WP(C)/14/2010 of Syriac Joseph Vs The Department of Information Tehnology on 1 September 2010

JUDGEMENT

DINAKARAN, CJ

The petitioner is challenging the promotion of thecontesting respondents no. 6 to 19 from the post of ComputerProgrammer to the post of Assistant Director and the furtherpromotion of respondents no. 6, 7 and 8 to the post of DeputyDirector, as per the following table:

:``, `` ..

®

`` TAB LE

2. The main grievance of the petitioner is that he is theseniormost Computer Programmer as compared to that ofrespondents no. 6 to 19 and that he also possesses the requisitequalification to be promoted as Assistant Director, as per theNotification No. 12/GEN/DOP dated 17.04.2001 of theGovernment of Sikkim, published in the Official Gazette dated01.05.2001, relevant portion of which reads as hereunder: -seniormost Computer Programmer as compared to that ofrespondents no. 6 to 19 and that he also possesses the requisitequalification to be promoted as Assistant Director, as per theNotification No. 12/GEN/DOP dated 17.04.2001 of theGovernment of Sikkim, published in the Official Gazette dated01.05.2001, relevant portion of which reads as hereunder: - ®

GOVERNMENT OF SIKKIMDEPARTMENT OF PERSONNEL, ADM.REFORMS & TRAININGGANGTOK

No. 12/GEN/DOP

Dated: 17.4.2001

In exercise of the powers conferred by theproviso to Article 309 6f the Constitution of India, theGovernor hereby makes the following rules regulatingthe method of recruitment to the posts of AssistantDirector, Deputy Director, Joint Director, AdditionalDirector and Director in the Information TechnologyDepartment, namely:

1. Short title and commencement:

(1) These rules may be called the Sikkim StateInformation Technology ServiceRecruitment Rules, 2001;Information Technology ServiceRecruitment Rules, 2001;

(2) They shall come into force at once.

Number of posts, classification and scale of Pay:

The number of posts, their classification andscales of pay attached thereto in relation to the postsof Assistant Director, Deputy Director, Joint Director,Additional Director and Director shall be as specified incolumn 2, 3 and 4 of the Schedule.

3. Method of recruitment, age limit,qualification, etc.=

The method of recruitment, age limit,qualification and other matters relating to the saidposts of Assistant Director, Deputy Director, JointDirector, Additional Director and Director shall be asspecified in column 5 of the Schedule.

4. Power to relax -Where the state Governmentis of the opinion that it is necessary or expedient so todo, it may, by an order, for reasons to be recorded inwriting, relax any of the provisions of these rules withrespect to any class or category of persons.

Provided that where no suitable sufficientprovisions have been made in so far as the SikkimState Information Technology Service RecruitmentRules are concerned, the provisions as applicable tothe staff/officers of the corresponding grade shall,mutatis mutandis apply subject to such modificationas may be made or required to be made.

5. Saving= Nothing in these rules shall affectreservation, relaxation of age limit and otherconcession required to be provided to the ScheduledCastes, Scheduled Tribes, Other Backward Classesand other special categories of persons in accordancewith the orders issued by the State Government fromtime to time in this regard.

6. Unless otherwise specified by a separate orderthe expenditure on salaries of the incumbentsappointed under the Sikkim State InformationTechnology Service Recruitment Rules 2001 shall bemet from the Budget Head 2852-07-800-OE-40-IT-400001-Salaries under PLAN.

R.S. BASNET,

Secretary to the Government of Sikkim,Department of Personnel, Adm.Reforms and Training.

SCHEDULE

SI Name of Number Classification Scale Method of EligibilityNo post of posts /Grade of pay recruitment conditions required fordirectrecruitment/promotees

1. Assista nt 5Director

JuniorGrade Rs. 1 post by Age bet-

7000- deputation weed 21

225-or Transfer years and

11500 and4posts 30 years.

by direct Upper age

recruitment l]mit

after relaxable by

2002 AD five years in

tlie case ofScheduledTribe/ScheduleCastecandidates EP,.

e)

aha by threeyears in thecase ofOtherbackwardClassescategory ofcandldates.Educat]onalQualification- Graduateswith PGDiploma inComputerapplicationfrom arecogniseduniversitywith 1 yearsexperiencein Informa-tion Techno-logy ORelectronicsGradLlatesor ComputerScienceGraduateswlth 1 yearsexperienceinInformationTechnologyOr Master lnComputerApplication.

3.1 Mr. A. Moulik, learned senior counsel appearing for thepetitioner contends that the promotion of the contestingrespondents no. 6 to 19 are discriminatory, arbitrary andunreasonable.

3.2 Mr. Moulik, further contends that respondents no.10,11 and 12 were promoted from the post of ComputerProgrammer to the post of Assistant Director by promotion,which post, as per the provision of Sikkim State Information S.

Technology Service Recruitment Rules, 2001, ought to be filledup only by direct recruitment. Hence, the writ petition.

4.1 Mr. J.B. Pradhan, learned Additional Advocate Generalappearing on behalf of the State-respondents clarify that as perthe Notification No. 12/GEN/DOP dated 17.04.2001, referred toabove, all the posts of Assistant Director are to be filled up bydirect recruitment, except one post which is to be filled up bydeputation or transfer.

Conclusion

4.2 Learned Additional Advocate General further clarifiesthat even though it stated that the respondents no. 6 to 19 werepromoted to the post of Assistant Director, they were notpromoted but considered for direct recruitment as internalcandidates, at different point of time, which varies from 2003 to2008 because the relevant Rules notified on 17.04.2001, referredto supra, provides for recruitment of Assistant Directors only byway of direct recruitment/by deputation or transfer, but not bypromotion as contended by the petitioners.

4.3 Mr. J.B. Pradhan, learned Additional Advocate Generalcontends that the petitioner is not entitled to challenge thepromotion of contesting respondents no. 6 to 19 to the posts ofAssistant Director which was made in the years 2003 to 2008, as ®

the respondents were considered not as promotees, but as directrecruits, considering them as internal candidates.

4.4 Mr. J.B. Pradhan, learned Additional Advocate Generalfurther contends that since the respondents no. 6, 7 and 8 weresubsequently promoted to the post of Deputy Directors witheffect from 02.03.2009, the petitioner, who never challenged thepromotion of the respondents No. 6, 7 and 8 to the post ofAssistant Director with effect from 23.06.2003, is not entitled tochallenge the promotion of respondents No. 6, 7 and 8 to thepost of Deputy Director at this point of time. According tolearned Additional Advocate General, when the petitioner himselffailed to approach the Court in time to challenge the recruitmentof respondents no. 6 to 19 to the posts of Assistant Director andalso failed to challenge the subsequent promotion of respondentsNo. 6, 7 and 8 to the posts of Deputy Director immediatelythereafter, he is not entitled to challenge the said promotionsnow, as per the decision of the apex Court in

(i) P.S. Sadasivalswamy vs. State of TamilNadu reported in (1975) 1 SCC 152; andNadu reported in (1975) 1 SCC 152; and

(i.i) Shiv Dass vs. union of India and others reported in (2007) 9 SCC 274.

`...a+`',- .

®

4.5 Learned Additional Advocate General also brought tomy notice that the Government of Sikkim had framed the SikkimState Subordinate Information Technology Service RecruitmentRules, 2005, notified by a Notification No. 143/GEN/DOP dated06.05.2005, and the service of the petitioner as a ComputerProgrammer is governed by the same. Clause 5 of the said Rulesreads as hereunder:

``5.Persons holding duty posts:-

All persons holding duty posts on theappointed day shall be deemed to havebeen appointed to the corresponding dutyposts respectively held by them."

4.6 As per the Subordinate Service Rules dated06.05.2005, referred to above, the learned Additional AdvocateGeneral submits that the petitioner is in Seniority No. 2.

4.7 In any event Mr. Pradhan, the learned AdditionalAdvocate General fairly submits that the case of the petitionerwill be considered not for promotion but for direct recruitment tothe post of Assistant Director, treating him as an internalcandidate, as in the case of respondents no. 6 to 19, as per theSikkim State Information Technology Service Recruitment Rules,2001, as referred to above, within a period of three weeks fromthedateof rece,ptofth,sorder JET

®

Mr. A. Moulik, learned senior counsel appearing for thepetitioner, of course, has fairly concedes that the petitioner willbe satisfied, if he is considered as an internal candidate to thepost of Assistant Director as in the case of contestingrespondents no. 6 to 19.

I have given careful consideration to the submissionsmade by the learned counsels for the parties.

7.1 It is the settled law that the petitioner has not chosento challenge the recruitment of respondents no. 6 to 19 asinternal candidates for the posts Assistant Director, which wasmade in the years 2003 to 2008 and the subsequent promotionof respondents No. 6, 7 and 8 to the posts of Deputy Director on02.03.2009.

7.2 The petitioner had not chosen to challenge therecruitment of respondents no. 6 to 19 as Assistant Directorsmade in the years 2003 to 2008 and the subsequent promotionof respondents No. 6, 7, and 8 to the posts of Deputy Directorwith effect from 02.03.2009, and therefore, he is not entitled tochallenge the same after lapse of more than seven years.

ri`-.` .

7.3 The above view is also supported by the law laid downbv the apex Court .in Karnataka Power Corpn. Ltd through itsChairman & Managing Director and another vs, K.Thangappan and another reportecl .in (2006) 4 SCC 322,wherein it held as follows: - ``6. Delay or laches is one of the factors whichis to be borne in mind by the High Court whenthey exercise their discretionary powers underArticle 226 of the Constitution. In anappropriate case the High Court may refuse toinvoke its extraordinary powers if there is suchnegligence or omission on the part of theapplicant to assert his right as taken inconjunction with the lapse of time and othercircumstances, causes pre].udice to the oppositeparty. Even where fundamental right is involvedthe matter is still within the discretion of theCourt as po.ir\ted .in Durga Prashad v. ChiefController of Imports and Exports. Or course,the discretion has to be exercised judicially andreasonably.

7. What was stated in this regard by SirBarnes Peacock in Lt.ndsay Pefrio/eum Co, v.Prosper Armstrong Hurd (PC at p,239) wasapproved by this Court in Woon Mt.//s Ltd. V, W.R.Meher ar\d Maharashtra SRTC v. Shri BalwantRegu/ar Wofor Serv/.ce. Sir Barnes had stated:

``Now, the doctrine of laches in courts ofequity is not an arbitrary or a technicaldoctrine. Where it would be practicallyunjust to give a remedy either because theparty has, by his conduct done that whichmight fairly be regarded as equivalent to awaiver of it, or where by his conduct andneglect he has though perhaps not waivingthat remedy, yet put the other party in asituation in which it would not be reasonable to place him if the remedy wereafterwards to be asserted, in either ofthese cases, lapse of time and delay aremost material. But in every case, if anargument against relief, which otherwisewould be I.ust, is founded upon mere delay,that delay of course not amounting to a barby any statute of limitation, the validity ofthat defence must be tried upon principlessubstantially equitable. Two circumstancesalways important in such cases are, thelength of the delay and the nature of theacts done during the interval which mightaffect either party and cause a balance ofI.ustice or injustice in taking the one courseor the other, so far as it relates to theremedy.,, It would be appropriate to note certaindecisions of this Court in which this aspect hasbeen dealt with in relation to Article 32 of theConstitution. It is apparent that what has beenstated as regards that article would apply, afortiori, to Art:icle 226. It was observed inRabindranath Bose v. Union of India that norelief can be given to the petitioner who withoutany reasonable explanation approaches thisCourt under Article 32 after inordinate delay. Itwas stated that though Article 32 is itself aguaranteed right, it does not follow from thisthat it was the intention of the Constitution-makers that this Court should disregard allprinciples and grant relief in petitions filed afterinordinate delay.

9. It was stzlted .in State of M.P. v. NandlalJa/.swa/ that the High Court in exercise of itsdiscretion does not ordinarily assist the tardyand the indolent or the acquiescent and thelethargic. If there is inordinate delay on the partof the petitioner and such delay is notsatisfactorily explained, the High Court maydecline to intervene and grant relief in exerciseof its writ ].urisdiction. It was stated that thisrule is premised on a number of factors. The Zgr,.

e

High Court does not ordinarily permit a belatedresort to the extraordinary remedy because it islikely to cause confusion and publicinconvenience and bring, in its train newinjustices, and if writ jurisdiction is exercisedafter unreasonable delay, it may have the effectof inflicting not only hardship and inconveniencebut also injustice on third parties. It was pointedout that when writ jurisdiction is invoked,unexplained delay coupled with the creation ofthird party rights in the meantime is animportant fact which also weighs with the HighCourt in deciding whether or not to exercise suchjurisdiction,

10. It has been pointed out by this Court in anumber of cases that representations would notbe adequate explanation to take care of delay.This was first stated in K. V. Raja/akshm/.ah Sect)rv, State of Wysore. This was reiterated inRab/.nc/ranath Bose case by stating that there is alimit to the time which can be consideredreasonable for making representations and if theGovernment had turned down onerepresentation the making of anotherrepresentation on similar lines will not explainthe delay. In State of Orissa v. PyarimohanSamanfaray making of repeated representationswas not regarded as satisfactory explanation ofthe delay. In that case the petition had beendismissed for delay alone. (See Sfafe of Ort.ssav. Arun Kumar Patnaik also)."

8. As rightly pointed out by the learned Additional AdvocateGeneral, even though, the respondents nos. 6 to 19 wereappointed as Assistant Director considering them as internalcandidates and recruited only by way of direct recruitment, theRule provides only for direct recruitment/deputation or transfer.Therefore, the allegation of the petitioner that respondents no. 6

to 19 were promoted from the post of Computer Programmer tothe post of Assistant Director is not correct, as there cannot beany promotion which is not provided in the relevant Rules.

9. However, I appreciate the stand taken by the learnedAdditional Advocate General that the respondents No. 1 and 3would consider the petitioner as an internal candidate for directrecruitment to the post of Assistant Director at the earliest pointof time, in any event within three weeks from the date of receiptof this Order.

Hence, suffice it to record the statement of thelearned Additional Advocate General that the respondents No. 1and 3 are prepared to consider the case of the petitioner, who isalso fully qualified for appointment to the post of AssistantDirector, as an internal candidate, as in the case of respondentsNo. 6 to 19 for the post of Assistant Director within a period of 3weeks from the date of receipt of this order.

The writ petition thus stands disposed of accordingly.

IndexInternetrs,./jks

;rfe--_.

(P.D. DINAKARAN, CJ)