Calcutta High Court (Appellete Side)

Pawan Kumar Sharma vs Union Of India & Ors on 12 March, 2013

Author:
Ashoke Kumar Dasadhikari

Bench:
Ashoke Kumar Dasadhikari
12.03.2013 C.O. 1793(W) of 1996
ss
Pawan Kumar Sharma
Vs.
Union of India & ors.

Mr. Amar Nath Dhole
Mr. Pinaki Dhole
... For the petitioner

Mr. Arunava Ghosh
Mr. Sudhanshu Sil
Mr. Raj Kumar Basu
... For the Punjab National Bank

Writ petition was filed questioning refusal to grant

seniority to the petitioner, on the basis of Middle

Management Group Scale-II.

It was submitted by Mr. Pinaki Dhole, learned

Counsel led by Mr. Amar Nath Dhole, learned Counsel

appearing for the petitioner that the writ petitioner has

made representation sometime in the year 1983 and

thereafter it was disposed of in the year 1990 without

granting appropriate relief to the writ petitioner.

Thereafter, he made further representation before the

higher authority and the higher authority replied that

representation could not be considered at that stage in

view of pendency of review application.

Mr. Dhole submits even after dismissal of review
petition the writ petitioner was not granted proper

seniority and scale. Hence the writ petitioner filed this writ

petition on 6th February, 1996.

Mr. Dhole submits that the writ petitioner is claiming

the benefit of Middle Management Group Scale-II in the

New India Bank with effect from 19th September, 1997

when he was posted as manager on proposed sub-office at

Bhamukheri, district Ambala.

Mr. Dhole also contends that the writ petitioner is

similarly placed with another employee namely, S.

Sainathan to whom all service benefits of Middle

Management Group Scale-II has been given with effect

from the date when he was posted as manager in the

proposed sub-office by virtue of the decision of the Hon'ble

High Court at Andhra Pradesh. He also submits that the

writ petitioner joined the post as Manager on 19th

September, 1977 and was confirmed to the said post on 1st

June, 1979. He submits, against the order of refusal for

consideration as communicated by letter dated 19th

February, 1990 the petitioner preferred an appeal on 3rd

March, 1990 against the impugned order of non-

consideration before the Chairman and the Director of the

bank.
The Hon'ble Supreme Court dismissed the review

petition on 5th March, 1993. Thereafter on 4th September,

1993 by a notification of the Reserve Bank of India, New

Bank of India amalgamated with the Punjab National

Bank. On 28th February, 1994 the petitioner once again

made representation before the General Manager

(Personnel), Punjab National Bank claiming fixation of his

seniority in Middle Management Group Scale-II with effect

from 19th September, 1977. Thereafter the writ petitioner

made several representations but to no effect.

Mr. Dhole submits that the matter was heard by the

learned Single Judge and the writ petition was allowed in

favour of the writ petitioner. However, the Bank

authorities preferred an appeal before the Hon'ble Division

Bench. The Hon'ble Appeal Court remanded back the

matter mainly on two points, namely, i) whether after such

long delay, any relief could be granted to the writ petitioner

when admittedly the writ petitioner moved the writ

application in the year 1996 claiming his right of seniority

in the post of Middle Management Group Scale-II with

effect from 19th September, 1977; (ii) whether the case of

Sianathan is identical on the question of law as was urged

and the factual matrix of the case as has been pleaded by
the writ petitioner.

The Hon'ble Appeal Court recorded in Their

Lordships' judgement that no answer and no analysis of

those two issues were available in the learned Single

Judge's decision. However, the Hon'ble Appeal Court

remanded the matter to decide all the issues including the

point of maintainability of the writ petition.

Mr. Dhole would contend the writ petitioner has

explained the delay. He further submits that there are

decisions in favour of the petitioner holding that if there

are sufficient explanation for the delay the writ petition

should not be dismissed on that ground. He also submits

that the point of delay is to be taken at the threshold but

in the instant case the point was not taken and the matter

has come after completion of all affidavits and this is the

third-round litigation before the Single Bench.

Mr. Dhole cited the decisions in support of his

aforementioned contention. First one is reported in A.I.R.

1972 S.C. 908 (P.B. Roy Vs. Union of India); he has

referred paragraph 8 of the said judgement. Paragraph 8 of

the said judgement reads as follows :-

"8. The learned Judge who had initially heard the
petition had pointed out that the representation of the
Appellant was first rejected on 29-7-1960 and that it did
not matter that the petitioner had continued making
subsequent representations. The learned Judge had
noticed the explanation that the petitioner could not
approach the Court as he was admitted to a Tuberculosis
Clinic in June, 1961. The learned Judge, having found
that this was not sufficient to explain the delay between
29-7-1960 and June 1961 was disposed to reject the
petition on the ground of laches. But, in view of the
decision of the majority of the Full Bench of the Punjab
High Court in S. Gurmej Sing v. Election Tribunal,
Gurdaspur, (1964) 6 Pun LR 589 = (AIR 1964 Punj 337)
(FB) the delay in filing the petition was overlooked on the
ground that, after the admission of a Writ Petition and
hearing of arguments, the rule that delay may defeat the
rights of a party is relaxed and need not be applied if his
case is 'positive good'."

The other judgement cited by Mr. Dhole is reported

in A.I.R. 1990 S.C. 1308 (The State of Madhya Pradesh Vs.

Bani Singh and another). Paragraph 8 of the

aforementioned judgement as referred by Mr. Dhole reads

as follows :-

"8. The learned Counsel also contended that though
Screening Committee met in 1979-80 the application
under
Section 19
of the Administrative Tribunals Act was
filed only on 19-12-1986 and that therefore the
application should have been dismissed on the ground of
delay and laches. The Tribunal considered this question
in detail and held that since the representation for the
year 1981 was pending till 1986 and there is an allegation
that the respondent had been making representation to

the Government in this regard and in fact one such
representation was accepted and it is on that basis in
spite of the fact that the facts and situations remained
the same in the 1982 and respondent was selected for
selection grade with effect from 4-3-1982. In those
circumstances the Tribunal said that they were not
willing to dismiss the application on the ground of
the laches and it has to be decided on merits. In
these circumstances we are also unable to interfere
with the order of the Tribunal."

The other decision cited by Mr. Dhole is A.I.R. 1990

Patna 11 (
Dr. Jagannath Mishrta Vs. State of Bihar and

others
). He has referred paragraph 17 which reads as

follows :-

"17.
In
P.B. Roy v. Union of India
, AIR 1972 SC 908
the Supreme Court itself had laid down that the 'delay in
filing the petition under
Article 226
may be overlooked on
the ground that, after the admission of a writ petition and
hearing of arguments, the rule that delay may defeat the
rights of a party is relaxed and need not be applied if his
case is 'positively good'."

Mr. Dhole submits that there is no delay or laches on

the side of the writ petitioner. Therefore, the point of delay

should be ignored by the Hon'ble Court in the facts and

circumstances of this case and since there are sufficient

explanation to it. It was also submitted that the case of
S.
Sainathan and the petitioner is standing on similar footing

and they are also similarly placed. Therefore, the benefit

which was given to S. Sainathan in view of Hon'ble

Andhara Pradesh High Court judgement should also be

given to the writ petitioner.

Mr. Dhole contended there is similarity of S.

Sainathan with the writ petitioner regarding appointment

of both of them as Branch Manager. Therefore, they are

similarly situated.

Mr. Dhole contended that in the affidavit-in-reply it

was specifically stated by the writ petitioner that he is

similarly situated as S. Sainathan.

Learned Counsel submits that the respondents are

responsible for making such discrimination and denial of

the benefit to the writ petitioner, although he is entitled to

get the benefit with effect from 1977.

Mr. Arunava Ghosh, learned Counsel appearing for

the respondent-Bank submits that there is inordinate

delay in filing the writ application. He submits that the

writ petitioner made the first representation in the year

1983 after the bank nationalisation effected on and from

15th April, 1981. He submits on 1st January, 1983 Officer

Regulation brought into operation. The writ petitioner
opted for new scale. He was categorised in Junior

Management Group Scale-I as he was in scale of Rs.400 -

1020/- in accordance with the Regulation VII and placed

in the seniority list of that scale. So far other officers who

were working in the scale of Rs.500-1330/- were

categorised in the scale of Rs.1200-2000/- as Middle

Management Group Scale-II.

According to Mr. Ghosh, all the officers of the bank

were categorised according to the Regulation VII. He also

submits apart from the categorisation as Junior

Management Group Scale-I or Middle Management Group

Scale-II, there are other categorisation also in other scale

which is not relevant for the present.

Mr. Ghosh submits that S. Sainathan filed an appeal

within thirty days as per Regulation XIII of the Officers'

Service Regulation since he did not accept his position in

Junior Management Group Scale-I. On the other hand, not

only the petitioner did not file any such appeal, but also

accepted his fitment, grade and seniority and the writ

petitioner, in fact, clearly acquiesced him to a senior

position given to him and the fitment given in Junior

Management Group Scale-I.

Mr. Ghosh submits the writ petitioner is estopped
from challenging the action of the respondent authorities.

According to Mr. Ghosh, these are the facts which make

the case of the writ petitioner different from that of S.

Sainathan.

Mr. Ghosh submits that S. Sainathan's case did not

lay any proposition of law that all the persons who are

senior to Sainathan should also be made Middle

Management Group Scale-II. He submits there is no such

observation either by Andha Pradesh High Court or by the

Hon'ble Apex Court.

According to Mr. Ghosh, S. Sainathan's case has

been decided on its own fact and the benefit of that case is

not available to the writ petitioner or the writ petitioner is

also not entitled to claim such benefit.

Mr. Ghosh submits that one retired officer of the

Bank namely, Sri R. D. Rao filed a contempt petition in the

Hon'ble Supreme Court after order dated 20th February,

1992, disposing of the bank's Special Leave Petition and

claimed similar relief. The said petition was dismissed by

the Hon'ble Supreme Court vide order dated 4th February,

1991. He submits that thereafter Mr. Rao filed a writ

petition under
Article 32
of the Constitution of India,

which was also dismissed by the Hon'ble Supreme Court
vide order dated 17th January, 1994. Therefore, this

clearly shows that the benefit of the judgement in case of

S. Sainathan cannot be extended to others including the

petitioner. He submits the present writ petition is solely

based on the judgement of S. Sainathan and the writ

petition is misconceived. The same should be dismissed on

that ground.

Mr. Ghosh submits some other officers have also

filed the writ petition claiming similar relief, being CWP

5650 of 1984 (
K.B. Sharma and Ors. Vs. New Bank of

India
& ors.). The learned Single Bench of Punjab and

Haryana High Court allowed the writ petition on 3rd

February, 1988. The erstwhile New Bank of India filed

appeal against the judgement and the said LPA 310 of

1988 was allowed by the Division Bench on 23rd March,

1990 and the judgement of the Hon'ble Single Bench was

set aside and the writ petition of the writ petitioners was

dismissed.

Mr. Ghosh submits that the writ petitioner himself is

admitting that he was under scale Rs.400-1000/- which is

different from Branch Manager scale of Rs.500-1200/-.

The petitioner also admitted that he was posted at sub-

office and not in a branch office. It is also admitted by the
petitioner that he could not achieve the deposit target and

as such his probation period is extended.

Mr. Ghosh submits in the facts and circumstances of

this case it would appear that the writ petitioner has

accepted his fitment in Junior Management Group Scale-I

and was paid arrear of salary on account of revised

fitment. He submits after lapse of 13 years he filed the

writ petition challenging the said fitment, which was done

long 13 years ago.

Mr. Ghosh submits the writ petitioner is estopped

from challenging the fitment, which was settled before 13

years. The writ petition was filed without any explanation

of inordinate delay and therefore, this writ petition should

be dismissed.

Mr. Ghosh submits it would appear from the reply

under paragraph 8, filed by the writ petitioner, that

although he has raised a protest against the categorisation

and placement in Junior Management Group Scale-I in

1983 and he was not allowed to participate in March, 1985

promotion process as cut off date to complete 7 years as

per new guideline, he did not file the writ petition rather he

participated in the promotion process from Junior

Management Group Scale-I to Middle Management Group
Scale-II on the basis of a call letter dated 25th January,

1991 and appeared before the Committee on 4th February,

1991 and got promotion as well as the grade with effect

from 1991.

Mr. Ghosh submits that although he has accepted

1984 promotion list and also appeared in the selection

process in 1991 and further got the promotion in 1991 but

he made representation one after another without taking

any legal action either by filing a writ petition or any other

step against the respondent authorities. He submits that

all these actions on the side of the writ petitioner clearly

shows that he himself waived his claim after acceptance of

the promotion list prepared in 1984 and thereafter in

1992.

According to Mr. Ghosh, the writ petitioner should

not be permitted to get the benefit of such fixation and

promotion.

Mr. Ghosh submits that even after rejection of the

prayer in 1990 the writ petitioner did not come up before

this Court rather he participated in 1991 selection process

for having promotion. He submits that the writ petitioner

ought to have come in the year 1984 when he was not

allowed to appear in the promotion process and a different
seniority list was prepared for Middle Management Group

Scale-II ignoring his claim as alleged by him rather he has

awaited for long 12 years after 1984 and challenged the

fitment by filing a writ petition only in 1996.

Mr. Ghosh also submits that there is no explanation

for such delay save and except some reminders and

representations, which are of no effect or have no

enforceability. Mr. Ghosh also submits the judgement of

the Hon'ble High Court of Andhra Pradesh was delivered

on 13th January, 1987 but the writ petitioner did not file

the writ petition in 1987, he has waited till 1996 i.e. till

after disposal of the Special Leave Petition as well as

review petition in 1992. According to Mr. Ghosh the writ

petitioner was sitting on fence and as per the settled

principle of law as decided by the Hon'ble Apex Court the

writ petition should not be retained, when the person who

instead of challenging the impugned action, sat on fence

and only after the other person claiming some benefit

having been successful, have filed or instituted the present

proceeding.

Mr. Ghosh submits that there are several

judgements in this regard. He also submits there is nine

Judges' Bench Supreme Court judgement delivered in case
of Mafatlal wherein the Hon'ble Apex Court have decided,

the writ petition filed by a person who sitting on fence is

not entertainable after a long gap.

Mr. Ghosh further submits that the officers who took

over charges over small branches or sub-branches got

their branches upgraded to the higher cadre for

recognition for their initiative, hard work and performance

and became eligible for higher allowance and pay scale

whereas the writ petitioner's case is different specially

when the petitioner's working in a sub-office could not

upgrade the status to a branch office cadre. Accordingly,

he is also not entitled to get the benefit.

Mr. Ghosh produced a chart showing the difference

between S. Sainathan and P.K. Sharma, the petitioner. The

chart reads as follows :-

A comparison between P.K. Sharma and S. Sainathan
P.K. Sharma
19.09.1977 - Appointed by New Bank of India Ltd. as
Manager on probation at Sub office in Scale
400-1020 (P.27)
01.06.1979 - Confirmed Manager in Scale 400-1020
(P.30)
15.04.1981 - New Bank of India Ltd. was nationalized.
01.01.1983 - Officers Service Regulations brought into
operation. Sharma opted for new scales
(P 109). He was categorized in JM Scale I
(P5) as he was in Scale 400-1020 (p.4) in
accordance with
Regulation 7
(p.32) and
placed in the seniority list of that scale
(p.110)
N.B.
Regulation 7
is at P. 133.

March 1985 - Promotions made from JM Scale I
1990-1991 to MM Scale II (p.110)
1990-1991 - Sharma participated in promotion process
and was promoted to MM Scale II (p.78).

S. Sainathan
01.01.1975 - Sl. No.256 appointed as Accounts Officer.
14.07.1977 - Appointed as Accounts Officer in New Bank
of India Ltd. (P.40) This was equivalent to
JM Grade I (P.135,136)
03.02.1981 - Selected for post of MM2(PP50,53,57,40,41)
25.02.1981 - Sl. No. 256 Selected for post of MM2 (p.41)
13.01.1984 - Seniority List of MM2 published Showing
Sainathan below Sc. No.256
According to Mr. Ghosh, under no circumstances the

writ petitioner is entitled to claim similarity with the other

employee, S. Sainathan who has become successful by the

order of Hon'ble Supreme Court, otherwise also he is not

entitled to get any such benefit specially when he has

waived his right to such seniority and fixation of pay scale

without challenging probation of promotion list in 1984

and also thereafter accepting his promotion finalised

through selection process in 1991 and moreover, waiting

for a long time without challenging the impugned actions
for about 13 years.

Mr. Ghosh cited few judgements in support of his

contention. He has cited the Appeal Court judgement

delivered by Radhuvir, J. and laid stress on the following

paragraph :-

" The writ petitioner S.Sainathan was an Accounts Officer
appointed on July 14, 1977. He seeks he be placed above
S.No.256 in the list of seniority published on January 13,
1984 relevant to MM2. Serial No.256 was appointed to the
post of Accounts Officer on January 1, 1975. There was a
selection held for the post of MM2 on February 3, 1981 in
which Serial No.256 did not appear. Sainathan appeared
and was selected. Serial No.256 was selected on
February 25, 1981. On the above facts, under Clause 5
of
Regulation 18
of New Bank of India Officers Service
Regulation shall affect the seniority among themselves of
the officers as existing immediately prior to the appointed
date. Sainathan was directed to be placed above
Sl.No.256 in the seniority list of January 13, 1984. Such
a conclusion reached, is assailed by the Bank in this
appeal.

The learned counsel for the Bank at first argued
Sainathan could have made a representation to the
Appellate Authority constituted to consider the dispute,
therefore, he should not be permitted to approach this
Court. It may not be necessary to consider this aspect for
it is represented the Committee was formed in January,
1986. The writ petition was filed earlier to that date.

The learned counsel for the bank next argued
seniority under the Regulations of 1982 is determined
with reference to scale of pay, therefore, what is ordered
to the Bank is contrary to the Regulations of 1982. The
selections referred to are earlier to the enforcement of
regulations. Since Sainathan was selected on February 3,
1981, it cannot be he will be junior to Sl.No. 256 selected
on February 25, 1981.

We, therefore, see no reason to interfere with the
order under appeal. The direction for implementation is
extended by four weeks from today.

Writ appeal is dismissed at admission stage."

Mr. Ghosh then cited another judgement reported in

A.I.R. 1970 S.C. 470 (
Rabindra Nath Bose and others Vs.

Union of India and others
). Paragraph 36 of that

judgement reads as follows :-

"36. Learned Counsel for the petitioners, however, says
that there has been no undue delay. He says that the
representations were being received by the Government
all the time. But there is a limit to the time which can be
considered reasonable for making representations. If the
Government has turned down one representation, the
making of another representation on similar lines would
not enable the petitioners to explain the delay. Learned
counsel for the petitioners says that the petitioners were
under the impression that the Departmental Promotion
Committee had held a meeting in 1948 and not on April
29, 1949, and the real true facts came to be known in
1961, when the Government mentioned these facts in
their letter dated December 28, 1961. We are unable to
accept this explanation. This fact has been mentioned in
the minutes of the meeting of the Committee which met in
February 1952 and we are unable to believe that the
petitioners did not come to know all these facts till 1961.
But even assuming that the petitioners came to know all
these facts only in December 1961, even then there has
been inordinate delay in presenting the present petition.
The fact that Jaisinghani's case, 1967-2 SCR 703 = (AIR
1967 SC 1427) was pending before the High Court and
later in this Court is also no excuse for the delay in
presenting the present petition. In the result, the petition
fails and is dismissed. There will be no order as to costs."

Mr. Ghosh then cited a decision reported in A.I.R.

1989 S.C. 690 (Union of India and others Vs. M/s. Suksha

International and M/s. Nutan Gems and another).

Paragraph 11 of the aforementioned judgement as referred

by Mr. Ghosh reads as follows :-

"11. Shri Subba Rao would say that the reference in
the order by learned single Judge to the contention on the
point of delay as bar to relief had nothing to9 do with the
specific contention of the appellants that there was
inordinate and unexplained delay in approaching the
Court. This learned counsel submits, would be clear, by
a reference to the aspect of the delay dealt with and
considered in W.P. 2477 of 1984, on which the learned
single Judge relied. The order of the same learned single
Judge in W.P. 2477 of 1984, in which the particular
aspect of delay is considered is at para 8 of that order.
That para in the order in W.P. 2477 of 1984 reads :

'Mr. Joshi, learned counsel for the respondents,
submitted that the petitioners were not entitled
to relief because of delay. It is not possible to
agree. After the redemption certificate of 16th
November, 1983, application for revalidation
and OGL endorsement was made within four
months therefrom on 12th March, 1984. There
is, in the circumstances, no such delay as to
warrant its rejection on that ground. The
contention thus fails and is rejected.' "

Mr. Ghosh also referred another judgement cited in

A.I.R.1989 S.C. 2082 (
T.R. Kapoor and others Vs. State of

Haryana and others
). The relevant portion of the

judgement which was referred by Mr. Ghosh reads as

follows :-

" Held that the petitioners had acquiesced in the
interpretation of the Rules by the State Government all
along and it was only after the decision of the Supreme
Court disapproving the interpretation placed by the State
on the Rules they chose to move the Supreme Court
under
Art. 32
of the Constitution to seek promotional
benefits. Having remained complacent for a long number
of years, the petitioners cannot now turn round and say
that notwithstanding their inaction, they should be
granted promotion from deemed dates on the basis of
seniority."

The other judgement cited by Mr. Ghosh is reported

in (2010) 7 S.C.C. 525 (Maresh Kumar Vs. Department of

Atomic Energy and others). Paragraph 15 of the said

judgement reads as follows :-

"15. Merely because the case of the appellant was
forwarded by the Department vide its Letter dated 27-1-
2007 for favourable consideration, would not vest any
right in the petitioner and can hardly be of any materials
consequence. If an employee keeps making representation
after representation which are consistently rejected then
the appellant cannot claim any relief on that ground. We
are unable to find any merit in the contention raised
before us and we are also of the view that the High Court
was not in error while dismissing the writ petition even on
the ground of unexplained delay and laches. The
representation of the appellant was rejected as back in
the year 1999 and for the reasons best known to the
appellant he did not challenge the same before the court
of competent jurisdiction."

Mr. Ghosh also cited the decision of the Hon'ble Apex

Court reported in (2006) 4 S.C.C. 327 (
Kerala Samsthana

Chethu Thozhilali Union Vs. State of Kerala and others
).

Relevant paragraphs 8, 9 and 10 read as follows :-

"8. It would be appropriate to note certain decisions
of this Court in which this aspect has been dealt with in
relation to
Article 32
of the Constitution. It is apparent
that what has been stated as regards that article would
apply, a fortiori, to
Article 226.
It was observed in

Rabindranath Bose v. Union of India
that no relief can be
given to the petitioner who without any reasonable
explanation approaches this Court under
Article 32
after
inordinate delay. It was stated that though
Article 32
is
itself a guaranteed right, it does not follow from this that
it was the intention of the Constitution-makers that this
Court should disregard all principles and grant relief in
petitions filed after inordinate delay.

9. It was stated in
State of M.P. v. Nandlal Jaiswal

that the High Court in exercise of its discretion
does not ordinarily assist the tardy and the
indolent or the acquiescent and the lethargic. If
there is inordinate delay on the part of the
petitioner and such delay is not satisfactorily
explained, the High Court may decline to
intervene and grant relief in exercise of its writ
jurisdiction. It was stated that this rule is
premised on a number of factors. The High Court
does not ordinarily permit a belated resort to the
extraordinary remedy because it is likely to cause
confusion and public inconvenience and bring, in
its train new injustices, and if writ jurisdiction is
exercised after unreasonable delay, it may have
the effect of inflicting not only hardship and
inconvenience but also injustice on third parties.
It was pointed out that when writ jurisdiction is
invoked, unexplained delay coupled with the
creation of third-party rights in the meantime is
an important factor which also weighs with the
High Court in deciding whether or not to exercise
such jurisdiction.

10. It has been pointed out by this Court in a number
of cases that representations would not be
adequate explanation to take care of delay. This
was first stated in K.V. Rajalakshmiah Setty v.

State of Mysore. This was reiterated in

Rabindranath Bose
case by stating that there is a
limit to the time which can be considered
reasonable for making representations and if the
government had turned down one representation
the making of another representation on similar
lines will not explain the delay.

In
State of Orissa
v. Pyarimohan Samantaray
making of repeated
representations was not regarded as satisfactory
explanation of the delay. In that case the petition
had been dismissed for delay alone."

The last judgement cited by Mr. Ghose is A.I.R. 1974

S.C. 2271 (
P.S. Sadasivaswamy Vs. State of Tamil Nadu
).

The relevant passage placed by Mr. Ghose reads as

follows :-

" Brief Note :- (A) Where a Government servant slept
over the promotions of his juniors over his head for
fourteen years and then approached the High Court with
writ petition challenging the relaxation of relevant rules in
favour of the juniors, the writ petition is liable to be
dismissed in limine. Such an aggrieved person should
approach the Court at least within six months or at the
most a year of promotion of his juniors.

It is not that there is any period of limitation for
the Courts to exercise their powers under
Art. 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
Art. 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. Decision in W.P. and Appeal
(Mad.) ...... ".

I have carefully considered the submissions made by

the learned Counsel appearing for the respective parties as
well as the materials available on record. It appears from

records that the writ petitioner was appointed as Manager

on probation at sub-office in scale of 400-1020/- on 19th

Septembers, 1977. He was confirmed after about two

years i.e. on 1st June, 1979 in the scale of Rs.400-1020/-.

In view of Bank Nationalization Act, the respondent, the

New Bank of India, the employer of the writ petitioner, was

also nationalised on 15th April, 1981. Officers Service

Regulations brought into operation on and from 1st

January, 1983. Categorisation was made pursuant to such

regulation and the writ petitioner was categorised in

Junior Management Group Scale-I and placed in the

seniority list on that scale. The petitioner made

representation in July 25, 1983 against Categorisation.

The concerned respondent thereafter prepared the

seniority list on 1st January, 1994. The respondent also

did not allow the writ petitioner to participate in the

promotion process held in March, 1985 but the writ

petitioner did not question the same before any court of

law rather he made another representation in June 24,

1984. Thereafter, again he made appeal for fitment in

Middle Management Group Scale-II on 1st July, 1987.

However, the respondent authorities issued a letter of
refusal on 19th February, 1990. The writ petitioner then

also remained silent. Thereafter, the selection process was

held for giving promotion and on the basis of invitation of

the respondent authorities the writ petitioner participated

in the promotion process from Junior Management Group

Scale-I to Middle Management Group Scale-II and he was

selected and he got promotion as well as grade to Middle

Management Group Scale-II. Thereafter, he once again

made an appeal before the higher authorities i.e. before the

Chairman and the Managing Director on October 31, 1992

and the respondent Bank replied to the representation of

the writ petitioner stating therein the reply dated 9th

November, 1992 that against the decision of Sainathan

they have preferred a review application before the Hon'ble

Apex Court which is pending. Therefore, the case cannot

be considered at that stage. The review application was

again rejected by the Hon'ble Supreme Court on 5th March,

1993 and the writ petitioner asked the concerned

respondent to reconsider his case. However, the writ

petitioner at that stage even did not come up before the

Hon'ble Court questioning the action on the side of the

respondent. The writ petitioner thereafter again made

representation and has waited till January, 1996 and only
in February, 1996 filed this writ petition claiming seniority

and gradation with effect from 19th September, 1977 on

the basis of the decision of S. Sainathan. Although

Sainathan's case was decided by Andhra Pradesh High

Court in 1987 the writ petitioner also did not question the

action of the respondent authorities after 1987. In this

way the writ petitioner continued in the promotional post

and got all subsequent benefits on that basis and in fact,

retired from service after completion of the entire service

tenure. It appears from the aforementioned action that the

cause of action in fact arose in 1984 when he was not

called for participation in promotion process and when his

seniority list was prepared in the category of Junior Group

Scale-I. He also did not come up and question the same in

1987. The learned Single Judge delivered in 1987 in

Sainathan's case. The writ petitioner also did not come

and question the action of the respondent authorities on

the basis of the said judgement. He waited for a long

thirteen years till before February, 1996. There is no

acceptable explanation for the delay in the writ petition.

Further making repeated representations without taking

any legal action in appropriate time, is not at all an

explanation for the delay. In case of Naresh Kumar (supra)
the Hon'ble Supreme Court have clearly held that if an

employee keeps making representation after representation

which are consistently rejected then the appellant cannot

claim any relief on that ground and the Hon'ble Apex

Court refused to grant any relief in favour of the aggrieved

party.
In case of
Keralasamsthana Chethu Thozhilali

Union
(supra) it was held if the writ jurisdiction is

exercised after unreasonable delay, it may have the effect

of inflicting not only hardship and inconvenience but also

injustice on third parties. It was also pointed out that

when the writ jurisdiction is invoked, unexplained delay

coupled with the creation of third-party rights in the

meantime is an important factor which also weighs with

the High Court in deciding whether or not to exercise such

jurisdiction.

In my view, the writ petitioner went on making

representation one after another and at the same time has

accepted the categorisation in Junior Management Group

Scale-I and also accepted promotion given by the

respondent-Bank in 1991 and continued till the date of

retirement. Only after a lapse of 13 years he made this

writ petition taking a plea of similar status with Sainathan

and claimed relief with effect from 1977. In my view, the
writ petitioner suffers inordinate unexplained delay.

Therefore, the writ petition is not maintainable.

It is pertinent to mention that after the refusal of

consideration of representation in 1990 the writ petitioner

at the call of the respondent authorities appeared at the

promotional process and having been selected accepted

such promotion with effect from 1991. Although he has

made some representations thereafter but it appears that

he has waived all his rights by accepting such promotion

and also by not questioning the impugned action in 1984

when the promotional list was prepared and thereafter in

1987 when the judgement was delivered in case of

Sainathan and thereafter when the process of selection

started in 1991 for giving promotion.

In that view of the matter the writ petitioner loses his

claim to have any benefit on and from 1977.

On the point of similarity in status and claiming

similar benefits as was given to Sainathan is concerned,

from a bare perusal of the writ petition as well as reply, the

writ petitioner could not explain before this Court in what

manner he is similarly situated. However, an argument

was advanced that the writ petitioner is similarly situated

like S. Sainathan but the comparison between
S.
Sainathan and P.K. Sharma as submitted by Mr. Ghosh

makes some difference and distinction between them.

Therefore, on that score also the writ petitioner is not

entitled to get any benefit. Otherwise also it appears that

on similar ground some other employees moved an

application under
Article 32
of the Constitution before the

Hon'ble Apex Court to have the same benefit which was

dismissed by the Hon'ble Apex Court. There is other

proceeding also which was initiated by some other

employees before Punjab and Haryana High Court, which

was although allowed by the learned Single Judge but

subsequently the order of the learned Single Judge was set

aside and the writ petition was dismissed.

In view of my aforementioned findings this writ

petition must fail. Therefore, the writ petition is dismissed.

However, there would be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be furnished to the appearing parties on

priority basis.

(Ashoke Kumar Dasadhikari, J.)