IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6278 of 2005 SIYA LAL SAHU, SON OF LATE DASO SAHU, RESIDENT OF VILLAGE KAWAKOL, P.S. KAWAKOL, DISTRICT – NAWADAH. …………. PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE SECRETARY, ANIMAL HUSBANDARY AND FISHRIES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, FISHRIES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. THE SECRETARY, P.W.D.(ROAD), GOVERNMENT OF BIHAR, PATNA. 5. THE SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OFBIHAR, PATNA. 6. THE CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION, PATNA. …………….. RESPONDENTS. ------------ For the Petitioner : - Smt. Indu Bala Jha, Advocate For the State : - Mr. Chakradhari Saran Singh, AAG VI Mr. Deepak Sahay Jamuar, AC to AAG VI For the BPSC : - Mr. Vijay Shankar Upadhayay, Advocate ----------- 08/ 7.04.2011 Petitioner has prayed for quashing of order dated 28.12.2004 passed by Secretary, Department of Animal Husbandry and Fisheries, Bihar, Patna, whereby his claim for promotion to the post of Assistant Engineer with effect from 23.1.1982 has been rejected. Further prayer is for quashing of tentative gradation list dated 3.5.1991 and to allow him the benefit of Junior and Senior Selection Grade on the post of Assistant Engineer with effect from 23.1.1987 and 23.1.1990. Petitioner had earlier come before this Court for similar relief by filing C.W.J.C. No. 10826 of 2 1998, which was not considered with a finding that claim of the petitioner appears to be stale as he challenges the gradation list prepared in the year, 1991 and also prays for consideration of his promotion, which accrued to him in the year, 1982. However, the writ application was disposed of giving liberty to the petitioner for filing representation before the concerned authorities for necessary order. Since no order was passed by the authorities in the pending representation of the petitioner, again he filed C.W.J.C. No. 2584 of 2004, which was also disposed of directing the respondents to consider the representation filed by the petitioner, in accordance with law, by a speaking order, within a time specified in the order. In compliance of the direction of this Court, impugned order dated 28.12.2004 has been passed, whereby the claim of the petitioner has been rejected by Respondent No. 2. The impugned order was passed giving opportunity of hearing to the petitioner and considering all available relevant documents. Petitioner was appointed as Junior Engineer 3 in the Fishery Department on 22.1.1974. Much earlier to the appointment of petitioner, one Shambhu Nath Rai of Irrigation Department had joined on deputation in the year, 1965 on the post of Junior Engineer, in the Fishery Department, with this condition that services will be returned back to the parent department, as and when required. One Rama Shankar Upadhayay from P.W.D. Department had also joined on the post of Junior Engineer in the year, 1966 on deputation in the Fishery Department. In the year, 1977 Sri S.N. Rai and Sri R.S. Upadhayay were promoted to the post of Assistant Engineer in the Fishery Department, after obtaining approval from B.P.S.C. Petitioner prior to promotion of these two persons had raised objection that being deputationist they should not be given promotion to the higher post, which was not considered to be proper. The petitioner did not challenge the promotion given to these two persons in the year, 1977. Petitioner’s claim is that on 27.5.1978 he was made incharge Assistant Engineer and since then he continuously discharged his duties, on the post of 4 Assistant Engineer. Petitioner’s further case is that he completed eight years of service of Junior Engineer and became eligible for promotion to the higher post, as at the relevant time 3rd post of Assistant Engineer was vacant in the department, as such he should have been promoted to that post in the year, 1982 itself. However, the respondent-authorities in the department promoted him in the regular Class II scale of Assistant Engineer in the year, 1986 ignoring his entitlement with effect from 1982. On perusal of the impugned order it transpires that all these points raised by the petitioner were considered and the order rejecting his claim was passed on the ground that the promotion to the post of Assistant Engineer is given on consideration of merit and seniority, as per recommendation of Bihar Public Service Commission. The petitioner joined in Fishery Department much later to Sri S.N. Rai and Sri R.S. Upadhayay, as such petitioner could not have claimed for any promotion along with them. So far the promotion against 3rd vacancy is concerned, at the relevant time petitioner had not achieved Junior 5 Selection Grade, simply because petitioner completed eight years of service, there being no provision for time bound promotion, the petitioner cannot claim promotion with effect from 1982. Petitioner was given promotion without any undue delay in the year, 1986. Once he was granted selection grade of the Junior Engineer. In the counter affidavit filed on behalf of the State, preliminary objection has been raised regarding undue delay in filing the writ application by the petitioner. The promotion given to Sri S.N. Rai and Sri R.S. Upadhayay in the year, 1977 was challenged by the petitioner in the year, 1998. By that time Sri S.N. Rai had died in the year, 1987 and Sri R.S. Upadhayay had retired in the year, 1997. Challenging this promotion was rightly considered to be stale by the High Court in C.W.J.C. No. 10826 of 1998 filed by the petitioner. In reply to this the counsel for the petitioner submits that the writ application filed by the petitioner could not be discarded simply on the ground that the claim is stale as there is no rule that 6 whenever there is delay the court must necessarily refuse to entertain the petition. The reason for not entertaining a delayed petition is that on account of long gap of time, right of several other persons may be disturbed if any substantial order is passed in favour of the petitioner. But when fundamental right of equal opportunity is involved and on account of passing any substantive order in favour of the petitioner, benefit accrued to no other person is going to be disturbed, the writ application cannot be dismissed on the ground of delay. In support of his contention, counsel for the petitioner has placed reliance on a decision reported in AIR 1974 Supreme Court 259 (Ramchandra Shankar Deodhar and others Vs. The State of Maharashtra and others). In this decision it has been held that;- “ The rule which says that a Court should not inquire into belated or stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that when there is delay the Court must necessarily refuse to entertain the petitioner. The quest is one of discretion to be followed on the facts of each case. It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground 7 of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for the delay. It may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 and this Court which has been assigned the role of a sentinel on the qui viva for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches/delay.” The decision of the Supreme Court has also been followed by the Division Bench in a decision reported in 1983 P.L.J.R. 530 (Shri Keshari Kumar Singh and another Vs. The State of Bihar and others). Petitioner has also placed reliance on a decision reported in 1984 P.L.J.R. page 238 (Rameshwar Prasad Sinha Vs. State of Bihar and others). In para 9 of this judgment it has been held that in case of delay, it is the duty of the petitioner to explain the circumstances in justification of his coming to Court belatedly; and if he does so to the satisfaction of the Court, his case has to be considered on merits ignoring the delay. For deciding this aspect, each case will have to be considered on its own facts 8 and circumstances. No general rule in this regard is possible to be stated for universal application. I find that petitioner has not satisfactorily explained. So far delay part is concerned, on the first occasion itself when he approached this Court, his both the claims, which are also the relief prayed in the present writ application, were found to be stale. The cause of action arose to petitioner in the year, 1977 when Sri Rai and Sri Upadhayay were given promotion to the post of Assistant Engineer. Counsel for the petitioner submits that representation after representation was filed by the petitioner, which was not considered. Merely filing of representation will not explain 12 years delay. Petitioner could have approached the High Court in case his representation was not considered and the persons given promotion were continuing on the post. Petitioner filed writ application subsequent to death and retirement of those two persons, who were granted promotion. Petitioner in this way has not been able to explain the delay, considering which his case could have been 9 entertained for deciding on merit. Counsel appearing for the State has placed reliance on three decisions of the Supreme Court on the point of delay. First decision is 2009 (2) SCC 479 (S.S.Balu and another Vs. State of Kerala and others). In this case the writ petitioner did not challenge the government order issued on 15.1.2002, till the date writ applications filed by others were allowed, the writ-petitioner approached the High Court after long delay. In this circumstance, the Supreme Court held “it is also well settled principle of law that delay defeats equity”. The relief prayed by the writ petitioner was dismissed on the ground of delay and laches, irrespective of the fact that they were similarly situated, to other candidates, who obtained the benefit of the judgment. Another decision relied upon by the counsel appearing for the State is 2008 (10) SCC115 (C. Jacob Vs. Director of Geology and Mining and another). In this decision the Supreme Court has held that in stale claims, the Court should not direct the department to consider such claims. Court should be circumspect in issuing 10 such direction, as it ultimately leads to consideration of case on merits, at subsequent stages of litigation as if the cause of action stood revived due to fresh consideration. The department can reject a stale case on the ground of delay alone. 3rd decision which has been relied by the State is 2009 (3) SCC 281 (Yunus (Baboobhai) A. Hamid Padvekar Vs. State of Maharashtra and others). In this decision also it has been held that so called filing of representations in no way assist the appellant to explain long delay in filing the writ petition. So far the petitioner’s claim regarding promotion to the Junior and Senior selection grade of Assistant Engineer is concerned, in para 7 of the supplementary it has been stated that petitioner has already been recommended for promotion in the Junior Selection Grade of Assistant Engineer in the scale of Rs.3000-4500/- with effect from 22.9.1991. So far Senior Selection Grade post is concerned, it has been stated that the post was not available till 31.12.1995, as such it cannot be provided to the petitioner. 11 On consideration of all these facts, I do not find that the reasoned order, which has been passed by Respondent No. 2, suffers from any infirmity or illegality. Petitioner’s claim for promotion on the post of Assistant Engineer with effect from 1982 was rejected as it was not found justiciable. For all these reasons, this application is dismissed. DKS/ (Mridula Mishra, J.)