1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Narendra Singh & Ors. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.3347/1996) Date of Order :- September 30th, 2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Rishi Kumar Sharma, for the petitioners. Mr.Krishna Verma, Addl.G.A. for the State. Aggrieved by non-appointment on the post of Literate Attendant, and aggrieved by the denial of the promotional avenues from the post of Laboratory Attendant, the petitioners have approached this Court. The brief facts of the case are that the Principal, SMS Medical College, Jaipur, respondent No.2, issued a public notice on 09.09.1985 inviting applications for appointment on the post of Literate Attendant and Laboratory Attendant from those persons who were registered with the Employment Exchange. Since the petitioners were eligible for the post of Literate Attendant, they applied for the same. However, after interviewing them, vide order dated 31.12.1986 instead of appointing them to the post of Literate Attendant, they were appointed on the post of Laboratory Attendant. According to the petitioners, despite their appointment on the post of Laboratory 2 Attendant, three posts of Literate Attendant continued to be vacant. Surprisingly, two persons, namely Mr. Rakesh Kumar Vyas and Mr. Mahadev Prasad, respondent Nos.3 & 4 respectively, who were appointed on the post of Laboratory Attendant along with the petitioners, they were appointed on the post of Literate Attendant, vide order dated 28.01.1987. Similarly, one Mr. Padam Chand Jain, respondent No.5, who was also selected along with the petitioners for the post of Laboratory Attendant, vide order dated 11.02.1987, he was appointed on the post of Literate Attendant by revising the order dated 31.12.1986. Thus, while others have been shifted from the post of Laboratory Attendant to the post of Literate Attendant, the petitioners are continuing to work on the post of Laboratory Attendant. To add insult to injury, while persons working on the post of Literate Attendant are entitled to further promotions, persons working on the post of Laboratory Attendant have no promotional avenues available to them. Since the petitioners were aggrieved by the fact that no promotional avenues were provided to them, in 1990, they had filed a writ petition, registered as S.B. Civil Writ Petition No.1422/1990 – Narendra Singh Vs. State of Rajasthan & Ors before this Court. Vide judgment dated 16.07.1996, this Court had directed the petitioners to submit their representation before the respondents, and the respondents were directed to 3 consider their representation. However, according to the petitioners, despite the submission of their representation, no action has been taken by the respondents. Therefore, the petitioners have concentrated in this writ petition on the issue of non-providing of promotional channels to them. Mr. Rishi Kumar Sharma, the learned counsel for the petitioners, has vehemently argued that under Article 19(1) (g) and Article 21 of the Constitution of India, a citizen not only has the right to livelihood, but also has a legitimate expectation that further channels for promotion would be provided to him once he is appointed to a particular post. Secondly, stagnation of any post retards the efficiency of a person. Thus, stagnation should be avoided by the State. Thirdly, the State, being a welfare one, is duty bound to ensure efficiency of service and is constitutionally bound to have fair, just and reasonable conditions of service. The State cannot expect a person to work against a particular post for the rest of his/her life. Therefore, the State is constitutionally bound to provide avenues of promotion to the petitioners. In order to buttress this contention, the learned counsel has relied upon the cases of Raghunath Prasad Singh Vs. Secretary, Home (Police) Department, Government of Bihar & Ors. [AIR 1988 SC 1033], Food Corporation of India & Ors. Vs. Parashotam Das Bansal & Ors. [(2008) 5 SCC 100], and Shri Agrawal Shiksha Samiti, Jaipur & Anr. Vs. State of Rajasthan & Ors. [2006 (3) WLC 3]. 4 On the other hand, Mr. Krishna Verma, the learned Additional G.A. for the State, has strenuously argued that even earlier the petitioners had preferred a similar writ petition. Therefore, they are not entitled to file a second writ petition for the same relief. Secondly, vide order dated 16.07.1996, they were directed to submit their representation before the respondents. Their representations are under active consideration. Thirdly, the present writ petition has been filed after an inordinate delay of over two decade, as respondent Nos.3, 4 & 5 were appointed on the post of Literate Attendant as far back as 1987. Therefore, the petitioners cannot challenge the said orders after such a long gap of time. For, delay defeats equity. Fourthly, the petitioners have accepted their appointment being fully aware that from the post of Laboratory Attendant, no further promotional avenues are provided. Since they have accepted the said position, they cannot be permitted to compel the State to create a promotional channel. Fifthly, since the State provides the benefit of selection grade etc. after completion of 9, 18 and 27 years of service, the petitioners cannot claim about lack of promotional avenue. The scheme of selection grate etc. was, in fact, introduced with the aim of reducing the sense of frustration and inefficiency which creeps into a long tenure of service. According to the learned counsel, such an increase in pay-scale amounts to a “promotional scheme”. Lastly, since creation of promotional avenues involves financial commitments on the part of the State, this Court is not 5 empowered to issue direction for creation of “promotional scheme”. Heard the learned counsel for the parties, perused the impugned order, and have considered the case law cited at the Bar. The present petition certainly does not suffer form the delay and laches. A bare perusal of the facts narrated above clearly shows that the petitioners have been voicing their concerns and agitating their rights since 1990. Even on an earlier occasion, they had filed a writ petition praying that promotional avenues should be created. However, the Government did not pay any heed to their reasonable request. Vide order dated 16.07.1996, this Court had directed the petitioners to submit their representation before the Government. Inspite of the submission of their representation, the respondents are sitting silently over the entire issue. Because of the silence on part of the respondents, the petitioners have again approached this Court. Thus, the petitioners cannot be blamed for re-agitating their concern. The fault does not lie with the petitioners, but lies with the State. The State cannot be permitted to sit over the representations, to ignore the rights of the petitioners, and yet claim that the petitioners should be ousted from this Court, as they have again approached this Court for resolving of their difficulties. The 6 court can neither be callous, nor insensitive to the plight of the petitioners. After all, the Court cannot act as the orphanage keeper in Charles Dicken's novel Oliver Twist, who rebuked Oliver Twist for having asked for a second helping of soup. This court, in its writ jurisdiction, is bestowed with the role of an archangel, which has to safeguard the interests and the rights of the people. Therefore, this Court cannot turn Nelson's eye to the petitioners' plight. Since the petitioners have been pursuing the legal remedy since 1990 till present, they cannot be castigated for lethargy and laches. Hence, the contention with regard to delay and laches is unacceptable. The State has to be a role model for the people. Therefore, the State is required to act as an ideal employer. As an ideal employer, the State is concerned not only with the interest of its employees, but also has to be sensitive to the need of efficiency in the service. The State has to be well aware of the fact that stagnation breeds dissatisfaction and frustration. Stagnation, therefore, erodes the morale and the efficiency of the workers. Thus, it adversely affects the productivity and the efficiency of the system. Realizing the impact of stagnation on the physiological and the physical output of an employee, repeatedly the Hon'ble Supreme Court has stressed on the need for providing promotional avenues by the State to its employees. 7 As far back as 1988, the Apex Court had dealt with the question whether promotional prospectus in public service should be provided or not ? In the case of Raghunath Prasad Singh (supra), the Apex Court has observed as under :- Reasonable promotional opportunities should be available in every wing of public service. That generates efficiency in service and fosters the appropriate attitude to grow for achieving excellence in service. In the absence of promotional prospects, the service is bound to degenerate and stagnation kills the desire to serve properly. Similar views have been expressed by the Apex Court in the case of Dr. Ms. O.Z. Hussain Vs. Union of India & Ors. [AIR 1990 SC 311] and recently in the case of Food Corporation of India & Ors. (supra). Another issue that has been raised in this case is whether this Court is empowered to issue direction to the State to create avenues for promotion or not ? In the case of Food Corporation of India & Ors. (supra), the Apex Court dealt with this issue and held as under : When employees are denied an opportunity of promotion for long years (in this case 30 years) on the ground that they fall within a category of employees excluded from promotional prospect, the Superior Court will have jurisdiction to issue necessary direction. If there is no channel of promotion in respect of particular group of officers resulting in stagnation over the years, the Court although 8 may not issue any direction as to manner by which a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but jurisdiction to issue direction to make a scheme cannot be denied to a Superior Court of the country. How the employee would be structured is within the realm of the statutory authority but by reason thereof, it cannot tinker with their essential fundamental rights. Hence, the power of this Court to issue directions for creation of promotional channels is unquestionable. In the case of Shri Agrawal Shiksha Samiti, Jaipur & Anr (surpa), a learned Division Bench of this Court had gone a step further. It has not only directed the government to create promotional routes, but had also directed it to consider the petitioners against the promotional posts. The respondents have, of course, contended that introduction of selection grade tantamounts to providing promotional channels. But in the case of Food Corporation of India & Ors. (supra), the Hon'ble Supreme Court had rejected the said contention and observed as under : So far as introduction of selection grade is concerned, the same does not provide for a promotional scheme. It is available to a limited number of employees. By reason thereof a promotional scheme cannot be said to have been framed. The Scheme of accelerated career progression is distinct and different from grant of selection grade. 9 Thus, merely because a scheme for grant of selection grade is applicable, it would not mean that “promotional channels” exist. But of course, it is not for this Court to lay down the mechanism of the scheme, for “play at the joints” has to be given to the Executive for drawing up its scheme. Considering the fact that the petitioners were appointed twenty-two years ago on the post of Laboratory Attendant, considering the fact that they have been stagnating on the said post for over two decades, considering the fact that such a stagnation leads to inefficiency and lethargy and frustration, this Court deems it proper, in the interest of justice, to direct the State to formulate a promotional scheme for those persons working on the post of Laboratory Attendant within a period of three months from the date of receipt of the certified copy of this judgment. The respondents are further directed to consider the petitioners, and other similarly situated persons, for the promotional post once the posts have been created by them. With these observations, this writ petition is, hereby, allowed. No order as to costs. (R.S.CHAUHAN)J. Manoj Solanki-