1 D.B.Civil Special Appeal (Writ) No.1262/2009 J.V.V.N.L. & Others Vs. Sahdev Singh and Others. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER D.B.Civil Special Appeal (Writ) No.1262/2009. In S.B.Civil Writ Petition No.4261/1995. Jaipur Vidyut Vitran Nigam Limited and Others. VERSUS Sahdev Singh and Others. 10.05.2010. HON'BLE MR.JUSTICE DALIP SINGH HON'BLE MR.JUSTICE RAGHUVENDRA S.RATHORE Mr.Sanjeev Prakash Sharma, for the appellant. Mr.Ashok Gaur, for the respondents. ***** This special appeal has been preferred against the judgment of the learned Single Judge dated 27.08.2009 in S.B.Civil Writ Petition No.4261/1995 filed by Sahdev Singh and seven others who have sought a direction for being promoted on the post of L.D.C. w.e.f. 07.08.1980 when their juniors were so promoted by the appellant-Corporation. The learned Single Judge accepted the contention of the petitioners that the case of the petitioners was at par with that of Babulal whose writ petition came to be allowed by this court vide judgment dated 13.05.1991 holding that Bubulal was entitled to be promoted on the basis of the seniority w.e.f. 07.08.1980 when the persons junior to him, six in number, were promoted. It may be stated here that the aforesaid decision of the learned Single Judge dated 13.05.1991 was challenged by the appellant- 2 D.B.Civil Special Appeal (Writ) No.1262/2009 J.V.V.N.L. & Others Vs. Sahdev Singh and Others. Corporation before the Division Bench of this court in D.B.Special Appeal (Writ) No.601/1991 which came to be dismissed by this court on 20.01.1992. The petitioners approached this court earlier by means of a writ petition and this court vide judgment in S.B.Civil Writ Petition No.173/1994 directed all the petitioners under its judgment dated 28.01.1994 to file representations and it was further directed that the Secretary of the appellant-Corporation (then R.S.E.B.) would consider the representations keeping in view the decision in Babulal's case. On representations being filed the same came to be rejected vide order dated 13.04.1994. Hence, this second inning by the present writ petition. The learned Single Judge found that the case of the petitioners was not distinguishable from that of Babulal which had been allowed by this court and consequently allowed the writ petition with the direction that on the analogy of Babulal's case, the appellant would grant promotion w.e.f. 07.08.1980, the date on which such promotions were granted to the persons junior to the petitioners and the petitioners would be entitled to all consequential benefits. The submission of the learned counsel for the appellant is that while Babulal's petition was allowed and on the analogy of Babulal's case, the case of the present petitioners has been allowed by the learned Single Judge, the learned Single Judge had himself dismissed few petitions filed by O.P.Tiwari and Others 3 D.B.Civil Special Appeal (Writ) No.1262/2009 J.V.V.N.L. & Others Vs. Sahdev Singh and Others. (S.B.Civil Writ Petition No.17991994) vide judgment dated 18.05.2001; and Radhey Shyam Jain (S.B.Civil Writ Petition No.9447/2002) vide judgment dated 20.02.2009 on the ground of having approached this court with delay. It is submitted by the learned counsel for the appellant that the petitioners challenged the order of promotion of the year 1980 by filing the writ petition in the year 1995 after nearly 14-15 years and, therefore, the writ petition ought to have been dismissed on the ground of delay itself. So far as the aforesaid contention of the learned counsel for the appellants is concerned, we find that the petitioners had approached this court in the year 1994 after the decision in Babulal's case by means of S.B.Civil Writ Petition No.173/1994 which came to be decided by this court vide judgment dated 28.01.1994 with the directions that the petitioners should approach the Secretary of the Board, the predecessor of the present appellant, by means of representations against the promotion of person junior to the petitioners vide order dated 07.08.1980. The petitioners filed their representations which came to be dismissed by the appellant vide order dated 13.04.1994 and it is this order which the petitioners have challenged by means of the present writ petition, as would be evident from the prayer made in the writ petition. The appellants had option of approaching this court once the petitioners made the representations along with the copies of the judgment dated 4 D.B.Civil Special Appeal (Writ) No.1262/2009 J.V.V.N.L. & Others Vs. Sahdev Singh and Others. 28.01.1994 and could have raised all objections including grounds of delay but instead the appellants did not challenge the decision dated 28.01.1994 and rest content with deciding the representation filed by the petitioners. Learned counsel for the appellant frankly admitted that so far as the writ petitions which came to be dismissed by the learned Single Judge, reference of which has been made hereinabove of O.P.Tiwari and Others and Radhey Shyam Jain, these petitioners had not approached this court earlier and no directions have been given in their favour for making representation to the appellant-Corporation. Thus, the case of the present petitioners is distinguishable on this ground that the present writ petition has been filed as a second innings of the petitioners after the earlier petition was disposed of with a direction to make representation before the Board against the order dated 07.08.1980 in the light of the judgment given by the learned Single Judge in Babulal's case. Moreover, no objection to the writ petition being belated and liable to be dismissed was raised in the hearing before the learned Single Judge and the writ petition having been allowed, we do not consider it befitting to dismiss the writ petition in appeal setting aside the judgment of the learned Single Judge on the ground of delay. Even otherwise, a look at the decision in Babulal's case decided by this court goes to show that the appellants never contested the matter on merits and 5 D.B.Civil Special Appeal (Writ) No.1262/2009 J.V.V.N.L. & Others Vs. Sahdev Singh and Others. all that was stated was that the seniority of six persons who had been promoted under the order dated 07.08.1980 though junior to Babulal may not be disturbed. It is despite the fact that basis on which the promotions were made was found to be erroneous by this court in the writ petition. This judgment was not set aside on merits by the Division Bench. In the facts and circumstances, therefore, the appellant cannot be allowed to non-suit the present petitioners on the ground of delay in approaching this court when this court has already found that the claim of the petitioners which was on parity with that of Babulal has been upheld and this court has already affirmed the decision of the learned Single Judge in Babulal's case subject to the order of seniority. In the facts and circumstances, therefore, the aforesaid contention of the learned counsel for the appellant-Corporation cannot be accepted. Since, admittedly the case at hand of the present petitioners is on the same footing as that of Babulal, we find no reason to interfere with the decision of the learned Single Judge allowing the writ petition in terms of Babulal's case. However, having said so, we find that Babulal had approached this court in the year 1982 itself whereas the petitioners approached this court by way of present writ petition after their representation came to be rejected vide order dated 13.04.1994. 6 D.B.Civil Special Appeal (Writ) No.1262/2009 J.V.V.N.L. & Others Vs. Sahdev Singh and Others. It has been stated by the learned counsel for the appellant before us that all the present petitioners/ respondents herein have been promoted on the post of L.D.C. from the post of Class IV Employees subsequently on the dates mentioned against their names which is as follows:- ---------------------------------------------------------------------------------- S.No. Name of respondent Date of Promotion ---------------------------------------------------------------------------------- 1. Sahdev Singh 28.02.1989. 2. Mool Singh 02.08.1985. 3. Mahesh Kumar 21.06.1984. 4. Mukesh Sharma 24.10.1992. 5. Ramswaroop Sharma 11.01.1984. 6. Radhey Shyam 02.07.1984. 7. Om Prakash Sharma 11.01.1984. 8. Kalwa Ram Saini 11.01.1984. ---------------------------------------------------------------------------------- Learned counsel for the petitioners-respondents herein brought to our notice that in compliance of the decision in Babulal's case, Babulal had been given promotion and all consequential benefits w.e.f. 07.08.1980. Learned counsel for the respondents, therefore, contended that the petitioners who are respondents herein are also entitled to the similar treatment as was allowed to Babulal. In the facts and circumstances of the present case, we are of the opinion that the ends of justice 7 D.B.Civil Special Appeal (Writ) No.1262/2009 J.V.V.N.L. & Others Vs. Sahdev Singh and Others. would suffice if the promotion of the present petitioners is awarded w.e.f. 07.08.1980 but the petitioners would get only notional benefit of their promotion from 07.08.1980 when the persons juniors to the petitioners were promoted upto the date on which each of the petitioners were promoted by the Board w.e.f. from the date of their promotion, as mentioned hereinabove. The petitions would be entitled to notional fixation as if they stood promoted w.e.f. 07.08.1980 and would only get the benefit after the date of their actual promotions on the basis of the revised pay. The appeal is accordingly partly allowed, to the extent indicated above. The judgment of the learned Single Judge granting parity to the petitioners- respondents herein with the case of Babulal is maintained, subject to their getting only notional benefit w.e.f. 07.08.1980 upto the date of their actual promotion and thereafter the revision of their pay- scales w.e.f. the date of their promotion with actual monetary benefits. (RAGHUVENDRA S.RATHORE),J. (DALIP SINGH),J. Solanki DS, Jr.P.A.