Uttarakhand High Court
Bhanu Pratap Singh vs State Of Uttarakhand & Others on 27 September, 2019
Author: Alok Kumar Verma
Bench: Ramesh Ranganathan, Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 886 of 2019
Bhanu Pratap Singh .......Appellant
Versus
State of Uttarakhand & others .......Respondents
Mr. S.S. Yadav, Advocate for the appellant.
Mr. S.S. Chaudhary, Brief Holder for the State.
JUDGMENT
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Dated: 27th September, 2019 RAMESH RANGANATHAN, C.J. (Oral) This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (S/S) No.1886 of 2019 dated 09.08.2019.
2. The appellant-writ petitioner invoked the jurisdiction of this Court contending that, while his services were regularized from 31.05.2012, he ought to have been regularized from 01.10.1986; and, since he retired from service on 31.08.2018, he should be treated to have been regularized from 01.01.1986, and his service should be computed from that date for the purpose of payment of pensionary benefits.
3. In the order under appeal, the learned Single Judge observed that there was inordinate delay and laches; on being asked why the Writ Petition should be entertained after a lapse of seven years, the appellant-writ petitioner had pointed out to Para 11 of the writ affidavit; a perusal of the petition did not justify the laches and delay in filing the Writ Petition; he had failed to show a cogent reason to approach the Court after an inordinate delay of seven years; he had filed the Writ Petition seeking his regularization w.e.f. 01.10.1986, whereas his services were regularized by order dated 31.05.2012; the appellant-writ petitioner could have questioned his regularization from 01.10.1986 and for being granted other benefits but he chose to sleep over his rights; and anyone who sleeps over his right was bound to suffer. On the ground that the appellant-writ petitioner had approached the Court belatedly, and had not explained the delay and laches in filing the Writ Petitin, the learned Single Judge dismissed the same.
24. Mr. S.S. Yadav, learned counsel for the appellant-writ petitioner, would submit that the delay in filing the Writ Petition has been explained in Para 11 of the writ affidavit; the learned Single Judge had erred in brushing aside the contents of Para 11; several cases are being entertained despite inordinate delay and laches; one such case is the order passed in Writ Petition (S/S) No.1142 of 2016 and batch dated 05.06.2017; and failure to entertain the present Writ Petition is not only illegal but is also discriminatory.
5. In the order under appeal, the learned Single Judge has taken note of the judgments of the Supreme Court, in State of Uttaranchal vs. Sri Shiv Charan Singh Bhandari & others: (2013) 12 SCC 179; P.S. Sadasivaswamy vs. State of Tamil Nadu: AIR 1974 SC 2271 and Gulam Rasool Lone vs. State of Jammu & Kashmir & another: (2009) 15 SCC 321, to hold that the remedy under Article 226 of the Constitution of India is discretionary; and for sufficient and cogent reasons, a Court may decline to exercise its jurisdiction on account of delay and laches.
6. The contents of Para 11 of the writ affidavit has been extracted in the order under appeal. In terms thereof, the appellant-writ petitioner's justification, for invoking the jurisdiction of this Court belatedly, was that he was under the impression that he would be given pensionary benefits and other retiral dues; he was not aware about the decision of the regularization committee dated 25.04.1997; he was not aware of the parameters adopted by the State for his regularization; because of these reasons, he could not file the Writ Petition within time; and in any case, if the limitation is counted from 31.08.2018, then there was no delay in filing the Writ Petition.
7. As is evident from the contents of Para 11 of the writ affidavit itself, the appellant-writ petitioner's services were regularized on 31.05.2012; his claim is that he should, instead, have been regularized from 01.10.1986 because of the applicable Rules. Nothing prevented the appellant-writ petitioner from questioning the order of regularization dated 31.05.2012 soon after it was passed. His retirement from service on 31.08.2018 has no bearing on his claim for regularization from 01.10.1986; nor is it relevant for the purpose of computing limitation, since what is under challenge in the 3 Writ Petition is the validity of the order of regularization dated 31.05.2012 on the ground that the petitioner was entitled to regularization from 01.10.1986; and such an order of regularization could always have been subjected to challenge soon thereafter, instead of waiting till he retired from service.
8. We are satisfied, therefore, that the learned Single Judge was justified, after taking note of the contents of Para 11 of the writ affidavit, that the Writ Petition was unduly belated and was hit by inordinate delay and laches.
9. In an intra-court appeal, the Division Bench exercises the very same jurisdiction which the learned Single Judge exercises under Article 226 of the Constitution of India. As the learned Single Judge is not a court subordinate, interference by a Division Bench, in an intra-court appeal, would be justified only if the order under appeal suffers from a patent illegality. Even if two views are possible, and the view taken by the learned Single Judge is a possible view, the Division Bench would still not intervene, even if it is satisfied that the other view, canvassed before it by the appellant, is more attractive. It is only if the view taken by the learned Single Judge is not even a possible view, or it suffers from a patent illegality, would interference be justified. It is evident from a bare reading of the Writ affidavit that the order of regularization dated 31.05.2012 has been subjected to challenge after more than seven years in the year 2019. It cannot, therefore, be said that the learned Single Judge has committed a patent illegality in non-suiting the appellant-writ petitioner on the ground of delay and laches.
10. While the learned Single Judge, no doubt, has the discretion, despite delay and laches, to entertain the Writ Petition for just and valid reasons, in the present case, the learned Single Judge has chosen to exercise discretion not to entertain the Writ Petition on the ground that the claim was belated. Such exercise of discretion does not warrant interference in an intra- court appeal.
411. The power of the High Court to issue an appropriate writ, under Article 226 of the Constitution, is discretionary. The High Court, in the exercise of its discretion, would not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene, and refuse to grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices; the rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction. [State of Madhya Pradesh vs. Nandlal Jaiswal & others: (1986) 4 SCC 566].
12. Reliance placed on behalf of the appellant-writ petitioner on the judgment of the learned Single Judge in Writ Petition (S/S) No.1142 of 2016 and batch dated 05.06.2017 is of no avail. In the said judgment the question of delay was not considered. In any event, the mere fact that the said Writ Petition was entertained despite delay and laches, would not justify Writ Petitions being entertained in all cases, notwithstanding the inordinate and unexplained delay in invoking the jurisdiction of this Court.
13. We see no reason, therefore, to interfere with the order under appeal. The Special Appeal fails and is, accordingly, dismissed. No costs.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C. J.)
27.09.2019 27.09.2019
NISHANT