IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8200 of 2010 1. Babu Nandan Chaubey S/O Late Bigu Chaubey, R/O Village -Rampura,P.S.-Singwara,District-Darbhanga. Versus 1. The State of Bihar. 2. The Principal Secretary, Water Resources Department,Govt. Of Bihar, Patna. 3. The Deputy Secretary, Water Resources Department,Govt. Of Bihar, Patna. 4. The Under Secretary, Water Resources Department,Govt. Of Bihar, Patna. 5. The Engineer In Chief, Water Resources Department,Govt. Of Bihar, Patna. ----------- 3. 13.10.2011 Heard learned counsel for the petitioner and the State. The petitioner a Junior Engineer is desirous to be considered for promotion to the post of Assistant Engineer with effect from 27.12.1978. The further claim is for difference of salary for the promotional post on the ground that he was discharging current duties of an Assistant Engineer since 1980 till his superannuation on 28.2.1997. Learned counsel for the petitioner submits that the gradation list of Junior Engineers was finalized only in 1990. The petitioner had earlier been subjected to a departmental proceeding and punishment imposed. Upon challenge this Court in C.W.J.C. No. 5770 of 1996 disposed on 13.12.1996 set aside the punishment and remanded the matter. The petitioner superannuated on 28.2.1997 . The 2 respondents passed fresh orders of punishment under Rule 43(b) of the Pension Rules withholding part of the pension. The same was challenged unsuccessfully by the petitioner in C.W.J.C. No. 3927 of 1999. Learned counsel contends that if the order of punishment passed while in service was set aside, in C.W.J.C. No. 5770 of 1996, the petitioner had a right to be considered for promotion to the post of Assistant Engineer. Any conversion of that proceeding into one under Rule 43(b) of the Pension Rules can only affect the right to pension and not for promotion. It was lastly submitted that as on 27.12.1978 there were no proceedings pending against the petitioner as the charge sheet in question was issued subsequently. It is next submitted that the writ application is not barred by delay placing reliance on (2008)8 SCC 445 ( Ashok Kumar Vs. State of Bihar & Ors.) and (1995) 6 SCC 614 (Nand Kishore Vs. State of Punjab). In the former case the delay was of 4 years and in the latter 31 years. The contention is that delay is not always a necessary factor to deny relief especially when no third party rights are going to be affected since the petitioner has already retired. 3 Reliance has been placed on an order in C.W.J.C. No. 4070 of 2010. It is lastly submitted that in the alternative the petitioner may be given the relief of full salary for the post of Assistant Engineer since 1980 till superannuation on 28.2.1997 as he discharged duties of the higher post. Counsel for the State has opposed the writ application both on grounds of delay as also on merits. It is submitted that any consideration for promotion at this belated stage shall cause severe turbulence in the entire service and shall only generate further litigation. The belated claim by the petitioner if allowed shall impose huge financial burden on the State. This Court in C.W.J.C. No. 5770 of 1996 did not set aside the punishment on merits but remanded it for procedural reasons. The proceedings got converted into Rule 43(b) of the Pension Rules and ultimately punishment imposed upheld by this Court in C.W.J.C. No. 3927 of 1999 therefore for the purposes of the present claim the thread of ineligibility to be considered for promotion attaches to the petitioner throughout. The Court on consideration of all aspects of the matter whether it be delay or merits finds it 4 difficult to grant any relief to the petitioner including for arrears of full salary as an Assistant Engineer from 1980 till his superannuation on 28.2.1997. The relief for salary of the higher post was well available to the petitioner to be raised in time. There is no explanation or suggestion in the writ application why the petitioner did not raise the claim earlier. The right was a statutory right amenable to waiver. If the petitioner were to stake a money claim today for his arrears of salary for the higher post of Assistant Engineer it would clearly be barred by the law of limitation. He cannot be permitted to circumvent the ordinary laws of the land by resort to the extraordinary jurisdiction of the writ Court under Article 226 of the Constitution as held by the Supreme Court in 1999 SCC (L&S) 726 (State of Punjab v. Sukhdev Singh) it has been held at Paragraph-3 as follows:- “3……….If the respondent had filed a suit on 1-11-1981, he could not have claimed salary with effect from 19-10- 1966. He could have only claimed the salary for the period covering three years and two months prior to the date of the filing of such suit. The respondent cannot claim more by filing a writ petition under Article 226 of the Constitution. The relief granted to the respondent must, therefore, be confined to the salary for the period of three years and two months prior to the date of filing of the writ petition on 1-11- 5 1981.” The petitioner had only a right to be considered for promotion. According to his own case the gradation list of Junior Engineer was not finalized till 1990. He himself considered it prudent not to press any claim for promotion on that ground or any other ground to his satisfaction. Before he could be considered thereafter he was subjected to a departmental proceeding which ultimately led to punishment. This Court set aside the punishment on procedural technicality and remanded the matter to proceed afresh from the stage of illegality. The petitioner was not exonerated. The proceedings continued with an element of continuity sanctioned by the law under Rule 43(b) of the Pension Rules consequent to his superannuation. The intervening superannuation was only a subsequent event regulating the nature of punishment that could now be imposed. The punishment that subsequently followed, upheld by this Court, attaches infirmity to his very claim for promotion as rightly urged on behalf of the respondents. The Court does not uphold the contention that the punishment may be followed for purposes of pension but not for promotion. It shall indeed be queer that the petitioner be held 6 entitled to be promoted to the post of Assistant Engineer notwithstanding the fact that he has been found guilty of the charge leading to a modified punishment only because of his superannuation. In C.W.J.C. No. 4070 of 2010 the facts were fundamentally different. The punishment and the appellate order were all set aside by this Court and in the background of which directions for consideration for promotion came to be issued. In the case of Ashok Kumar (supra) relied upon by the petitioner the delay was hardly of four years. The judgment in the case of Nand Kishore (supra) is based on the exercise of constitutional powers of the Supreme Court under Article 141 of the Constitution of India in order to do complete justice between the parties a power which this Court under Article 226 does not possess. They were not claims relating to promotion despite punishment or arrears of salary. In so far as claims of seniority and/or promotion are concerned the Supreme Court as far back as 1975 has held that delay in service matters for such claims is a very vital aspect and the Court should not entertain such belated claims beyond a period of approximately six months as they 7 unnecessary clutter the dockets of the Court hindering adjudication of more important issues brought in time discussed in the following terms in (1975) 1 SCC 152 (P.S. Sadasivaswamy v. State of T.N.) at Pargraph-3 as follows:- 3………..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 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 no merits in this application. It is accordingly dismissed. P. Kumar ( Navin Sinha, J.)