Allahabad High Court
Ramesh Chandra Chaubey & Others vs State Of U.P. Thru. Secy. Karmik Lko & ... on 16 July, 2019
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 24 Case :- SERVICE SINGLE No. - 36266 of 2018 Petitioner :- Ramesh Chandra Chaubey & Others Respondent :- State Of U.P. Thru. Secy. Karmik Lko & Others Counsel for Petitioner :- Laltaprasad Misra,Om Prakash Misra Counsel for Respondent :- C.S.C.,Ashok Shukla Hon'ble Irshad Ali,J.
1) Heard Sri L.P. Mishra, learned counsel for the petitioners and to Sri Kuldeep Pati Tripathi, learned Additional Advocate General for the State-respondents and Sri Ashok Shukla, learned counsel for the respondent-Commission.
2) Brief fact of the case is that 49 vacancies were requisitioned to the Commission for initiation of selection proceeding on the post of Sub Registrar and Auditor Panchayat. In pursuance thereof, an advertisement was issued inviting applications from the eligible and qualified candidates in the year 2001. The petitioners having eligibility criteria as prescribed under the advertisement applied for the post of Sub Registrar as well as on the post of Auditor Panchayat.
3) A selection proceeding was conducted and result of the same was declared by reducing the vacancies from 49 to 10. In the said selection, the petitioners were selected on the post of Auditor Panchayat and joined the post under bonafide belief that the vacancies have been reduced on genuine grounds. One Anoop Kumar Singh filed Writ Petition No.1697 (SB) of 2010 (Anoop Kumar Singh Vs. State of U.P. and others), wherein after exchange of affidavits, this Court passed a judgment with the following direction:
"Resultantly, the writ petition is allowed in the following terms.
1. Since no other candidate, who participated in the selection/examination held pursuant to the advertisement issued in the month of February, 2001, has approached this Court, the directions which are being issued in this judgment and order shall be confined to the petitioner alone.
2. U.P. Public Service Commission shall consider the candidature of the petitioner for his selection to the post of Sub-Registrar in accordance with his merit on the basis of U.P. State Combined Subordinate Services Examination-2001 and in case based on his merit, the petitioner gets selected to the post of Sub-Registrar, recommendation to the State Government for his appointment shall be made by the Commission.
3. The recommendation which may be made by the Commission in respect of the petitioner's appointment to the post of Sub-Registrar shall thereafter be considered by the State Government in accordance with the law and in case the petitioner is found suitable and fit, he shall be appointed on the post of Sub-Registrar against an existing vacancy. However, in case at present no vacancy is available, he shall be appointed and adjusted against any other future vacancy which may occur. The aforesaid exercise shall be completed by the State Government and the Commission within a period of four months from the date of presentation of a certified copy of this order."
4) After the judgment passed on 29.11.2017, the reasons in regard to reducing of vacancies from 49 to 10 came in the knowledge of the petitioners and thereafter, the present writ petition was filed before this Court with the prayer to quash the decision taken by the respondents in reducing the number of vacancies of the post of Sub Registrar from 49 to 10 for which the combined state public service examination was conducted with the prayer for issuance of writ of mandamus commanding the respondents to appoint the petitioners on the post of Sub Registrar on the ground considered by this Court in the judgment referred herein above.
5) Learned counsel for the petitioners submitted that at the time of reducing the vacancies, the reasons were not known to the petitioners. It came in the knowledge of the petitioners, when the judgment by this Court was delivered, wherein the ground was placed before this Court and was recorded in the judgment. Therefore, there are no latches on the part of the petitioners in approaching to this Court. At earlier point of time, the reasons were not known to the petitioners, therefore, they cannot be blamed for the same.
6) His next submission is that the proceeding under Article 226 of the Constitution of India is the proceeding of equity jurisdiction and in case there is arbitrariness on the part of the State and after coming to know the illegalities committed, the person aggrieved has right to come to this Court. He further submitted that no discrimination or distinction can be carved out between the candidates, who are on equal footing and have participated in a selection proceeding under bonafide belief that their right shall not be curtailed on the discrimination created by the State Government. He placed reliance upon certain judgments, which are as under:
i) Prem Chandra and others Vs. State of U.P. and others; Special Appeal No.377 of 2008.
ii) State of Uttar Pradesh and another Vs. Santosh Kumar Mishra and another; (2010) 9 SCC 52.
iii) K.C. Sharma and others Vs. Union of India and others; (1997) 6 SCC 721.
iv) Inder Pal Yadav and others Vs. Union of India and others; (1985) 2 SCC 648.
v) State of Karnataka and others vs. C. Lalitha; (2006) 2 SCC 747.
7) On the other hand, learned Additional Advocate General and Sri Ashok Shukla, learned counsel for the respondents submitted that the petitioners have approached to this Court after a long delay of almost 15 years, as the advertisement was issued in the year 2001 and the selection was completed in the year 2003, therefore, they are not entitled to get relief, as claimed in the present writ petition.
8) Learned Additional Advocate General placed reliance upon certain judgments on the point that under Article 226 of the Constitution of India, writ petition is not maintainable on the ground of latches in regard to those persons, who are not vigilant in regard to their rights. The judgments relied upon by learned Additional Advocate General are referred herein below:
i) U.P. Jal Nigam and another Vs. Jaswant Singh and another; (2006) 11 SCC 464.
ii) State of Uttaranchal and another Vs. Shiv Charan Singh Bhandari and others; (2013) 12 SCC 179.
iii) New Delhi Municipal Council Vs. Pan Singh and others; AIR 2007 Supreme Court 1365.
iv) Tridip Kumar Dingal and others Vs. State of West Bengal and others; (2009) 1 SCC 768.
v) State of U.P. through its Secretary (Revenue Deptt.) Lko. and others Vs. Dan Bahadur Singh 680 (SS) 2015; Special Appeal Defective No.17 of 2016.
vi) State of U.P. through its Secretary (Revenue Deptt.) Lko. and others Vs. Shyam Lal 425 (SS) 2011 (Special Appeal Defective No.147 of 2016).
9) Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record and the judgments relied upon by learned counsel for the parties.
10) To resolve the controversy involved in the present writ petition, relevant portion of the judgments relied upon by learned counsel for the parties are being quoted below;
:- The judgments relied upon by learned counsel for the petitioners:
i) Prem Chandra and others Vs. State of U.P. and others (Supra):
"A peculiar and a piquant situation has arisen in the instant case, where it is not the case, that an aspirant of the higher post in service on becoming eligible for promotion or a person seeking direct appointment on the date when he is to be considered for such a promotion or appointment, seeks to interpret the rule of recruitment in a particular manner, looking to the past practice, to his advantage, but here is a case, where the appellants were excluded from consideration of their appointment at the relevant time earlier, by interpreting the rule to their disadvantage, and were made to believe that likewise their candidature shall be considered later on, for which various circulars and instructions were also issued by the State Government, but when their turn came for getting employment, they are again being put out of consideration, by interpreting the rule in a different manner.
Injustice thus, caused to them, in the hands of the State Government, therefore, requires to be corrected.
We also take notice of the fact that under the present advertisement, 766 vacancies have been notified, therefore, the present appellants, who are much less in number, can also be considered for appointment, leaving sizeable vacancies for the rest of the candidates.
We, therefore, dispose of these special appeals with the direction that the appellants' cases shall be considered in accordance with the pre-existing practice by considering their appointment on the basis of their merit taking their batches into consideration as was being done earlier but this process would be available only for the appellants and they would be accommodated if they are otherwise found eligible and the remaining vacancies would be filled in by following Rule 15 (2) strictly as directed by the learned Single Judge."
ii) State of Uttar Pradesh and another Vs. Santosh Kumar Mishra and another Supra:
"41. It is on account of a deliberate decision taken by the State Government that the private Respondents were left out of the zone of consideration for appointment as Pharmacists in order to accommodate those who had obtained their diplomas earlier. The decision taken by the State Government at that time to accommodate the diploma- holders in batches against their respective years can no doubt be discontinued at a later stage, but not to the disadvantage of those who had been deprived of an opportunity of being appointed by virtue of the same Rules. In our view, the same decision which was taken to deprive the private Respondents from being appointed, could not now be discarded, once again to their disadvantage to prevent them from being appointed, introducing the concept of merit selection at a later stage. The same may be introduced after the private Respondents and those similarly-situated persons have been accommodated."
iii) K.C. Sharma and others Vs. Union of India and others (Supra):
"6. Having regarding to the facts and circumstances of the case, we are of the view that this was a fit case in which the Tribunal should have condoned the delay in the filing of the application and the appellants should have been given relief in the same terms as was granted by the Full Bench of the Tribunal. The appeal is, therefore, allowed, the impugned judgment of the Tribunal is set aside, the delay in filing of O.A. No. 774 of 199 is condoned and the said application is allowed. The appellants would be entitled to the same relief in matter of pension as has been granted by the Full Bench of the Tribunal in its judgment dated December 16, 1993 in O.A. Nos. 395-403 of 1993 and connected matters. No order as to costs."
iv) Inder Pal Yadav and others Vs. Union of India and others (Supra):
"5. The scheme envisages that it would be applicable to casual labour on projects who were In service as on January 1, 1984. The choice of this date does not commend, for it is likely to introduce an invidious distinction between similarly situated persons and expose some workmen to arbitrary discrimination flowing from fortuitous court's order, since, in some matters, the court granted interim stay before the workmen could be retrenched while some other were not so fortunate. Those in respect of when the Court granted interim relief by stay suspension of the order of retrenchment, they would be treated in service on January 1, 1984 while others who fail to obtain interim relief though similarly situated would be pushed down in the implementation of the scheme. Therefore, those who could not come to the Court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment. Keeping in view all the aspects of the matter, the Court modifies part 5.1 (a) (i) of the scheme by modifying the date from 1.1.1984 to 1.1. 1981. With this modification and consequent rescheduling in absorption from that date onward, the scheme framed by Railway Ministry is accepted and a direction is given that it must be implemented by re-casting the stages consistent with the change in the date as herein directed."
v) State of Karnataka and others vs. C. Lalitha (Supra):
"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well-settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I Post but the direction to create a supernumerary post to adjust her must be held to have been issued only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to."
:- Sri Kuldeep Pati Tripathi, learned Additional Advocate General placed reliance in support of his submissions on following judgments:
i) U.P. Jal Nigam and another Vs. Jaswant Singh and another (Supra):
"4. It appears that during the pendency of the appeals and writ petitions before this Court and after disposal of the same by this Court, a spate of writ petitions followed in the High Court by the employees who had retired long back. Some of the petitions were filed by the employees who retired on attaining the age of 58 years long back. However, some were lucky to get interim orders allowing them to continue in service. Number of writ petitions were filed in the High Court in 2005 on various dates after the judgment in the case of Harwindra Kumar (supra) and some between 2002 and 2005. All those writ petitions were disposed of in the light of the judgment in the case of Harwindra Kumar (supra) and relief was given to them for continuing in service up to the age of 60 years. Hence, all these appeals arise against various orders passed by the High Court from time to time.
5. So far as the principal issue is concerned, that has been settled by this Court. Therefore, there is no quarrel over the legal proposition. But the only question is grant of relief to such other persons who were not vigilant and did not wake up to challenge their retirement and accepted the same but filed writ petitions after the judgment of this Court in the case of Harwindra Kumar (supra). Whether they are entitled to same relief or not ? Therefore, a serious question that arises for consideration is whether the employees who did not wake up to challenge their retirement and accepted the same, collected their post retirement benefits, can such persons be given the relief in the light of the subsequent decision delivered by this Court ?
6. The question of delay and laches has been examined by this Court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his rights and challenged his retirement which was said to be made on attaining the age of 58 years. A chart has been supplied to us in which it has been pointed out that about 9 writ petitions were filed by the employees of the Nigam before their retirement wherein their retirement was somewhere between 30.6.2005 and 31.7.2005. Two writ petitions were filed wherein no relief of interim order was passed. They were granted interim order. Thereafter a spate of writ petitions followed in which employees who retired in the years 2001, 2002, 2003, 2004 and 2005, woke up to file writ petitions in 2005 & 2006 much after their retirement. Whether such persons should be granted the same relief or not ?"
8. Our attention was also invited to a decision of this Court in the case of State of Karnataka & Ors. v. S.M. Kotrayya & Ors. reported in (1996) 6 SCC 267. In that case the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the State approached this Court and this Court after considering the matter observed as under :
" Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in sub-section (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay."
9. Similarly, in the case of Jagdish Lal & Ors. v. State of Haryana & Ors. reported in (1997) 6 SCC 538, this Court reaffirmed the rule if a person chose to sit over the matter and then woke up after the decision of the Court, then such person cannot stand to benefit. In that case it was observed as follows :
" The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Vir Pal Singh Chauhan case. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage."
17. The benefits shall only be confined to above mentioned persons who have filed writ petitions before their retirement or they have obtained interim order before their retirement. The appeals filed against these persons by the Nigam shall fail and the same are dismissed. Rest of the appeals are allowed and orders passed by the High Court are set aside. There would be no order as to costs."
ii) State of Uttaranchal and another Vs. Shiv Charan Singh Bhandari and others (Supra):
"23. In State of T.N. v. Seshachalam, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: -
"16. ....filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a 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."
24. There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and another.
25. In New Delhi Municipal Council v. Pan Singh and others, the Court has opined that though there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the said case the respondents had filed the writ petition after seventeen years and the court, as stated earlier, took note of the delay and laches as relevant factors and set aside the order passed by the High Court which had exercised the discretionary jurisdiction."
iii) New Delhi Municipal Council Vs. Pan Singh and others (Supra):
"16. There is another aspect of the matter which cannot be lost sight of. Respondents herein filed a Writ Petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the Writ Petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the Court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. See Govt. of W.B. v. Tarun K. Roy and others [(2004) 1 SCC 347], Chairman, U.P. jal Nigam & Anr. v. Jaswant Singh and anr.[2006 (12) SCALE 347] and Karnataka Power Corpn. Ltd. through its Chairman & Managing Director and Another v. K. Thangappan and Another [(2006) 4 SCC 322]."
iv) Tridip Kumar Dingal and others Vs. State of West Bengal and others (Supra):
"56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ-Court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.
57. If the petitioner wants to invoke jurisdiction of a writ-Court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime [vide State of M.P. & Anr. V. Bhailal Bhai, (1964) 6 SCR 261; Moon Mills v. Industrial Court, Bombay, AIR 1967 SC 1450; Bhoop Singh v. Union of India & Ors., (1992) 2 SCR 969]. This principle applies even in case of an infringement of fundamental right (vide Trilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110; Durga Prasad v. Chief Controller, (1969) 1 SCC 185; Rabindranath Bose v. Union of India).
58. There is no upper limit and there is no lower limit as to when a person can approach a Court. The question is one of discretion and has to be decided on the basis of facts before the Court depending on and vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose.
59. We are in respectful agreement with the following observations of this Court in P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152;
"It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extra-ordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters"
62. Though there is considerable force in the argument of the learned counsel for the State and contesting respondents that there is substantial delay on the part of the appellants in approaching this Court, in the light of factual scenario and the direction which we are inclined to issue, we have thought it fit not to dismiss Special Leave Petitions on the ground of delay but considering merits of the case, we are issuing necessary directions granting relief to the appellants who were vigilant about their rights."
v) State of U.P. through its Secretary (Revenue Deptt.) Lko. and others Vs. Dan Bahadur Singh (Supra):
"In our view, the case of Pratap Narain Pandey is clearly distinguishable having due regard to the fact that in that case the candidate, who was aggrieved, had pursued his legal remedies with reasonable dispatch. The judgment of the learned Single Judge in Pratap Narain Pandey's case was delivered on 19 August 2006 in regard to two writ petitions. The first writ petition was filed by Pratap Narain Pandey as far back as in 1990 (Writ Petition No.10539 (S/S) of 1990). Apart from this writ petition, he had filed another writ petition in 2001 (Writ Petition No.4031 (S/S) of 2001). Both the writ petitions had been clubbed together and were disposed of on 19 August 2006.
On the other hand, the respondent filed his writ petition on 22 February 2015, seeking the benefit of the judgment and order dated 19 August 2006 delivered in the writ petition filed by Pratap Narain Pandey. By that judgment, the petitioner in the earlier proceedings was directed to be given appointment on the post of regular Collection Amin and to be treated as a regular Collection Amin in service since 5 June 1986 for the purposes of seniority etc. except the salary for the period for which he had not worked. In the writ petition which has been filed by the respondent before the learned Single Judge, there is absolutely no explanation much less a cogent explanation in regard to reasons which led the respondent to wait for nearly twenty nine years since 1986 before he filed a writ petition in 2015. The fact that other persons may have been granted the benefit of the judgment in Pratap Narain Pandey in the interregnum would not absolve the respondent of his own duty to explain why he chose to remain silent in the pursuit of his own rights. In a situation of this nature where a delay has been completely unexplained, a writ petition which was filed in 2015 seeking the benefit of parity with a case which had been decided in 2006 and where the petitioner in the earlier round had been vigilant enough in espousing his rights since 1990, could not have been entertained. There was evidently no parity with the case of Pratap Narain Pandey.
The learned counsel appearing on behalf of the respondent has relied upon a judgment of a Division Bench of this Court dated 8 August 2014 in a batch of special appeals filed by the State of Uttar Pradesh (Special Appeal Defective No.110 of 2012 :State of Uttar Pradesh Vs Mohd. Usman Ansari) and connected cases). In that batch of cases, the learned Single Judge had granted the benefit of the decision in Pratap Narain Pandey in various writ petitions. In fact, the judgment of the Division Bench would indicate that several of those writ petitions had been filed as far back as in 1991 (Writ Petition No.4587 (S/S) of 1991, Writ Petition No.6472 (S/S) of 1991 and Writ Petition No.3764 (S/S) of 1991) which had been decided by the learned Single Judges on 28 October 2010, 12 May 2010 and 12 May 2010 respectively. Those petitioners had again been vigilant enough to pursue their rights and the writ petitions had remained pending before this Court. Undoubtedly, one of those writ petitions in the batch (Writ Petition No.1595 (S/S) of 2008) had been dismissed on 26 March 2008 by a learned Single Judge on the ground of laches and the special appeal which had been filed by the State (Special Appeal No.311 of 2008) was disposed of by holding that the dismissal of the writ petition on the ground of laches was erroneous in view of the submission of the learned Standing Counsel that the case was identical to Pratap Narain Pandey which had attained finality and that the benefit had been granted to other similarly situated persons. The case proceeded entirely on a concession which was made and it would appear that no effort was made on the part of the State even to submit before the Division Bench that there was a factual difference between the case at hand and in the case of Pratap Narain Pandey. The judgment of the Division Bench does not lay down the principle that a writ petition which had been filed without any cogent explanation for a delay, as in the present case, must still be entertained merely on the ground of the decision in Pratap Narain Pandey. Hence, the judgment of the Division Bench will not assist the case of the respondent.
The learned counsel appearing on behalf of the respondent has relied upon a judgment of the Supreme Court in Basanti Prasad Vs Chairman, Bihar School Examination Board2. In that case, the husband of the appellant, who was an employee of the School Examination Board, was convicted of offences under Sections 467, 468, 471 and 120-B of the Penal Code on 7 February 1989 against which, a criminal appeal was filed before the Additional Sessions Judge. When the appeal was pending, his services were terminated in 1992. The husband of the appellant died during the pendency of the appeal before the Sessions Court and with the permission of the Court, the appellant continued to prosecute the criminal appeal. After he was acquitted by the Sessions Court, the appellant moved the Examination Board for an order that he would be deemed to have remained in service till the date of his retirement and that all the consequential retiral benefits of her late husband be paid. "
vi) State of U.P. through its Secretary (Revenue Deptt.) Lko. And others Vs. Shyam Lal, 425 (SS) 2011 (Supra):
"Facts and issues involved herein are same as have already been considered by us while deciding another Special Appeal (Defective) No.17 of 2016 and Special Appeal (Defective No.19 of 2016 filed by the State against a similar order passed in writ petition No.333(SS) of 2013, Dinesh Chandra Pathak v. State of U.P., and writ petition no.680(S) of 2015, Dan Bahadur Singh v. State of U.P. & ors., and the judgments passed by the writ court were set aside. Relevant extracts of the judgment dated 10.1.2016 passed in Special Appeal (Defective) No.17 of 2016 are quoted hereinbelow:
"In our view, the case of Pratap Narain Pandey is clearly distinguishable having due regard to the fact that in that case the candidate, who was aggrieved, had pursued his legal remedies with reasonable dispatch. The judgment of the learned Single Judge in Pratap Narain Pandey's case was delivered on 19 August 2006 in regard to two writ petitions. The first writ petition was filed by Pratap Narain Pandey as far back as in 1990 (Writ Petition No.10539 (S/S) of 1990). Apart from this writ petition, he had filed another writ petition in 2001 (Writ Petition No.4031 (S/S) of 2001). Both the writ petitions had been clubbed together and were disposed of on 19 August 2006.
On the other hand, the respondent filed his writ petition on 22 February 2015, seeking the benefit of the judgment and order dated 19 August 2006 delivered in the writ petition filed by Pratap Narain Pandey. By that judgment, the petitioner in the earlier proceedings was directed to be given appointment on the post of regular Collection Amin and to be treated as a regular Collection Amin in service since 5 June 1986 for the purposes of seniority etc. except the salary for the period for which he had not worked. In the writ petition which has been filed by the respondent before the learned Single Judge, there is absolutely no explanation much less a cogent explanation in regard to reasons which led the respondent to wait for nearly twenty nine years since 1986 before he filed a writ petition in 2015. The fact that other persons may have been granted the benefit of the judgment in Pratap Narain Pandey in the interregnum would not absolve the respondent of his own duty to explain why he chose to remain silent in the pursuit of his own rights. In a situation of this nature where a delay has been completely unexplained, a writ petition which was filed in 2015 seeking the benefit of parity with a case which had been decided in 2006 and where the petitioner in the earlier round had been vigilant enough in espousing his rights since 1990, could not have been entertained. There was evidently no parity with the case of Pratap Narain Pandey.
The learned counsel appearing on behalf of the respondent has relied upon a judgment of a Division Bench of this Court dated 8 August 2014 in a batch of special appeals filed by the State of Uttar Pradesh (Special Appeal Defective No.110 of 2012 :State of Uttar Pradesh Vs Mohd. Usman Ansari) and connected cases). In that batch of cases, the learned Single Judge had granted the benefit of the decision in Pratap Narain Pandey in various writ petitions. In fact, the judgment of the Division Bench would indicate that several of those writ petitions had been filed as far back as in 1991 (Writ Petition No.4587 (S/S) of 1991, Writ Petition No.6472 (S/S) of 1991 and Writ Petition No.3764 (S/S) of 1991) which had been decided by the learned Single Judges on 28 October 2010, 12 May 2010 and 12 May 2010 respectively. Those petitioners had again been vigilant enough to pursue their rights and the writ petitions had remained pending before this Court. Undoubtedly, one of those writ petitions in the batch (Writ Petition No.1595 (S/S) of 2008) had been dismissed on 26 March 2008 by a learned Single Judge on the ground of laches and the special appeal which had been filed by the State (Special Appeal No.311 of 2008) was disposed of by holding that the dismissal of the writ petition on the ground of laches was erroneous in view of the submission of the learned Standing Counsel that the case was identical to Pratap Narain Pandey which had attained finality and that the benefit had been granted to other similarly situated persons. The case proceeded entirely on a concession which was made and it would appear that no effort was made on the part of the State even to submit before the Division Bench that there was a factual difference between the case at hand and in the case of Pratap Narain Pandey. The judgment of the Division Bench does not lay down the principle that a writ petition which had been filed without any cogent explanation for a delay, as in the present case, must still be entertained merely on the ground of the decision in Pratap Narain Pandey. Hence, the judgment of the Division Bench will not assist the case of the respondent."
..... ..... ...... ..... ....
"In the present case, we find from the record that the writ petition which was filed by the respondent was without any explanation for the delay. The delay of nearly twenty nine years in filing the writ petition was completely unexplained. Merely because certain other individuals have been granted the benefit in the meantime, would not justify such a writ petition having been entertained in 2015. Hence, we hold that the respondent's writ petition ought to have been dismissed only on the ground of laches.
We, accordingly, allow the special appeal and set aside the impugned judgment and order of the learned Single Judge dated 26 February 2015. In consequence, the writ petition filed by the respondent (Service Single No.680 of 2015) shall stand dismissed. There shall be no order as to costs."
In the facts of the case cause of action, if any, arose in favour of the respondent in the year 1986 or at best in 1989, but the petitioner did not approach the court claiming the status of a regular employee. Instead as has been averred in paragraph 18 of the writ petition certain proceedings were initiated by him seeking regularization of his services which impliedly is an admission of the fact that his initial appointment was not a regular one. However, it appears that on account of the writ petition filed by Pratap Narain Pandey bearing writ petition No.4031(SS) of 2001 and a subsequent writ petition bearing No.8672(SS) of 2006 by a similarly situated person, having been allowed, the petitioner approached this court seeking the same relief albeit after a delay of nineteen years without any plausible explanation for the same.
We have already noted in our earlier judgment, quoted hereinabove, that Pratap Narain Pandey had been pursuing the matter diligently and promptly having filed a writ petition firstly in the year 1990 followed by subsequent writ petitions whereas the respondent herein was indolent in the matter and approached this court only after a delay of nineteen years.
We have already observed in our earlier judgment that such a writ petition could not have been entertained by the writ court. There was evidently no parity with the case of Pratap Narain Pandey. Same is the case herein also. Therefore, for the reasons already mentioned in the earlier judgment and those mentioned hereinabove, the judgment passed by the writ court on 9.9.2011 in writ petition no.425(SS) of 2011 cannot be sustained. Same is hereby quashed. Special appeal is allowed. Writ Petition no.425(SS) of 2011 stands dismissed."
11. On perusal of the judgments relied upon by learned counsel for the petitioners in the case of Prem Chandra and others (Supra), it is transpired that a selection proceeding was initiated on the post of pharmacist against 766 vacancies and in accordance with Rule 15(2) of U.P. Pharmacists Service Rules, 1980 the selection was proceeded to be held. The matter was considered by the Division Bench of this Court and thereafter, direction was issued that the case of the appellants shall be considered in accordance with pre-existing practice by considering their appointment on the basis of merit taking their batches into consideration, as was being done earlier but this process would be available only for the appellants and they would be accommodated, if they are otherwise found eligible and remaining vacancies would be filled in by following Rule 15(2) strictly, as directed by the learned Single Judge.
12. The judgment passed by the Division Bench of this Court in the case of Prem Chandra and others (Supra), was considered by the Hon'ble Supreme Court in the case of State of Uttar Pradesh and another Vs. Santosh Kumar Mishra and another (Supra), wherein the Hon'ble Supreme Court has held that the decision, which was taken to deprive the private respondents from being appointed could now be discarded once again to their disadvantage to prevent them from being appointed introducing the concept of merit selection at a later stage. The same may be introduced after the private respondents and those similarly situated persons have been accommodated.
13. In the present case, the only objection on the State side is that the petitioners are claiming parity of a judgment passed in the case of Sri Anoop Kumar Singh (Supra), wherein direction was issued for consideration of his claim on a writ petition filed at the time of not providing appointment on the post of Sub Registrar.
14. In the opinion of this Court, the selection process was initiated in the year 2001 and was completed in the year 2004. The petitioners do not approach to the competent Court of law for redressal of their grievances within reasonable time. In the case of Sri Anoop Kumar Singh (Supra), by filing counter affidavit, the statement of fact was brought on record that 39 vacancies were backlog vacancies, therefore, the decision was taken for curtailing of vacancies and the selection was made against 10 vacancies. It has been held that action of the State in decreasing the number of vacancies was not justifiable in law and directed for consideration of grant of appointment to Sri Anoop Kumar Singh.
15. In the present case, the petitioners after lapse of almost 15 years have approached to this Court seeking the same relief as was granted in the case of Anoop Kumar Singh (Supra).
16. On perusal of the judgment in the case of K.C. Sharma and others Vs. Union of India and others (Supra), the fact of the case was that certain employees were employed as Guards in the Northern Railway and they retired as Guards during the period 1980 to 1988. They felt aggrieved by notification dated 05.12.1988, wherein Rule 2544 of Indian Railways Establishment Code was amended and for the purpose of calculation of average emoluments the maximum limit in respect of running allowances was reduced from 75% to 45% in respect of period from 01.01.1973 to 31.03.1979 and 55% for the period from 01.04.1979 onwards.
17. The notification issued on 05.12.1988 was challenged and was considered by the full Bench of the tribunal in its judgment in the case of C.R. Rangadhamaiah & others Vs. Chairman, Railway Board & others and connected matters and said notifications in so far as they gave retrospective effect to the amendments were held to be invalid being violative of Article 14 and 16 of the Constitution of India.
18. The appellants in the case of K.C. Sharma and others (Supra) filed a representation along with full Bench judgment before the railway administration and when no relief was granted, they approached to the tribunal in April, 1994. The application filed before the tribunal was dismissed being barred by limitation and the tribunal refused to condone the delay in filing the original application.
19. Hon'ble the Supreme Court considering the fact that the full Bench decision has been affirmed, held that the tribunal should have been condoned the delay in filing the application and the appellants should have been given relief in same terms, as was granted by the full Bench of the tribunal and allowed the appeal.
20. On perusal of the above referred judgment, the full Bench decided the case vide judgment and order dated 16.12.1993. The petitioner by way of representation approached to the railway administration and when no consideration was made, they immediately approached by filing Original Application No.774 of 1994 seeking parity of full Bench judgment of the tribunal. There was no inordinate delay in approaching the tribunal to get the benefit of full Bench judgment.
21. Here, in the present case, the delay is of 15 years in approaching to this Court, therefore, the ratio of the above referred judgment is not applicable to the facts and circumstances of the present case.
22. In the case of Inder Pal Yadav and others Vs. Union of India and others (Supra), the controversy under consideration was that Project Casual Labours after putting continuous service for years on the end to wit ranging from 1974 till 1983, yet their services were terminated with impunity under the specious plea that the project on which they were employed has been wound up on its completion and their services were no more needed.
23. The Railway Ministry framed a scheme and circulated the same amongst others to all the General Managers of Indian Railways including production units as per its circular dated 01.06.1984. In the Scheme, it was stated that all the General Managers were directed to implement the decision of the Railway Ministry by the target dates. It was further stated that a detailed letter regarding group 5 1(ii) would follow. Such a letter was issued on June 25, 1984.
24. The question for consideration was that whether the similarly situated persons and the expose some workmen to arbitrary discrimination flowing from fortuitous court's order, wherein, in some matters, the court granted interim stay before the workmen could be retrenched while some other were not so fortunate. Some of the retrenched workmen failed to knock at the doors of the court of justice because these doors do not open unless huge expenses are incurred. Thus, the Court held that those who could not come to the court, need not be at a comparative disadvantage to those who rushed in here.
25. Here, in the present case, the petitioners were selected on the post of Auditor Panchayat. They were very well aware about their non selection on the post of Sub Registrar and they joined with their own will on the said post without raising objection before any competent authority or competent Court of law.
26. In the case of State of Karnataka and others vs. C. Lalitha (Supra), the point under consideration was that an application was filed before the Karnataka Administrative Tribunal claiming appointment as Assistant Commissioner although in terms of the revised reservation policy, the applicant was appointed as Tehsildar. The original application having been dismissed, a special leave petition was filed before Hon'ble the Supreme Court, which was allowed by setting aside the order passed by the Karnataka Administrative Tribunal by allowing the appeal with the direction that the appellant has since been promoted on Class-I post of Assistant Commissioner, if no vacancies are available, the State Government will create a supernumerary post for the appellant's appointment with the further direction that for the purpose of seniority, the appellant shall be placed below the last candidate appointed in 1976 but she will not be entitled to any back wages. It was further provided that the appellant will be considered for promotion, if otherwise found suitable.
27. On a review petition, Hon'ble Supreme Court held that service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently. It has further been held that it is well established that the question of seniority shall be governed by rules and after consideration of material on record, allowed the appeal by holding that justice demands that a person should not be allowed to turn any undue advantage over other employees. The concept of justice is that one should get what is due to him or her in law. The concept of justice cannot be stretched so as to cause heart-burning to more meritorious candidates and therefore, the direction was issued by Hon'ble Supreme Court that the matter of seniority be considered in terms of the order passed by Hon'ble Supreme Court on 15.03.1994.
28. Sri Kuldeep Pati Tripathi, learned Additional Advocate General appearing for the State-respondents by placing reliance upon certain judgments has submitted that after lapse of 15 years, no parity can be granted to a person, who is sleeping and is not vigilant of his rights.
29. On perusal of the judgments relied upon by learned counsel for the parties, the question is for grant of relief to some other persons, who were not vigilant and did not wake up to challenge the curtailment of vacancies from 49 to 10. The issue before this Court is that whether they are entitled to get some relief as was granted in the case of Anoop Kumar Singh (Supra) or not?
30. A serious question, which arose for consideration is that the benefit, as has been provided to one Anoop Kumar Singh, can be provided in the light of the decisions delivered by this Court to the petitioners, who did not wake up to challenge the reducement of vacancies of the post of Sub Registrar.
31. The question of delay and latches has been examined by Hon'ble Supreme Court in the series of decisions referred herein above and relied upon by learned Additional Advocate General, wherein latches and delay has been considered to be an important factor in exercise of discretionary power under Article 226 of the Constitution of India.
32. When a person is not vigilant of his rights and acquiesces with the situation, whether his writ petition can be heard after a long lapse of time on the ground that the relief granted in the similar petition to a petitioner, who was vigilant about his rights and challenged the denial of appointment on the post of Sub Registrar, should be granted to him?
33. In the present case, the petitioners woke up to claim the relief after a long spell of time only on the ground that they came to know the reasons of curtailment of vacancies from 49 to 10 after the judgment was rendered in the case of Anoop Kumar Singh (Supra) on 29.11.2017. The reason that 39 vacancies advertised were backlog vacancies, therefore, the selection could not be made, first time came into knowledge of the petitioners on the finding returned in the case of Anoop Kumar Singh (Supra) and immediately thereafter, the writ petition in hand was filed claiming rights on the post of Sub Registrar.
34. This Court considered the submissions advanced and law reports relied upon by learned counsel for the parties and came to the conclusion that the delay and latches are relevant factor for a Court of law to determine the question as to whether the claim made by an applicant deserves consideration or not. Delay and / or latches on the part of petitioners may deprive them of the benefit, which has been provided to others.
35. 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. The relief of equality should be made within a reasonable time.
36. In the opinion of this Court, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time. In the present case, the selection proceeding was initiated in pursuance to an advertisement issued in the year 2001 and completed in the year 2004. The petitioners did not raise their grievances before appropriate forum at any level in regard to curtailment of vacancies from 49 to 10 and this writ petition has been filed after a long delay of almost 15 years.
37. This Court takes into account that there is inordinate delay and latches on the part of the petitioners in approaching to this Court. It is well settled that power to issue a writ is discretionary. One of the ground for refusing the relief under Article 226 of the Constitution of India is that the petitioners are guilty of delay and latches. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction, as the object of this Court is not to encourage agitation of stale claims, which have already been settled or where the rights of third parties have accrued in the meantime.
38. This Court while considering the issue of parity and discrimination has considered the judgment relied upon by learned counsel for the petitioners and has recorded that discrimination would not in a situation of the present nature be attracted, as it is well known that law leans in favour of those, who are alert and vigilant. The relief of equality should be made within reasonable time. Thus, in the opinion of this Court, the judgments relied upon by learned counsel for the petitioners are not applicable to the facts and circumstances of the present case.
39. This Court, on perusal of the material on record, is satisfied that the petitioners are not vigilant of their rights and acquiesce with the situation claiming relief, as prayed for in the present writ petition and waited for 15 years, thus, this Court refuses to exercise discretionary jurisdiction under Article 226 of the Constitution of India.
40. Accordingly, the writ petition lacks merit and is hereby dismissed.
Order Date :- 16.07.2019 Adarsh K Singh