1. Heard Sri Lal Babu Lal, learned counsel for the petitioner and Sri Pankaj Naqvi, learned counsel for the University. On the request of learned counsel for the parties, the writ petition is being decided at this stage under the Rules of the Court.
2. The petitioner is aggrieved by the order dated 22.9.2009/3.10.2009 of Registrar, Banaras Hindu University, Varanasi communicating the decision of the Executive Council rejecting representation of petitioner for placing him in the pay scale of Rs.1400-2300 with effect from 21.7.1986 and 1640-2900/- with effect from 18th August, 1994.
3. The facts giving rise to this writ petition is that the petitioner was appointed as Workshop Assistant (Instrument Repairing) in the pay scale of Rs.260-400/- by order dated 22.7.1981 and confirmed on the said post by order dated 24/27.10.1990 with effect from 26.7.1987. He was promoted as Senior Workshop Assistant vide order dated 1.3.1997 with effect from 13.6.1993 and confirmed on the said post vide order dated 9.1.1999 with effect from 13.6.1994.
4. The petitioner's grievance is that his above promotion was delayed by respondents illegally in as much as the petitioner ought to have been promoted as Senior Workshop Assistant on completion of five years of service as he joined post of Junior Workshop Assistant in 1981. Further he ought to have been considered for further promotion after completion of eight years of service. In this regard he relied on the decision of University as contained in notification dated 3.12.1983 & 13.6.1988 which supersedes the earlier notifications.
5. The petitioner claims that he made several representations to University for granting him higher scale of Rs.1320-2040/- with effect from 21.7.1986, Rs.1400-2300/- w.e.f. 18.8.1994 & replacement pay scale of Rs.1640-2900/- with effect from 18.8.1994. The earliest representation placed on record is dated 21.11.1994 (Annexure 10 to the writ petition) and thereafter another representation sent, which is on record, is 3.11.2003 (Annexure 11 to the writ petition). Thereafter, petitioner filed writ petition no. 5340 of 2006 wherein he challenged order dated 21.12.2005 rejecting his representation by Registrar of the University. The writ petition was dismissed vide judgment dated 9.4.2009 on the ground of availability of statutory alternative remedy of appeal before Executive Council, pursuant whereto the petitioner filed appeal dated 22.4.2009 before the Executive Council which has been dismissed by the impugned order.
6. In the terms of the petitioner, the cause of action, if any, occurred on 27.1.1986 as said in para 17 of the writ petition, for claiming promotion as Senior Lab Assistant. Admittedly, the first representation, if any, was made by petitioner in 1994. The petitioner was actually granted promotion on the post of Senior Workshop Assistant vide order dated 1.3.1997 giving effect from 13.6.1993. He did not raise any dispute or objection thereto and no action was taken by him to challenge the said order of promotion in so far as it allows him promotion to the post of Senior Workshop Assistant only with effect from 13.6.1993 and not earlier thereto. Thereafter by letter dated 9.1.1999 the petitioner was confirmed also on Senior Workshop Assistant with effect from 13.6.1994 but this letter has also not been challenged at any point of time. The copies of the letters dated 1.3.1997 and 9.1.1999 are on record as Annexures no. 4 and 5 to the writ petition. These orders have attained finality. Even in the representations, which are said to have been filed by petitioner, he did not raise any grievance against these two orders but he simply said that he should be declared Senior Workshop Assistant with effect from 21.7.1986 as is evident from annexure 10 to the writ petition. Same has been repeated in his next representation made after almost 9 years on 20.9.2003. The petitioner's latest representation of 2005 was rejected by Registrar as communicated by letter dated 21.12.2005 stating that the decision was already communicated to him by letter dated 4/5.8.2005. It is the letter dated 21.12.2005 which was challenged by the petitioner in the earlier writ petition. Thereafter in appeal also he has not said anything about these two orders dated 1.3.1997 and 9.1.1999 whereby he was promoted as Senior Workshop Assistant with effect from 13.6.1993. It is in these circumstances, I am of the opinion that promotion of the petitioner to the post of Senior Workshop Assistant on a particular date has already attained finality and since order by which promotion was granted to the petitioner, on the aforesaid post from a particular date, was never assailed. It is now not open to the petitioner to raise a dispute regarding promotion on the same post from an earlier date without challenging these two orders even in this writ petition.
7. Besides, there are some more facts which justify the action of the respondents. The petitioner was initially appointed as temporary Workshop Assistant with effect from 22.7.1981 and was confirmed with effect from 1.4.1983 in the scale of Rs.260-430/- which was revised to Rs.975-1540/- with effect from 1.1.1986. The notification dated 3.12.1983 confirming the Executive Council's resolution no. 270 dated 30.9.1983 laid down the channel of promotion of Lab staff which shows that same pattern shall follow in the Workshop area within the frame work of the existing qualification.
8. The petitioner was given appointment as Workshop Attendant in the pay scale of Rs.260-Rs.430/- If the Lab Attendant's Selection Grade is Rs,260-350/- he is to be promoted in Junior Lab Assistant, which is in the scale of Rs.360-430/-. For the purpose of eligibility one must have five years experience as Lab Attendant. The next higher promotion on the post of Senior Lab Assistant is in the scale of Rs.380-560/- for which one must have five years experience as Junior Lab Assistant. If the above hierarchy is to be observed in the workshop also, there being no intervening post of Junior Workshop Assistant, one ought to have served ten years in the feeder cadre. Since the post of Senior Workshop Assistant is treated to be equal to Senior Lab Assistant, it is the third promotional post. However, rules of induction/promotion has been made in the scale with effect from 13.6.1988. The requisite qualification for promotion to the post of Senior Workshop Assistant was five years experience in the feeder cadre with High Schools( Science). This criteria was reduced to Junior High School with 5 years experience with effect from 30.6.1988. It is pursuant to this amendment the petitioner was granted promotion.
9. Be that as it may, as already discussed above, the petitioner was promoted as Senior Workshop Assistant with effect from a particular date and was confirmed also by two separate orders dated 1.3.1997 and 9.1.1999 respectively. The date of promotion by the aforesaid orders has been accepted by the petitioner. These two orders have never been challenged and not even in this writ petition. That be so, the petitioner cannot be allowed to rake up the issue which would have the effect of nullifying these two orders though these orders have not been challenged at all.
10. Moreover, the petitioner is also guilty of latches in as much as if the cause of action, according to his own claim, accrued in 1986, no justification has been shown as to why he remained silent for almost more than 8 years for making first representation in November, 1994 and then 9 years, sitting over the matter, made representation in 2003. This conduct of petitioner also render him disentitled for discretionary & equitable relief under Article 226 of the Constitution of India.
11. It is now well settled that even if there is some error, this Court in exercise of its power under Article 226 of the Constitution is not bound to interfere in case it finds that the petitioner is guilty of undue delay and laches.
12. Delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction under Article 226 of the Constitution of India. In New Delhi Municipal Council Vs. Pan Singh and others J.T.2007(4) SC 253, the Apex Court observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/S Lipton India Ltd. And others vs. Union of India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993, it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed recently in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330= 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423. This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297. In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479 the Apex Court held that it is well settled principle of law that delay defeats equity. It is now a trite law that where the writ petitioners approaches the High Court after a long delay, reliefs prayed for may be denied to them on account of delay and laches irrespective of the fact that they are similarly situated to other candidates who have got the benefit. In Yunus Vs. State of Maharashtra and others, 2009(3) SCC 281 the Court referred to the observations of Sir Barnes Peacock in Lindsay Petroleum Company Vs. Prosper Armstrong Hurde etc. (1874) 5 PC 239 and held as under:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. . . . . . . Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
13. On the question as to whether the Court is bound to set aside an order which is otherwise found not in accordance with law, the precedents is that in exercise of power under Article 226 this Court is not bound to do so. In Champalal Binani V. The Commissioner of Income Tax West Bengal and others AIR 1970 SC 645 the Apex Court while dealing with jurisdiction of the Court with respect to issuance of writ of certiorari held that "a writ of certiorari is discretionary, it is not issued merely because it is lawful to do so."
14. In Durga Prasad Vs. The Chief Controller of Imports and Exports & others, AIR 1970 SC 769 (para 7) and in Bombay Municipal Corporation for Greater Bombay vs. Advance Builders (India) Pvt. Ltd. AIR 1972 SC 793 (para 13) it was held that writ jurisdiction is discretionary and the Court is not bound to interfere even if there is error of law.
15. It would be appropriate to refer at this stage the view expressed by the Apex Court in Municipal Board, Pratabgarh and another Vs. Mahendra Singh Chawla and others 1982(3) SCC 331 wherein it was held:
"........this Court is not bound to tilt at every approach found not in consonance or conformity with law. The interference may have a deleterious effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said, 'rule of law must run akin to rule of life. And life of law is not logic but experience'. By pointing out the error which according to us crept into the High Court's judgment the legal position is restored and the rule of law has been ensured its prestine glory. Having performed that duty under Article 136, it is obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136"
16. What has been observed by the Apex Court with reference to Article 136 of the Constitutions, in my view would equally be applicable when this Court is required to exercise its equitable extraordinary jurisdiction under Article 226 of the Constitution of India. In a given case, having set legal position straight, still this Court may decline to interfere where the equity justifies the same or where the fact and circumstances warrant that discretionary relief should be declined.
17. In Ramnik Lal N. Bhutta and another vs. Vs. State of Maharashtra, AIR 1997 SC 1236, the Apex Court observed:
" The power under Article 226 is discretionary. It will be exercised only in furtherance of interest of justice and not merely on the making out of a legal point." (Para 10)
15. In State of H.P.Vs. Raja Mahendra Pal & others (1999) 4 SCC 43 in para 6 of the judgment the Apex Court held :
"............It is true that the powers conferred upon the High Court under Article 226 of the Constitution are necessary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional court should insist upon the party to avail of the same instead of invoking of extraordinary writ jurisdiction of this court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article............"
18. Similarly, in Director of Settlement Vs. M.R. Apparao (2002) 4 SCC 638 in para 17 the Apex Court held that the power vested in High Court under Article 226 of the Constitution is discretionary.
19. In the result, I do not find it a fit case warranting interference under Article 226 of the Constitution of India. The writ petition is dismissed.
20. No order as to costs.
Order Date :- 11.2.2011 P.P.