IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16746 of 2008 SIDHESHWAR PRASAD Versus THE STATE OF BIHAR & ORS ----------- 02 05.08.2010 I.A. No. 5470 of 2010 has been filed for substitution stating that the original writ petitioner has been deceased on 8.6.2010, leaving behind his legal heirs mentioned in paragraph-5 of the application. Having considered the submissions on behalf of the parties and that the claims made in the writ application have financial implications for the family of the deceased, the I.A. is allowed. The original petitioner retired on 30.9.1987 from the post of Routine Clerk. During his service tenure itself, his juniors in the gradation list were promoted on 4.10.1973, 8.8.1975 and 16.10.1982 to the post of Additional District Public Relations Officer. The petitioner filed his representation on 7.6.1980 while in service. His further contention is that certain recommendations were made in his favour in September, 1987. He filed another representation after superannuation on 10.02.1993. He then filed a Title Suit No. 70 of 1996 on 15.10.1996. The suit was dismissed on 30.8.2008 as not maintainable, whereafter the writ petition has been filed on 19.11.2008. Learned counsel for the petitioner relies upon a judgment 2 of the Supreme Court in A.I.R. 1974 page 1806 (Haryana State Electricity Board Versus State of Punjab & Haryana and Others) and A.I.R. 1994 (1) SCC 44 (Ramchandra Versus Union Of India & Others) to urge that delay approaching this Court could not be a ground simplicitor to reject the case. Learned counsel for the State has pressed on the aspect of delay and urged that the writ petition merits no consideration at such belated stage. On the own showing of the petitioner, he pursued no legal remedy for promotion while he was in service, even though his juniors were promoted during that period. It stand settled that mere filing of representations was no explanation for delay. In 2007 A.I.R. SCW 7750 (“State of Tamil Nadu Versus Seshachalam” State of T.N.V. Seshachalam) it has been held at paragraph 11 that:- “11. Some of the respondents might have filed representations but filing of representations alone would not save the period of limitation. Delay or latches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or latches on the part of a Government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who 3 are alert and vigilant. Opinion of the High Court that GOMs No. 126 dated 29.5.1998 gave a fresh lease of life having regard to the legitimate expectation, in our opinion, is based on a wrong premise. Legitimate expectation, in our opinion, is based on a wrong premise. Legitimate expectation is a part of the principles of natural justice. No fresh right can be created by invoking the doctrine of legitimate expectation. By reason thereof only the existing right is saved subject, of course, to the provisions of the statute.” Insofar as question of delay is concerned, the each case shall have to be tested on its own facts. In the case of Haryana State Electricity Board (supra) relied upon, it appears that certain reports were awaited from the Himachal Pradesh Administration, where the person concerned had been on deputation and the delay was partly on account of non-receipt of the report. In any event of the matter, the delay was not of the magnitude presently noticed. In the case of Ramchandra (supra), the question of delay was being considered in the background of Land acquisition Act in respect of which parameters for consideration to condone delay shall be entirely different. Delay in service matters has been held to be vital. It necessarily has a cascading effect. On the own showing of the petitioner, if this Court were to interfere today, it may have to unsettle, those junior to the 4 petitioner but who were promoted as far back as 1973, 1975 and 1982. On account of the inaction of the petitioner they must have been sanguine of the promotional accrued in their favour. In any event of the matter, the persons junior to the petitioner with which he is aggrieved have not been made respondents to the writ petition. In 1998 (2) SCC 523 (B.S. Bajwa & Another Versus State of Punjab and Others) it has been held at paragraph 7 as follows:- “7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the Single Judge and, therefore, the judgments of the Single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance was made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971- 72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystallized which ought not to have been reopened after the lapse of such a long period. At every stage others were promoted before B.S. Bajwa and B.D. Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be reopened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which 5 is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition.” Even if the filing of the Title Suit by the petitioner be considered in his favour that still leaves an unexplained delay of nine years on his part in having taken resort to any legal remedy. The dismissal of the suit in 2008 can bring no succor to the petitioner. It was the petitioner, who elected a particular remedy of filing a suit as distinct from coming in a writ petition. If he joins failed to bring him relief. The petitioner must bear the consequence of the remedy elected by him and he cannot urge that he was bona fide pursuing a wrong remedy and the delay should be condoned In effect, the petitioner requires adjudication of a claim for promotion nearly over twenty years after his retirement. A claim for seniority long after retirement for wrongs allegedly done in service was rejected in 2003 (12) SCC 270 (E. Parmasivan And Others Versus Union of India And Others) holding at paragraph 2 as follows:- “2. The petitioners in this case, who are fifteen in number, are retired officers of the Military Engineering Services in the Ministry of Defence, Government of India. They retired from service between 31.1.1974 to 31.5.1985 while holding posts of 6 Senior Administrative Officer (SAO) or Senior Barrack Store Officer (SBSO) or Principal Barrack Store Officer (PBSO). They filed original application, OA No. 1935 of 1995 in the Central Administrative Tribunal (for short “CAT”), Principal Bench, Delhi, claiming fixation of their pay on promotion in terms of the concordance table notified in the Ministry of Defence OM dated 12.1.1976. The main basis of their case is that in similar cases, OAs Nos. 211 and 498 of 1986, the Principal Bench, CAT by judgment rendered on 13.11.1992 directed the Union of India and the officers concerned to treat the applicants therein as entitled to pay fixation in terms of the aforesaid OM. The applicants also cited the judgments of Benches of CAT at a different place wherein relief had been granted to similarly placed officers of the MES cadre. The Tribunal by its judgment dated 6.2.1996 dismissed the original application on the ground that it is barred by limitation. The Tribunal rejected the contention raised on behalf of the petitioners that the grievance made by them in the case is continuing and the cause of action for the application is a continuing cause of action, in such a case question of limitation does not stand in the way of the claim made by them. As noted above all the petitioners had retired from the service long before the judgment of the Principal Bench, CAT, dated 13.11.1992. In the judgments of different Benches of CAT copies of which have been placed on record in the case the applicants were officers in service. The anomaly in the scale of pay of the petitioners arose as early as on 12.1.1976 when the Government of India declined to extend the revised scale of pay in terms of the concordance table to members of the cadres of the Store Officers and Administrative Officers. Therefore the 7 petitioners would have raised objection regarding the anomaly in their scale of pay at the point of time. Even thereafter when they retired from the service they could have made the claim for pay fixation in terms of the concordance table and for calculation of pension on that basis. They did not take any step in that regard till 1995.” This Court finds it difficult to condone the delay and laches on part of the petitioner for which he has himself to blame alone. The application is dismissed on ground of delay and laches. P.K. (Navin Sinha, J.)