1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 22ND DAY OF NOVEMBER 2012 BEFORE THE HON'BLE MR. JUSTICE SUBHASH B ADI R WRIT PETITION NO.11250/2010(S-RES) BETWEEN : SYED NISHAT MOHAMMED S/O.MIR MOINUDDIN AGED ABOUT 56 YEARS SECTION OFFICER KARNATAKA LEGISLATIVE ASSEMBLY SECRETARIAT, VIDHANA SOUDHA BANGALORE-560 001 PETITIONER ( BY SRI. S M BABU, ADV., ) AND : 1 THE PRINCIPAL SECRETARY KARNATAKA LEGISLATURE VIDHANA SOUDHA BANGALORE-560 001 2 N NARASIMHA MURTHY AGED ABOUT 56 YEARS UNDER SECRETARY KARNATAKA LEGISLATIVE ASSEMBLY SECRETARIAT, VIDHANA SOUDHA BANGALORE-560 001 RESPONDENTS ( BY SRI.P.S.RAJAGOPAL, SR.COUNSEL FOR SMT. A MANJULA, ADV. FOR R2; SMT. MANJULA R. KAMADOLLI, HCGP FOR R1 ) 2 THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ANX-J ENDORSEMENT DT. 29.5.2006 ANX-L ENDORSEMENT DT. 28.8.2006 AND ANX-N ENDORSEMENT DT. 15.3.2007 ISSUED BY R1 & ETC., THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Petitioner has called in question the endorsements dated 29.5.2006, 28.8.2006 and 15.3.2007 issued by respondent No.1 produced at Annexures-J, L and N. Further has sought for a direction to the first respondent to consider his case for promotion to the cadre of Senior Assistant from the date on which the second respondent was promoted i.e., with effect from 15.6.1996 and also for consideration of his representation dated 25.11.2009 produced at Annexure-P.
2. Case of the petitioner is that, he joined as a Telephone Operator in the respondent No.1 - establishment on 19.7.1979 whereas, the second respondent joined the service on 24.1.1983 as Junior Assistant. Both were promoted as per Annexure-A to the post of Assistant on 3.4.1989 and 23.2.1991 respectively. In the seniority list, petitioner was placed at Sl.No.13 whereas, second respondent was placed at Sl.No.15. However, for the post of Research Assistant, L.L.B. qualification was prescribed, as such, the second respondent was placed in independent charge in terms of [SECTION] of [ACT]. The rules of recruitment were amended w.e.f. 22.7.1996. Thereafter, respondent No.2 was promoted by order dated 10.8.1996 as a Research Assistant. However, his promotion was made retrospectively w.e.f. 15.6.1996.
3. It is his further case that, the amended Rules did not require possession of L.L.B. Degree for the purpose of promotion to the post of Research Assistant or Senior Assistant. Admittedly, respondent No.2 was promoted on 10.8.1996 after the Rules came into force. Hence, as on the date of promotion of the second respondent, since there was no requisition of qualification of LLB degree, petitioner and the respondent No.2, who were qualified and the petitioner being senior to respondent No.2, was entitled to be promoted. As such, the denial of promotion and promoting the second respondent, who was junior to the petitioner, is per se contrary to the Rules. In this regard, he had made a representation on 27.5.1999, however, his representation was not considered till 2006, only in 2006 he was issued with an endorsement. Further, he had made several representations, however, his representation have not been considered, his appeal also came to be rejected. Hence, the petitioner is before this Court.
4. Learned Counsel for the petitioner submits that, petitioner being a senior to the respondent No.2 and he was eligible to be promoted to the post of Research Assistant, second respondent ought not have been promoted. Even if he is promoted, his promotion is per se contrary to amended [ACT], which came into force on 22.07.1996.
5. On the other hand, Sri.[ENTITY], learned Senior Counsel appearing for respondent No.2 submitted that, one [ENTITY] was the Research Assistant. He was promoted as a Section Officer accordingly the said post became vacant on 12.6.1996. The feeder cadre for the post of Research Assistant was from the Assistant and for the purpose of promotion as on the date of 12.6.1996, the requisite qualification was LLB Degree. From amongst the petitioner and the respondent No.2, it was only respondent No.2, who was possessing LLB Degree and was qualified to be promoted as Research Assistant. However, he was placed in independent charge of Research Assistant in terms of [SECTION] of [ACT]. Thereafter, when the amended Rules came into force, respondent No.2 was promoted retrospectively on 15.6.1996. He relied on [SECTION] of the [ACT] (for short 'Rules 1978') and submitted that, in case of retrospective promotion, the Government Servant must have been placed in independent charge. It is in consonance with the same. Since the respondent No.2 was placed in independent charge of Research Assistant w.e.f. 15.6.1996, though he was promoted on 10.8.1996, he was given retrospective promotion. He submitted that, under [SECTION] of [ACT], it is only against the clear vacancy, the independent charge would be given. As on the date of placing the respondent No.2 in independent charge he was qualified and eligible to be promoted to the said post and as such, he was placed in independent charge and in terms of [SECTION] of the Rules 1978, he was given retrospective promotion.
6. He further submitted that, petitioner claims that, he had made a representation as per Annexure-H, but the said representation is not made by the petitioner, it is made by one [ENTITY]. He also referred to the Synopsis and para-8 of the writ petition. The said representation, even assuming, has been made but it is after nearly three years after the promotion of respondent No.2, the said representation was rejected by an endorsement dated 29.6.2006 produced at Annexure-J wherein it is specifically stated that, the said representation is made at belated stage Even an appeal filed by the petitioner, was also came to be rejected on 28.8.2006 as per Annexure-L and one more representation, which was given on 30th August 2006, was also rejected by endorsement dated 15.3.2007. It is thereafter the writ petition is filed on 3.4.2010. Learned Senior Counsel contended that, apart from the merit, the writ petition is also liable to be rejected on the ground of delay and laches. He further submitted that, from the date of promotion of respondent No.2, the writ petition has been filed nearly after 14 years.
7. To support his contention, he relied on the judgment of the Apex Court reported in [PRECEDENT] in the matter of [PRECEDENT] and submitted that, person aggrieved against the order of promotion of his junior should have approached the Court even at last within six months or at least a year of such promotion. Even though there is no limitation prescribed under [SECTION] of the [ACT], however, the Court will not interfere in the matter after long length of time. Courts have to judiciously exercise the discretion under [SECTION] of the [ACT]. He also relied on another judgment reported in [PRECEDENT] in the matter of [PRECEDENT] and submitted that, the Apex Court considering the delay has observed that, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches. He also relied on another judgment reported in [PRECEDENT] in the matter of [PRECEDENT] and submitted that, right interse crystallized ought not be reopened after lapse of such a long period.
8. Even in case of belated representation, the Apex Court in a judgment reported in [PRECEDENT] in the matter of [PRECEDENT] has observed that, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation. Relying on this judgment, learned Senior Counsel submitted that, merely because non-statutory representation is submitted and is not considered, is no ground to entertain a writ petition at a belated stage, as the cause of action, which accrued long back has not been exercised and at a belated stage entertaining a writ petition would amount to unsettling the settled things.
9. He also submitted that, the post which became vacant and for such vacancies, the law as on the date of vacancy has to be applied. As on the date of promotion of respondent No.2 on 15.6.1996, the amended recruitment rules were not in force and as on that day, the rules in force were that the promotion to the post of Research Assistant is based on LLB qualification. It is not in dispute that, the petitioner did not had the said requisite qualification. To support his case that the Rules, which was in force as on the date of vacancy, should be applied, he relied on the decisions of the Apex Court reported in [PRECEDENT] in the matter of [PRECEDENT] in the matter of [PRECEDENT] submitted that, even on merit also, the respondent No.2, who was qualified and was the only candidate, who could have been promoted as on the date of vacancy, which arose on account of the promotion of one [ENTITY], accordingly the respondent No.2 was promoted to the said post and respondent No.2 having been placed in independent charge, in terms of [SECTION] of the Rules 1978, he is entitled for retrospective promotion with effect from the date on which he was placed in independent charge. As such, the petitioner was not entitled for promotion as on said date. Hence, even otherwise, the petitioner is not entitled for promotion.
10. Apart from this, it is further submitted that, after respondent No.2 was promoted as Research Assistant, he was further promoted as Section Officer and Under Secretary and now he is promoted as Deputy Secretary. Petitioner, who knew that the respondent No.2 was promoted and further promoted and thereafter he was also promoted, having the knowledge of several promotions, without making any grievance against the said promotion, at a belated stage after 14 years, if the writ petition is entertained, it will amount to unsettling the well settled things, which is not permissible in law.
11. In reply, learned Counsel for the petitioner submitted that, this Court has discretionary power under [SECTION] of the [ACT] to meet the ends of justice. This Court can exercise the discretionary power to meet the ends of justice. To support his contention, he also relied on the judgment reported in [PRECEDENT] in the matter of [ENTITY] and others -vs- Vikram Cement and others and relied on para-91.
12. Two questions emerge from the contentions raised by both the Counsel viz., (1)Whether the Writ Petition is liable to be dismissed on the ground of delay and laches?
(2)Whether the order of promotion of respondent No.2 is just and proper?
13. Facts, which are relevant to this case which are not in dispute are that, second respondent was promoted as Research Assistant w.e.f. 15.6.1996. No doubt, the order of promotion was issued on 10.8.1996. However, the vacancy to the said post of Research Assistant arose on 12.6.1996 on account of promotion of one [ENTITY] who was promoted to the post of Section Officer. It is also not in dispute that, [SECTION] of [ACT] provides for placing in the official in independent charge, however, to place him on independent charge, he must be qualified and that post must be vacant. It is not in dispute that, the post had become vacant on 12.6.1996. Petitioner was aware as on 10.8.1996 that, second respondent has been promoted after the amended [ACT] came into force. It is also not in dispute that, even according to the petitioner till 1999 i.e., till 27.5.1999, petitioner had not raised any objection to the promotion of respondent No.2. Even the representation, which was given in May 1999, was not pursued by the petitioner, though it is stated that, it was pending and he was awaiting for the decision from the higher authority. The endorsements are issued in 2006 and 2007. Even then also, the petitioner had not approached this Court immediately after the endorsement, he kept quiet till 2010. In the meanwhile, not only respondent No.2 was promoted to the post of Research Assistant, but he was promoted to the post of Section Officer and then to Under Secretary and all along the petitioner, had kept quite watching the promotions being given to the second respondent.
14. Way back in 1975 itself, the Apex Court in the matter of promotion itself, if any junior is promoted and senior is denied of the promotion, has observed as under:
". . . After fourteen long years because of the tempting prospect of the Chief Engineership he has come to the Court. In effect he wants to unscramble a scrambled egg. It is very difficult for the Government to consider whether any relaxation of the rules should have been made in favour of the appellant in the year 1957. The conditions that were prevalent in 1957, cannot be reproduced now. In any case as the Government had decided as a matter of policy, as they were entitled to do, not to relax the rules in favour of any except overseas scholars it will be wholly pointless to direct them to consider the appellant's case as if nothing had happened after 1957. Not only respondent No.2 but also respondents Nos. 3 & 4 who were the appellant's juniors became Divisional Engineers in 1957, apparently on the ground that their merits deserved their promotion over the head of the appellant. He did not question it. Nor did he question the promotion of his juniors as Superintending Engineers over his head. He could have come to the Court on every one of these three occasions. 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 [SECTION] 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 [SECTION] in the case of persons who do not approach it expeditiously of 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, have been dismissed in limine. Entertaining such petitions 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. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal."
15. The observation of the Apex Court is clear and empathetical that, a person aggrieved by the promotion of a junior must approach the court at the earliest atleast within six months of the promotion. The object behind, is to prevent unnecessary interference promotions in the matter of administration. Interfering with promotions long after they are made, would result in unsettling the settled things. Apex Court has observed that, the effect of entertaining a belated writ petition challenging the promotions made a decade ago would amount to unscramble a scrambled egg. The Apex Court even in subsequent judgment in the matter of Union of India and Others
-vs- A.Durairaj (supra) at para-13 has observed that, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any challenge at belated stage would be liable to be dismissed on the ground of delay and laches.
16. Thus, it is clear that, there is no need to prescribe limitation in case of challenging the promotion the party aggrieve, must challenge the same in a reasonable time from the date of cause of action.
17. It is not in dispute that, for the petitioner, the cause of action accrued to him on 10.8.1996, the date on which the first promotion second respondent was made. Similar is the view taken by the Apex Court in the decision reported in [PRECEDENT] (supra). If the petitioner had given a representation, he cannot become a mute spectator waiting for the representation to be considered. First of all, there is no such statutory provision, which requires the petitioner to give a representation. Even if he had given a representation, he could have taken steps to challenge the promotion of the second respondent within reasonable time. However, it is not known as to why the petitioner made a representation in 1999. Till 2006, he did not make any effort to challenge any promotion, he kept watching even the further promotions being given to the respondent No.2.
18. The Apex Court held even in case of appeal or representation, the representation must be a statutory representation, which gives cause of action and if the same is not considered in reasonable time, the cause of action arises for the party to challenge the same, in a reported decision in [PRECEDENT] (supra). At para-22, the Apex Court has observed as under:
"22. It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was filed or representation was made, the right to sue shall first accrue. Submission of just a memorial or representation to the head of the establishment shall not be taken into consideration in the matter of fixing limitation."
19. No doubt, learned Counsel for the petitioner relied on a judgment of the Apex Court in the matter of [ENTITY] and others (supra). Even the Apex Court in the said judgment at para-91 has observed that, discretion should be exercised to meet the ends of justice. To meet the ends of justice does not mean that, a belated petition filed after a decade or more than a decade could be entertain to unsettle the settled things, which have been settled long back. The object is, justice to be made on equity to a person, who has approached in a reasonable time, in such cases, a discretion could be exercised not in a case where petition is filed at a highly belated stage.
20. Now looking into the delay and also the circumstances and further promotions given to respondent No.2, I do not find there is any justification to entertain this writ petition after lapse of nearly 14 years of the promotion of respondent No.2.
21. Even otherwise on merit, it is not the case of the petitioner that, when respondent No.2 was placed in independent charge on 15.6.1996, petitioner was not qualified. Instead of promoting, the respondent No.2 was placed in independent charge. The said post admittedly was vacant and as on the date of vacancy, if the rules existing require to be considered then, one should possess the LLB Degree for promotion to the post of Research Assistant and it was only respondent No.2 who was qualified and he was placed in independent charge, no doubt, he was promoted w.e.f. 10.8.1996 i.e., after coming into force of amended Rules, but the Apex Court in the judgment reported in [PRECEDENT] (supra) at para-8 has observed as under:
"8. Therefore, it is not in dispute and cannot be disputed that while selecting officers, minimum requisite qualifications and experience for promotion specified in the relevant column, should be taken into consideration against vacancies existing as on 1 st April of the year of selection. But since the Rules came to be amended and the amendment became effective with immediate effect and [SECTION] indicates that options have been given to the Government or the appointing Authority, as the case may be, to revise the select list as existing as per the law as on the date of the appointment or as may be directed by a competent court, selection is required to be made by the concerned DPC. As appointment made, after selection as per the procedure, to the vacancies existing prior to the amendment, is valid. But the question is whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according tot he amended Rules or in terms of [SECTION] read with [SECTION] and [SECTION], as mentioned hereinbefore. This Court has considered the similar question in para 9 of the judgment above-cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the rules are required to be filled in accordance with the law existing as on the date when the vacancies arose. Undoubtedly, the selection came to be made prior to the amendment of the Rules in accordance with law then existing since the anticipated vacancies also must have been taken into consideration in the light of [SECTION] of the Rules. But after the amended Rules came into force, necessarily the amended Rules would be required to be applied for and given effect to. But, unfortunately, that has not been done in the present case. The two courses are open to the Government or the appointing authority, viz., either to make temporary promotions for the ensuing financial year until the DPC meets or in exercise of the power under [SECTION], they can revise the panel already prepared in accordance with the Rules and make appointments in accordance therewith."
22. This judgment is also subsequently followed in a judgment reported in [PRECEDENT] (supra) at para-25. Thus, even otherwise also, if the Rules as existed as on the date of vacancy is considered, it is only second respondent was qualified and not the petitioner.
Hence, having regard to these circumstances and also for the delay, I find no reasons to entertain this Writ Petition.
Accordingly, the Writ Petition fails and same is dismissed.
JUDGE KNM/-