9911796707
TMI Blog1973 (2) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... that Sri A. Naik (serial 12) and Sri K.C. Patnaik (serial 17) of the list furnished in your letter under reference who have already got promotion to the Grade II U. D. Assistant may be reverted to L. D. Asstt. Sri S.N. Naik (serial 9) and Sri B.C. Mohanty (Serial 10) who are senior to Sri A. Naik and Sri K.C. Patnaik may be promoted to Grade II U. D. Assistant with effect from the date from which Sri A. Naik and Sri K.C. Patnaik reverted to L. D. Assistant. The inter se seniority of those 10 assistants in the rank of U. D. Grade II Assistant may be the same as in the rank of L. D. Assistants irrespective of their date of Promotion to the rank of U. D. Grade II assistants. As regards creation of extra Grade II posts you are advised to give proper facts and figures and sufficient justification for such creation separately. You are also requested to implement this order immediately without postponing it on this ground or that . It is to be noted that Government in annexure-1 did not direct reversion of opp. party No. 3. As the Chief Engineer (O. P. No. 2) did not implement annexure-1, the petitioner and Sri Sachida-nanda Naik, another aggrieved lower division assistant filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rightly promoted. The previous Government order issued in this Department letter No. 15418 dated 20-8-1968 and No. 10531 dated 10-5-1969 stand cancelled. 2. As annexure-1 was cancelled, the petitioner along with another filed O. J. C. No. 709/70. Therein, the petitioner pleaded that though more than three months had elapsed from 2nd April. 1970 when annexure-2 was passed, the inter se seniority in Grade II of the petitioner vis-a-vis opp. parties 3 to 5 had not been fixed, and the petitioner had not been promoted as a Grade II U. D. Assistant. The prayer in that writ application was for issuing a writ of mandamus or any other appropriate writ to implement annexure-2. In this O. J. C. on behalf of opposite parties 1 and 2 a memo, with an affidavit was filed on 12-8-1970 stating that the Inter se seniority of the petitioner and opposite parties 3 to 5 had been fixed on 10-8-1970 as per the direction of this Court. On 17-8-1970, on behalf of the petitioner, a memo was filed to the following effect: I am instructed that the opposite parties have fixed the inter se seniority of the petitioners as L. D. Assistant and not in U. D. Grade II Assistant. Therefore the opp. p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senior to opposite parties 3 to 5 and they were promoted on different dates without taking into consideration his case for promotion. The writ application has been filed under Articles 226 and 227 of the Constitution for quashing annexure-A dated 24th November, 1969, which was communicated to the petitioner by annex-8, and for issuing a writ of mandamus directing opp. parties 1 and 2 to consider the case of the petitioner for promotion to Grade II upper Division as on dates when opp. parties 3 to 5 were promoted. 4. In the counter filed on behalf of the opp. parties 1 and 2, it is asserted that the petitioner's case was duly taken into consideration for promotion at all stages. He has no right to promotion though he is entitled to be considered for promotion. Annexure-1 was not the final order and had not been communicated to the petitioner, and he cannot base any right thereon. The matter was subsequently re-examined and annexure-1 was cancelled by annexure-A, and the writ application is liable to be dismissed. 5. The following contentions were advanced by Mr. Dora on behalf of the petitioner: (i) Annexure-1 finally determined the petitioner's right to be senio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to be dismissed as against opp. Parties 3 and 4 on account of laches and delay on the part of the petitioner. 6. It was very strenuously contended by Mr. Dora that annexure-1 in which Government decided that opposite parties 4 and 5 would be reverted as lower division assistants and the petitioner would be promoted to upper division Grade II with effect from the date Sri K.C. Patnaik (opp. party No. 5) reverted, finally determined the rights of the parties. The learned Government Advocate, on the other hand, contends that by an-nexure-1 the Government had taken no final decision which was taken in annexure-A, wherein it was held that Sri B.C. Mohanty (the petitioner) was not suitable for promotion. This controversy necessitates an examination of the question as to when a government's order becomes final. 7. Article 163(3) of the Constitution lays down that the question whether any, and if so what advice was tendered by Ministers to the Government shall not be inquired into in any Court: that means, the advice of the Minister to the Governor cannot be tendered in any evidence. Article 166 lays down that all executive action of the Government of a State shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the concerned, the Government loses control over the matter and it is here that the order becomes complete and effective. For an order of the Government to become effective, the crux therefore is that it should have been put into the course of transmission to the concerned so as to be out of the control of the Government. It does not matter what course such transmission takes. It may be by hand, by post or by some such agency or through a subordinate office of the Government. In each case, however, the matter goes out of the control of the Government as soon as it leaves the premises of the Secretariat to which it pertains. Merely because the order is sometime routed through a subordinate office, it cannot be said that the matter is still under the control of the Government as long as it does not leave such subordinate office any such view is likely to lead to anomalous and absurd results. We find nothing in this passage which supports the contention that annexure-1 was not a provisional but the final order. Until such an order reaches the person concerned, it does not attain any finality. It is open to Government even to recall a letter sent to another office before it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onger res integra. The matter is concluded by a series of Supreme Court decisions. The question has been fully discussed by a Bench of this Court in 1973 (1) CWR 63 Biharilal v. Sales Tax Officer where it was held that the principle of constructive res judicata is applicable to writ proceedings. They Placed reliance on. Dar-yao v. State of U. P., Devilal Modi v. Sales Tax Officer. Ratlam and. Union of India v. Nanak Singh. It would be superfluous to traverse the same ground again. It would be sufficient to say that we find no substance in the contention of Mr. Dora. 9. On the aforesaid analysis it cannot be contended in this writ application that annexure-1 finally determined the inter se seniority. The same is barred by the principle of constructive res judicata. 10. It was then contended by Mr. Dora that even if annexure-1 cannot be relied upon to finally determine the inter se seniority by the judgment of this Court, annexure-2, opp. Parties 1 and 2 should have determined the same within three months. It must be pointed out that by annexure-A Government had already decided that the petitioner was not entitled to promotion on the basis of merit and suitability. The Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be dismissed on the ground that it is barred by res judicata on account of the order passed by this Court in O. J. C. 709/70. 12. The learned Government Advocate advanced a contention that the writ application so far as opposite parties 3 and 4 are concerned, is liable to be dismissed on grounds of laches and delay. Opposite party No. 3 was promoted on 16-8-1963 and the petitioner slept over and filed a representation against it on 19-4-1967 more than three years after. Opposite party No. 4 was Promoted on 26-10-1964 and the representation was filed on 19-4-1967 about two and half years after. The question for consideration is whether this Court should interfere with the promotion of opposite parties 3 and 4 when the petitioner was not vigilant and came after a long delay. 13. It was very strenuously con-tended by Mr. Dora that when constitutional rights are involved, constitutional protection should not be refused merely because there has been delay or laches on the part of the petitioner. To appreciate this contention it would be appropriate to examine when delay or laches defeat equity and this Court should not exercise its discretion in issuing a writ. As this Q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Constitution makers that the Supreme Court should discard all principles and grant relief in petitions filed after inordinate delay. The petitioners in that case attempted to explain the delay by saving that the representations were being received by the Government all the time. This contention was reiected by the following observations: But there is a limit to the time which can be considered reasonable for making representations. If the Government has turned down one representation the making of another representation on similar lines would not enable the petitioners to explain the delay. In, Trilokchand Motichand v. H.B. Munshi the majority view of the Constitution Bench was expressed thus: Para 10. If then there is no period prescribed what is the standard for this Court to follow? I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the Court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of six months h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. In (1971) C WR 443, Kishori Charan Mohanty v. State of Orissa another Bench of this Court examined the very question and made the following observation in paragraph 8. There is no rule any appeal or representation is to be made against an order of retirement. At any rate, when the first representation was not responded to, it was the duty of the petitioner to seek relief without delay. He cannot be allowed to take advantage of his own laches by sitting at home without doing any official work and then at the end of five years claim to be continuing in service and ask for arrears of pay for five years. Even if he has filed a civil suit for arrears of pay, the same would be barred after three years. This is an appropriate case in which the writ application is not to be entertained after such a long delay. The same view was taken in. Kamini Kumar v. State of West Bengal. 14. The various considerations to be kept in mind while determining whether a writ application is liable to be dismissed on account of laches and delay may be summed up on an analysis of the principles enunciated in the aforesaid decisions as follows: (i) The Limitation Act has no application to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in the higher grade by the promotion given to him by the Government. If the representation had been made in appropriate tune without delay, the same could be attended to by the competent authority and it would have involved no additional financial implication for the Government and no difficulty would have been caused in reverting opp. party No. 4 who would have worked in the upper division only for a short time. There was no delay in the making of the representation against the supersession by opp. party No. 5. The writ application against opposite parties 3 and 4 is liable to be dismissed on account of delay and laches, even assuming that the case of the petitioner for promotion had not been taken into consideration when he was superseded by opposite parties 3 and 4. It is unnecessary to examine the plethora of authorities cited by Mr. Dora on the question of delay and laches. All those decisions can be explained by the aforesaid principles and if any one of them makes a departure, the same would be contrary to law. 16. We now take UP the question whether in fact the case of the petitioner was taken into consideration on the various dates when opp. parties 3. 4 and 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moted. Obviously he came to the conclusion that Shri A. Naik was more suitable than Shri S.N. Naik and Shri B.C. Mohanty. So far Shri S.N. Naik and Shri B.C. Mohanty also had no dispute with the decision taken in 1963 and 1964 because they did not file any representation. In the year 1967 Shri K.C. Patnaik Sl. 9 was Promoted. The relevant orders are at p. 11/N' of Chief Engineer's file No. E-III-E-18/68 where the orders have been passed by Shri S.S. Behera, the then Chief Engineer. Here Shri Behera has clearly recorded that Shri K.C. Patnaik was more suitable than Shri K.C. Mohantv. Shri K.C. Patnaik was accordingly promoted. Shri B.C. Mohanty, therefore, can have no grounds of any grievance. * * * Only Shri B. C. Mohantv and Shri K.C. Patnaik were considered since both of them came from the Circle cadre and of these two. Shri K.C. Patnaik was considered better. As per the principle that governs promotions at this level, promotions are to be given on the basis of suitability with due regard to seniority. Here promotions given on all the three occasions namely, 1963. 1964 and 1967 Sarbasri G.N. Sarangi A. Naik and K.C. Patnaik were consider-ed better than Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
