IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.8017/2008 Decided on:26.5.2009 Madan Gopal. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the petitioner : Mr. D.P. Gupta, Advocate vice Mr. K.D. Shreedhar, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Ramesh Thakur, Asstt. Advocate General for respondent No.1. Mr. Umesh Kanwar, Advocate vice Mr. Dilip Sharma, Advocate for respondent No.2. Rajiv Sharma, J. The petitioner was promoted as Senior Assistant vide order dated 12.5.1999 purely on temporary basis. He was directed to be reverted vide Annexure A-11 dated 16.5.2001. Mr. D.P. Gupta, Advocate has strenuously argued that the petitioner ought to have been afforded reasonable opportunity of being heard before the issuance of Annexure A-11 dated 16.5.2001. He then 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 contended that the promotion of respondent No.2 to the post of Senior Assistant dated 19.9.1998 is bad in law. Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the promotion of the petitioner to the post of Senior Assistant was purely on temporary basis and he had no right to hold the same. In other words, his submission is that the petitioner was not required to be heard before the issuance of order dated 16.5.2001. He has vehemently argued that respondent No.2 was fully eligible and qualified to be considered for the post of Senior Assistant by the Departmental Promotion Committee held on 16.9.1998. I have heard the learned counsel for the parties and perused the pleadings carefully. The petitioner was promoted as a Senior Assistant purely on temporary basis on 12.5.1999. It appears from the record that promotion of one Sh. Mahesh Kumar was challenged by Sh. Jai Chand by way of OA No. 463/1998. The same was allowed by the learned Himachal Pradesh Administrative Tribunal on 13.12.2000. The promotion orders were quashed and set aside and Sh. Jai Chand was directed to be considered for promotion to the post of Senior Assistant from the date Sh. Mahesh Kumar was wrongly considered. It has come in the reply that pursuant to the judgment rendered by the learned Tribunal in OA No. 463/1998, review Departmental Promotion Committee was convened on 9.5.2001 and the date of promotion of respondent No.2 was kept as 12.5.1999 instead of 19.9.1998. The petitioner was junior most in the cadre of Senior Assistants in Mandi Division. It is in these circumstances, the petitioner was reverted from the post of Senior Assistant which he was holding purely on 3 temporary basis. He was reverted due to non-availability of post of Senior Assistant. The petitioner has not chosen to file rejoinder to the reply filed by the respondent-State. Mr. D.P. Gupta has further argued that the petitioner was required to be heard before the issuance of office order dated 16.5.2001. There is no force in the submission of Mr. D.P. Gupta. The petitioner was promoted purely on temporary basis. He was not required to be heard before the issuance of office order dated 16.5.2001. He has no right to hold this post being temporary in nature. Mr. D.P. Gupta has lastly contended that the promotion of respondent No.2 to the post of Senior Assistant on 19.9.1998 is bad in law. Respondent No.2 was promoted on 19.9.1998. Mr. D.P. Gupta has submitted that his client had made representation challenging the promotion of respondent No.2 on 25.9.1998. The respondents have denied that any representation was made by the petitioner on 25.9.1998. Mr. D.P. Gupta, Advocate has strenuously argued that the petitioner had been making representations against the promotion of respondent No.2. It is also a fact that after respondent No.2 was promoted to the post of Senior Assistant; the petitioner was also considered and appointed as Senior Assistant though purely on temporary basis on 12.5.1999. The repeated representations which are not warranted in law will not constitute sufficient reasons for overcoming the delay. Their Lordships of the Hon’ble Supreme Court in Jagdish Narain Maltiar versus The State of Bihar and others, AIR 1973 SC 1343 have held that where three years spent in sending memorials to the 4 Government, a remedy not appointed by law, the High Court was justified in rejecting the writ petition. Their Lordships have held as under: “8. Thus it was in August, 1963 that the appellant discovered that his services were really determined for gross misconduct. For nearly 3 years thereafter he kept on submitting one memorandum after another to the Government and it was not until late in 1966 that he filed a Writ Petition in the High Court to challenge the order of removal. The memorials presented by him to the Government were in the nature of mercy petitions and he should have realised that in pursuing a remedy which was not duly appointed under the law he was putting in peril a right of high value and significance. By his conduct he disabled the High Court from exercising its extraordinary powers in his favour. We are therefore of the opinion that the High Court was justified in refusing to entertain the petition.” Their Lordships of the Hon’ble Supreme Court in Rabindra Nath Bose and others versus Union of India and others, AIR 1970 SC 470 have held that it would be unjust to deprive a person of the rights which have accrued to him. Each person would be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years. There Lordships have further held that there is a limit to the time which can be considered reasonable for making representations. The Court is of the firm opinion that in case the petitioner was aggrieved by the promotion of respondent No.2, he should have assailed the same within a reasonable period of six months to one year. The petitioner is not entitled to any relief on the ground of delay and laches. The State has held the review Departmental Promotion Committee, as 5 noticed above, after the judgment rendered by the Tribunal. Respondent No.2 has now been assigned promotion with effect from 12.5.1999 instead of 19.9.1998. The instructions relied upon by the petitioner i.e. Annexure A-6 are dated 24.5.1999. These instructions would not apply to the recommendations made by the Departmental Promotion Committee in its meeting held on 16.9.1998. The same were prospective. Accordingly, in view of the observations made hereinabove, there is no merit in the petition and the same is dismissed. No costs. 26.5. 2009 (Rajiv Sharma ), J. *awasthi*