of 2002, obtained under the Right to Information Act (Annexure A-2). The petitioner was though eligible, but the respondents ignored him and did not conduct DPC and as such, the petitioner was deprived of his due and legitimate claim of promotion to the post of Junior Scale Stenographer.

It has been averred that in the year 2008, when the family circumstances of the petitioner were adverse, he was offered promotion to the post of Junior Scale Stenographer, but he declined, on that occasion. However, subsequently, he was promoted to the post of Junior Scale Stenographer. The petitioner came to know about the vacancy position of 2002 in the year 2014, when he obtained information under the Right to Information Act. Thereafter he made representations dated 25.07.2014 and 10.09.2014, and when no response was received from the respondents, he filed the writ petition before this Court.

The writ petition filed by the petitioner, bearing CWP No.9369 of 2014, titled, Vijay Kumar vs. State of Himachal Pradesh and another, came to be disposed of on 29.12.2014, with a direction to the respondents to decide the representations dated 25.07.2014 (Annexure P-3) and 10.09.2014 (Annexure P-4), submitted by him, in accordance with law and in view of the judgment rendered by this Court on 11.12.2012 in CWP No.1211 of 2012, titled, Shri Ramesh Chand Rana vs. State of Himachal Pradesh and another, by affording due opportunity of hearing/representation to him, within a period of four weeks.

In sequel to the directions issued by this Court, the respondents have rejected the claim of the petitioner on the ground that the judgment passed in Ramesh Chand Rana’s case (supra), cannot be made ipso-facto applicable in the present case, as in the case of Sh. Ramesh Chand Rana, no written request was received from him for forgoing his promotion to the post of Junior Scale Stenographer. However, in the present case, the petitioner had made written requests on 19.06.2008 and 09.07.2008, showing his inability to avail promotion owing to extreme domestic circumstances. He had also submitted that he has no objection even if the persons junior to him are promoted to the post of Junior Scale Stenographer and thus, the facts of Ramesh Chand Rana’s case are distinguishable from the facts of the case of the petitioner. Not only this, the petitioner had laid his claim for promotion w.e.f. 2002 only after the judgment dated 11.12.2012 passed by this Court in Ramesh Chand Rana’s case. Prior to that, the petitioner had never claimed for his promotion w.e.f. 2002 and further the promotion given to him in the year 2010 to the post of Junior Scale Stenographer was accepted by him without any protest and as such, the claim of the petitioner for retrospective promotion, at this stage, is time barred.

The petitioner has laid challenge to the said order on the ground that the respondents have arbitrarily ignored to convene the DPC for the vacant posts of Junior Scale Stenographer in the year 2002 and thus deprived him of promotion from the due date and further the findings in the impugned order are perverse and whimsical and thus prayed for quashing the said office order dated 06.07.2015.

The respondents-State filed reply to the petition and admitted that the petitioner was at Serial No.2. However, the DPC meeting for the post of Junior Scale Stenographer was not convened during the year 2002 to 2007. The meeting of DPC for the post of Junior Scale Stenographer was convened in the year 2008 and the petitioner was promoted to the post of Junior Scale Stenographer vide office order dated 02.06.2008, but he had forgone the promotion due to some family problems, vide written request/representation dated 19.06.2008. Thereafter, the petitioner was again given opportunity to join on the higher post of Junior Scale Stenographer, however, vide letter dated 09.07.2008 (Annexure R-3), he refused for the same. It is further pleaded in the reply that in the case of Ramesh Chand Rana, there was no written request made by him and the petition instituted by the petitioner is liable to the dismissed on the ground of delay and laches.

The petitioner filed rejoinder to the reply and controverted the averments made in the reply.

I have heard the learned counsel for the parties and also perused the record carefully.

It is not in dispute that the petitioner for the first time had made a representation to stake his claim for promotion against the two posts of Junior Scale Stenographer, which fell vacant in the year 2002, only on 25.07.2014, when a representation was made by him. In the petition, the petitioner has made an averment that he came to know about the said vacancy position only after receipt of information under the Right to Information Act, which was supplied to him on 19.08.2014, whereas he had already made the representation on 25.07.2014. Thus, it is clear that the petitioner has not approached this Court with clean hands. Not only this, the petitioner had filed the Original Application before the erstwhile Himachal Pradesh Administrative Tribunal in the year 2014 and as per the provisions of the Administrative Tribunals Act, 1985, the period of limitation has been prescribed to institute the petition in case the grievance of the employee is not redressed within time. In case, the DPC was not convened in the year 2002, the petitioner could have approached the Tribunal seeking desired direction, but he neither approached the Tribunal nor made representation. Further, when he was recommended for promotion as Junior Scale Stenographer in the year 2008, he had forgone his promotion.

So far as the claim with respect to another person namely, Ramesh Chand is concerned, the competent authority had assigned reasons that in that case, the said employee had not given written request to forego his claim for promotion to the post of Junior Scale Stenographer. The facts of the case in Ramesh Chand Rana’s case are thus not similar as the facts of the present case. Once the petitioner had given in writing in the year 2008, when he was offered the promotion to the post of Junior Scale Stenographer, it is crystal clear that he had forgone the said claim and now at this belated stage, he cannot raise grievance that he may be promoted as Junior Scale Stenographer for the vacancy of 2002. It is not even the case of the petitioner in the entire petition that he had been making representation for convening the DPC. If the litigant is not vigilant about his claim, the same cannot be adjudicated by the Courts at a very belated stage, especially, when even the petitioner after his promotion to the post of Junior Scale Stenographer in the year 2010, did not rake up the issue regarding promotion from the anterior date. It is also admitted fact that when the petitioner got promoted in the year 2010, he had accepted it without any protest and thus, he cannot claim his promotion from the anterior date.

It is settled law that the promotion to the higher post can be granted only from the date of making the recommendations by the DPC and not from the anterior date. Since no DPC for the post of Junior Scale Stenographer was convened from 2002 to 2007 and further no junior to the petitioner was promoted, no relief can be granted to the petitioner, especially, when he did not approach the competent Court of Tribunal, well within time.

Consequently, this Court finds no merit in the petition and the same is accordingly dismissed.

Pending applications, if any, also stand disposed of.