.i, \ I-a IN TllE HIGH COURT OF SIKKIM AT GANGTOK (Civil Extraordinary Jurisdicti.on) DATED : 01.09.2010 CORAM HON'BLE MR. JUSTICE P.D. DINAI(ARAN, CHIEF JUSTICE AND HON'BLE MR. JUSTICE S.P. WANGDI, JUDGE Writ Petition /CI No. 43 of 2009 Shiva Nand Misra (Joint Director), Human Resource Development Department Tashiling Secretariat, Gangtok, East Sikkim. •..Petitioner. -versus- 1. The State of Sikkim, Through Secretary, Department of Personnel, Administrative Reforms and Training, Government of Sikkim, Gangtok, East Sikkim. 2. The Secretary, Human Resource Development Department Tashiling Secretariat, Gangtok, East Sikkim. 3. Smt. Mamta Thapa, Additional Director, Human Resource Development Department Tashiling Secretariat, Gangt:ok, East Sikkim. Jg-... 4. Shri O.P. Basnett, Addit:ional Director, Human Resource Development: Department Tashiling Secretariat, Gangtok, East Sikkim. 5. Shri M.P. Subba, Additional Direct:or, Human Resource Development Department Tashiling Secretariat, Gangtok, East Sikkim. ...Respondents. For the petitioner For the respondents DINAKARAN, CJ Mr. A.K. Upadhyaya, Sr. Advocate with Ms. Mukul R. Para].uli, Advocate Mr. J.B. Pradhan, Addl. Advocate General wit:h Mr. Karma Thinlay Namgyal, Govt. Advocate and Mr. S.K. Chettri, Asst. Govt. Advocate and Mr. Bhushan Nepal, Advocate/ Retainer for the State. JUDGEMENT The writ petitioner herein prays for a writ of Mandamus/Certiorari questioning the promotion of respondents no. 3, 4 and 5 as Joint Director on officiating capacity and consequently the inter-se seniority and further that he should be promoted to the post of Joint Director prior to the date of promotion of the respondents no. 3, 4 and 5 i.e. 24.01.2009. Lffi 1.1 The service of the and 5 are governed by The S petitioner and respondents no. 3, 4 !! ikkim State 1996 as well as the Sikk Ser`iority) Ru.Ies, 1980. A Service Rules, the post of lm i Education Service Rules, State Services (Regulation of i per The Sikkim State Educat:ion I Deputy Director and the post of principal of Senior Secondary promotion to the post of J of regular service Secondary Schools, as Sikkim State Education the Schedule reads as Schools were treated at par for Directors on completion of 8 years Director/Principal of Senior 7 and Schedule 11 of the said The relevant portion of SCHEDULE - 11 (see rule 7) Sl. Post/g NO. Mode of Eligibility recruit:ment conditions 1. Assistant Director Junior G 2. Deputy Director Senior Scale 1 3. Joint Directol Selection Grade 11 4. Additional Director 100 per cent by promotion 100 per cent by promotion 100 per cent by promotion 100 per cent by promotion 8years regular service as Assistant Education Officer. 6 years regular service as Assist:ant Director. 8 years regular service as Deput:y Director. This includes induction of Principals of Senior Secondary Schools at: this level. 4 years regular service as iE,-,-.... Selection Grade I 5. Director Supertime Grade 11 100 per cent by promotion or by deputation Joint Director. 4 years regular service as Addit:ional Director. 1.2 According to the pFtitioner, respondents no. 3, 4 and 5 were promoted as Deputy Director in the year 2001 even 11 though they were not eligible |for the same. 1.3 The pet:itioner further contends that on 15.06.1999, an amendment was brought to the said Service Rules, which reads as under: - `` GOVE'RNMENT OF SIKKIM DEPARTMENT O,F PERSONNEL, ADMINISTRATIVE REFORMS & TRAINING GANGTOK. NO, 17/GEN/DQP NOTIFICATION DATED: 15.06.1999 In exercise of the powers conferred by the proviso to article 309 ofilthe Constitution of India, the Governor of Sikkim is hereby makes the following rules to amend the Sikkim State Ed,tjcation Service Rules,1996, namely: - Shorttitle and ;I commencement: 1.(1) These rules may be called the Sikkim State Education Service (Amendment) Rules, 1999. I (2) They shall come into force at once. §cmheendduTee{n{t°fi,2. In the Sikkim State Education Service Rules, 1996, for the existing Schedule 11, the following Schedule shall be substituted name'ygiv •0 SCHEDULE - 11 (see rule 7) Sl. Post/grade Mode of recruitment Eligibility No. conditions 1.... 2.... 3. Joint Director i) 34% from amongst: Selection Grade 11 the Principals of Senior Secondary School ii) 66% from amongst the Deputy Directors 8(Eight.). years regular service as Principal of Senior Secondary School. 8(Eight) years regular service as Deputy Director. " On the strength of the said amendment dated 15.06.1999, the petitioner submits that the respondents no. 3, 4 and 5, were promoted t:o the post of Deputy Director in the year 2001 on officiat:ing basis, and were thereaft:er promoted to the post of Joint Director with effect from 13.12.2002, 24.12.2002 and 24.12.2002 respectively, on officiating basis. The petitioner's grievance is that even though he had completed more than 11 years of regular service as Principal, Senior Secondary School, he was not considered for promot:ion to the post of Joint Director on the said relevant dates. According to the petitioner, as per I:he amendment dated 15.06.1999, he is entitled to be considered for promotion to the post of Joint Director even before respondents no. 3, 4 and 5 were promoted Efu-`-...... -_e as Joint: Director; Hence, th this Court in W.P.(C) No. 3 Order dated 20.05.2008, wh was constrained to move 2006, which was disposed of by is ext:racted as hereunder: ``It is recorde,a that promotions have been granted to ithe writ petitioners who had grievance. It} has been granted with effect from :n:ti::I:¢]:u:;::::i:;:te§:;ii;t:i::e¥::t:u:I:::i::i:i:;r::i:::::i§::jr€ be happy with what they have got in pursuance of the Court'g order.. Steps taken by the parties so far are |¢onfirmed. The writ petition is disposed of vyjthout any further or other orders. Sd/- (A.N. Ray, CJ) Sd/- (A.P. Subba, J)" The said order dated 20.05.2008 has become final. I Thereafter, the Petitioner made a representation ) dated 08.12.2009 to the authority concerned, namely, the Secretary, Department of Persc)nnel, Administrative Reforms and Training, Government of SikKim, respondent no. 1, claiming his I seniority above the aforemehtioned respondents and promotion I to the post of Additional Director with effect from 16.10.2009, t:he date on which the respondents no. 3, 4 and 5 were subsequently promoted. AS there was no response to the I representation from the said respondent no. 1, the petitioner has rS..` - filed the present writ petition questioning the promotion of respondents no. 3, 4 and 5 to the post of Joint Director, as the same is contrary to the amendment dated 15.06.1999 issued by the Stat Governme`nt and he has prayed that he be given inter-se seniority and be placed above respondents no. 3, 4 and 5 and accordingly he should be promoted to the post of Additional Director, prior to respondents,no. 3, 4 and 5, who were promoted t:o the said post on 16.10.2009. 4. Heard. In t:his regard, it is apt to refer to the law laid down by the apex Court .in Karnataka Power Corpn. Ltd through its Chairman & Managing Director and another vs, K. Thangappan and another reported .in (2006) 4 SCC 322, wherein it held as follows: - ``6. Delay or laches is one of the fact:ors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pofirited -ln Durga Prashad v. Chief Controller of Imports and Exports. Or c;ourse, f;v#!, -.a the discretion has to be exercised ].udicially and reasonably. 7. What was stated in this regard by Sir Barr\es Peacock .in Lindsay Petroleum Co. v. Prosper Armstrong Hurd (PC at p,239) was approved by I:hiis Court .in Moon Mills Ltd. V. M.R. Meher and Maharashtra SRTC v. Shri Balwant Regu/ar Mofor Serv/.ce. Sir Barnes had stated: ``Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically un].ust to give a remedy either because the party has, by his conduct: done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of t:ime and delay are most material, But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, t:he validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, t:he length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or in].ustice in taking t:he one course or the other, so far as it relates to the remedy.„ It would be appropriate to note certain decisions of t:his Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent t:hat: what: has been stated as regards that art:icle would apply, a fort:iori, to Article 226. It was observed in Rabindranath Bose v. Union of India I:hat rio relief can be given to the petitioner who without fiJ.--.... any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution- makers that this Court should disregard all principles and grant relief in petitions filed after inordinat:e delay. 9, It was stated .in State of M.P. v. Nandlal Jaj.swa/ that t:he High Court in exercise of its discret:ion does not ordinarily assist the tardy and the indolent or t:he acquiescent and the lethargic. If there is inordinate delay on the part of t:he petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and -grant relief in exercise of its writ I.urisdiction. It was stated that this rule is premised on a number of factors. The High Court: does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new in].ustices, and if writ jurisdict:ion is exercised after unreasonable delay, it: may have the effect of inflicting not only hardship and inconvenience but also injustice on third part:ies. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important: fact which also weighs with the High Court in deciding whether or not t:o exercise such jurisdiction. 10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. Th.is was i.irst stated -in K.V. Rajalakshmiah Setty v. State of Wysore. This was reiterated in Fab/.ndranath Bose case by stating that there is a limit t:o the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the dctay. ±n State of Orissa v. Pyarimohan =rf&-... 10 Samanraray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See Sfafe of Or/.ssa v. Arun Kumar Patnaik also)-." 6.1 The above ruling of the apex Court: made in Kamaraka Power Corpn. case (vide Supra) is squarely applicable to the facts and circumstances of the present case. 6.2 In the present writ petition, we find that the petitioner is not only challenging the promotion of the respondents no. 3, 4 and 5 as Deputy Director made in the year 2001, but also challenges t:he subsequent promotion as Joint Director, which were already rejected by this Court by its Order dated 20.05.2008 passed in W.P.(C) No. 03 of 2006, referred to above. Since the said Order dated 20.05.2008 has become final, it may not be proper for this Coulrt t:o consider and grant relief as prayed for by the petitioner. Hence, the writ petition fails, both on the ground of laches as well as in view of the Order dated 20.05.2008 made in W.P.(C) No. 03 of 2006 of this Court and accordingly the same is dismissed. However, no order as to costs. dr--.-.`..` Index Internet jks/ GDI, J) (P.D. DINAl(ARAN, CJ)