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CWP No. 552 of 2018

Decided On: 10.04.2019

Appellants: Tribhuwan Chand Vs. Respondent: Union of India and Ors.

Hon'ble Judges/Coram:
Surya Kant, C.J. and Sandeep Sharma


Surya Kant, C.J.

1. The petitioner has approached this Court seeking a direction to consider and promote him from the Post of Inspector (GD) to Subedar Major and then as an Assistant Commandant with effect from the dates when his juniors were allegedly promoted. A further direction for correction in the seniority list and to place the petitioner above his perceived juniors has also been sought.

2. It is not necessary to refer the facts in extenso and suffice to state that the petitioner joined ITBP on 27th January, 1988 as a Constable (GD) and then as Lance Naik with effect from 11th August, 1988. The petitioner was promoted as Naik (GD) on 25th September, 1990 and then as Head Constable (GD) on 3rd March, 1996.

3. Here lies the catch. His alleged junior(s) was promoted as Head Constables in the year 1992. The petitioner remained silent; did not represent or raise his voice against the promotion of his alleged juniors. He allowed the grass to grow under his feet and accepted his next promotion as Sub Inspector (GD) on 3rd January, 2008 whereas the alleged junior got it in the year 2003. The petitioner was then promoted as Inspector (GD) on 21st November, 2011 whereas his stated junior got the said promotion in the year 2007. His junior(s) were obviously further promoted as Subedar Major. It is in this backdrop that the petitioner has sought the reliefs, a brief reference to which has been made in the opening paragraph of this order.

4. None of the alleged junior of the petitioner has been impleaded as a party-respondent.

5. The official respondents in their written statement have taken a preliminary objection re : inordinate delay and laches of approximately 24 years in approaching the Court. Certain decisions of the Hon'ble Supreme Court have been cited to urge that the writ petition raising such a belated claim be not entertained.

6. On merits also, the respondents have defended their action and denied the petitioner's allegation that any junior to him was promoted. It is explained that the petitioner qualified JCC with effect from 5th March, 1990 to 12th May, 1990 and consequently, he could be promoted from Lance Naik (GD) to Naik (GD) with effect from 25th September, 1990.

7. Contrarily, the petitioner's counter-part including Inspector (GD) Om Prakash was enrolled directly as Lance Naik (GD) and after he fulfilled all the eligibility conditions, he was rightly promoted to the rank of Naik (GD) with effect from 8th January, 1990. Thus, the petitioner fell junior to said Om Prakash way back in the year 1990.

8. In sum and substance, the case of the respondents is that it was only after the petitioner qualified the prerequisite tests that he could be promoted.

9. The petitioner's case is that he has been representing repeatedly since the year 1990 onwards but no heed was paid to his representations. He then served a legal notice dated 7th January, 2018 before approaching this Court.

10. We have heard learned counsel for the parties and gone through the record.

11. There is no gainsaying that settled seniority cannot be unsettled even if it is successfully demonstrated that some irregularity or illegality was committed at the time of finalization of the seniority. It is equally well settled that Writ Court need not to exercise its discretionary jurisdiction in a case where the petitioner is guilty of unexplained delay and laches in approaching the Court, especially when there were no social or financial impediments against seeking redressal of grievances.

12. The case in hand squarely falls within these exceptional clauses. Firstly, the petitioner was placed above said Om Prakash way back in January, 1990 whereas the writ petition has been filed in the year 2018. This singular fact is sufficient to dissuade this Court from entertaining the claim on merits. Secondly, the respondents have explained the facts and circumstances in which Inspector (GD) Om Prakash marched over the petitioner. Thirdly, mere repeated representations by the petitioner will not revive the cause of action and cannot be a valid ground for this Court to overlook the laches.

13. We are, thus, of the view that no positive mandamus can be issued for the reasons briefly stated above. Nevertheless, the Administrative Authorities, wherever are satisfied that some gross injustice has been done to an employee, may not be precluded from undoing the same merely because of delay in raising the voice. To say it differently, in a given case, there would not be an impediment either in law or in equity for an Administrative Authority to rectify the error, if any, committed by it in the past, provided that the Authority is satisfied that such error was committed at its hands.

14. Since, no case of such error has been made out by the petitioner in the instant case, we leave it to the discretion of respondent No. 2 or any other prescribed Authority to revisit the issue and see whether any injustice was done to the petitioner in the past. It will be for the Authorities to satisfy themselves in this regard without any command from this Court.

15. With these observations, the writ petition is disposed of so also the pending applications, if any.

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