Valmiki J. Mehta JUDGMENT
Valmiki J. Mehta, J.
W.P.(C) No. 2506/2017
1. By this writ petition under Article 226 of the Constitution of India, the petitioner prays for the relief of being granted the second Time Bound Promotion Scale (TBPS). The second TBPS as per the petitioner is the pay-scale of an Executive Engineer/Manager (Technical).
2. The writ petition is hopelessly misconceived and is an abuse of process of law. The reasons why the writ petition has to be dismissed are stated hereinafter.
3. Petitioner took voluntary retirement under the VRS Scheme of the respondent/employer way back on 29.2.2004. Once an employee takes voluntary retirement under a VRS Scheme, such an employee thereafter cannot claim benefits with respect to past services with his employer inasmuch as by taking VRS benefits and receiving a golden handshake lump sum amount, an employee thereafter leaves with all his rights as per the VRS scheme. This is stated by the Supreme Court in para 34 of the judgment of the Supreme Court in the case of A.K. Bindal and Another Vs. Union of India and Others MANU/SC/0349/2003 : (2003) 5 SCC 163, and which para 34 reads as under:-
"34. This shows that a considerable amount is to be paid to an employee ex- gratia besides the terminal benefits in case he opts for voluntary retirement under the Scheme and his option is accepted. The amount is paid not for doing any work or rendering any service. It is paid in lieu of the employee himself leaving the services of the company or the industrial establishment and foregoing all his claims or rights in the same. It is a package deal of give and take. That is why in business world it is known as 'Golden Handshake'. The main purpose of paying this amount is to bring about a compete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights, with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the Scheme would be totally frustrated."
(underlining added)
4. It is therefore clear that petitioner who has received VRS benefits under the VRS scheme is estopped from filing the present petition, more so and as stated below, by claiming a right which accrued even as per the petitioner assumedly pursuant to the TBPS dated 23.7.1997 i.e 20 years back resulting in the claim being barred by limitation/delay and laches as stated hereinafter. The first reason therefore for dismissing of the writ petition is the ratio of the judgment of the Supreme Court in the case of A.K. Bindal (supra) and this writ petition is accordingly dismissed for this first reason.
5. The second reason for dismissal of the writ petition is that a scheme of TBPS or also known as Assured Career Progression (ACP) Scheme in some organizations or Modified Assured Career Progression (MACP) Scheme in certain other organizations is only to prevent stagnation of an employee in services because promotion posts are limited. Since promotion posts are limited, schemes have been taken out by different employers to grant the higher pay-scales of the promotion posts without actually granting promotion to the promotion posts. Of course, benefit of two TBPS is subject to an employee fulfilling the eligibility criteria with respect to the higher/promotion post. In the present case, it is seen that the petitioner was appointed as Inspector Grade-II on 4.10.1974 and therefore he got his promotion to the post of Superintendent (Technical) on 31.8.1989. Though the writ petition is conspicuously silent with respect to petitioner receiving a second promotion, and which in the opinion of this Court, is deliberate concealment of fact to mislead the Court, however, the list of dates shows that after receiving the first promotion to the post of Superintendent (Technical) on 31.8.1989 petitioner in list of dates has stated that petitioner received the second time bound promotion under the TBPS scheme on 1.4.1994. On a query to the counsel for the petitioner, counsel for the petitioner clarifies that it is not that the petitioner received TBPS on 1.4.1994 but petitioner was in fact given the second promotion to the post of Assistant Manager (Technical) on 1.4.1994. I note that there would not have been an issue of second TBPS on 1.4.1994 because the scheme of TBPS is of a subsequent date viz. 23.7.1997. Therefore in terms of the TBPS scheme, a person gets at best two higher pa- scales of the higher promotion posts, but that is in case that otherwise the two promotions are not already granted i.e a person who has already received two promotions in his career then to such a person TBPS is not to be granted. Since petitioner has already received two promotions, petitioner hence cannot claim benefit of the second stage TBPS by claiming that he has not got second stage TBPS. I would like to further note that it is not in dispute that in the hierarchy of posts in the respondent/employer, and as stated by the counsel for the petitioner, in the respondent/employer is that after the first stage post of Inspector Grade-II, the second stage promotion post is of Superintendent (Technical), and the third stage promotion post is of Assistant Manager (Technical) and the next higher stage is of the promotion post of Executive Engineer/Manager (Technical). Therefore the petitioner is once again misleading the Court by praying in the prayer clause that the petitioner seeks second TBPS of Executive Engineer/Manager (Technical) whereas the post of Executive Engineer/Manager (Technical) is not second TBPS but third TBPS so far as the petitioner is concerned.
6. I may also note, at this stage, that though petitioner had to fulfill the eligibility criteria of the higher promotion post, and with respect to which para 2 of the TBPS circular dated 23.7.1997 is clear, yet the petitioner has not stated as to how the petitioner qualifies for the post of Executive Engineer/Manager (Technical) because petitioner has not stated what are the eligibility criteria for appointment to the post of Executive Engineer/Manager (Technical) and how the petitioner satisfies the same.
7. The third reason for dismissal of the writ petition is that the writ petition is grossly barred by limitation and which calls for application of doctrine of delay and laches so far as the present writ petition in view of the ratio of the judgment of the Supreme Court in the case of State of Orissa and Another Vs. Mamta Mohanty MANU/SC/0110/2011 : (2011) 3 SCC 436, and paras 52 to 54 of which judgment read as under:-
"52. In the very first appeal, the respondent filed writ petition on 11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f. 1.1.1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act 1963, makes it obligatory on the part of the court to dismiss the Suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at appellate stage because in some of the cases it may go to the root of the matter.
53. Needless to say that Limitation Act 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the Respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.
54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time."
8. In the facts of the present case, it is seen that the petitioner even as per the petitioner was entitled to the benefit of second TBPS on 15.8.1999 when allegedly a favorable order was passed in favour of the petitioner, however, this writ petition is filed in the year 2017 i.e after 18 years of the alleged order by which petitioner is said to have given the benefit of second TBPS. Obviously the order dated 15.8.1999 giving benefit of second TBPS to the petitioner was not correct, and petitioner therefore was rightly not granted benefit of second TBPS under the same, inasmuch as, the petitioner had already received two promotions, first to the post of Superintendent (Technical) on 31.8.1989 and second to the post of Assistant Manager (Technical) on 1.4.1994. The present petition therefore is grossly barred by delay and laches and is accordingly dismissed by applying the ratio in the case of Mamta Mohanty (supra).
9. The aforesaid facts show that the petitioner is guilty of deliberate concealment of facts, deliberate mis-statement of facts, setting up a particular case in the writ petition but stating differently in the list of dates and which also is modified during the arguments of the second TBPS allegedly granted on 1.4.1994 being not a TBPS benefit but was a grant of promotion to the petitioner etc. etc.
10. Since the writ petition is wholly misconceived, and also in view of the aforesaid factual and legal position against the petitioner, the writ petition is dismissed with costs of Rs. 10,000/- and which costs shall be paid within four weeks from today to Friendicoes, No. 271 & 273, Defence Colony, Flyover Market, Jangpura Side, New Delhi- 110024.
W.P.(C) No. 2514/2017
11. Adopting the above discussion, this writ petition is also dismissed by noting that petitioner in this writ petition was appointed to the post of Inspector Grade-II on 5.9.1973, and he received the first promotion to the post of Assistant Manager (Technical) on 1.4.1994 and thereafter petitioner got his second promotion to the post of Assistant Engineer on 25.8.1995, and thereby petitioner has during his service career already received two promotions, and therefore, there does not arise a question of grant of a second TBPS, and that too at the level of Executive Engineer/Manager(Technical) and which will be in fact a third TBPS as per the discussion given with respect to petitioner in W.P.(C) No. 2506/2017.
12. This writ petition is also liable to be and is accordingly dismissed by applying the ratios of the judgments of the Supreme Court in the cases of A.K. Bindal (supra) and Mamta Mohanty (supra). This writ petition also is accordingly dismissed with costs of Rs. 10,000/- and which costs shall be paid within four weeks to Friendicoes, No. 271 & 273, Defence Colony, Flyover Market, Jangpura Side, New Delhi-110024.
13. List both these petitions before the Registrar General on 24th April, 2017 for compliance of the order with respect to deposit of costs and in case costs are not deposited then the Registrar General will take action to recover the same by means of appropriate proceedings including contempt or execution or recovery as arrears of land revenue.
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