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HIGH COURT OF DELHI
Date of Decision: 24th February, 2023
DR. B. SUKUMAR ..... Petitioner
Through: Ms. Priya Balakrishnan, Advocate.
Through: Mr. Aly Mirza, Advocate for R-1 to R-3.
Mr. Ajay Digpaul, Central Government Standing Counsel with Mr. Kamal Digpaul and Ms. Swati Kwatra, Advocates for
R-4/UOI.
JUDGMENT
1. Allowed, subject to all just exceptions.
2. Application stands disposed of. W.P.(C) 2394/2023
3. Present writ petition has been filed seeking the following reliefs: “i) issue a writ of Mandamus or any other appropriate Writ, direction or order, directing the respondents to grant promotion to the petitioner to the higher cadre of Deputy Director in IGNOU with effect from 30/09/2001, the date on which he became eligible and entitled to the promotion, and to pay all resultant consequential service benefits; ii) issue a declaration that the petitioneris entitled to be promoted to the cadre of Deputy Director in IGNOU with effect from 30/09/2001, the date on which he became eligible, and entitled to all consequential service benefits, including seniority, enhanced scale of pay, subsequent timely promotions, back wages and arrears with interest;”
4. At the outset, learned counsel appearing on behalf of Respondents No. 1 to 3 takes a preliminary objection to the maintainability of the writ petition on the ground that it is barred by delay and laches.
5. Factual exposition set out in the writ petition is that the Petitioner joined IndiraGandhi National Open University (‘IGNOU’) on 30.09.1992 as Assistant Regional Director with qualifications of M.Sc., Ph.D., as stipulated by UGC. On 30.09.1996, Petitioner was promoted to the post of Assistant Regional Director (Senior Scale) under the Career Advancement Scheme (‘CAS’).
6. According to the Petitioner, as per the UGC/IGNOU norms, Petitioner became eligible for promotion to the post of Deputy Director w.e.f. 30.09.2001 on completion of 5 years as Assistant Regional Director (Senior Scale), which was the eligibility period.
7. The Academic Coordination Division of IGNOU issued a Circular dated 06.11.2001,as per Ordinance framed by the University for CAS under Statute 17(14) of the Statutes of the University to streamline the process of promotion of eligible teachers/Academics under the CAS, to various posts. As per the Circular, the eligible teachers/Academics were required to submit their Performance Appraisal Forms to the Academic Co-ordination Division in the prescribed format,through proper channel.Petitioner,who fulfilledall requisite qualifications applied for the post of Deputy Director on 08.10.2001 and sent the duly filled-in Performance Appraisal Form, through proper channel. Petitioner appeared for the interview before the Selection Committee on 05.06.2002, but was not recommended and the reason for not recommendinghim was also not communicated.
8. Petitioner states that he appeared for the interviews twice thereafter on 23.12.2003 and 01.07.2005,but remained unsuccessful. Aggrieved by the action of theRespondents in not recommending him for promotion, Petitioner made representations dated 31.08.2005, 23.12.2005 and 07.06.2018 and requested for promotion w.e.f. 30.09.2001. Getting no response, Petitioner has filed the present petition.
9. Contention of the Petitioner is that he fulfils all requisite qualifications prescribed by University/ IGNOU under the CAS and had applied for consideration for promotion in the year 2001. The required Performance Appraisal Form was also filled and submitted and there was no impediment in his way of being promoted to the post of DeputyDirector w.e.f.30.09.2001 and yet he has been deprived of his due promotion.
10. Insofar as delay and laches in approaching the Court are concerned,it is submitted that Petitioner hada legitimate expectation over the years that his representations will be favourably considered and therefore,he did not approach the Court. In any case, once the promotion is granted to the Petitioner,he will be entitled to enhanced salary with back wages and as held by the Supreme Court in M.R. Gupta v. Union of India, (1995) 5 SCC 628, claim for grant of higher pay scales is a continuing cause of action. Thus,the petition cannot be dismissed on ground of delay and laches andat the highest, arrears of higher salary and back wages can be restricted to three years prior to filing of the writ petition.
11. I have heard the counsels for the parties and examined their submissions.
12. From the factual narrative in the writ petition, it is clear that Petitioner seeks promotion to the post of Deputy Director w.e.f. 30.09.2001.Indisputably,Petitioner hadappeared for interviews in the years 2002, 2003 and 2005 before the Selection Committee, but was not recommended for promotion.As the chronology of dates goes, on being unsuccessful in the interview held in 2005, Petitioner made representations on 31.08.2005 and 23.12.2005, ventilating his grievances. Thereafter, there was complete silence for 13 years till 07.06.2018,when the Petitioner again represented to the Respondents. There is no plausible justification or explanation as to why the Petitioner took nosteps for a long period of 13 years to approach the Court and was in a deep slumber. It is pertinent to note that after representingin 2018, Petitioner filed this writ petition after 5 years on 20.02.2023 andnothing is spelt out in the body of the writ petition, which even remotely explainsthe reason for delay in approaching the Court,save and except, an averment that in the meantime, Petitioner was promoted as Additional Director/Senior Regional Director as per 7th CPC on 30.05.2022 w.e.f. 23.07.2011.
13. This Court finds merit in the objection of the Respondents that the writ petition is barred by delay and laches, which is a time honoured and enduringprinciple and must be applied at the threshold by the Courts to ensurethat staleclaims are not entertained. Issue of delay and laches becomes pronounced when the relief sought by a Petitioner pertains to grant of seniority and/or promotion. It needs no reiteration that if the reliefs sought by the Petitioner, as aforementioned, are granted, the consequential effect would be his promotion to the post of Deputy Director w.e.f. 30.09.2001 and this would lead to the inevitableresult of adversely affecting the seniority of other employees in IGNOU, who were promoted to the said post when the Petitioner was unsuccessfulor even through the subsequent selections,thereby unsettling a seniority which has remained settled for over two decades. Grant of such a relief, assuming the Petitioner succeeds in the writ petition, would be in the teeth of the binding dictum of theSupreme Court that long settled seniority must not be unsettled. The maxim Vigilantibus Non Dormientibus Jura Subveniunt clearly applies in the present case i.e. law assists only those who are awake and vigilant and diligently pursue their rights and not those who sleep over the rights.
14. In this context, I may allude to the judgment of the Supreme Court in B.S.Bajwa v. State of Punjab, (1998) 2 SCC 523, where it was held that in service matters, question of seniority should not be reopened after lapse of a reasonable period as this results in disturbing settled positions, which is not justified. In P.S. Sadasivaswamy v. State of Tamil Nadu, (1975) 1 SCC 152, the Supreme Court held that a petition filed after 14 years, challenging promotion of another employee should not be entertained andif a person has a grievance in this regard, he must approach the Court of law, at the earliest opportunity.In Ramchandra Shankar, Deodhar and Others v. State of Maharashtra and Others, (1974) 1 SCC 317, the Constitution Bench of the Supreme Court held that any claim for seniority or promotion at a belated stageshould be rejected as it seeks to disturb vested rights of other persons regardingseniority,rank and promotion, which have accrued to them during the intervening period.
15. It would be profitable to refer to a recent judgment of the Division Bench of this Court in Ramsharan v. Chairman Indian Oil Corporation Ltd., 2022 SCC OnLine Del 3982, wherein theCourt has held as follows:-
xxx xxx xxx
10. Applying the said principles to the facts of the present case, according to the Appellant, he was deprived of his promotion when he was to be promoted to Grade C Officer in 1994. Admittedly, there was delay in his promotion to Grade D Officer, wherein, according to the Appellant he ought to have been promoted as Grade D Officer in 1998 whereas he was actually promoted in 2001. Similarly, there was delay in his promotion to Grade E Officer wherein, according to him, he ought to have been promoted in 2002 whereas he was actually promoted in 2006,and as Grade F Officer also, wherein he was actually promoted in 2014 whereas according to the Appellant he ought to have been promoted in 2005.
11. Assuming that the Appellant had approached this Court in 2019, then also it was only after a lapse of 25 years from his first promotion, which according to him ought to have been granted to him in 1994, but was actually granted in 1995. Other than stating that he has been discriminated on the basis of caste and that he has given certain representations to the National Commission for Scheduled Castes and also before the Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes and that he was fearing repercussions for approaching the Court, the Appellant herein has not given any acceptable reason as to why he has approached the Court belatedly. A claim for promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time [Refer: Ghulam Rasool Lone v. State of J&K, (2009) 15 SCC 321].”
16. The last plank of the argument of the Petitioner is that if he is promoted,he wouldbe entitled to higher salary and emoluments and the relief claimed in the writ petition is essentially one of pay and allowances,which is a continuing cause of action.This contention, in my view, only deserves to be rejected. Grant of higher pay scale and other emoluments is only a consequential benefit,if the Petitioner was to succeed in the substantive relief of promotion to thepost of Deputy Director and therefore, it is this hurdle which the Petitioner is required to cross first, which he has failed to do. It bears repetition to state that the relief claimedby the Petitionerfor grant of promotion is barred by delay and laches and thus,the writ petition cannot be entertained only because the consequential relief of pay and allowances may be a continuous cause of action. The judgment in M.R. Gupta (supra) is thus wholly inapplicable to the present case. Albeit subtly, it was also urged that Petitioner had been representing in the hope of getting favourable responsefrom the Respondents and therefore, he did not approach the Court earlier. Making repeated representations and waiting for their disposal for over 2 decades can hardly be a justification to seek condonation of delay, more particularly,when the claim pertains to promotion and seniority, retrospectively from the year 2001. It is a settled law that representations do not extend or condonethe limitation period. [Ref. Surjeet Singh Sahni v. State of U.P. & Ors., 2022 SCC Online SC 249 and State of Tripura and Others v. Arabinda Chakraborty and Others, (2014) 6 SCC 460]
17. For all the aforesaid reasons, this Court cannot entertain the present petition, which is barred by doctrine of delay and laches and the same is accordingly dismissed.
JYOTI SINGH, J FEBRUARY 24, 2023