Tribhuwan Chand Vs. Union of India and Ors. - (High Court of Himachal Pradesh) (10 Apr 2019)
Mere repeated representations will not revive cause of action and cannot be a valid ground for present Court to overlook delay
The Petitioner has approached present 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.
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.
The case of the Respondents is that, it was only after the Petitioner qualified the prerequisite tests that he could be promoted. 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.
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.
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 present 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.
No positive mandamus can be issued. Nevertheless, 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. 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.
Since, no case of error has been made out by the Petitioner in the instant case, it is left to 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. The writ petition is disposed of.
Tags : PROMOTION ENTITLEMENT DISCRETION