Punjab-Haryana High Court
Harwinder Singh vs Punjab State Power Corporation Limited on 12 December, 2024
Neutral Citation No:=2024:PHHC:166489
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Reserved on: 29.11.2024
Pronounced on: 12.12.2024
Harwinder Singh @ Harwinder Singh Taneja and another
......Petitioners
Versus
Punjab State Power Corporation Limited and others
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by:: - Mr. Ashish Gupta, Advocate,
for the petitioners.
Mr. Sushane Puri, Advocate,
for respondents No.1 and 2.
NAMIT KUMAR, J.
1. The petitioners have invoked the writ jurisdiction of this
Court by filing the present petition under Articles 226/22
226/227 of the
Constitution of India,
India seeking quashing of the seniority list dated
29.09.2023 (Annexure P-5)
P 5) and the order dated 05.09.2024 (Annexure
P-8), whereby the claim of the petitioners
petitioners seeking seniority over and
above respondent No.3,
No.3 has been rejected. Further, a writ of mandamus
has been sought for placing the petitioners above respondent No.3 in
the seniority list.
2. The brief facts, as have been pleaded in the petition, are
that petitioner No.1 was appointed as LDC on 25.11.1997 and
petitioner No.2 was appointed as Steno-typist
Steno typist on 09.09.1997 in the
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erstwhile Punjab State Electricity Board (now PSPCL) and thereafter
they were promoted to the post of Revenue Accountant on 220.12.2002
and 23.12.2002, respectively, after qualifying the SAS
SAS-I examination.
3. Respondent No.3 was recruited as Apprentice Revenue
Accountant on 27.01.2000 and was promoted as Revenue Accountant
on 10.02.2003.
10.02.2003. The tentative seniority list dated 10.03.2005 of
Revenue Assistants was circulated by the erstwhile PSEB wherein the
names of petitioners were at serial numbers 700 and 701
701, whereas the
name of respondent No.3 was at serial number 707. Respondent No.3
passed SAS (Part II) examination in October, 2007 and was promoted
as Accountant (now Assistant Accounts Officer/Accounts) vide order
dated 14.09.2009 (Annexure P-6).
P 6). Petitioner No.1 passed the SAS
(Part II) examination in August, 2015 and petitioner No.2 passed the
same in February, 2016 and thereafter they both were promoted as
Assistant Accounts Officer/Accounts vide orders dated 23.12.2015 and
20.05.2016 (Annexures P-3
P and P-4),
4), respectively. Next promotion
from the post of Assistant Accounts Officer/ Accounts is to the post of
Accounts Officer and is governed by Regulation 7(d)(i) of the Punjab
State Electricity Board Accounts and General Services (Class I and II
Officers) Regulations, 1972 and the same reads as under: –
“70% of the total cadre posts by promotion from qualified
SAS Accountants (who have actually cleared SAS Part
Part-I
and Part-II
II Examination) having rendered minimum of 5
years as such.”
4. Thereafter, respondent No.3 was promoted as Accounts
Officer vide order dated 29.09.2023 (Annexure P
P-5). The petitioners
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served legal notice dated 26.07.2024 (Annexure P
P-7) claiming seniority
over and above respondent No.3 as Assistant Accounts Officer by
stating that since they were senior as Revenue Account
Accountants, therefore,
they be assigned seniority over
over and above respondent No.3 as passing
of SAS (Part II) examination is irrelevant for the purpose of fixing of
seniority. The said legal notice has been replied by the respondents
vide their letter dated 05.09.2024 (Annexure P
P-8) wherein it has been
stated
ted that petitioners were promoted as Revenue Accountants on
20.12.2002
2 and 23.12.2002, respectively and respondent N.3-Deepak
Gupta was promoted as Revenue Accountant on 10.02.2003. However,
for next promotion as AAO/Accounts, respondent No.3 had passed
SAS (Part II) examination in the year October, 2007 whereas
petitioners had cleared the said examination much later in August, 2015
and February, 2016. Clause 8(A)
8(A) Sr. No.1 of the Accounts Services
Class-III
III Regulations, 1991
1991, stipulates that Revenue
Accountants/Divisional
ountants/Divisional Accountants (now redesignated as
Superintendent Divisional/Accounts)/Revenue Superintendent become
eligible for promotion as SAS Accountant (now redesignated as
AAO/Accounts) only after passing SAS (Part II) examination with
minimum five
five years’ service as Revenue Accountant/Divisional
Accountant. A reference of circular dated 17.02.1972 has also been
given, which provides that on occurrence of a vacancy in a cadre, the
senior-most
most eligible person on that date should be considered for
promotion on the basis of seniority-cum
seniority cum-merit and the appointing
authority should not wait for senior persons to acquire eligibility. If on
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the date of occurrence of vacancy, no one attains eligibility, the
employee becoming eligible
eligible earliest thereafter, in order of seniority,
should be considered for promotion. In other words, eligibility on the
date of occurrence of a vacancy or earliest thereafter shall be taken
determining factor for ordering promotion against an existing vaca
vacancy
in departmental promotions. Consequently, respondent No.3 although
junior to the petitioners as Revenue Accountant, became eligible much
earlier for next promotion as AAO/Accounts after passing SAS (Part II)
examination and accordingly he was rightly promoted as
AAO/Accounts on 14.09.2009 against available vacancy. On the date
of promotion of respondent No.3, petitioners had not passed SAS (Part
II) examination and they were unqualified and hence ineligible for next
promotion as AAO/Accounts and since as per 1991 Regulations,
seniority inter se of members in a particular cadre is to be determined
by the date of their continuous appointment in that post, therefore,
respondent No.3, who was promoted as AAO/Accounts prior to the
petitioners, was therefore,
therefore, ranked senior as AAO/Accounts than the
petitioners, who became eligible as AAO/Accounts much later after the
promotion of respondent No.3 and accordingly, petitioners were
assigned seniority as AAO/Accounts after respondent No.3. Hence, the
present petition
peti has been filed by the petitioner impugning promotion
of respondent No.3,
No.3 made to the post of Accounts Officer
Officer, vide order
dated 29.09.2023 (Annexure P-5)
P and for claiming seniority over and
above respondent No.3.
No.3
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5. Learned counsel for the petitioners has submitted that
since the petitioners were senior to respondent No.3 as Revenue
Accountants, therefore, promotion of respondent No.3 to the post of
Accounts Officer,
Officer vide order dated 29.09.2023
29.09.2023, is totally illegal and
arbitrary and is liable to be set aside and further directions may be
issued to the respondents to assign seniority to the petitioners over and
above respondent No.3 as AAO/Accounts and promote the petitioners
to the post of Accounts Officer.
Officer
6. Per contra,, learned counsel for respondents No.1 and 2
contended that claim raised by the petitioners is baseless
baseless. He further
contended that respondent No.3 has rightly been promoted as
AAO/Accounts on 14.09.2009,
14.09.2009 against available vacancy and on the
date of promotion of respondent No.3,
No.3, petitioners had not passed SAS
(Part II) examination and they were unqualified and hence ineligible for
next promotion as AAO/Accounts and respondent No.3 has rightly
been promoted to the next higher post of Accounts Officer
Officer.
7. I have heard learned counsel
nsel for the parties and perused
the record.
8. The facts are not in dispute that petitioner No.1 was
appointed as LDC on 25.11.1997 and petitioner No.2 was appointed as
Steno-typist
typist on 09.09.1997 and thereafter they were promoted to the
post of Revenue Accountant
Accountant on 20.12.2002 and 23.12.2002,
respectively, after qualifying the SAS-I
SAS I examination. Respondent No.3
was recruited as Apprentice Revenue Accountant on 27.01.2000 and
was promoted as Revenue Accountant on 10.02.2003. Respondent
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No.3 passed SAS (Part-II)
II) examination in October, 2007 and was
promoted as Accountant (now AAO/Accounts) vide order dated
14.09.2009 (Annexure P-6).
P . Petitioner No.1 passed the SAS (Part
(Part-II)
examination in August, 2015 and petitioner No.2 passed the same in
February, 2016 and thereafter both of them were promoted as
AAO/Accounts vide orders dated 23.12.2015 and 20.05.2016
(Annexures P-3
P and P-4). Thereafter, respondent No.3 was promoted
as Accounts Officer vide order dated 29.09.2023 (Annexure P
P-5).
9. From the perusal off the facts stated above, it is clear that
firstly there is considerable delay in filing the present writ petition.
Respondent No.3 was promoted to the next higher post of
AAO/Accounts vide order dated 14.09.2009 (Annexure P
P-6) and the
said promotion was never challenged by the petitioners. Thereafter, the
petitioners were also promoted as AAO/Accounts vide orders dated
23.12.2015 and 20.05.2016 i.e. much after the promotion of respondent
No.3. Since respondent No.3 was senior to the petitioners as
AAO/Accounts,
ccounts, therefore, he has rightly been promoted as Accounts
Officer vide order dated 29.09.2023. The cause of action, if any, had
accrued to the petitioners in the year 2009,
2009, when respondent No.3 was
promoted as AAO/Accounts,
AAO/Accounts but the petitioners never ra
raised any
grievance at that point of time and rightly so because of the fact that the
petitioners were not eligible on the said date as they passed the SAS
(Part-II)
II) examination in the years August, 2015 and February, 2016,
respectively. Therefore, they cannot
nnot be allowed to rake up the stale
issue at this point of time after a period of 15 years.
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10. The Hon’ble Supreme Court in Yunus (Baboobhai) A
Hamid Padvekar Vs. State of Maharashtra Through its Secretary and
others : 2009 (2) SCT 24,
24, while referring tto the issue of delay and
latches, had held as follows:-
follows:
“8. Delay or laches is one of the factors which is to be borne in
mind by the High Courts when they exercise their discretionary
powers under Article 226 of the Constitution of India, 1950 (in
short the ‘Constitution’). In an appropriate case the High
Court may refuse to invoke its extraordinary powers if there is
such negligence or omission on the part of the applicant to
assert his right as taken in conjunction with the lapse of time
and other circumstances, causes prejudice to the opposite
party. Even where
re fundamental right is involved the matter is
still within the discretion of the Court as pointed out in Durga
Prasad v. Chief Controller of Imports and Exports (AIR 1970
SC 769).. Of course, the discretion has to be exercised
judicially and reasonably.
9. What was stated in this regard by Sir Barnes Peacock in
Lindsay Petroleum Company v. Prosper Armstrong Hurde
etc. (1874) 5 PC 221 at page 239 was approved by this Court
in Moon Mills Ltd. v. Industrial Courts (AIR 1967 SC 1450)
and Maharashtra State Transport
port Corporation v. Balwant
Regular Motor Service (AIR 1969 SC 329)
329), Sir Barnes had
stated:
“Now the doctrine of laches in Courts of Equity is not
an arbitrary or technical doctrine. Where it would be
practically unjust to give a remedy either because the
party has, by his conduct done that which might fairly
be regarded as equivalent to a waiver of it, or where by
his conduct and neglect he has though perhaps not
waiving that remedy, yet put the other party in a
situation in which it would not be reasonable to place
him if the remedy were afterwards to be asserted, in
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relief, which otherwise would be just, if founded upon
mere delay, that delay of course not amounting to a bar
by any statute of limitation, the validity of that defence
must bee tried upon principles substantially equitable.
Two circumstances always important in such cases are,
the length of the delay and the nature of the acts done
during the interval which might affect either party and
cause a balance of justice or injustice iin taking the one
course or the other, so far as relates to the remedy.”
10. It would be appropriate to note certain decisions of this
Court in which this aspect has been dealt with in relation with
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 R.N Bose v. Union of India (AIR 1970
SC 470) that no relief can be given to the petitioner who
without any reasonable explanation approaches this Court
underr 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
titions filed after inordinate delay.
11. It was stated in State of M.P. v. Nandlal (AIR 1987 SC
251) that the High Court in exercise of its discretiondoes not
ordinarily assist the tardy and the indolent or the
acquiescent and the lethargic. If there is iinordinate 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. Thee 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 trail new injustices, and if
writ jurisdiction is exercised after unreasonable delay, it
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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 im
important factor which also
weighs with the High Court in deciding whether or not to
exercise such jurisdiction.
12. In view of the aforesaid position we are not inclined to
interfere in this appeal which is dismissed accordingly.”
11. Further the Hon’ble Supreme Court in State of
Uttaranchal and another Vs. Sri Shiv Charan Singh Bhandari and
others, 2013(6) SLR 629,
629, while considering the issue regarding delay
and laches and referring to earlier judgments on the issue, opined that
repeated
ed representations made will not keep the issues alive. A stale or
a dead issue/dispute cannot be revived even if such a representation has
been decided either by the authority or by getting a direction from the
court as the issue regarding delay and lache
laches is to be decided with
reference to original cause of action and not with reference to any such
order passed. Delay and 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
Constitution of India, in a situation of that nature, will not be
attracted as it is well known that law leans in favour of those who are
alert and vigilant. Even equality has to be claimed at the right juncture
and not on expiry of reasonable time. Even if there is no period
prescribed for filing the writ petition under Article 226 of the
Constitution of India, yet it should be filed within a reasonable time.
An order promoting a junior should normally be challenged within a
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period of six months or at the most in a yyear of such promotion.
Though it is not a strict rule, the courts can always interfere even
subsequent thereto, but relief to a person, who allows things to happen
and then approach the court and puts forward a stale claim and try to
unsettle settled matters,
matters, can certainly be refused on account of delay
and laches. Any one who sleeps over his rights is bound to suffer. An
employee who sleeps like Rip Van Winkle and got up from slumber at
his own leisure, deserves to be denied the relief on account of delay and
laches. Relevant paragraphs from the aforesaid judgment are extracted
below:
“13. We have no trace of doubt that the respondents could
have challenged the ad hoc promotion conferred on the
junior employee at the relevant time. They chose not to do
so for six years and the junior employee held the
promotional post for six years till regular promotion took
place. The submission of the learned counsel for the
respondents is that they had given representations at the
relevant time but the same fell in deaf ears. It is interesting
to note that when the regular selection took place, they
accepted
ccepted the position solely because the seniority was
maintained and, thereafter, they knocked at the doors of
the tribunal only in 2003. It is clear as noon day that the
cause of action had arisen for assailing the order when the
junior employee was promo
promoted on ad hoc basis on
15.11.1983. In C. Jacob v. Director of Geology and
Mining and another, (2008) 10 SCC 115
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
tions and the challenge to the said rejection
thereafter. In that context, the court has expressed thus:
thus:-
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“Every representation to the Government for relief,
may not be replied on merits. Representations
relating to matters which have become stale or
barred
ed 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 app
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.”
12. In Bharat Sanchar Nigam Limited Vs. Ghanshyam Dass
(2) and others,
others (2011) 4 SCC 374, a three–Judge Bench of the Hon’ble
Supreme Court reiterated the principle stated in Jagdish Lal Vs. State
of Haryana, (1997) 6 SCC 538 and proceeded to observe that as the
respondents therein preferred
preferred to sleep over their rights and approached
the tribunal in 1997, they would not get the benefit of the order dated
07.07.1992.
13. In State of T. N. Vs. Seshachalam, (2007) 10 SCC 137,
the Hon’ble Supreme Court, testing the equality clause on the bbedrock
of delay and laches pertaining to grant of service benefit, has ruled
thus:-
“11… 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 to whether
the claim made by an applicant deserves consideration.
Delay and/or laches on the part
art of a government servant
may deprive him of the benefit which had been given to11 of 21
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a situation of that nature, be attracted as it is well known
that law leans in favour of those who are alert an
and
vigilant.”
14. In New Delhi Municipal Council Vs. Pan Singh and
others,, (2007) 9 SCC 278,
278, the Hon’ble Supreme Court has opined that
though there is no period of limitation provided for filing a writ petition
under Article 226 of the Constitution of India, yet ordinarily a writ
petition should be filed within a reasonable time. In the said case the
respondents had filed the writ petition after seventeen years and the
court, as stated earlier, took note of the delay and laches as relevant
factors and set
set aside the order passed by the High Court which had
exercised the discretionary jurisdiction.
15. In a recent judgment by the Division Bench of this Court
in “Ram Kumar Vs. State of Haryana and others”, 2022 (3) SCT 346,
while rejecting the claim of the
the petitioner for counting of his ad hoc
service, for the purpose of seniority/pension and regularization in
service on completion of 02 years as per policy, held that the petition
filed by him suffered from gross, inordinate and unexplained delay in
approaching
ching the High Court. In the said judgment, it has been held as
under:-
“10. What we wish to emphasize, in particular, is that
services of the appellant were regularized w.e.f.
01.04.1997. And, he was assigned a specific seniority
position in the cadre. Whereafter, he continued to serve
the department for nearly twenty five yea
years, before
attaining the age of superannuation in January, 2022.
Needless to assert that during all these years, he availed12 of 21
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Inspector. Thus, it rather appears that institution of the
petition by the appellant
lant was speculative and an attempt to
resurrect a stale and dead claim. The Supreme Court, in
New Delhi Municipal Council v. Pan Singh & Ors.,
2007(9) SCC 278, observed:
“15. There is another aspect of the matter which
cannot be lost sight of. Respondent
Respondents herein filed a
Writ Petition after 17 years. They did not agitate
their grievances for a long time. They, as noticed
herein, did not claim parity with the 17 workmen at
the earliest possible opportunity. They did not
implead themselves as parties even in the reference
made by the State before the Industrial Tribunal. It
is not their case that after 1982, those employees
who were employed or who were recruited after the
cut-off
off date have been granted the said scale of pay.
After such a long time, therefore
therefore, the Writ Petitions
could not have been entertained even if they are
similarly situated. It is trite that the discretionary
jurisdiction may not be exercised in favour of those
who approach the Court after a long time. Delay
and laches are relevant factor
factors for exercise of
equitable jurisdiction. See Govt. of W.B. v. Tarun
K. Roy And Others [(2004) 1 SCC 347], Chairman,
U.P. Jal Nigam & Anr. v. Jaswant Singh And Anr.
[2006 (12) SCALE 347] and Karnataka Power
Corpn. Ltd. through its Chairman & Managing
Director
tor and Another v. K. Thangappan and
Another [(2006) 4 SCC 322]
322]”
11. Similarly, in Jagdish Lal & Ors. Vs. State of Haryana
& Ors., (1997) 6 SCC 538,, it was held by the Supreme
Court:
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delay disentitles the
he party to the discretionary relief
under Article 226 or 32 of the Constitution. It is not
necessary to reiterate all catena of precedents in
this behalf. Suffice it to state that the appellant kept
sleeping over their rights for long and elected to
wake up when they had the impetus from Vir Pal
Chauhan and Ajit Singh’s ratios…………………
Therefore, desperate attempts of the appellants to
re-do
do the seniority had by them in various
cadres/grades though in the same services
according to 1974 Rules or 19
1980 Rule, are not
amenable to judicial review at this belated
stage….”
12. In the wake of the position as sketched out above, we
are dissuaded to interfere with the impugned order and
judgment rendered by the learned single Judge. The
appeal being bereft off merit is, accordingly, dismissed.”
16. The Co-ordinate
ordinate Bench of this Court in “Prem Nath and
others Vs. State of Punjab and others”, 2018(2) SCT 687, while
rejecting the claim of additional increments on acquisition of higher
qualifications has held as under:-
“3. It is the case set up on behalf of the petitioners that
they had all been appointed before 19.02.1979 and had
even improved/acquired higher qualifications before
19.02.1979 and as such there would be no difference
between the employees working with the Punjab
Government, holding corresponding post and the
employees like the petitioners who have worked for
Punjab Privately Managed Recognised Aided Schools. It
is also the assertion made by counsel representing the
petitioners that their claim wou
would be covered in terms of14 of 21
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bunch of writ petitions including CWP No.8083 of 1989
titled as Radha Krishan Narang and others vs. State of
Punjab and others.
4. Having heard counsel for the petitioners at length, this
Court is of the considered view that the claim of the
petitioners would not require any consideration on merits
and the writ petition deserves to be dismissed on the sole
ground of delay and laches.
5. Placed on record and appended at Annexure P-1 are
the particulars of the petitioners. The tabulation at
Annexure P-11 would show that all the petitioners stand
retired on various dates between the years 1995 to 2012.
Out of 32 petitioners in all, 22 petitioners superannuated
more than 10 years back.
6. There is no justification coming forth as regards the
inordinate delay in having approached the Writ Court.
There is also no explanation put forth by the petitioners as
to why the claim raised in the instant petition was not
agitated by the petitioners
rs while they were in service. The
entire thrust of the submissions advanced by counsel is
that similarly situated employees had approached this
Court
ourt and have been granted rel
relief.
7. The issue regarding delay in invoking the extraordinary
writ jurisdictionn under Article 226 of the Constitution of
India was considered by the Hon’ble Supreme Court in
Chairman, U.P. Jal Nigam and another v. Jaswant
Singh and another (2006)11 SCC 464
464. In such case,
certain employees raised the issue that they were not
liable too be retired at the age of 58 years but should be
permitted to continue in service till they attain the age of
60 years. Such employees were still in service when the
writ petitions were filed. The writ petitions were ultimately15 of 21
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pon such judgment, some of
the employees, who had already superannuated, filed writ
petitions seeking the same benefit. Even such petitions
were allowed by the High Court in terms of following the
earlier judgment. The judgment of the High Court was
challenged
nged before the Apex Court and wherein while
referring to earlier judgments in Rup Diamonds v. Union
of India, (1989)2 SCC 356; “Jagdish Lal v. State of
Haryana, (1997)6 SCC 538 and Government of West
Bengal v. Tarun K. Roy, (2004)1 SCC 347
347, it was opined
that persons who approached the Court at a belated stage
placing reliance upon the order passed in some other case
earlier, can be denied the discretionary relief on the
ground of delay and laches. The relevant observations
made by the Supreme Court are co
contained in Paras 5, 6
and 16 of the judgment and are extracted here under:
under:-
“5. So far as the principal issue is concerned, that
has been settled by this court. Therefore, there is no
quarrel over the legal proposition. But the only
question is grant of relief
lief to such other persons who
were not vigilant and did not wake up to challenge
their retirement and accepted the same but filed writ
petitions after the judgment of this court in
Harwindra Kumar v. Chief Engineer, Karmik,
(2005) 13 SCC 300.. Whether they are entitled to
same relief or not? Therefore, a serious question
that arises for consideration is whether the
employees who did not wake up to challenge their
retirement and accepted the same, collected their
post-retirement
retirement benefits, can such persons be given
the relief in the light of the subsequent decision
delivered by this court?
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6. The question of delay and laches has been
examined by this court in a series of decisions and
laches and delay has been considered to be an
important factor in exercise of the discretionary
relief under Article 226 of the Constitution. When a
person who is not vigilant of his rights and
acquiesces with the situation, can his writ petition
be heard after a couple of years on the ground that
same relief should be granted to him as was granted
to person similarly situated who was vigilant about
his rights and challenged his retirement which was
said to be made on attaining the age of 58 years. A
chart has been supplied to us in which it has been
pointed out that about 9 writ petitions were filed by
the employees of the Nigam before their retirement
wherein their retirement was somewhere between
30.6.2005 and 31.7.2005. Two writ petitions were
filed wherein no relief of interim order was passed.
They were granted interim order. Thereafter a spate
of writ petitions followed in which employees who
retired in the years 2001, 2002, 2003, 2004 and
2005, woke up to file writ petitions in 2005 and
2006 much after their retirement. Whether such
persons should be granted the same relief or not?
xx xx xx
16. Therefore, in case at this belated stage if similar
relief is to be given to the persons who have not
approached the court that will unnecessarily
overburden the Nigam and the Nigam will
completely collapse with the liability of payment to
these personss in terms of two years’ salary and
increased benefit of pension and other
consequential benefits. Therefore, we are not
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inclined to grant any relief to the persons who have
approached the court after their retirement. Only
those persons who have filed the writ petitions when
they were in service or who have obtained interim
order for their retirement, those persons should be
allowed to stand to benefit and not others.”
[Emphasis supplied]
8. The issue of delay was also dealt with by this Court in
Tarsem Pal
al vs. Punjab State Power Corporation Limited
and others, 2013 (3)SLR 314
314. In the case of Tarsem
Pal(supra), the petitioner was serving as a Clerk with the
respondent-Corporation
Corporation and had retired on 31.03.2005.
Claim in the writ petition was to grant to him the benefit of
proficiency set up in the pay scale on completion of 23
years of service from the due date as per policy of the
Corporation. During the service career, he had not
agitated the claim for increments. For the first time, such
claim had been made
de on 28.02.2005 i.e. just one month
prior to superannuation. While non
non-suiting the petitioner
on account of delay and laches it was held as follows:
follows:-
“11. In the aforesaid judgments, it has been clearly
laid down that discretionary relief in a writ
jurisdiction
iction is available to a party who is alive of
his rights and enforces the same in court within
reasonable time. The judgment in another case does
not give a cause of action to file a writ petition at a
belated stage seeking the same relief. Such petitions
can be dismissed on account of delay and laches. As
has already been noticed above in the present case
as well, the petitioner joined service in the year
1965 and retired in the year 2005, but raised the
issue regarding benefit of proficiency step up in tthe
pay scale on completion of 23 years of service from18 of 21
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32320 of 2024the due date more than five years after his
retirement referring to a judgment of this court and
filed the petition claiming the same relief.
12. The petitioner retired from service on 31.3.2005
and thee claim pertaining to the benefit of
proficiency step up, which may be admissible to the
petitioner during his service career, was sought to
be raised more than five years after his retirement,
the claim made at such a late stage deserves to be
dismissed onn account of delay and laches only. The
petitioner could raise a grievance about the pay
scales admissible to him or the last pay drawn by
him within a reasonable time after his retirement.
He cannot be permitted to raise the same at any
time on the plea that
hat the same is recurring cause of
action.
13. Considering the enunciation of law, as referred
to above, in my opinion, the petitioner herein is not
entitled to the relief prayed for and the petition
deserves to be dismissed merely on account of delay
and laches.”
9. At this stage, counsel appearing for the petitioners
would make an attempt to overcome the obstacle of delay
by placing reliance upon a Full Bench Judgment of this
Court in Saroj Kumar vs. State of Punjab, 1998(3) SCT
664. Counsel would argue that as per dictum laid down in
Saroj Kumar’s case(supra), matters of pay fixation involve
a recurring cause of action and as such, writ petitions for
such claim cannot be dismissed on the ground of delay
and laches and the Court at the most, may restrict the
arrears upto 38 months from the date of filing of the
petition and disallow the arrears for the period for which
even a suit had become time barred.
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10. The reliance placed by counsel upon the judgment in
Saroj Kumar’s case, is wholly misplaced. The ob
observations
and aspect of delay in Saroj Kumar’s case, were in the
light of the judgment of the Supreme Court in M.R. Gupta
vs. Union of India and others, 1995(4) RSJ 502
502. In M.R.
Gupta’s case(supra), it had been categorically held that so
long as an employee
ee “is in service” a fresh cause of action
arises every month when he is getting his monthly salary
on the basis of a wrong calculation made contrary to
rules. It was further held that the claim to be awarded the
correct salary on the basis of a proper pay fixation “is a
right which subsists during the entire tenure of service”.
11. In the present case, however the petitioners choose
not to agitate their claim while in service. It is much
subsequent to their superannuation that they have woken
up and seek too gain impetus from certain decisions that
may have been rendered in the case of similarly situated
employees.
12. Considering the dictum of law as laid down in
Chariman, U.P. Jal Nigam’s case (supra), the petitioners
herein are not entitled to any releif as prayed for and the
petition deserves to be dismissed on the sole ground of
delay and laches.
13. Ordered accordingly.”
17. The Division Bench of this Court in “H.S. Gill vs Union
of India and others”, 2016(2) SCT 477,, has held that an employee
cannot claim the revised pay scale after retirement once he has been
receiving the pay scale granted by the employer for the last 09 years.
The relevant portion from the said judgment, reads as under:
under:-
“14. The petitioner is also not entitled to any relief on
account
ount of principle of delay and laches. He has been
receiving the pay in the pay scale of Rs.6500
Rs.6500-10500 right20 of 21
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32320 of 2024from his transfer to CSIO, Chandigarh i.e. 2.7.2002. For
the first time, he moved the representation on 29.8.2011,
so, he kept mum for about 9 year
years. Thus, the claim of the
petitioner is highly belated and stale.”
18. Even on merits also the petitioners have no ca
cause to
challenge the promotion of respondent No.3 to the post of Accounts
Officer, which has been made vide order dated 29.09.2023 (Annexure
P-5), as respondent No.3 is much senior to the petitioners as
AAO/Accounts.
19. In view of the above, there is no merit in the present
petition and the same is hereby dismissed, with no order as to costs.
(NAMIT KUMAR)
12.12.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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