At, High Court of Bihar
By, THE HONOURABLE MR. JUSTICE NAVIN SINHA
For the Appearing Parties: --------
NAVIN SINHA, J.
(1.) Heard learned counsel for the petitioner and the learned counsel for the State.
(2.) The writ application assails the order dated 18.12.1987 at Annexure-2. The impugned order reverts the petitioner to the post of chaukidar from the post of Lower Division Clerk.
(3.) By an order dated 9.12.1980 the petitioner was promoted provisionally/ temporarily to the post of Lower Division Clerk from the original post of chaukidar. Learned counsel for the petitioner submitted that the order of reversion was punitive in nature and was passed in pursuance of an alleged departmental proceeding of which h
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e had no notice. No memo of charges were ever served upon the petitioner, much less service of a second show cause notice before imposition of the punishment.
(4.) In defence of the institution of the writ application on 10.9.1999, when the impugned order be dated 18.12.1987. Learned counsel for the petitioner sought to place reliance upon the judgment of the Supreme Court reported in AIR 1984 SC 1527, C. P. Doval and Ors. v. Chief Secretary, Government of Uttar Pradesh and Ors. Relying upon paragraph 16 of the judgment learned counsel submitted that despite the passage of 12 years, representation of the petitioners therein (supra) still remained to be disposed. The Supreme Court also took note of the fact that the petitioners belonged to the lower echelons of service and it would be possible to visualise their extreme difficulty in rushing to the Court. The petitioner also belonged to the lower echelons of service and therefore the delay, if any, deserves to be condoned. On these reasonings it was submitted that the representation by the petitioner having remained pending till date the institution of the writ petition was not belated.
(5.) This Court finds that, the respondents on the very first occasion on 6.1.2005 have raised an objection with regard to the delay in institution of the proceedings. The Court's order dated 6.1.2005 would record that the Court would consider this aspect of the matter on the next date. Despite two adjournments no counter affidavit has been filed on behalf of the respondents. Even today no counter affidavit has been filed. The Court therefore proceeds to consider the writ application on the basis of materials available on the record.
(6.) The petitioner has been reverted to the lower post of chaukidar after he functioned on the post of Lower Division Clerk for approximately seven years. The promotion was temporary/provisional in nature. This Court would find from Annexure-2 that the factual statements made therein with regard to the departmental proceedings are specific, supported by reference to given Government communications. The order would recite that pursuant to a finding of guilt in the departmental proceeding the petitioner evaded receipt of the second show cause notice requiring proper publication for service. A presumption in law would arise that Annexure-2 was issued in normal course of business in accordance with Government procedure and the recitals contained therein would also be correct. Reliance, can conveniently be placed on Section 114-E of the Indian Evidence Act, 1872 for the purpose which would read as under: -- . "That judicial and official acts have been regularly performed."
(7.) The judgment of the Supreme Court relied upon by the petitioner would not be of much avail. The question of condonation of delay would be a matter to be considered on the facts of each case. There cannot be a generalised yardstick for the same in a proceeding under Article 226 of the Constitution. This Court would find that in the judgment relief upon by the petitioner, the Supreme Court condoned the delay for reasons of the flexibility obtaining in-the factual situation that the seniority list therein was yet to be finalised and promotions were being granted by ad hoc arrangement. In the present case there is nothing interim in nature in the impugned order at Annexure-2. The order was final. This Court would further find that the grant of any possible relief to the petitioner at this stage when he himself approached this Court after 12 years would today in the year 2005, result in his placement in the cadre of Lower Division Clerk. If this were to be done belatedly it would undoubtedly have its repercussion and consequence in service with regard to the others who may have attained benefits or placement in the Lower Division Clerk cadre by reason of the petitioner not being diligent. It is settled law that the delay is of vital consequence specially in service matters as it tends to have a cascading affect. This would be the position in law pronounced by the Apex Court in the judgment reported in AIR 1992 SC 1414 (Paragraph 7 and 8), Bhoop Singh v. Union of India and Ors. Similar would be the view in 1998 (2) SCC 523 (Paragraph 7), B.S. Bajwa and Anr. v. State of Punjab and Ors., which this Court would quote appropriately : --
"Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the judgments of the single Judge and Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance was made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystalised which ought not to have been reopened after the lapse of such a long period. At every stage others were promoted before B.S. Bajwa and B.P. Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be reopened in such situation after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition."
(8.) In the aforesaid facts and circumstances this Court is not inclined to quash the impugned order. Application stands dismissed