IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.680 of 2009 1. THE STATE OF BIHAR, through Secretary, Road Construction Department, Bihar, Patna 2. The Chief Engineer, Central Design Organization Road Construction Department, Bihar, Patna, Punai Chak, Opposite New secretariat, Patna-15 … Respondents/Appellants Versus 1. LABORATORY ASSTT.ASSOCIATION, Bihar, Patna through its General Secretary, Ram Briksh Singh, son of late Birdhan Singh, resident of Mohalla Purandarpur, P.S. Jakhanpur, District Patna 2. Akhileshwar Prasad, son of late Harinam Prasad, resident of Mohalla Subhash Nagar Road No.3, P.S. Muzaffarpur Sadar, District Muzaffarpur … Petitioners/ Respondents. ----------- 8. 18.2.2010 I.A.No. 3239/2009 This is an application for condonation of delay in preferring the appeal. Having heard learned counsel for the parties, we are of the considered opinion sufficient grounds do exist for condonation of delay and accordingly, the delay in filing the appeal stands condoned. Interlocutory application is, accordingly, disposed of. Be it noted on earlier date it was stipulated as the pleadings are completed the appeal would be heard. A direction was also incorporated by the order dated 14.5.2009 that the factum of limitation shall be 2 considered at the time of hearing of the appeal. We have considered the same and condoned the delay. Therefore, we have proceeded to hear the appeal on merits. The respondents, namely, Laboratory Assistant Association, Bihar, Patna through its Secretary Ram Briksh Singh had preferred C.W.J.C.No. 12070/2002 claiming for grant of promotion to the post of Research Assistant in the Road Construction Department from the date the vacancies occurred in the said cadre alongwith monetary benefits and not from 15.12.1999 when they were promoted. It was contended before the learned Single Judge that the members of the said Association who constitute Laboratory Assistant deserve to be considered for promotion to the post of Research Assistant in the concerned Department when the vacancies fell. It was also contended that in certain cases the State Government had filled up the post but as far as Research Assistant in the Road Construction Department is concerned, effective steps were not taken and a lackadaisical attitude was adopted. It was urged that for the laxity of the State Government the members of the Association should not suffer and they must be 3 given the benefit from the date the vacancies fell alongwith consequential benefits. The respondent State resisted the stands putforth by the writ petitioners contending, inter alia, that the petitioners were not entitled to the benefit. The learned Single Judge referred to the decision rendered in C.W.J.C.No. 11691/1993 and C.W.J.C.No. 1631/1996 and placing reliance on Rule 58 of the Bihar Service Code and Rule 74 of the Bihar Finance Rules and taking note of the fact that there has been delayed consideration issued the following directions: “The writ application is, therefore, disposed off in terms of the earlier orders of this Court referred to above, with directions to the respondents to consider the due date for promotion of the petitioners to the post of Research Assistant and give them promotion as also of monetary benefits from that date, and not from the date of notification of such promotion, within a maximum period of four months from the date of receipt and/or production of a copy of this order.” Questioning the aforesaid order it is submitted by the learned counsel for the State that the 4 learned Single Judge has erroneously placed reliance on the decision rendered in C.W.J.C.No. 11691/1993 and other analogous cases and the ratio laid down therein does not apply to the case in hand. It is also further submitted that the claim of promotion of the members of the Association relates to the year 1988 and the writ petition was filed in the year 2002 after lapse of 14 years which suffers from delay and laches. It is further contended that none of the promotees, who were promoted in the meantime, have been impleaded as parties. It is also highlighted by the learned counsel for the State that when a direction cannot be issued to fill up a promotional post to the employer, a direction also cannot be issued to extend the benefit of promotion from the retrospective date after a lapse of 16 years and that too with consequential benefits. It is propounded by Mr. Anil Kumar that the members of Association could not have maintained a writ petition for obtaining the benefit of promotion of this nature which basically is an individual right. Mr. Bindhyachal Singh, learned counsel for the respondents, supporting the order of the learned 5 Single Judge contended that the State Government has adopted a pick and choose method to fill up the vacancies in the promotional post of other departments but as far as the post of Research Assistant in Bihar Road Construction Department is concerned, a step motherly attitude has been shown. It is also canvassed by him that non-impleadment would not affect the adjudication of the lis as most of the persons have been promoted to the higher rank and some of them have also attained the age of superannuation. Mr. Singh urged that the reliance on the decision rendered in C.W.J.C.No. 11691/1993 by the learned Single Judge cannot be faulted as that pertains to the lis in question. First we shall advert to the fact whether the learned Single Judge is correct in placing reliance on the decision rendered in C.W.J.C.No. 11691/1993. Be it noted, the learned Single Judge has reproduced a paragraph from the said decision. We think it proper to reproduce the paragraph to appreciate the lis: “ The respondents have filed counter affidavit stating, inter alia, that as order of promotion was issued in 1988 he is not entitled to the consequential benefits from 6 1975/1981. Reference has been made to the circular of the Finance Department dated 4.4.85 in this regard. We have considered the submissions of the counsel for the parties. The plea of the respondents as also reliance on the circular dated 4.4.1985 is wholly misconceived both in law as well as on facts. The plea rests on the provisions as contained in Rule 58 of the Bihar Service Code and Rule 74 of the Bihar Financial Rules. The circular also, in fact, stems from the said two provisions. The aforementioned rules have fallen for consideration by this Court times without number. This Court following authoritative pronouncement of the Apex Court as well as precedents of this Court has consistently taken the view that any promotion which the person concerned is entitled to as of right cannot be said to be notional and if the person concerned is prevented from discharging the duty of the superior post it is only on account of mistake or laches on the part of the State. The State having issued necessary notification in 1988 cannot turn round and take this stand that as the petitioner did not discharge the duty of the posts of Assistant Engineer he is not entitled to pay of the post.” 7 On perusal of the said paragraphs we have no shadow of doubt in our mind that in the said case the Bench was dwelling upon the concept of notional promotion and grant of fiscal benefit. When a promotion is given notionally and a benefit is deprived to the incumbent, the issue is quite different than a claim for retrospective promotion on the foundation that the same should have been conferred from the date when the vacancies had arisen. In our considered opinion the decision rendered in C.W.J.C.No. 11691/1993 is not really applicable to the controversy in hand. The next aspect which we shall advert is the doctrine of delay and laches in pursuing the aforesaid claim of the writ petitioners. There is no dispute or denial over the fact that the writ petition was filed claiming promotional benefit from the date the vacancies arose and the pleadings would indicate the vacancies arose in the year 1988 and the writ petition was filed in the year 2002. In the case of P.S. Sadasivaswamy vs. State of Tamil Nadu, reported in AIR 1974 SC 2271, it has been held in paragraph 2 as follows: “ … … … A person aggrieved by 8 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 it would be a sound that 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. We consider that the High Court was right in dismissing the appellant’s petition as well as the appeal.” On a perusal of the aforesaid law it is crystal clear that while challenging the seniority or putting forth 9 a claim of promotion the maximum time period though not provided for the purpose of entertaining the writ petition under Article 226 of the Constitution of India it should be within a reasonable span of time. In the case at hand sixteen years is a colossal delay and doctrine of delay and laches gets squarely attracted and that deflects the claim of the writ petitioners. Presently with regard to the aspect of non- impleadment it is urged by Mr. Singh, learned counsel for the writ petitioners, that the impleadment of promotees was not imperative, inasmuch as some have been promoted to the higher post and some have retired. The aforesaid submission is unacceptable, inasmuch as on grant of promotion the petitioners, as a natural corollary, would harbour hope to be promoted from the date their juniors were considered in the cadre. The persons who were promoted would become junior to them in the feeding cadre. In view of the aforesaid non-impleadment of the necessary parties in the writ petition becomes fatal to the case. In view of aforesaid analysis we allow the 10 appeal, set aside the order passed by the learned Single Judge without any order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Surendra/