Himachal Pradesh High Court

Manish Kumar And Another vs State Of Himachal Pradesh on 16 September, 2023

Author:
Satyen Vaidya

Bench:
Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No. 166 of 2023
Reserved on 05.09.2023
Decided on: 16.09.2023.

__________________________________________________________

.

Manish Kumar and another ..Petitioners

Versus
State of Himachal Pradesh
...Respondent

__________________________________________________________
Coram
The Hon'ble Mr. Justice Satyen Vaidya, Judge

of
1 Whether approved for reporting? Yes

__________________________________________________________
For the petitioners : Mr. Onkar Jairath, Advocate.

rt
For the respondent: Mr. Ramakant Sharma,
Additional Advocate General.

__________________________________________________________

Satyen Vaidya, Judge
Petitioners are seeking quashing of office

order dated 09.11.2021, Annexure P-10, whereby the

representation of petitioner No.1 for promotion to the

post of Assistant Engineer w.e.f. the year 2002, has

been rejected. It has further been prayed to direct the

respondent to convene the review DPC for the post of

Assistant Engineer against clear cut vacancy existing

before promulgation of 2002 Recruitment and

Promotion Rules and to re-work the seniority list and
Whether reporters of Local Papers may be allowed to see the judgment?

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re-fix the seniority of the petitioners as Executive

Engineers after considering them to have been

promoted as Assistant Engineers from the year 2002.

.

2. Petitioners were initially appointed as Junior

Engineers (Civil) in the Department of Public Works,

Government of Himachal Pradesh on 8.9.1992 and

16.5.1988, respectively. Petitioner No.1 qualified

of
Bachelor of Engineering Course and petitioner No.2

qualified AMIE course during service. Petitioner No.1
rt
also completed his M.E. (Highway Engineering) Couse

in March, 2003.

3. Both the petitioners were promoted as

Assistant Engineers (Civil) w.e.f. December, 2006.

Petitioner No.1 was assigned the charge of Executive

Engineer (Civil) in October 2016 and was substantially

promoted to the said post in March, 2017. Petitioner

No.2 was promoted as Executive Engineer (Civil) in

August, 2016.

4. The case as set-up by the petitioners is that

till 30.05.2002, the service conditions to the post of

Assistant Engineer (Civil) were governed by the

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Recruitment and Promotion Rules framed in the year

1995. Amended Recruitment and Promotion Rules were

notified w.e.f. 01.06.2002. In 1995 Rules, the vacancy-

.

based roster was maintained, whereas, on promulgation

of 2002 Rules, the post-based roster was adopted.

5. As per the petitioners, 21 clear cut vacancies

of Assistant Engineers were available in April 2002 and

of
23 vacancies were anticipated upto 31.12.2002 due to

retirement/promotion. In this manner, total 44 number
rt
of vacancies were available in the year 2002 for which

DPC was to be convened. By application of vacancy-

based roster, two posts fell to the quota to which the

petitioners belonged. The DPC was however convened

on 30.5.2003 and the promotions were made on the

basis of 2002 Rules by ignoring the vacancy position as

in April 2002 i.e. before promulgation of 2002 Rules.

6. It has further been submitted on behalf of the

petitioners that review DPC was convened by the

respondent-department in 2013 in compliance to the

orders passed by this Court in CWP No. 1358 of 2008

titled
S.S. Kutlehria and others Vs State of H.P and

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others
and at that juncture also the case of the

petitioners was not considered for review.

7. The petitioners made repeated

.

representations. The Department was convinced with

the injustice meted out to the petitioners and had

withheld its final decision on the representation of the

petitioners on account of the various matters pending

of
before this Court. It is further submitted that even after

the embargo placed on the promotions of Assistant
rt
Engineers by this Court was lifted, justice was not done

to the petitioners, rather the representation of petitioner

No.1, Annexure P-10, has been rejected on the ground

that the claim of the petitioner was stalled in case the

settled position was tinkered, it will open gates for

unavoidable litigation and will create unrest and chaos

in the service.

8. The respondent in its reply has supported its

action on the ground that the petitioners have

approached this Court after a period of more than 15

years and their claim is barred by principle of delay and

laches. It is submitted that the petitioners had not

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preferred any representation whatsoever, even the

representation of petitioner No.1 was submitted at a

belated stage. The passing of order Annexure P-10 has

.

been justified on the ground that the representation of

petitioner No.1 was not only devoid of merits, but was

also time barred.

9.
In rejoinder, the petitioners have submitted

of
that the seniority list of Assistant Engineers (Civil) in the

Department of Public Works has been finalized and
rt
circulated only recently after the judgment passed by

this Court on 24.4.2023 in CWP No.5718 of 2022 titled

as
Ankush Jamwal and others vs. State of H.P. and

another
and hence, there is no question of unsettling

the seniority position. As per petitioners, the grant of

promotion to the petitioners as Assistant Engineers

w.e.f. 2002 will not change the equation in any manner.

10. I have heard learned counsel for the parties

and have also gone through the records of the case

carefully.

11. The petitioners have based their claim on the

principle of "old post old rules" as enunciated in
Y.V.

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Rangaiah vs. J. Sreenivasa Rao
, (1983) (3) SCC 284.

However, the perception has undergone a sea change.

In
Union of India & others vs. Krishna Kumar
&

.

Others, Civil Appeal No.672 of 2019, reported in (2019)

1 SCR 982, after discussing the fruition of law on the

subject from
Y.V. Rangiah
(supra),
Deepak Agarwal

vs. State of Uttar Pradesh
(
2011) 6 SCC 725 and

of
State of Tripura vs. Nikhil Ranjan Chakraborty
,

(2017) 3 SCC 646, it has been held as under:

rt "It is well-settled that there is no vested right to
promotion, but a right to be considered for promotion

in accordance with the Rules which prevail on the date
on which consideration for promotion takes place. This
Court has held that there is no rule of universal
application to the effect that vacancies must
necessarily be filled in on the basis of the law which

existed on the date when they arose. The decision of
this Court in
Y.V. Rangaiah vs. Sreenivasa Rao
has
been construed in subsequent decisions as a case
where the applicable Rules required the process of

promotion or selection to be completed within a
stipulated time frame.

Hence, it has been held in
H.S.

Grewal vs. Union of India
that the creation of an
intermediate post would not amount to an interference
with the vested right to promotion.

Once the structure of Assam Rifles underwent a
change following the creation of the intermediate post
of Warrant Officer, persons holding the post of
Havildar would be considered for promotion to the
post of Warrant Officer. The intermediate post of
Warrant Officer was created as a result of the
restructuring exercise. The High Court was in error in
postulating that vacancies which arose prior to the
amendment of the Recruitment Rules would
necessarily be governed by the Rules which existed at
the time of the occurrence of the vacancies. As the

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decided cases noted earlier indicate, there is no such
rule of absolute or universal application. The entire
basis of the decision of the High Court was that those
who were recruited prior to the restructuring exercise
and were holding the post of Havildars had acquired
a vested right of promotion to the post of Naib

.

Subedar. This does not reflect the correct position in

law. The right is to be considered for promotion in
accordance with the Rules as they exist when the
exercise is carried out for promotion.

12. Recently a three Judge Bench of the Hon'ble

Supreme Court in
State of Himachal Pradesh and

of
others vs. Raj Kumar and others
, (2023) 3 SCC 773

has held as under:

rt
"14. We have taken note of the fact that there are a
large number of decisions that have either followed

the principle in Rangaiah or have distinguished it. The
principle in
Rangaiah
's case has given rise to a
number of decisions, most of them have disapplied
Rangaiah and have in fact, watered-down the
principle while distinguishing it. In this view of the

matter, and for clarity and certainty, it is necessary
for us to review the subject and restate the principle
in simple and clear terms.

15. We will first examine the principle
laid down in

Rangaiah itself. We will verify it in the context of the

constitutional position provided in Chapter XIV of the
Constitution relating to services under the State.
We
will thereafter examine the decisions that followed
Rangaiah and also those that have distinguished it.

After restating the principle, we will apply it to the
facts of the case for arriving at our decision.

XXX XXX XXX

28. In view of the above principles, flowing from the
constitutional status of a person in employment with
the State, we have no hesitation in holding that the
observations in Rangaiah that posts which fell vacant
prior to the amendment of Rules would be governed
by old Rules and not by new Rules do not reflect the

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correct position of law. We have already explained
that the Syed Khalid Rizivi V Union of India 1993
Supp (3) SCC 575 ; Hardev Singh v Union of India
2011(10) SCC 121 Rajasthan Public Service
Commission v. Chanan Ram, (1998) 4 SCC

202. Status of a Government employee involves a

.

relationship governed exclusively by rules and that

there are no rights outside these rules that govern the
services. Further, the Court in
Rangaiah
's case has
not justified its observation by locating such a right on
any principle or on the basis of the new Rules.28 As

there are a large number of judgments which followed
Rangaiah under the assumption that an overarching
principle has been
laid down in
Rangaiah, we have to
necessarily examine the cases that followed

of
Rangaiah. We will now examine how subsequent
decisions understood, applied or distinguished
Rangaiah.

rt XXX XXX XXX

84. The decision in
Deepak Agarwal
(supra) is a
complete departure from the principle in Rangaiah, in

as much as the Court has held that a candidate has a
right to be considered in the light of the existing rule.
That is the rule in force on the date the consideration
takes place.

This enunciation is followed in many
subsequent decisions including that of
Union of India

v. Krishna Kumar
(supra). In fact, in Krishna Kumar
Court held that there is only a "right to be considered
for promotion in accordance with rules which prevail
on the date on which consideration for promotion take

place."

85. The consistent findings in these fifteen decisions
that
Rangaiah
's case must be seen in the context of
its own facts, coupled with the declarations therein
that there is no rule of universal application to the

effect that vacancies must necessarily be filled on the
basis of rules which existed on the date which they
arose, compels us to conclude that the decision in
Rangaiah is impliedly overruled. However, as there is
no declaration of law to this effect, it continues to be
cited as a precedent and this Court has been
distinguishing it on some ground or the other, as we
have indicated hereinabove. For clarity and certainty,
it is, therefore, necessary for us to hold;

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85.1. The statement in
Y.V. Rangaiah v. J. Sreenivasa
Rao
that, "the vacancies which occurred prior to the
amended rules would be governed by the old rules
and not by the amended rules", does not reflect the
correct proposition of law governing services under the
Union and the States under part XIV of the

.

Constitution. It is hereby overruled.

85.2. The rights and obligations of persons serving
the Union and the States are to be sourced from the
rules governing the services."

13. Thus, Y.V. Rangaiah, stands overruled and

it is well settled that the Government servant has no

of
right to seek promotion and, therefore, the rules

prevalent at the time of his consideration for promotion
rt
shall prevail.

14. In the facts of the case in hand, the DPC was

convened on 31.5.2003 when 2002 Recruitment and

Promotion Rules were in vogue. Admittedly, till the

availability of 1995 Rules, the candidature of

incumbents was not considered for promotion to the

post of Assistant Engineer (Civil). That being so, the

claim of petitioners for considering them for promotion

to the post of Assistant Engineer (Civil) for the year

2002, is not tenable.

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15. Further, vide impugned Annexure P-10, the

representation of petitioner No.1 has been rejected

primarily on the ground that the same was belated

.

attempt and in case after a long lapse of time the

seniority positions are disturbed, the entire services will

be affected.

of

16. Noticeably, petitioner No.2 has not made any

representation at any stage. There is no individual
rt
representation of petitioner No. 2 on record. In the case

of petitioner No.1 also, the first representation filed by

him was in the year 2014. Another representation was

filed by petitioner No.1 in 2021.

17. The DPC was held on 31.5.2003 when the

petitioners were denied their alleged right of

consideration against vacancies available in the year

2002. Petitioners did not raise any grievance at that

stage. In 2006, petitioners were promoted as Assistant

Engineers (Civil), and they accepted such promotion

without any reservation. Thereafter, till 2014, no issue

was raised by the petitioners and in 2014 also, it was

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petitioner No.1, who had submitted his first

representation. Thereafter, second representation was

filed by him in the year 2021, which was rejected vide

.

impugned Annexure P-10. In these circumstances, the

claim of the petitioners is stale. The delay and laches

stare at their face.

of

18.
In
State of Uttaranchal and another vs.

Shiv Charan Singh Bhandari and others
(2013) 12
rt
SCC 179, it has been held as under:

"17.
In
C. Jacob vs. Director of Geology and Mining

(2008) 10 SCC 115, a two-Judge Bench was dealing
with the concept of representations and the directions

issued by the court or tribunal to consider the
representations and the challenge to the said rejection
thereafter. In that context, the court has expressed

thus: (SCC p.123, para 10)

"10. Every representation to the Government for
relief, may not be replied on merits.

Representations relating to matters which have

become stale or barred by limitation, can be
rejected on that ground alone, without
examining the merits of the claim. In regard to
representations unrelated to the Department,
the reply may be only to inform that the matter
did not concern the Department or to inform the
appropriate Department. Representations with
incomplete particulars may be replied by
seeking relevant particulars. The replies to such
representations, cannot furnish a fresh cause of
action or revive a stale or dead claim."

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18.
In
Union of India and others v. M.K. Sarkar
, (2010)
2 SCC 59, this Court, after referring to
C. Jacob
(supra)
has ruled that (SCC p.66, para 15)

"15. When a belated representation in regard to

.

a "stale" or "dead" issue/dispute is considered

and decided, in compliance with a direction by
the court/tribunal to do so, the date of such
decision cannot be considered as furnishing a

fresh cause of action for reviving the "dead"
issue or time-barred dispute. The issue of
limitation or delay and laches should be
considered with reference to the original cause
of action and not with reference to the date on

of
which an order is passed in compliance with a
court's direction. Neither a court's direction to
consider a representation issued without
examining the merits, nor a decision given in
rt compliance with such direction, will extend the
limitation, or erase the delay and laches.

28. Remaining oblivious to the factum of delay and
laches and granting relief is contrary to all settled
principles and even would not remotely attract the
concept of discretion. We may hasten to add that the

same may not be applicable in all circumstances
where certain categories of fundamental rights are

infringed. But, a stale claim of getting promotional
benefits definitely should not have been entertained

by the tribunal and accepted by the High Court."

19.
In
Union of India and others vs. C. Girija

and others
(2019) 15 SCC 633, it has been held as

under:

"16. This Court had occasion to consider the question
of cause of action in reference to grievances pertaining
to service matters. This Court in
C. Jacob Vs. Director

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of Geology and Mining and Another
, (2008) 10 SCC
115 had occasion to consider the case where an
employee was terminated and after decades, he filed
a representation, which was decided. After decision of

.

the representation, he filed an O.A. in the Tribunal,

which was entertained and order was passed. In the
above context, in paragraph No.9, following has been

held: (SCC pp. 122-23)

"9. The courts/tribunals proceed on the
assumption, that every citizen deserves a reply

of
to his representation. Secondly, they assume
that a mere direction to consider and dispose
of the representation does not involve any
"decision" on rights and obligations of parties.
rt Little do they realise the consequences of such
a direction to "consider". If the representation
is considered and accepted, the ex-employee
gets a relief, which he would not have got on

account of the long delay, all by reason of the
direction to "consider". If the representation is
considered and rejected, the ex-employee files
an application/writ petition, not with reference
to the original cause of action of 1982, but by

treating the rejection of the representation
given in 2000, as the cause of action. A prayer
is made for quashing the rejection of
representation and for grant of the relief

claimed in the representation. The
tribunals/High Courts routinely entertain such

applications/petitions ignoring the huge delay
preceding the representation, and proceed to
examine the claim on merits and grant relief. In
this manner, the bar of limitation or the laches

gets obliterated or ignored."

17. This Court again in
Union of India and Others Vs.
M.K. Sarkar
, (2010) 2 SCC 59 on belated
representation laid down following, which is
extracted below: (SCC p.66, para 15)

"15. When a belated representation in regard
to a "stale" or "dead" issue/dispute is

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considered and decided, in compliance with a
direction by the court/tribunal to do so, the
date of such decision cannot be considered as
furnishing a fresh cause of action for reviving
the "dead" issue or time-barred dispute. The
issue of limitation or delay and laches should

.

be considered with reference to the original

cause of action and not with reference to the
date on which an order is passed in
compliance with a court's direction. Neither a
court's direction to consider a representation

issued without examining the merits, nor a
decision given in compliance with such
direction, will extend the limitation, or erase
the delay and laches."

of

18. Again, this Court in
State of Uttaranchal and
Another Vs. Shiv Charan Singh Bhandari and Others
,
(2013) 12 SCC 179 had occasion to consider question
rt
of delay in challenging the promotion. The
Court
further held
that representations relating to a

stale claim or dead grievance does not give rise to a
fresh cause of action. In paras 19 and 23, following
was laid down: (SCC pp. 184-85)

"19. From the aforesaid authorities it is clear
as crystal that even if the court or tribunal
directs for consideration of representations

relating to a stale claim or dead grievance it
does not give rise to a fresh cause of action.

The dead cause of action cannot rise like a
phoenix. Similarly, a mere submission of
representation to the competent authority
does not arrest time.

23.
In
State of T.N. v. Seshachalam
, (2007) 10
SCC 137, this Court, testing the equality
clause on the bedrock of delay and laches
pertaining to grant of service benefit, has
ruled thus: (SCC p. 145, para 16)

"16. ... filing of representations alone
would not save the period of limitation.
Delay or laches is a relevant factor for a
court of law to determine the question as

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to whether the claim made by an
applicant deserves consideration. Delay
and/or laches 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 are
alert and vigilant."

19. This Court referring to an earlier judgment
in
P.S. Sadasivaswamy Vs. State of Tamil Nadu
,
(1975) 1 SCC 152 noticed that a person aggrieved

of
by an order of promoting a junior over his head
should approach the Court at least within six months
or at the most a year of such promotion. In
rt
Paragraph No. 26 and 28, following was laid down:

(
Shiv Charan Singh Bhandari
case, SCC pp. 185-86)

"26.

Presently, sitting in a time machine, we
may refer to a two-Judge Bench decision
in
P.S. Sadasivaswamy v. State of T.N.
,
(1975) 1 SCC 152, wherein it has been laid

down that: (SCC p. 154, para 2)

"2. ... A person aggrieved by an order of
promoting a junior over his head should

approach the Court at least within six
months or at the most a year of such

promotion. It is not that there is any
period of limitation for the courts to
exercise their powers under
Article
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
Article
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

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put forward stale claims and try to
unsettle settled matters."

* * *

28. Remaining oblivious to the factum of
delay and laches and granting relief is
contrary to all settled principles and

.

even would not remotely attract the concept

of discretion. We may hasten to add that the
same may not be applicable in all
circumstances where certain categories of
fundamental rights are infringed. But, a stale

claim of getting promotional benefits
definitely should not have been entertained
by the Tribunal and accepted by the High
Court."

of

20. Recently, in
State of Uttar Pradesh vs.

Rajmati Singh
(2022) SCC Online 1785, it has been
rt
held as under:

"18.
In "
Union of India v. Tarsem Singh
" (2008) 8
SCC 652, this Court summarized the settled

principles in the following manner:--

"7. To summarise, normally, a belated service
related claim will be rejected on the ground of

delay and laches (where remedy is sought is
sought by filing a writ petition) or limitation

(where remedy is sought by an application to
the Administrative Tribunal). One of the
exceptions to the said rule is cases relating to
a continuing wrong. Where a service related

claim is based on a continuing wrong, relief
can be granted even if there is a long delay in
seeking remedy, with reference to the date on
which the continuing wrong commenced, if
such continuing wrong creates a continuing
source of injury. But there is an exception to the
exception. If the grievance is in respect of any
order or administrative decision which related
to or affected several others also, and if the
reopening of the issue would affect the settled
rights of third parties, then the claim will not be

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entertained. For example, if the issue relates to
payment or refixation of pay or pension, relief
may be granted in spite of delay as it does not
affect the rights of third parties. But if the claim
involved issues relating to seniority or
promotion, etc., affecting others, delay would

.

render the claim stale and doctrine of

laches/limitation will be applied. Insofar as
the consequential relief of recovery of arrears
for a past period is concerned, the principles
relating to recurring/successive wrongs will

apply. As a consequence, the High Courts will
restrict the consequential relief relating to
arrears normally to a period of three years
prior to the date of filing of the writ petition."

of

19. Close to the facts of this case, in "
C. Jacob v.
Director of Geology and Mining
" (2008) 10 SCC
115, this Court, having found that the employee
rt
suddenly brought up a challenge to the order of

termination of his services after 20 years and
claimed all consequential benefits, held that the
relief sought for was inadmissible. The legal

position in this regard was laid out in the
following terms:

"10. Every representation of the Government
for relief, may not be applied on merits.
Representations relating to matters which

have become stale or barred by limitation, can
be rejected on that ground alone, without
examining the merits of the claim. In regard to

representations unrelated to the Department,
the reply may be only to inform that the matter
did not concern the Department or to inform
the appropriate Department. Representations
with incomplete particulars may be replied by
seeking relevant particulars. The replies to
such representations, cannot furnish a fresh
cause of action or revive a stale or dead claim.

11. When a decision is issued by a
court/tribunal to consider or deal with the

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representation, usually the directee (person
directed) examines the matter on merits, being
under the impression that failure to do so may
amount to disobedience. When an order is
passed considering and rejecting the claim or
representation, in compliance with direction of

.

the court or tribunal, such an order does not

revive the stale claim, nor amount to some
kind of "acknowledgement of a jural
relationship" to give rise to a fresh cause of
action.

12. When a government abandons service to
take alternative employment or to attend to
personal affairs, and does not bother to send

of
any letter seeking leave or letter of resignation
or letter of voluntary retirement, and the
records do not show that he is treated as
being in service, he cannot after two decades,
represent that he should be taken back to
rt
duty. Nor can such employee be treated as
having continued in service, thereby deeming
the entire period as qualifying service for the

purpose of pension. That will be a travesty of
justice.

13. Where an employee unauthorisedly
absents himself and suddenly appears

after 20 years and demands that he
should be taken back and approaches the
court, the department naturally will not or

may not have any record relating to the
employee at that distance of time. In such
cases, when the employer fails to produce

the records of the enquiry and the order of
dismissal/removal, court cannot draw an
adverse inference against the employer for

not producing records, nor direct
reinstatement with back wages for 20
years, ignoring the cessation of service or
the lucrative alternative employment of the
employee. Misplaced sympathy in such
matters will encourage discipline, lead to
unjust enrichment of the employee at fault
and result in drain of public exchequer.
Many a time there is also no application of
mind as to the extent of financial burden,

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as a result of a routine order for back
wages."

21. The aforesaid enunciation is clear and

categoric. The belated representation on behalf of

.

petitioner No.1, that too, after about 12 years will not

create a fresh cause of action in favour of the

petitioners.

of

22. It has been contended on behalf of the

petitioners that the matters relating to seniority of
rt
Assistant Engineers (Civil) in the department of Public

Works, were pending before this Court. It was in the

year 2013 that review DPC was convened. It was

thereafter that petitioner No.1 had submitted his

representation. The explanation rendered on behalf of

petitioners does not appeal to reason. Even if, litigation

with respect to seniority of Assistant Engineers (Civil)

was pending, it would not have been an impediment for

the petitioners to have espoused their own cause, which

primarily related to the right of consideration for

promotion against the vacancies available under 'Old

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Rules'. The seniority would have been an essential

consequence only.

.

23. Petitioners have also submitted that the

respondent had recognised their right to be promoted

w.e.f. 2002. Reliance has been placed on office notes

dealing with the representation of the petitioner No.1

of
and others. I have gone through the contents of office

notes as relied upon by the petitioners but in my
rt
considered view the petitioners still cannot succeed for

the reasons firstly that there was no categoric admission

and secondly office recommendation(s) cannot bind the

employer more particularly when such

recommendation(s) are against law.

24. In light of above discussion, there is no merit

in the instant petition and the same is accordingly

dismissed, so also the pending miscellaneous

application(s) if any.

(Satyen Vaidya)
Judge
16th September, 2023
(GR)

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