Service matter

[pawan kumar]

I put in application for promtion. The rply to application was not given by the depaetment. The matter remained pending with office since 2007. I have asked information under rti. After rwceipt of indormarion under rti i want to file writ in thw high court. Is my case time barred. Should i filw writ so that the case does mot fail becausw of delay and laches. Kindly advise.

[Dr. Ashok Dhamija]

The relevant date is not when you applied for promotion, but the date when you were actually denied the promotion ignoring your seniority and your junior was promoted instead. Though you have mentioned that you applied for promotion in 2007, but you have not mentioned on which date actually you were denied your promotion ignoring your seniority and giving promotion to a junior.

In the matter of promotion, usually the principle of limitation will be applicable. An inordinate delay in filing the petition challenging the denial of promotion may lead to rejection of your petition. In fact, even if you want to file a writ petition in high court under Article 226 of the Constitution (presuming that a writ will be maintainable in your case), please remember that it has been held that though for writ jurisdiction under Article 226 of the Constitution no specific period of limitation is prescribed, but general principles of delay and laches apply. When a petitioner approaches the Court by way of a stale claim, he seeks to unsettle the settled matters, and this should not be permitted.

The Supreme Court has held that promotions should not be disturbed after an inordinate delay. Merits need not be examined when a belated challenge is made to promotions and seniority, as that would create a sense of uncertainty and insecurity amongst government servants. A person feeling aggrieved must approach the Court at the earliest.

It has further been held that if anyone feels aggrieved by an administrative decision affecting one’s seniority (which basically leads to denial of promotion), the said government employee should act with due diligence and promptitude and not sleep over the matter. Raking up old settled claims after a long time in questioning seniority etc. is likely to cause administrative complications and difficulties. This would be contrary to the interest of smoothness and efficiency of service. The quietus should not be disturbed and shattered after a lapse of time.

In the case of Union of India v. Tarsem Singh, (2008) 8 SCC 648, the Supreme Court observed as under:

“To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”

So, please keep these issues in mind. Since your question is vague, I have reproduced the above legal principles for your benefit.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[pawan kumar]

Sir thank u for. The exact position is as below:
On 22.12 95 a person who was senior to me was promoted as se. Scale stenographer withoit holding test on adhoc basis agaist the post of PA. Our seevice bye laws provide merit cum semiority for promotion. I submitted a0lication on 23.10.97 stating that the promotion has been givwn effect to on rhe basis of seniority alone and the aspect of merit has been totally ignored whereas in the case of promotion from steno typist to junior scale stenographer test has been conduct and merot cum seniority has been kept im view. Therefore matter may kindly be reviewed and element of merit by conducting a suitable test may please be applied. In reply to my letter, two different issues icluding the present one were considered and rejected on 07.12.98 without issuing a speaking order. On 08.12.98 i wrote that two transparently different issues have been intermingled as these do not reach any conclusion. No reason has been adduced which may prove that the matter was considered on merits. Therefore the matter be considered de novo and speaking orders be issued in each case. Under rti act my department on 24.09.2008 gave information that my application dated 08.12.98 was not received in the head office and the points raised in the application have been decided in the court. Therefore no further action os required in this case. I may submit that under rti i was given information. Thus between 1998 to 2008 thete is gap of more than 9 years. It is stated that i did not file any case in any court with regard to the above matter. Thus on 15.12.2008 i wrote that when i did not file case in any court can it be decided without filing in any court. This be intimated. Further my request for promotion is still pending. I wrote that the cade regarding grant of pay scale of PA has been settled by the court and the issue regarding request for promotion is still pending. I further wrote in the application that when the matter has come for consideration even after more than 9 1/2 years which is not due to my fault due considereation is required to be given and speaking and suitable order in the case i. e. application dated 23.10.1997 may kindly be issued keeping in view the facts, circumstances and situation prevailing at thst time.
This apication was not replied to by the department. Now under rti I have received noting dated 13.01.2009 written on my application dated 15.12 2008 reads that the the represenation has neen submited after two years and the employee has given advise to the competent authority but has not intimated that with the promtion of sh. Kulwant singh he has been put to loss and at at that time the record of the employee was not good. Therefore at this stage to say by the employee speaking order be passed on his representation is not wajib(appropriate).
Kindly advise in this case. Is the case time barred and is there merit in this case. Is it advisable to contest this case.

[Dr. Ashok Dhamija]

I do not think you have any chance. You are thinking of challenging 1997 promotion order, and that too when the person promoted was not junior to you.      

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[pawan kumar]

Sir once again i seek ue guidance in service matter. I am sr.most jr. Scale stenographee. The department held test for promotion to the post of sr. Scale stenographer. I qualified the English test but failed in the Punjabi stenography test. My junior qualifed both the test and has been prpmoted
Is there any law which can come to my rescue because i am senior and junior has been promoted.

[pawan kumar]

Sir i requested for guidance with regard to junior having been promoted by holding test of stenpgraphy which i could not qualify. Kindly guide me on this matter as to what should I do.

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