IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3733 of 2009 Arjun Praswan . Versus The State Of Bihar & Ors . ----------- For the Petitoner:- Mr. Rupak Kumar, Adv. For the State:- Mr. P.K. Verma Mr. Saroj Kr. Sharma, Adv. For the B.P.S.C.:- Mr. K.B.Nath, Adv. Mr. S.C.Jha, Adv. ------------ 5. 15.09.2011 Heard learned counsel for the petitioner and the State. The order dated 28.7.2011 adequately notices the controversy involved. Only for a brief capitulation it may be noticed that the Departmental Promotion Committee on 29.3.1989 recommended the shifting of the date for promotion of the petitioner to the post of Assistant Engineer as 16.4.1980. That has been done and the monetary benefits paid accordingly. The petitioner now desires consequent shifting back of the date of his promotion as Executive Engineer from 28.2.1992 to the date that his juniors have been promoted in 1998-1990. This may bring him additional financial benefits. The State had contended that the shifting back of the date of promotion to Assistant Engineer as 16.4.1980 was done in pursuance of the orders of the Court when the Appeal also had failed. But the respondents have prepared the final seniority list of 2 Assistant Engineer based date of entry into the cadre. It is lastly submitted that in the peculiar facts of the case the Court may not interfere because any redrawing of the seniority list shall have severe repercussions with regard to many others in service creating severe turmoil. The petitioner has superannuated from service and no substantial service benefits shall accrue to him. On the previous occasion the Court had queried how an employee can have two dates of promotion to the post of Assistant Engineer, one fictional and the other actual. No affidavit in that regard as directed by the Court has been filed despite two adjournments granted for the purpose. Mr. Verma for the State submits that he has received instructions but himself is not satisfied with the same. Counsel for the petitioner urges that if the respondents have not been able to answer the query of the Court full effect must be given to the promotion granted as Assistant Engineer from 16.4.1980 and the respondents be directed to shift the date of promotion as Executive Engineer to 16.4.1988, the date when his juniors have been promoted. 3 The Court upon consideration holds that an employee cannot have two dates of promotion, one fictional and the other actual. Once the respondents accepted the recommendations of the Departmental Promotion Committee and granted him promotion as Assistant Engineer from 16.4.1980, paid him monetary benefits accordingly, the issue stands closed. His eligibility for promotion to Executive Engineer has to be considered on that basis. If any person junior to him as Assistant Engineer, after shifting his date of promotion has been granted relief by promotion to the post of Executive Engineer prior to the date when the petitioner has been promoted, it amounts to violation of Article 14 of the Constitution of India. The contention of the State that the promotions given to the petitioner were contrary to certain laws laid down by the Supreme Court and principle of seniority is not open for them to urge. Once they questioned the order of this Court unsuccessfully in Appeal also, during the earlier round of litigation between the parties, the matter attained finality inter partes. In fact the Court has severe doubts if the respondents in this application can question their 4 own orders of having granted such promotion to the petitioner. In A.I.R. 1988 SC 1247 (Assistant Commissioner of Commercial Taxes (Asst.) Dharwar & Ors. Vs. Dharmendra Trading Co. etc.) the Supreme Court did not permit the respondents to question their own actions holding at Paragraph-5. “5. The next submission of learned counsel for the appellants was that the concessions granted by the said order dated 30th June, 1969 were of no legal effect as there is no statutory provision under which such concessions could be granted and the order of 30th June, 1969 was ultra vires and bad in law. We totally fail to see how an Assistant Commissioner or Deputy Commissioner of Sales Tax who are functionaries of a State can say that a concession granted by the State itself was beyond the powers of the State or how the State can say so either….” But it is equally not in controversy that the juniors to the petitioner had been promoted as Executive Engineer as far back as 1988-1990. The Departmental Promotion Committee shifted his date of promotion as Assistant Engineer to 16.4.1980 on 29.3.1989. If his juniors had been promoted prior to the date of recommendation or immediately thereafter, the cause of action had accrued to the petitioner. It was not necessary for him, as was urged, to await the preparation of the final gradation 5 list for such long years till his superannuation on 31.3.2009 and to have filed this writ application 11 days prior thereto on 26.3.2009. In service matters, more particularly where promotions are concerned, delay is extremely vital as it has a severe cascading effect. If this Court were to interfere today it will be a severe jolt to those who may be safely ensconced in the belief of their seniority sanguine that the petitioner was not aggrieved by the same. If this settled position is disturbed today belatedly several issues may arise including that for return of salary for the period prior to entitlement etc. The Court is not persuaded to give such an interpretation. As far back as AIR 1974 SUPREME COURT 2271 "P. S. Sadasivaswamy v. State of T.N." it has been explained that in service matters where promotions are concerned a reasonable period of six months would be sufficient to lay out the challenge. The petitioner far exceeds that period. “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 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 6 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 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.” The writ Court exercises discretionary powers. The discretion is guided by law. The Court in the given facts of a particular case, even if it finds that the action of the respondents is not sustainable, it may still for reasons to be explained yet grant no relief. The present case belongs to such a category. Declining interference on the facts despite the illegality in the order it has been held in (2003) 6 SCC 545 (Chandra Singh v. State of Rajasthan) it has been held at Paragraphs- 43 and 44 as follows:- “43. Issuance of a writ of certiorari is a discretionary remedy. (See Champalal Binani v. CIT) The High Court and consequently this Court while exercising their extraordinary jurisdiction under Article 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant. Furthermore, this Court exercised its 7 discretionary jurisdiction under Article 136 of the Constitution of India which need not be exercised in a case where the impugned judgment is found to be erroneous if by reason thereof substantial justice is being done. [See S.D.S. Shipping (P) Ltd. v. Jay Container Services Co. (P) Ltd.17] Such a relief can be denied, inter alia, when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal one. This Court also in exercise of its jurisdiction under Article 142 of the Constitution of India is entitled to pass such order which will do complete justice to the parties. 44. We have been taken through the annual confidential reports as against the appellants. Having gone through the same, we are of the opinion that it is not a fit case where this Court should exercise its discretionary jurisdiction in favour of the appellants. This Court in Brij Mohan Gupta case10 has also refused to exercise its discretionary jurisdiction in favour of the appellants although the order of the High Court was found liable to be set aside being not in accordance with law.” The writ application is dismissed. P. Kumar ( Navin Sinha, J.)