IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
P. NAVEEN RAO, J.
M.N. Gulsani S/o M.L. Gulsani – Petitioner
Vs.
The State of Telangana – Respondent
Writ Petition No. 27397 of 2018
Decided On : 23-08-2018
Service Law – Constitution of India, 1950 – Articles 14 and 16 – Telangana Ministerial Service Rules, 1998 – Rule 17 – Denied promotion and junior to him was promoted – Eligible for promotion as Upper Division Accountant-UDA – Ignoring him for promotion, Mr V C Johnson and others, who joined service in the year 1976, were promoted as UDA in July, 1977. Though, petitioner represented against said promotions, same was not granted – Petitioner was promoted as UDA and further promoted as Sub Treasury Officer vide proceedings – He took retirement from service while working as Sub Treasury Officer – Seeks direction and to declare the action of respondents in not assigning notional seniority to the petitioner in the cadre of Senior Accountant UDA on par with his junior from the year 1977 with all consequential benefits – Held, Admittedly, no case was filed within the period of limitation and right vested to avail judicial remedy was extinguished long ago. Merely because, Tribunal is abolished and under Article 226 of Constitution of India, no limitation is prescribed, petitioner cannot seek to resurrect cause, assuming there is a valid grievance – Even if Government entertains his belated representations, not supported by any statutory provision, cannot resurrect such cause – From the correspondence emanated from the Government and heavily relied on by the learned counsel, it appears that based on the representation made by petitioner on 29.12.2013, information was called from subordinate authorities – Under what provision of law such a representation can be entertained is not shown, except contending that proviso appended to Rule 17 of Ministerial Service Rules enables government to exercise such power at any time. Assuming such power is available in a case of this nature, it is settled principle of law that even if time limit is not prescribed to exercise power revision/review, the competent authority must exercise such power within reasonable time. By 2013 it was more than 34 years and thus it cannot be said as reasonable time – In Abdul Refeeq & Others Vs State Of Telangana & Others, 2018(1) ALD 385 on review of precedent decisions on what is reasonable time to entertain an application for review/revision even if concerned provision vesting power to entertain review/revisions do not prescribe any time limit – Petition dismissed.
1. Facts as averred in the affidavit filed in support of the writ petition would disclose that petitioner was initially appointed as Lower Division Accountant on 16.7.1967 by direct recruitment mode in the selections conducted by A.P. Public Service Commission. By the year 1977 he was eligible for promotion as Upper Division Accountant (for short UDA). Ignoring him for promotion, Mr V C Johnson and others, who joined service in the year 1976, were promoted as UDA in July, 1977. Though, petitioner represented against said promotions, same was not granted. Petitioner was promoted as UDA on 17.7.1980 and further promoted as Sub Treasury Officer vide proceedings dated 6.1.1999. He took retirement from service on 31.3.2002 while working as Sub Treasury Officer.
2. This writ petition is filed praying to issue writ or direction, more particularly one in the nature of writ of mandamus and to declare the action of respondents in not assigning notional seniority to the petitioner in the cadre of Senior Accountant (previously known as UDA) on par with his junior from the year 1977 with all consequential benefits.
3. Heard Sri D Linga Rao and learned Assistant Government Pleader for Services-I.
4.1 According to learned counsel for petitioner, petitioner was denied promotion and junior to him was promoted, therefore, petitioner is entitled to restoration of his seniority on par with his junior. By promoting junior and ignoring the petitioner, Articles 14 and 16 of the Constitution of India are violated. He further submitted that promotion as per his turn and ahead of juniors is a vested right and not granting such promotion is illegal.
4.2. He would submit that as per third proviso appended to Rule 17 of Telangana Ministerial Service Rules, 1998, Government can undertake review of promotions granted earlier, rectify the illegality committed and to grant the relief. To exercise this power, as no time limit is prescribed in the Rules, such power can be exercised at any time to remove the illegality caused earlier. From 4.2.2014 onwards, Government has been corresponding with subordinate authorities and calling for information on the representation made by the petitioner, but so far, the issue is not finalised.
4.3. It is open to an employee to assert his right and to seek enforcement of the right when such right is violated. He would submit that delay should not come in the way of enforcing substantive right vested in him. In support of his contention that prayer to grant notional seniority on par with junior is a continuous cause of action and the relief prayed by the petitioner is maintainable, learned counsel for petitioner placed reliance on the decisions of the Supreme Court in M.R. Gupta Vs Union of India and others, AIR 1996 SC 669 S.R. Bhanrale Vs Union of India and others, AIR 1997 SC 27 and decision of Division Bench of this Court in M. Vijaya Bhaskara Reddy Vs High Court Of AP., 2002 (1) ALD 489 (DB)
5. The point for consideration is whether the claim of petitioner to grant seniority from retrospective date, i.e., from the date of promotion of alleged juniors in the year 1977 is hit by delay and laches?
6. The writ remedy is discretionary remedy. Though no limitation is prescribed to entertain a writ petition under Article 226 of the Constitution of India and no fetters are imposed on writ Court to entertain a writ petition, the principle of law is well settled that a person, who seeks intervention of the High Court under Article 226 of Constitution of India, should invoke the jurisdiction of this Court immediately after arising of cause of action and at any rate within a reasonable time. Ordinarily, the reasonable time in prosecuting the writ remedy is the time available to prosecute civil law remedy. Anything beyond that cannot be said as reasonable for prosecuting the writ remedy. Whenever, there is delay in filing writ petition, detailed reasons must be assigned with supporting material. The burden is heavy on petitioner to ex
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