Jharkhand High Court
Sanjay Kumar vs The State Of Jharkhand on 22 February, 2021
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.510 of 2019
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Sanjay Kumar, aged about 42 years, (Science Para Teacher
Upgraded Middle School, Meramgada), S/o Rajendra Prasad,
resident of village Lemboiya, P.O. Pathalgada, P.S. Pathalgada,
District Chatra, Jharkhand .... .... Appellant
Versus
1. The State of Jharkhand
2. The Principal Secretary, Human Resources Development Department,
Govt. of Jharkhand, having its office at Dhurwa, P.O. Dhurwa, P.S.
Jagarnathpur, District Ranchi
3. The Director, Primary & Secondary Education, having its office at
Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi
4. The Deputy Commissioner, Chatra, P.O. & P.S Chatra, District Chatra
5. The District Superintendent of Education, Chatra, P.O. & P.S. Chatra,
District Chatra
6. Block Education Extension Officer, Patthalgada, P.O. & P.S.
Pathalgada, District Chatra
7. Head Master cum Secretary, Upgraded Middle School, Meramgada,
P.O. & P.S. Pathalgada, District Chatra .... .... Respondents
CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. Piyush Choudhary, Advocate
: Mr. Raj Kumar Sinha, Advocate
For the Resp.-State : Mr. Amit Kumar, SC (Mines)-II
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ORAL JUDGMENT
05/Dated: 22.02.2021 The matter has been heard through video conferencing with the consent of learned counsel for the parties. There is no complaint about any audio and visual quality.
I.A.No.1559 of 2020
This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 338 days in preferring this Letters Patent Appeal.
Heard.
In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellant was prevented by sufficient cause in preferring the appeal 2 within the period of limitation.
Accordingly, I.A.No.1559 of 2020 is allowed and delay of 338 days in preferring the appeal is condoned.
L.P.A. No.510 of 2019
The instant intra-court appeal is directed against the order/judgment dated 10.07.2018 passed by the learned Single Judge of this Court in W.P.(S) No.6839 of 2017, whereby and whereunder, the writ petition has been dismissed refusing to pass positive direction in favour of the writ petitioner as has been sought for in the writ petition.
2. The brief facts of the case are required to be referred herein which reads as hereunder:-
The writ petitioner was appointed as Para Teacher (Science) in Upgraded Middle School, Meramgada, Pathalgada, Chatra under the respondent authority and accordingly, joined his duty on 06.10.2017.
The writ petitioner while working as such has tendered his resignation on 13.06.2009 as would appear from Anneuxre-1 appended to the writ petition.
Subsequently thereafter, he has made an application for withdrawal of the application pertaining to resignation dated 13.06.2009 on 30.06.2009 but the offer of resignation made on 13.06.2009 has been accepted vide order dated 05.07.2009.
The writ petitioner has approached to this Court in the year 2017 questioning the decision of the authority about the acceptance of offer of resignation dated 13.06.2009 on 05.07.2009 on the ground that withdrawal of offer of resignation made on 30.06.2009, offer of resignation ought not to have been accepted. But the writ petition has been dismissed on the ground that the writ petitioner has approached to this Court after 3 lapse of eight years i.e. in the year 2017 after acceptance of offer of resignation as on 05.07.2009, which is the subject matter of the instant intra-court appeal.
3. Mr. Piyush Choudhary, learned counsel appearing for the appellant- writ petitioner has submitted that the order passed by the writ Court is not sustainable in the eye of Law on the basis of the settled position of Law that when the withdrawal of offer of resignation dated 13.06.2009 was already made on 30.06.2009, offer of resignation has become redundant, therefore, it should not have been accepted as on 05.07.2009 but the learned Single Judge instead of dealing the issue on merit has gone across the principle of delay and laches, hence, the same is not sustainable. So far delay is concerned, submission has been made that repeated representations have been filed and such delay will not come in the way.
4. Per contra, Mr. Amit Kumar, learned SC (Mines)-II appearing for the State of Jharkhand submits that the order passed by the learned Single Judge suffers from no infirmity on the ground that principle of delay and laches has correctly been looked into by the learned Single Judge more particularly in the facts and circumstances of the instant case, since herein the matter pertains to Para Teacher of which the offer of resignation made on 13.06.2009 which was accepted on 05.07.2009 but the writ petitioner has approached this Court after lapse of eight years and in the meanwhile, so many selections have been made and due to lapse of time, the writ petitioner having been appointed which was contractual in nature, has lost its entitlement to be considered after lapse of such a long period and therefore, the order passed by the learned Single Judge suffers from no infirmity.
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5. We have heard the learned counsel for the parties and on perusal of the documents available on record found the admitted fact herein that the writ petitioner has offered his resignation vide application dated 13.06.2009 but made withdrawal of such offer vide application dated 30.06.2009. However, offer of resignation dated 13.06.2009 has been accepted on 05.07.2009.
The writ petitioner has approached this Court in the year 2017 i.e., after lapse of eight years from the date of acceptance i.e., on 05.07.2009.
6. It is not in dispute that in the writ jurisdiction, there is no applicability of the Law of Limitation but the principle of delay and laches is to be seen as would be evident from the judgment rendered by the Hon'ble Apex Court in State of Uttaranchal & Anr. Vs. Sri Shiv Charan Singh Bhandari & Ors. (2013) 12 SCC 179, wherein the Hon'ble Court while considering the issue regarding delay and laches opined that repeated representations made will not keep the issues alive. A state or a dead issue/dispute cannot be got revived even if such a representation has either been decided by the authority or got decided by getting a direction from the Court as the issue regarding delay and laches is to be decided with reference to original cause of action and not with reference to any such order passed.
The said principle was reiterated by the Hon'ble Apex Court in State of Orissa & Ors. Vs. Shri Arun Kumar Patnaik & Ors., (1976) 3 SCC 579.
Further, in State of Tamil Nadu Vrs. Seshachalam, (2007) 10 SCC 137, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus:-
"...filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a 5 court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."
Further, in Shiv Dass v. Union of India & Ors., (2007) 9 SCC 274, in particular paragraph 9, which is quoted hereunder as:
"9.It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore [AIR 1967 SC 993]. There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray [(1977) 3 SCC 396 : 1977 SCC (L&S) 424 :
AIR 1976 SC 2617] making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone."
Further, reference in this regard be made to the case of New Delhi Municipal Council Vs. Pan Singh & Ors., (2007) 9 SCC 278 in particular paragraph 17, which is quoted hereunder as:
"17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India)."
In State of M.P. & Ors Vs. Nandlal Jaiswal & Ors., AIR 1987 SC 251, the Hon'ble Apex Court has observed that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and if there is inordinate delay on the part of the petitioner in filing the writ petitioner and such delay is not satisfactorily explained, the High Court may decline to interfere and grant relief in exercise of its writ jurisdiction. Emphasis was laid down on the principle of delay and laches stating that the High Court does not ordinarily permit a belated resort to 6 the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and inconvenience in bringing the justice.
In this context, further reference is made to the judgment rendered by Hon'ble Apex Court in Baljeet Singh (Dead) through Lrs. And Others Vs. State of U.P. and Others., 2019 SCC OnLine SC 1004 [S.L.P. (C) Nos. 30404-30442/2017] wherein the land losers had approached the Court of law after inordinate delay seeking enhanced compensation which the Hon'ble Apex Court has refused to condone. In the aforesaid case, in para-7, the Hon'ble Apex Court has held which reads hereunder as:-
"7. The matter requires examination from another aspect, viz., laches and delay. It is a very recognised principle of jurisprudence that a right not exercised for a long time is nonexistent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases, courts have coined the doctrine of laches and delay as well as doctrine of acquiescence and non-suited the litigants who approached the court belatedly without any justifiable explanation for bringing the action after unreasonable delay. In those cases, where the period of limitation is prescribed within which the action is to be brought before the court, if the action is not brought within that prescribed period, the aggrieved party loses remedy and cannot enforce his legal right after the period of limitation is over, however, subject to the prayer for condonation of delay and if there is a justifiable explanation for bringing the action after the prescribed period of limitation is over and sufficient cause is shown, the court may condone the delay. Therefore, in a case where the period of limitation is prescribed and the action is not brought within the period of limitation and subsequently proceedings are initiated after the period of limitation along with the prayer for condonation of delay, in that case, the applicant has to make out a sufficient - 9 - cause and justify the cause for delay with a proper explanation. It is not that in each and every case despite the sufficient cause is not shown and the delay is not properly explained, the court may condone the delay. To make out a case for condonation of delay, the applicant has to make out a sufficient cause/reason which prevented him in initiating the proceedings within the period of limitation. Otherwise, he will be accused of gross negligence. If the aggrieved party does not initiate the proceedings within the period of limitation without any sufficient cause, he can be denied the relief on the ground of unexplained laches and delay and on the presumption 7 that such person has waived his right or acquiesced with the order. These principles are based on the principles relatable to sound public policy that if a person does not exercise his right for a long time then such right is non- existent."
Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The Court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional Court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the Court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity.
In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
Learned counsel for the appellant has tried to justify by taking the plea that repeated representations have been made which is sufficient ground to explain the delay in filing the writ petition after lapse of eight years but we are not persuaded to accept such argument in view of the fact that making repeated representation is not a satisfactory explanation of delay as has been held by the Hon'ble Apex Court in State of Orissa Vs. Pyarimohan Samantaray & Ors., (1977) 3 SCC 396, wherein it has 8 been opined that making of repeated representation is not a satisfactory explanation of delay.
7. This Court has proceeded to examine the issue vis-à-vis the legality and propriety of the impugned order and found therefrom that since the nature of appointment of the writ petitioner is totally on contract as the writ petitioner was working as Para Teacher (Science) and even though, the position of law is settled i.e., if resignation is withdrawn before acceptance on such offer having been made, there should not have been acceptance of offer of resignation but that principle is to be tested in the facts of the case since herein the writ petitioner has approached this Court after lapse of eight years.
Admittedly, after lapse of eight years so many appointments have been made as Para Teacher and further the post of Para Teacher being contractual in nature, therefore, the writ petitioner cannot claim the same as a matter of right after lapse of period of eight years that to after inordinate delay.
8. The learned Single Judge after taking into consideration this aspect of the matter has dismissed the writ petition, which according to us, cannot be said to suffer from error.
9. In the result, the instant appeal fails and is, dismissed.
10. Pending Interlocutory Application(s), if any, stands disposed of.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Rohit/-.A.F.R.