2011 Supreme(SC) 866

2011 (7) Supreme 159
SUPREME COURT OF INDIA
J.M. Panchal and H.L. Gokhale, JJ.
High Court of Judicature at Patna — Appellant
versus
Madan Mohan Prasad & Ors. — Respondents
Civil Appeal No. 7630 of 2011
(Arising out of SLP(C) No. 4339 of 2009)
Decided on : 5-9-2011

IMPORTANT POINTS
1. It is well settled that promotion is not a matter of right much less a fundamental right, more particularly when promotion in the subordinate judiciary is to be dealt with by High Court which has complete control over the subordinate judiciary in view of Article 235 of the Constitution.
2. A person aggrieved by an order promoting a junior over his head should approach the Court at least within 6 months or at the most a year of such promotion and the High Court can refuse to exercise its extraordinary powers under Article 226 in case the person aggrieved does not approach the Court expeditiously for appropriate relief and puts forward stale claim and tries to unsettle settled matters.

Headnote:Service Law-Appeal against judgment rendered by Division Bench of High Court in Civil Writ Jurisdiction by which High Court of Patna on its administrative side was directed to consider case of promotion of respondent No.1 posted as Additional Munsif, as also grant of consequential benefits to him in accordance with law- It is well settled that promotion is not a matter of right much less a fundamental right, more particularly when promotion in the subordinate judiciary is to be dealt with by High Court which has complete control over the subordinate judiciary in view of Article 235 of the Constitution- All rights and claims of respondent No.1 got crystallized when this Court passed order dated November 25, 1986 in SLP (C) No.8621 of 1985 read with order dated August 30, 1983 passed by this Court in SLP (C) No. 8923 of 1983- If the respondent No. 1 had any other claim he ought to have made the same before this Court when said Special Leave Petitions were disposed off- Since both Special Leave Petitions were dismissed all his claims stood finally rejected, except direction given to pay him pension etc. mentioned in order dated November 25, 1986 passed in SLP (C) No.8621 of 1985- No grievance was made by the respondent No.1 in C.W.J.C. No. 6538 of 1990 that the direction given by this Court on November 25, 1986 in SLP (C) No.8621 of 1985 were not complied with by the appellant-Neither at the time of disposal of SLP (C) No.8923 of 1983 nor at the time of disposal of SLP (C) No. 8621 of 1985 respondent No.1 had claimed any other relief and had not obtained permission to claim relief of promotion in future- Therefore, relief claimed in C.W.J.C. No.6538 of 1990 could not have been granted by the Court-Appeal Dismissed. (Para 22)

        Service Law-Appeal against judgment rendered by Division Bench of High Court in Civil Writ Jurisdiction by which High Court of Patna on its administrative side was directed to consider case of promotion of respondent No.1 posted as Additional Munsif, as also grant of consequential benefits to him in accordance with law-Admittedly CWJC No. 6538 of 1990 was filed for same reliefs which were claimed in CWJC No. 1924 of 1982 and were rejected, and therefore, it could not have been entertained- Further SLP No. 8261 of 1985 which was filed by the respondent No.1 against judgment and order of High Court of Judicature at Patna in CWJC No. 2059 of 1984 was dismissed and only relief granted by Apex Court was to direct State of Bihar to restore pension payable to him with arrears due on the basis that he had superannuated from service from date of superannuation and a further direction was issued to pay him Provident Fund, Gratuity and leave salary as might be admissible to him on superannuation- Apex court had never directed that High Court of Patna on its administrative side should consider the claim of respondent No.1 regarding deemed promotions- Hence held that High Court had erred in law in directing appellant to consider case of promotion of respondent No.1 as also the consequential benefits in accordance with law by the impugned judgment-Impugned judgment held liable to be set aside-Appeal allowed (Paras 23, 24)

        Service Law-Appeal against judgment rendered by Division Bench of High Court in Civil Writ Jurisdiction by which High Court of Patna on its administrative side was directed to consider case of promotion of respondent No.1 posted as Additional Munsif, as also grant of consequential benefits to him in accordance with law-Contention of appellant that since writ petition was filed by respondent 1 . seven years after he had superannuated from service, writ petition ought to have been dismissed on ground of delay and latches held unacceptable-Such a point was not argued by appellant before High Court- No grievance was made in memorandum of SLP, that point regarding delay and latches was argued before High Court but same was not dealt with by High Court when impugned judgment was delivered- Apart from that by order passed in CWJC No. 4862 of 1987, High Court had directed respondent No.1 to submit representation to High Court on its administrative side claiming benefits which were given to his juniors but were denied to him, pursuant to which respondent No.1 had filed last representation on June 23, 1990 which was rejected by High Court on September 17, 1990- The question of delay and latches would have to be considered from communication dated September 17, 1990 by which claim made by respondent No.1 to give him benefits which were given to his juniors was rejected and not from the date of superannuation- Thus, respondent No.1 was not liable to be non-suited on ground of delay and latches in filing writ petition after his superannuation from service (Para 12)

        Service Law-Appeal against judgment rendered by Division Bench of High Court in Civil Writ Jurisdiction by which High Court of Patna on its administrative side was directed to consider case of promotion of respondent No.1 posted as Additional Munsif, as also grant of consequential benefits to him in accordance with law-Evidence on record that till the respondent No.1 had superannuated from service , he was discharging duties as Additional Munsif and was never confirmed in the cadre of Munsif- Hence, his claim for promotion to higher post could not have been considered unless and until he was confirmed on the post of Munsif- On this ground alone, writ petition filed by him was liable to be dismissed-Apart from that claim of promotion made in C.W.J.C. No. 6538 of 1990 was stale one and could not have been entertained by High Court.- Again juniors to respondent No.1 who were given benefits of promotion in the years 1971, 1974 and 1978 were not impleaded as respondents in the petition- In their absence, claim advanced by respondent No.1 could not have been examined by High Court- Impugned judgment held liable to be set aside on the ground that stale claim of promotions to different cadres was advanced by respondent No.1 after great delay and that too without impleading his juniors (Para 12)

       Facts of the Case :

        Present Appeal has been filed against judgment rendered by Division Bench of High Court in Civil Writ Jurisdiction by which High Court of Patna on its administrative side was directed to consider case of promotion of respondent No.1 posted as Additional Munsif, as also grant of consequential benefits to him in accordance with law.

       Findings of the Court :

        It is well settled that promotion is not a matter of right much less a fundamental right, more particularly when promotion in the subordinate judiciary is to be dealt with by High Court which has complete control over the subordinate judiciary in view of Article 235 of the Constitution. All rights and claims of respondent No.1 got crystallized when this Court passed order dated November 25, 1986 in SLP (C) No.8621 of 1985 read with order dated August 30, 1983 passed by this Court in SLP (C) No. 8923 of 1983. If the respondent No. 1 had any other claim he ought to have made the same before this Court when said Special Leave Petitions were disposed of. Since both Special Leave Petitions were dismissed all his claims stood finally rejected, except direction given to pay him pension etc. mentioned in order dated November 25, 1986 passed in SLP (C) No.8621 of 1985. No grievance was made by the respondent No.1 in C.W.J.C. No. 6538 of 1990 that the direction given by this Court on November 25, 1986 in SLP (C) No.8621 of 1985 were not complied with by the appellant. Neither at the time of disposal of SLP (C) No.8923 of 1983 nor at the time of disposal of SLP (C) No. 8621 of 1985 respondent No.1 had claimed any other relief and had not obtained permission to claim relief of promotion in future. Therefore, relief claimed in C.W.J.C. No.6538 of 1990 could not have been granted by the Court. Appeal was Dismissed