SCA/528019/1994 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5280 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MERUBHAI R RATHOD - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR NS SHETH for Petitioner(s) : 1, MR JK SHAH AGP for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 18/12/2008 ORAL JUDGMENT 1. By way of this petition, the petitioner has prayed for an appropriate writ, or direction directing the respondents to grant promotion to the petitioners from 26th July, 1978 to the post of Sub Inspector and also SCA/528019/1994 2/5 JUDGMENT to grant consequential monetary benefits from the year 1978. 2. The short facts of the case are :- 2.1. The petitioner had joined the service of the Police Department as Constable on 10th July, 1952 and retired from service as Police Sub Inspector on 30th September, 1990. During this period, he was given various promotions like Head Constable, Grade, III and Head Constable, Grade II. The petitioner had a grievance that the persons junior to him were given promotion as Head Constable, Grade I and he was not given promotion as Head Constable, Grade I and, therefore, the petitioner made a representation before the District Superintendent of Police for considering his case. The District Superintendent of Police, on considering his representation, gave promotion to the petitioner as Head Constable, Grade I in the year 1971. 2.2. The persons who wanted to become Police Sub Inspector had to pass certain Departmental Examination and as the petitioner was interested, he appeared in the examination but could not pass the said exam. 2.3. In the third trial also the petitioner did not pass the exam. According the petitioner, as per Circular SCA/528019/1994 3/5 JUDGMENT No. EXM:1265:73:k dated 1st January, 1973 issued by the General Administration Department, the petitioner was entitled to grace marks but the respondent did not grant any grace mark to the petitioner and declared him failed. 2.4. Being aggrieved and dissatisfied with the same, the petitioner made a representation. Respondent no. 2 accepted the representation of the petitioner and promoted the petitioner as Police Sub Inspector (Unarmed) on 26th February, 1985 and, thereafter, after retirement of the petitioner on 30th September, 1990, the petitioner has claimed for deemed date of promotion from 26th July, 1978. 3. The learned advocate Mr. N.S. Sheth appearing on behalf of the petitioner has submitted that the petitioner should be given promotion from the deemed date i.e. from 26th July, 1978 as he is eligible for the post of Police Sub Inspector from 1978 itself. 3.1. The petitioner had made several representations for the same but the same were rejected by respondent no. 2. It is submitted that due to the delay on the part of the respondents, the petitioner was promoted as Police Sub Inspector on 26th February, 1985. Actually, according to the petitioner, he should have been promoted to the post of Police Sub Inspector on 26th February, 1978 and SCA/528019/1994 4/5 JUDGMENT should have been given all consequential benefits. It is submitted that before and after his retirement, he had made several representations, to which, respondent no. 1 had given the reply of rejection of the representation only in the year 1994 and, therefore, the present petition has been filed in the year 1994. Hence, there is no delay in filing the present petition and, it is required to be allowed. 4. Heard learned counsel for the respective parties and perused the documents on record. It is evident from the record that the petitioner has passed the departmental examination held in the year 1977 with the grace marks and he was promoted to the higher post in the year 1985 and, therefore, he is entitled for the pay- scale and other benefit with effect from 26th May, 1985. Thus, the petitioner is not entitled for the benefit as prayed for since he was promoted to the higher post only in the year 1985. 5. Even otherwise, this petition does not deserve to be entertained on the ground of delay and latches. In the case of Shiv Das v. Union of India & Ors. reported in AIR 2007 SC pg.1330, the Apex Court has held that the cause of action continues from month to month and that if the petition is filed beyond reasonable period, say three years, normally this Court would reject he same or SCA/528019/1994 5/5 JUDGMENT restrict the relief. However, the petitioner has filed this petition in the year 1994 for claiming promotion from 26th February, 1978. Thus, keeping in mind the principle laid down in the aforesaid decision, it does not deserve to be entertained under Article 226 of the Constitution of India. 6. In the result, the petition is dismissed. Rule is discharged. Interim relief if any, stands vacated. No order as to costs. [K.S. JHAVERI, J.] /phalguni/