IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.9.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE C.T.SELVAM Writ Appeal No.385 of 2008 C.Sakthivel ... Appellant Vs. 1.The Government of Puducherry, rep.by Chief Secretary, Puducherry. 2.Pondicherry Khadi and Village Industries Board, rep.by its Chairman and Secretary, Puducherry. 3.The Chief Executive Officer, Pondicherry Khadi and Village Industries Board, Plot 1 and 2, Kamaraj Salai, New Saram, Puducherry. 4.Accounts Officer, Pondicherry Khadi and Village Industries Board, Puducherry. 5.G.Krishnaraj 6.C.Jayaraj 7.K.Radhakrishnan 8.O.Ilango 9.District Industries Centre, rep.by its General Manager, Puducherry-605013. ... Respondents * * * Writ Appeal preferred under Clause 15 of the Letters Patent as against the order of the learned single Judge dated 25.10.2007 made in W.P.No.33723 of 2007. * * * For appellant : Mr.S.Vaidyanathan For R.1 & R.9 : Mr.P.Murugesan, Govt.Pleader (Puducherry) For R.2 to R.4 : Mr.T.P.Manoharan For R.5 to R.8 : Mr.T.P.Manoharan * * * JUDGMENT
ELIPE DHARMA RAO, J.
The appellant, challenging the promotion given to the respondents 5 to 7 herein as Loan Inspector Grade-I by the proceedings dated 22.6.1998 and the promotion given to the 8th respondent as the Loan Inspector Grade-I by the proceedings dated 3.3.1999 and the further promotion given to the 5th respondent as the Development Officer (ad hoc) by the proceeding dated 2.3.1999, has filed W.P.No.33723 of 2007 before this Court and a learned single Judge of this Court has dismissed the said writ petition on ground of laches. Aggrieved, the present writ appeal has been filed by the writ petitioner/appellant.
2. No doubt, in the case on hand, the delay is glaring. To explain, the appellant is challenging the promotions given to the respondents 5 to 8 during the years 1998 and 1999, by filing a writ petition in the year 2007 i.e. after a lapse of 9 years, which has prompted the learned single Judge to dismiss his claim on ground of laches.
3. There cannot be any exception to the settled legal proposition that delay defeats equity. But, whether the delay alone would prevent a person from seeking his substantial rights has to be considered with regard to the facts and circumstances of each case and if the delay has been properly explained by the party knocking the doors of the Court and if the reasons for such delay are beyond the control of such a party, the same cannot be put against the rightful claim of an individual.
4. Now, we shall proceed to dissect as to whether the appellant in the case on hand has explained the delay properly.
5. The impugned promotions pertain to the years 1998 and 1999. As could be seen from the voluminous material available on record, the Audit report has pinpointed the irregularities committed by the Department while effecting promotions and regularisations. Instantly, the Audit Report has found fault with the regularisation of Mr.O.Ilango, the 8th respondent herein also.
6. Though a lengthy counter-affidavit has been filed by the official respondents in this appeal, their only stress is on the point of laches and on the other point that the appellant is enjoying the Senior Pay scale from 1.11.1998 and therefore, without challenging and setting aside the order granting him the Senior Pay Scale, he cannot file the writ petition challenging the promotions given to others.
7. On the part of the appellant it has been maintained that he is the senior most in the Loan Inspector Grade-II and surpassing him and without conducting any test, his juniors the respondents 5 to 8 were promoted to the Loan Inspector Grade-I and subsequently, the 5th respondent was again promoted as Development Officer on ad hoc basis.
8. From the materials placed on record, we are able to see that the appellant and the respondents 5 to 8 have joined as the Loan Inspectors Grade-II on ad hoc basis from 29.8.1988 and from the proceedings dated 3.9.1997 it is seen that their services are regularized in the post of Loan Inspector Grade-II with effect from 3.9.1997. As could be seen from the proceeding dated 3.9.1997, the order of seniority is as follows:
1.C.Sakthivel (the appellant herein)
2.G.Krishnaraj (the 5th respondent herein)
3.C.Jayaraj (the 6th respondent herein)
4.O.Ilango (the 8th respondent herein)
5.C.Counasegarane
6.K.Radhakrishnan (the 7th respondent herein)
7.R.Souganandam
8.8.R.Nambiraj
9.K.Rassendiran
10.R.Ravi
This position of seniority has not been disputed by the official respondents. Therefore, it is clear that the appellant is the senior most in the list.
9. From Appendix-XXIII of the Recruitment Rules of the Government of Pondicherry, the post of Loan Inspector is a Selection Post and the qualification is (i) a pass in Matric or its equivalent and (ii) should have undergone training in Karya Kartha course in Village Industries in any of the Vidhyalayas approved by Khadi and Village Industries Commission. Likewise, Appendix-XXXIII of the said Recruitment Rules deals with ‘Recruitment Rules for the post of Loan Inspector Grade-I’. As per these Rules, the post of Loan Inspector Grade-I is also a Selection post and it is by promotion from the posts of Loan Inspector Grade-II with five years of service in their respective posts on regular basis. No other service conditions for getting eligible to the post of Loan Inspector Grade-I is seen from these Recruitment Rules. But, a Departmental Promotion Committee is constituted with the Chairman of the Pondicherry Khadi and Village Industries Board as the Chairman and the Secretary and Accounts Officer of the Pondicherry Khadi and Village Industries Board as its Members.
10. The contention of the writ petitioner is that since he being the senior most in the list, he should have been promoted to the Grade-I, but, for no better reasons, he has been sidelined and his juniors are preferred over him by the official respondents, during which course, no test has been conducted. Thereupon, the appellant gave representations to various authorities, including the authorities under the Right to Information Act and the National Commission for Scheduled Castes and Scheduled Tribes, bringing forth his grievance, but of no avail, since on the part of the Department it has been maintained that the files relating to the impugned orders granting promotions to the respondents and the office order dated 19.1.1999, granting senior scale to the appellant are missing from the office of the Board and by the letter dated 1.1.2001, the Board has informed the Government about this position. This has been admitted by the respondents/Board in Para No.5 of their counter also.
11. It is to be pointed out that the Audit party has pin pointed the Department for its lapses committed in promotions and regularisation of the employees and soon thereafter, the files connected thereto are found ‘missing’ by the Department. This appears to be highly dramatic and a legal presumption would arise that only to cover up the mistakes committed on the part of the higher ups in the Department, which were taken for a ride by the Audit party, the files were made ‘missing’ by some black-sheep in the Department. For the query raised by the appellant under the Right to Information Act regarding the procedure followed by the Department in promoting his juniors, the Public Information Officer of the respondent Board, by his communication dated 2.12.2008 has replied that in the absence of relevant DPC file, the mode of selection could not be ascertained and the appellant was informed accordingly vide the office letter dated 8.11.2006 and the fact that the records concerned with recruitment and promotions effected during 1997-99 were not available in the office was communicated to the Government vide letter dated 1.11.2001.
12. The Public Information Officer of the respondent Board, by this communication dated 2.12.2008, has also stated that since the appellant has initiated legal proceedings before this Court, the claim of the appellant will be proceeded in accordance with law as the subject matter is sub judice now. In his communication, the Public Information Officer of the respondent Board has narrated the communication emanated from the Law Department, dated 16.7.2008, as follows:
“It appears that the issue of missing records in the Puducherry Khadi and Village Industries Board had been made known to the Board in the year 2000, when Audit was conducted in the Board by Internal Audit Wing of the Directorate of Accounts and Treasuries, Puducherry. But, the Board did not evince any interest to lodge any complaint to the Police. Now a period of 8 years had elapsed. It is also not known, as to whether the said records were misplaced or lost or stolen. It seems that the same could not be traced out in spite of all strenuous efforts taken by the Board.
In the light of what is stated above, lodging of a complaint to the Police or referring the matter to the Vigilance Unit will not serve any purpose as the fixing of criminal liability upon particular person is left in the lurch, as there is a huge delay of 8 years. The department may also bear in mind that a belated prosecution would be time-barred, in view of Sec.468 Cr.P.C. and the Court without take cognizance of it (sic.), as a result of which the accused would be left scot-free. Had the matter been taken up to the Police in time, the issue could have been sorted out long back and the documents could have been traced out.
The only alternative left with the department is to reconstruct those files and to take appropriate action.”
13. This communication from the Law Department was emanated on 16.7.2008. Thereupon, the appellant approached the Central Information Commission by the Appeal No.F.No.CIC/PB/C/2008/00753/LS and the said Commission, by the order dated 3.2.2009 has observed in paragraph Nos.5 and 6 as follows:
“5.The matter was heard on 3.2.2009. The appellant is present before the commission. The Public Authority is represented by the officers named above. The appellant’s submission is that he is interested in getting a copy of the minutes of the DPC. Shri G.Ganesan would, however, submit that the said file is not traceable and that the Department of Industries and Commerce, Puducherry, has directed the Puducherry Khadi and Village Industries Board to reconstruct the file. When asked how much time is likely to be taken to reconstruct the file, he would submit that about 6 months will be taken. The time suggested by Shri Ganesan seems to be excessive.
INTERIM DECISION
6. In view of the above discussion, Shri Ganesan, is directed to reconstruct the file and furnish a copy of such reconstructed file to the Appellant in three months time. If the appellant does not receive the requisite information in 03 months time, he will be at liberty to move the commission again for appropriate decision.”
14. When the appellant is running from pillar to post to prove his contention that since the delay was solely due to the non-availability of records, which are ‘missing’ from the Department, on the part of the Department, it has been commented otherwise that knowing pretty well about the loss of records by the Department, the appellant has initiated these proceedings as an afterthought. This argument advanced on the part of the respondents/Department is not convincing to us in view of the admitted fact that the said records went ‘missing’ only after the Audit objections and the Department has not initiated any criminal action to trace out the same and in view of the further fact that indisputably, the appellant is the senior most in the list, eligible for promotion to the Grade-I, which has been denied to him, for no reasons assigned. It is not the case of the respondent Department that the appellant has refused promotion and opted for grant of Senior Scale or that he is ineligible for promotion or that he is not the senior or that he was found ineligible for promotion in the DPC. Therefore, the subsequent grant of Senior Scale to the appellant and his continuous enjoyment of the same will not bar the appellant from claiming his due, particularly when his Juniors were allowed to surpass him illegally by the Department, which was even taken note of by the Audit party in its Audit report, resulting in ‘missing’ of the files connected to the promotion and regularisation and even grant of Senior Scale of pay to the appellant. But, when such missing of the files could not be attributed to the appellant/petitioner, unfortunately, the learned single Judge has attributed delay to the appellant and rejected his claim on the ground of laches.
15. On the part of the respondent/Department, the learned senior counsel and the Government Pleader for Puducherry would press into service the judgment of the Honourable Apex Court in UNION OF INDIA AND ANOTHER vs. S.S.KOTHIYAL AND OTHERS [(1998) 8 SCC 682], wherein the Honourable Apex Court has held that the delay and laches would defeat the remedy and repeated representations do not extend cause of action.’
16. There cannot be any dispute with regard to the above proposition laid down by the Honourable Apex Court. But, at this juncture, we feel it apt to quote a Three Judge Bench judgment of the Honourable Apex Court in A.SAGAYANATHAN AND OTHERS vs. DIVISIONAL PERSONNEL OFFICER, S.B.C. DIVISION, SOUTHERN RAILWAY, BANGALORE [1992 SUPP(2) SCC 172]. In this case, the case of the appellants therein was that they were not promoted to the higher post although their juniors had been promoted as early as in May 1983 and the promotion to the higher post was governed by the rule of seniority and that they were not considered for promotion. But, the Tribunal found that the appellants were too late in agitating their grievance and dismissed their claim solely on the basis of delay without entering into the merits of the grievance of the appellants. In those circumstances, the Honourable Apex Court has observed in paragraph Nos.5 and 6 as follows:
“5. Having heard counsel on both sides and perused the records, we are of the view that, despite the delay, this is a matter which requires investigation.
6. Accordingly, we direct the Tribunal to re-hear the parties after giving them an opportunity to implead the necessary parties, file fresh affidavits and adduce any other evidence which they may wish to adduce. …”
17. This judgment of the Honourable Apex Court would squarely apply to the case on hand. Though the judgment of the Honourable Apex Court in S.S.Kothiyal case cited on the part of the learned Government Pleader is subsequent to the above judgment in A.Sagayanathan case, since the judgment in A.Sagayanathan case is by a Three Judge Bench of the Honourable Apex Court, whereas the judgment of the Apex Court in S.S.Kothiyal case is a Division Bench judgment and in view of the dictum laid down by the Honourable Apex Court in U.P.S.E.B vs. POORAN CHANDRA PANDEY [(2007) 11 SCC 92,] that ‘a smaller Bench decision cannot override a larger Bench decision of the Court’, we have no hesitation to hold that A.Sagayanathan case, referred to by us supra, will squarely apply to the case on hand. Therefore, in the peculiar facts and circumstances of the case, we have no hesitation to hold that such a delay, for which the reasons are beyond the control of the appellant, which fact he has clearly explained by producing voluminous material before the Court, he should not be penalised, by throwing his case as if it is liable only for dismissal on account of the alleged laches, without considering the same on merits, since such outright dismissal would amount to travesty of justice in the case on hand.
18. Even though we could have remanded the matter to the learned single Judge to decide the matter on merits, by holding that delay/laches in the present case will not stand in the way of considering the case of the appellant on merits, we have not adopted such a course of action as the matter has been argued on merits at length and given the nature of the stakes involved remanding the matter to the learned single Judge for rehearing would only prolong the life of the litigation.
19. For all the above reasons, when it is proved beyond any reasonable doubt that the appellant, the senior most in the list has been deprived of his promotion, when all his juniors were allowed to supersede him for no rhyme or reason and when the alleged delay in initiating the proceedings is for the reasons, which are not under the control of the appellant, we have no hesitation to hold that the appellant is entitled to succeed in these proceedings.
20. It is to be mentioned here that in spite of service of notice, the respondents 5 to 8 have not chosen to contest this matter. But, however, taking into consideration the fact that the respondents 5 to 8 were promoted long back and disturbing the same at this length of time, would have serious impacts and repercussions in the prospects of other individuals, we direct the respondents/Department to grant the appellant the promotion of Loan Inspector Grade-I from the date on which his juniors were promoted and confer on him all the monetary and service benefits on him accordingly, without disturbing the promotions already effected. For this purpose, the respondents/Department can also create a supernumerary post in the cadre of Loan Inspector Grade-I. However, with regard to the promotion granted to the 5th respondent on ad hoc basis to the post of Development Officer, since the method of recruitment appears to be different i.e. ‘50% by promotion failing which by transfer on deputation and 50% by transfer on deputation failing which both by direct recruitment’, we are not issuing any direction to the respondent/Department regarding the promotion of the appellant/petitioner to the said cadre of Development Officer on par with his junior/the 5th respondent. The respondent/Board is directed to complete the entire process within twelve weeks from the date of receipt of a copy of this order.
With such directions and observations, this writ appeal is allowed, setting aside the order of the learned single Judge. No costs.
Rao
To
1.The Government of Puducherry,
rep.by Chief Secretary,
Puducherry.
2.Pondicherry Khadi and Village Industries Board,
rep.by its Chairman and Secretary,
Puducherry.
3.The Chief Executive Officer,
Pondicherry Khadi and Village Industries Board,
Plot 1 and 2, Kamaraj Salai,
New Saram,
Puducherry.
4.The Accounts Officer,
Pondicherry Khadi and Village Industries Board,
Puducherry.
5.The District Industries Centre,
rep.by its General Manager,
Puducherry 605 013