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2017 Supreme(Del) 3095
IN THE HIGH COURT OF DELHI AT NEW DELHI
SANJIV KHANNA, NAVIN CHAWLA, JJ.
MUKUL KUMAR MISRA - PETITIONER
Versus
UNION OF INDIA AND ANR. - RESPONDENTS
W.P.(C) 7265 of 2017 & CM 30102 of 2017
Decided On : 24-08-2017
For the Petitioner: Mr. Ravinder Agarwal
For the Respondents: Mr. Abhay Prakash Sahay
Delay and laches, along with the rejection of multiple representations, can bar a petitioner from invoking writ jurisdiction.
Headnote:
Delay and Laches - Non-Functional Upgradation - Grading in Annual Confidential Report
Fact of the Case:
The petitioner, an engineer, sought non-functional upgradation with retrospective effect and challenged the below bench mark grading in the Annual Confidential Report (ACR) for a specific period.
Finding of the Court:
The court found that the petitioner's delay of more than 6 years in challenging the grading and seeking upgradation, along with multiple rejected representations, barred the writ petition on the grounds of delay and laches.
Issues: The main issue was whether the petitioner should be allowed to challenge the grading and seek upgradation after a significant delay.
Ratio Decidendi: The court held that the delay and laches, along with the rejection of multiple representations, prevented the petitioner from invoking writ jurisdiction, as the cause of action had finally accrued and was not a continuing cause of action.
Final Decision: The writ petition was dismissed on the ground of delay and laches, with no order as to costs.
SANJIV KHANNA, J.
The petitioner, Mukul Kumar Misra, impugns orders dated 6th July, 2016 and 17th February, 2011.
2. The petitioner claims that he should be granted the benefit of non-functional up gradation w.e.f. 1st July, 2008 instead of 1st April, 2011. However, we find that the principal prayer is to expunge below bench mark grading as recorded by the Accepting Officer in the Annual Confidential Report (ACR for short) for the period 1st April, 2006 to 5th December, 2006.
3. The petitioner is working as Suptd. Engineer (Civil) in General Reserve Engineering Force, Border Road Organization.
4. Non-functional up gradation (NFU for short) was made applicable to the said service on 24th April, 2009 with retrospective effect from 2006. In order to be eligible for Non-Functional up gradation, one of the requirements is that the officer must have grading of ‘very good’ in 4 out of 5 ACRs.
5. The petitioner was communicated and informed about the below bench mark grading for ACR between 1st April, 2006 to 5th December, 2006 on 28th July, 2010. The petitioner made representation against this grading, by the Accepting Authority. The representation was rejected by the competent authority on 17th February, 2011. The grading was maintained.
6. The petitioner did not challenge or question the rejection of the representation vide order dated 17th February, 2011 in any proceedings.
7. The petitioner claims that he had made another representation dated 17th March, 2011 requesting for up-gradation in the light of instructions vide O.M. dated 13th April, 2010 and for re-appraisal of his performance. It is a settled position that repeated representations would not confer continuing or extend the cause of action.
8. The question which arises for consideration is whether the petitioner should be allowed to question and challenge the grading recorded by the Accepting Officer in the ACRs for the period from 1st April, 2006 to 5th December, 2006, which was rejected vide order dated 17th February, 2011, in this writ petition filed in August, 2017.
9. There is certainly a delay of more than 6 years in preferring the writ petition. Principle of delay and laches would come into play as it would be impossible for the respondents today to re-examine the issue after so many years. Apparently, the petitioner except for making one representation on 17th March, 2011, did not file any proceeding to challenge the order of the competent authority dated 17th February, 2011 rejecting his request for up gradation of the ACR for the period from 1st April, 2006 to 5th December, 2006.
10. The petitioner, however, submits that he is challenging the order dated 6th July, 2016 by which his request for review/fresh consideration of up gradation of his below bench mark grading in the ACR for the period from 1st April, 2006 to 5th December, 2006 was rejected. This letter disposes of the representation made by the petitioner vide letter dated 14th August, 2015, which was the third representation made by the petitioner. In this order dated 6th July, 2016, records that there was no provision for reconsideration for up gradation of the below bench mark grading given in the ACR by the Competent Authority, when Competent Authority had already taken the decision to reject the request for the up gradation. Accordingly, the representation was not entertained.
11. Thus, we do not think that the aforesaid order would give a fresh cause of action or right to the petitioner to invoke writ jurisdiction.
12. Learned counsel for the petitioner has referred to the judgment in Union of India & Ors. vs. Tarsem Singh (2008) 8 SCC 648 and submits that this is a case of continuing cause of action and no third party would be adversely effected if the petitioner is granted NFU. This is not a case of continuing cause of action. The cause of action first arose when below the bench mark grading was given to the petitioner in the ACR for the period from 1st April, 2006 to 5th December, 2006. The petit
