RAM KISHORE VISHWAKARMAversusDISTRICT JUDGE AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                    SPECIAL APPEAL No. - 1459 of 2013

Ram Kishore Vishwakarma
                                                             .....Appellant(s)
                                   Versus

District Judge And Another
                                                           .....Respondent(s)

Counsel for Appellant(s)        : Sanjeev Kumar Tyagi, Sudhanshu
                                  Srivastava
Counsel for Respondent(s)       : Ashish Mishra, Manish Goyal

Court No. - 21
            HON'BLE MAHESH CHANDRA TRIPATHI, J.
            HON'BLE KUNAL RAVI SINGH, J.




1. Heard Shri Prajjwal Tyagi, learned counsel holding brief of Shri S.K.
Tyagi, learned counsel for the appellant-petitioner and Shri Fuzail Ahmad
Ansari, learned standing counsel for the respondents-opposite parties.

2. This intra-court appeal has been preferred against the judgment and
order dated 03.09.2013 passed by the learned Single Judge in WRIT - A
No. 45929 of 2013 (Ram Kishore Vishwakarma vs. Dist. Judge and
Another), whereby the writ petition challenging the order dated
15.01.2013 passed by respondent No.1 - District Judge, Banda, was
dismissed.

3. The brief facts of the case are that the petitioner was initially appointed
as a Class-IV employee in the Judgeship at Banda on 06.05.1983.
Thereafter, under the 20% promotional quota, he was promoted to the
post of Routine Grade Clerk in Class-III on 22.04.1997. The petitioner
claimed that he ought to have been promoted to the post of Grade-II Clerk
in Class-III in January, 2001 on the basis of seniority, but he was
arbitrarily denied promotion due to incorrect fixation of his seniority. The
petitioner further claimed that he made a representation before the
authorities, which was examined by a Committee, and initially the
Committee, vide report dated 15.01.2001, found the claim set up by the
petitioner to be sustainable. Accordingly, it was asserted that the next
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promotional post had been denied to the appellant-petitioner in an
arbitrary manner.

4. Thereafter, the petitioner again made representations seeking correction
of seniority and also claimed arrears and increments. Ultimately, he was
promoted to Grade-II in Class-III vide order dated 30.10.2004. However,
despite being accorded promotion w.e.f. 30.10.2004, he was not granted
the same pay scale and monetary benefits which had already been
extended to his juniors from 24.01.2001. Subsequently, he claimed arrears
and increments for the period from 24.01.2001 to 01.11.2004 in the year
2012, which claim was rejected vide order dated 27.08.2012 and duly
approved by the competent authority on 15.01.2013. Thereafter, WRIT -
A No. 45929 of 2013 was preferred. The learned Single Judge dismissed
the same vide judgment and order dated 03.09.2013, which is reproduced
hereinunder:

     "1. Heard learned counsel for the petitioner and Sri Manish Goyal,
     learned counsel for the respondents.

     2. The question of seniority was determined finally by the respondent as
     long back in 2001. The grievance of the petitioner that despite of his
     seniority, he was not given promotion from the date of occurrence of
     vacancy therefore payment of salary and other benefits from the date the
     vacancy occurred and he should have been granted.

     3. Learned counsel for the petitioner could not show as to what legal
     right he has to claim promotion as and when the vacancy occurred. In
     absence of any provision shown to this Court, I do not find that petitioner
     has any legal right to seek a writ of mandamus to respondents to fill in
     vacancy particularly when it is well settled that employer has always a
     right to keep the post vacant. (See: State of Haryana Vs. Subash Chander
     Marwaha, AIR 1973 SC 2216, Jitendra Kumar and others Vs. State of
     Punjab and others (1985) 1 SCC 122 and Shankarsan Dash Vs. Union of
     India 1991 (3) SCC 47).

     4. Reliance is placed on a decision of this Court in Civil Misc. Writ
     Petition No.17231 of 2001 (Kamta Singh Vs. District Judge, Banda and
     others) decided on 2.11.2007. Having gone through the same, I do not
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     find any such principle applied which may help the petitioner, as
     discussed above.

     5. Dismissed."

5. Learned counsel for the appellant-petitioner has vehemently submitted
that the petitioner claimed benefits on the Grade-II post w.e.f. 24.01.2001
to 01.11.2024 but in arbitrary manner, his rightful claim was denied,
whereas other juniors were accorded benefits in view of the seniority list
dated 15.01.2001. He further submits that even the objections regarding
the initial seniority list dated 15.01.2001 were considered by the
Committee and the petitioner's objections were accepted and his claim
was found to be correct. He submits that the case of the petitioner was not
properly considered by the department. Eventually, he challenged the
order dated 27.08.2012 approved on 15.01.2013, in WRIT - A No. 45929
of 2013, which was dismissed by the learned Single Judge in an arbitrary
manner without appreciating the facts and law, whereas the petitioner had
been discriminated as other similarly situated employees, including one
Kamta Prasad, were granted promotion along with consequential
monetary benefits.

6. He further submits that while rejecting the claim of the petitioner, the
respondents also failed to consider Rule 8 of the U.P. Government
Servants Seniority Rules, 1991, as well as the provisions of the U.P.
Subordinate Civil Courts Ministerial Establishment Rules, 1947 and the
U.P. Subordinate Civil Courts Inferior Establishment Rules, 1955.

7. Per contra, Shri Fuzail Ahmad Ansari, learned Standing Counsel for the
respondents-opposite parties, has vehemently opposed the appeal and
submitted that only a tentative seniority list was prepared on 15.01.2001
and, moreover, the same was not approved by the competent authority,
namely, the learned District Judge. It has been submitted that the
gradation list was finalized and approved for the first time on 30.10.2004,
which was accepted by the petitioner voluntarily, and at no point of time
he worked on the promotional post w.e.f. 15.01.2001. As such, there was
no justification for granting any financial upgradation along with interest.
He further submitted that the appellant-petitioner raised the grievance for
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the first time only on 31.01.2011, which was rejected on 27.08.2012 and
approved by the learned District Judge on 15.01.2013, which order was
challenged in the aforesaid writ petition. He submits that the learned
Single Judge, for cogent reasons, rightly dismissed the writ petition vide
order dated 03.09.2013, which is proper, valid and sustainable in the eyes
of law, and therefore no interference is warranted in the present intra-
court appeal.

8. We have heard the rival submissions advanced by learned counsel for
the parties and perused the record. Before appreciating the controversy
involved in the present matter, it would be apt to glance at the reliefs
prayed for before the learned Single Judge in WRIT - A No. 45929 of
2013, which are reproduced hereinbelow:

     "(i) call for the records and to issue a writ, order or direction in the
     nature of certiorari quashing the impugned order dated 27.08.2012
     approved on 15.01.2013 by respondent no.1 (contained in Annexure No.1
     to this writ petition);

     (ii) issue a writ, order or direction in the nature of Mandamus
     commanding the respondents to release the increments and arrears of
     salary of IInd grade in class III from 24.01.2001 to 01.11.2004 with 9%
     interest;

     (iii) (issue any other suitable writ, order or direction which this Hon'ble
     Court may deem fit and proper under the circumstances of the case.

     (iv) award the cost of the present writ petition to the petitioner."

9. The claim and counter-claim have been set up on the basis of
eligibility. The appellant-petitioner claimed that he was entitled to the
benefit of the promotional pay scale of Grade-II in Class-III w.e.f.
24.01.2001, whereas the respondents contended that the gradation list was
finally approved only in the year 2004 and promotion to the post was
accorded on 30.10.2004. However, it is equally undisputed that the
appellant-petitioner had not actually worked on the promoted post during
the aforesaid period. Mere existence of vacancies or subsequent
correction of seniority does not automatically confer a right to claim
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retrospective promotion with all monetary benefits, particularly when the
promotion itself was granted only on 30.10.2004 in accordance with the
finalized gradation list.

10. The record further reveals that the seniority/gradation list was
finalized on 30.10.2004 after due publication and inviting objections from
all concerned employees. The appellant-petitioner never challenged the
said gradation list at the relevant point of time. Even after his promotion
on 30.10.2004, no immediate challenge was raised by him regarding
denial of retrospective monetary benefits. For the first time, the grievance
came to be seriously agitated several years thereafter, culminating in the
filing of the writ petition in the year 2013.

11. In matters relating to seniority and service benefits, promptness is of
utmost importance, as stale claims cannot ordinarily be entertained after a
long lapse of time. Entertaining such delayed claims adversely affects
settled rights and service structure. The appellant-petitioner has failed to
furnish any satisfactory explanation for the inordinate delay and laches in
approaching the competent forum.

12. We further find that the learned Single Judge rightly observed that no
employee can claim promotion merely from the date of occurrence of
vacancy unless such right flows from the statutory rules. The employer
always retains the discretion to fill or not to fill vacancies in accordance
with administrative exigencies and the prescribed procedure. In the
present case, no provision of law has been demonstrated which entitled
the appellant-petitioner to claim automatic retrospective promotion with
consequential monetary benefits from 24.01.2001.

13. Moreover, once the appellant-petitioner accepted the promotion
granted on 30.10.2004 and allowed the gradation list to attain finality
without challenge for several years, he cannot subsequently seek to
reopen the entire issue after an inordinate delay. The claim raised by the
appellant-petitioner was, therefore, rightly rejected by the learned Single
Judge.

14. In view of the discussions made hereinabove, we find that the
impugned judgment and order has been rendered by the learned Single
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                                    Judge for cogent and justifiable reasons. In an intra-court special appeal,
                                    no interference is ordinarily warranted unless palpable infirmity or
                                    perversity is noticed on a plain reading of the impugned judgment and
                                    order. In the facts and circumstances of the instant case, we do not find
                                    any such palpable infirmity or perversity warranting interference with the
                                    impugned judgment and order.

                                    15. Accordingly, the special appeal, being devoid of merit, is dismissed.




                                                      (Kunal Ravi Singh,J.) (Mahesh Chandra Tripathi,J.)
                                    May 12, 2026
                                    NLY




Digitally signed by :-
NAND LAL YADAV
High Court of Judicature at Allahabad