IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15559 of 2011 1. Mobinul Haque S/O Late Mohamad Ishaque R/O Mohalla- Khankah, Chonauti Kuan, P.S.- Phulwarisharif, District - Patna Versus 1. The State Of Bihar 2. The Director, Soil Conservation Bihar, Vikash Bhawan, New Secretariat, Patna 3. The Deputy Director, Soil Conservation, Patna Range, Patna ---------------------------------- 3. 15.12.2011 Heard learned counsel for the petitioner and the State. The petitioner has superannuated on 31.1.2011 from the post of Surveyor. He desires to be considered for promotion to the post of Junior Engineer. Learned counsel for the petitioner submits that after initial appointment as Surveyor on 28.5.1974, the petitioner became eligible to be considered for promotion as Junior Engineer in 1984. Others in the Irrigation Department, similarly situated, were granted promotions and then cancelled which were challenged unsuccessfully in a writ petition. In L.P.A. No. 913 of 1996 and analogous cases disposed in July, 2003 the promotions were restored. The petitioner had kept representing for promotion while in service. Answering the question 2 of delay without prejudice to the claims to be considered for promotion to the post of Junior Engineer, alternatively it is submitted that the petitioner continued to discharge the duties of the higher post of Junior Engineer in officiating capacity for inordinately long period in his own pay scale of Surveyor. He is therefore entitled to the salary of the higher post for the period that he has worked for the same as inordinately long period of discharge of duties cannot be classified as an ad- hoc or interim arrangement only. Counsel for the State raised the objection of delay to the substantive claim of seniority. It was next submitted that if the petitioner discharged the duties of the higher post of Junior Engineer that does not amount to promotion. The two are entirely distinct issues. The petitioner acknowledges acquiring eligibility to be considered for promotion in 1984. He has superannuated in 2011. He had more than adequate opportunity to pursue matters for legal relief while in service if the respondents were not reacting to his repeated representations. The law stands well settled that mere filing of representation is no explanation for delay unless 3 any legal remedies were being pursued. The law as noticed in (2006) 4 SCC 322 (Karnataka Power Corpn. Ltd. v. K. Thangappan) as follows:- “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. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore. This was reiterated in Rabindranath Bose case by stating that there is a limit to 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 delay. In State of Orissa v. Pyarimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone.” Delay has always been considered vital, in service matters, more particularly of seniority. Any belated interference on issues of seniority will undoubtedly create a turmoil in the gradation list affecting third party rights and generating more litigation. What the Supreme Court observed years ago in (1975) 1 SCC 152 (P.S. Sadasivaswamy v. State of T.N) is more apposite today. “2. …………..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 4 year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 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 Article 226 in the case of persons who do not approach it expeditiously for 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.” The Court finds it difficult to entertain a claim for seniority so belatedly as any interference at this stage will create total turmoil in the gradation list of Junior Engineer especially with regard to persons who may march ahead of the petitioner in the meantime. The judgment in L.P.A. No. 913 of 1996 to claim relief on parity is also of no avail to the petitioner as there has to be a distinction between those who are vigilant in the protection of their legal rights and those who are not. The two form 5 separate class and a claim for relief based on parity can still be denied on ground of delay. This was noticed in (2008) 17 SCC 668 ( Punjab Small-Scale Industries and Export Corporation Limited v. Jhujhar Singh) as follows:- “7. From the dates and events mentioned above, it appears to us that Respondent 1 was not vigilant and did not approach the High Court seeking remedy within the reasonable time. It appears, he was watching the proceedings in the writ petitions filed by 37 other petitioners. When they got the relief, he became active and as claimed, made a representation. Even thereafter, he did not file the writ petition immediately, in other words, the Division Bench pronounced the judgment on 13- 1-1994 but he filed the writ petition on 10-3-1996, that is, after more than two years. Probably, Respondent 1 wanted to take advantage of the relief granted to other writ petitioners who had approached the High Court early. It is unfortunate that the High Court did not focus its attention on this aspect even when the appellants had specifically pointed out this aspect of delay and laches on the part of Respondent 1……” But, if the petitioner has discharged duties as a Junior Engineer not for a short duration but for an inordinately long period of time as he claimed, he is certainly entitled to the salary of the higher post in accordance with the law laid down in (1998) 4 SCC 291 (Selvaraj v. Lt. Governor of Island, Port Blair) as follows:- “3…………. Consequently, on the 6 principle of quantum meruit the respondents authorities should have paid the appellant as per the emoluments available in the aforesaid higher pay scale during the time he actually worked on the said post of Secretary (Scouts) though in an officiating capacity and not as a regular promotee. This limited relief is required to be given to the appellant only on this ground.” The grant of salary for such higher post as rightly urged on behalf of the respondents does not amount to promotion. Therefore the two issues have to be kept distinct both in so far as the petitioner and the respondents are concerned with regard to their respective rights and obligations. The writ application is therefore dismissed to the extent of the claim for seniority. The petitioner is stated to have been granted A.C.P in the meantime also. He is entitled to be considered for grant of salary of the higher post in accordance with law for the periods he worked as Junior Engineer in officiating capacity. Let the petitioner represent before the respondents on the latter claim to be decided in accordance with law and a reasoned and speaking order passed within a maximum period of five months from the date of receipt/production of a copy of this order. 7 Needless to state that if the respondents find justification in the claim or in any part of the claim necessary consequential orders shall be passed simultaneously. As a clarification, any payments made for the post of Junior Engineer without a substantive promotion cannot have a bearing on the aspect of pension as it is to be paid on the basis of last pay actually drawn on the substantive post. The application is allowed only to the extent indicated. P. Kumar ( Navin Sinha, J.)