Himachal Pradesh High Court
The State Of H.P. And Another vs Amar Nath Sharma And Others on 17 May, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No. 150 of 2009 Date of decision: 17th May, 2016.
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The State of H.P. and another .....Appellants Versus Amar Nath Sharma and others ...Respondents. Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of Whether approved for reporting ?1 Yes.
For the appellants: Mr.Shrawan Dogra, Advocate rt General with Mr. Anup Rattan and Mr. Romesh Verma, Additional Advocate Generals and Mr. J.K. Verma, Deputy Advocate General. For the respondents: Ms. Ruchika Khachi, Proxy Advocate, for respondent No.1. Mr. Sunil Mohan Goel, Advocate, for respondent No.3.
Nemo for respondents No.2 & 4.
____________________________________________________ Mansoor Ahmad Mir, Chief Justice.( Oral) This Letters Patent Appeal is directed against the judgment dated 17.8.2009, made by the learned Single Judge of this Court in CWP (T) No. 2306 of 2008, titled Amar Nath Sharma, versus State of H.P. and others, whereby the writ petition filed by the petitioner came to be allowed, for short "the impugned 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.::: Downloaded on - 15/04/2017 20:22:31 :::HCHP -2-
judgment", on the grounds taken in the memo of appeal.
2. The petitioner had invoked the jurisdiction .
of the HP State Administrative Tribunal, for short the Tribunal", seeking mainly the following reliefs.
(a) The respondents may be directed to promote the applicant from the date his juniors were promoted and of place him at Sr. No. 1 in the seniority list of senior assistant and quash the final seniority list of Sr. Asstt.
(b) The respondents may kindly be restrained to misinterpret rt the provisions of Recruitment and Promotion Rules which provides nowhere graduation qualification to the promotees."
3. It is apposite to record herein that the O.A. came to be filed by the petitioner in the year 1994 whereas, cause of action, as per pleadings, had accrued to the petitioner in the year 1984. Thus the petitioner is caught by delay and laches.
4. Respondents have filed the reply and it is specifically pleaded in paras 3 and 4 of the preliminary objections that the petitioner had filed O.A No. 1474 of 1992 for the same reliefs, which was dismissed and he was precluded from filing the fresh petition on the same cause of action.
::: Downloaded on - 15/04/2017 20:22:31 :::HCHP -3-5. The Original Application filed by the petitioner before the Tribunal, on abolition of the Tribunal came to be transferred to this Court and .
registered as CWP(T) No.2306 of 2008.
6. The Writ Court, without discussing the pleas raised by the respondents, has allowed the writ petition which, on the face of it, is illegal. The Writ court of in last two paras of the impugned judgment has held that the petitioner be promoted from the date his rt juniors were promoted. Meaning thereby, the writ petition was allowed despite the fact that the petitioner was caught by the law of estoppel, resjudicata, waiver, acquiescence and delay.
7. It is beaten law of land that delay takes away the settings of law. A person who does not seek relief within time, his petition has to be dismissed only on the grounds of delay and laches, otherwise, it would amount to gross misuse of jurisdiction and disturb the settled position.
8. The Apex Court in a case titled as R & M Trust versus Koramangala Residents Vigilance Group and others, reported in (2005) 3 Supreme Court ::: Downloaded on - 15/04/2017 20:22:31 :::HCHP -4- Cases 91, held that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution; delay defeats equity and it cannot be .
brushed aside without any plausible explanation. It is apt to reproduce para 34 of the judgment herein:
"34. There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third-party of interest created on account of delay. Even otherwise also why should the Court come to the rescue of a person who is not vigilant of his rights?"
9. rt The Apex Court in cases titled as S.D.O. Grid Corporation of Orissa Ltd. and others versus Timudu Oram, reported in 2005 AIR SCW 3715, and Srinivasa Bhat (Dead) by L.Rs. & Ors. versus A. Sarvothama Kini (Dead) by L.Rs. & Ors., reported in AIR 2010 Supreme Court 2106, has also discussed the same principle. It is profitable to reproduce para 9 of the judgment in Timudu Oram's case (supra) herein:
"9. In the present case, the appellants had disputed the negligence attributed to it and no finding has been recorded by the High Court that the GRIDCO was in any way negligent in the performance of its duty. The present case is squarely covered by the decision of this Court in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others (supra), 1999 AIR SCW 3383 : AIR 1999 SC 3412. The High Court has also erred in awarding compensation in Civil Appeal No. .............. of 2005 (arising out of SLP (C) No. 9788 of 1998). The subsequent suit or writ petition ::: Downloaded on - 15/04/2017 20:22:31 :::HCHP -5- would not be maintainable in view of the dismissal of the suit. The writ petition was filed after a lapse of 10 years. No reasons have been given for such an inordinate delay. The High Court erred in entertaining the writ petition after a lapse of 10 years. In such a .
case, awarding of compensation in exercise of its jurisdiction under Article 226 cannot be justified."
10. It would also be apt to reproduce para 39 of the judgment rendered by the Apex Court in Bhakra of Beas Management Board versus Kirshan Kumar Vij & Anr., reported in AIR 2010 Supreme Court 3342, herein:
"39. Yet, another question that draws our rt attention is with regard to delay and laches. In fact, respondent No. 1's petition deserved to be dismissed only on that ground but surprisingly the High Court overlooked that aspect of the mater and dealt with it in a rather casual and cursory manner. The appellant had categorically raised the ground of delay of over eight years in approaching the High Court for grant of the said relief. But the High Court has simply brushed it aside and condoned such an inordinate, long and unexplained delay in a casual manner. Since, we have decided the matter on merits, thus it is not proper to make avoidable observations, except to say that the approach of the High Court was neither proper nor legal."
11. The Apex Court in the case titled as State of Jammu & Kashmir versus R.K. Zalpuri and others, reported in JT 2015 (9) SC 214, held that a Writ Court while deciding a writ petition, is required to remain alive to the nature of the claim and the unexplained delay on ::: Downloaded on - 15/04/2017 20:22:31 :::HCHP -6- the part of the writ petitioner. It is apt to reproduce paras 26 to 28 of the judgment herein:
"26. In the case at hand, the employee was dismissed from service in the year .
1999, but he chose not to avail any departmental remedy. He woke up from his slumber to knock at the doors of the High Court after a lapse of five years. The staleness of the claim remained stale and it could not have been allowed to rise like a phoenix by the writ court.
27. The grievance agitated by the of respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea rt and nurtures the attitude that he can sleep to avoid death and eventually proclaim "Deo gratias" - 'thanks to God'.
28. Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non- interference would cause grave injustice.
The present case, need less to emphasise, did not justify adjudication. It deserved to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present."
12. This Court also in LPA No. 48 of 2011 titled Shri Satija Rajesh N. vs. State of Himachal Pradesh and others decided on 26.8.2014, LPA No. 150 of 2014 titled Mr. Inderjit Kumar Dhir versus State of H.P. and others, decided on 17th September, 2014, batch ::: Downloaded on - 15/04/2017 20:22:31 :::HCHP -7- of LPAs lead case of which is LPA No. 107 of 2014 titled Amit Attri and others versus Anil Verma and others decided on 3rd December, 2014 and LPA 270 .
of 2010 titled Bhem Sen Sharma versus HP University and another decided on 2nd May, 2016, has laid down the similar principles of law.
13. The petitioner is stated to have filed the of representation against the seniority list vide Annexure P3, which was rejected summarily by respondent No. 2 rt vide Annexure P8 appended to the Original Application.
14. Be that as it may, submission of a representation can be a ground to condone the delay for the reason that when an aggrieved party pursue a cause and despite making representations, his grievance is not redressed, he has to seek appropriate remedy, as early as possible, and, that too, an equitable remedy without inordinate delay and mere filing of representations here and there cannot be a ground to condone the delay.
15. The Apex Court has considered the same issue and point in a case titled as Delhi Administration and Ors. versus Kaushilya Thakur and Anr., reported ::: Downloaded on - 15/04/2017 20:22:31 :::HCHP -8- in AIR 2012 Supreme Court 2515. It is apt to reproduce para 10 of the judgment herein:
"10. We have heard Shri H.P. Raval, learned Additional Solicitor General and Shri Rishikesh, .
learned counsel for respondent No.1 and perused the record. In our view, the impugned order as also the one passed by the learned Single Judge are liable to be set aside because,
(i) While granting relief to the husband of respondent No. 1, the learned Single Judge overlooked the fact that the writ petition had of been filed after almost 4 years of the rejection of an application for allotment of 1000 sq. yards plot made by Ranjodh Kumar Thakur. The fact that the writ petitioner made further representations could not be made a rt ground for ignoring the delay of more than 3 years, more so because in the subsequent communication the concerned authorities had merely indicated that the decision contained in the first letter would stand. It is trite to say that in exercise of the power under Article 226 of the Constitution, the High Court cannot entertain belated claims unless the petitioner offers tangible explanation State of M.P. v.
Bhailal Bhai (1964) 6 SCR 261.
(ii) The claim of Ranjodh Kumar Thakur for allotment of land was clearly misconceived and was rightly rejected by the Joint Secretary (L&B), Delhi Administration on the ground that he was not the owner of land comprised in khasra No. 70/2. A bare reading of Sale Deed dated 12.7.1959 executed by Shri Hari Chand in favour of Ranjodh Kumar Thakur shows that the former had sold land forming part of khasra Nos. 166, 167 and 168 of village Kotla and not khasra No.70/2. This being the position, Ranjodh Kumar Thakur did not have the locus to seek allotment of land in terms of the policy framed by the Government of India. The payment of compensation to Ranjodh Kumar Thakur in terms of the award passed by the Land Acquisition Collector and the enhanced compensation determined by the Reference Court cannot lead to an inference that he was the owner of land forming part of Khasra No.70/2. In any case, before issuing a ::: Downloaded on - 15/04/2017 20:22:31 :::HCHP -9- mandamus for allotment of 1000 square yards plot to the writ petitioner, the High Court should have called upon him to produce some tangible evidence to prove his ownership of land forming part of Khasra No.70/2. Unfortunately, the learned Single Judge and the Division .
Bench of the High Court did not pay serious attention to the stark reality that Ranjodh Kumar Thakur was not the owner of land mentioned in the application filed by him for allotment of 1000 square yards land."
16. The Apex Court in a case titled as Chennai Metropolitan Water Supply and Sewerage Board and of others versus T.T. Murali Babu, reported in (2014) 4 Supreme Court Cases 108, has taken into consideration rt all the judgments and the development of law and held that delay cannot be brushed aside without any reason.
It is apt to reproduce paras 13 to 17 of the judgment herein:
"13. First, we shall deal with the facet of delay.
In Maharashtra SRTC v. Balwant Regular Motor Service,, AIR 1969 SC 329, the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Hurd, (1874) LR 5 PC 221, which is as follows: (Balwant Regular Motor Service case, AIR 1969 SC 329, AIR pp. 335-36, para 11) "11. .....Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in ::: Downloaded on - 15/04/2017 20:22:31 :::HCHP
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either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of .
limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.' of (Lindsay Petroleum Co. case, PC pp/ 239-
40)"
14. In State of Maharashtra v. Digambar, (1995) 4 SCC 683, while dealing with exercise of power of the rt High Court under Article 226 of the Constitution, the Court observed that: (SCC p. 692, para 19) "19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct."
15. In State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 : AIR 1987 SC 251, the Court observed that : (SCC p. 594, para 24) " 24. .........it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic."
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It has been further stated therein that: (Nandlal Jaiswal case, (1986) 4 SCC 566 : AIR 1987 SC 251, SCC p. 594, para 24) "24. ........ If there is inordinate delay on the part of the petitioner in filing a petition and .
such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction."
Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and of bring in injustice.
16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to rtweigh 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.
17. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We ::: Downloaded on - 15/04/2017 20:22:31 :::HCHP
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repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in .
acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."
of
17. The Apex Court in another case titled as State of Tripura and others versus Arabinda rt Chakraborty and others, reported in (2014) 6 Supreme Court Cases 460, has held that simply by making representations in absence of any statutory provision/appeal, period of limitation would not get extended. It is apt to reproduce paras 15, 17 and 18 of the judgment herein:
"15.In our opinion, the suit was hopelessly barred by law of limitation. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided. In the instant case, it is a fact that the respondent was given a fresh appointment order on 22.11.1967, which is on record. The said appointment order gave a fresh appointment to the ::: Downloaded on - 15/04/2017 20:22:31 :::HCHP
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respondent and therefore, there could not have been any question with regard to continuity of service with effect from the first employment of the respondent.
16. ..............
.
17. The respondent did not make any representation or grievance when he was given a fresh appointment. He knew it well that his service had been terminated and he was obliged by the appellant authorities by giving him a fresh appointment. Had he been aggrieved by a fresh appointment after termination of his service, he should of have taken legal action at that time but he accepted the fresh appointment and raised the grievance about his seniority and other things after more than a decade. Even after the draft seniority list was rt published on 11.11.1972, which had been finalized in September, 1975, he did not file any suit but continued to make representations which had been rejected throughout.
18. It is a settled legal position that the period of limitation would commence from the date on which the cause of action takes place. Had there been any statute giving right of appeal to the respondent and if the respondent had filed such a statutory appeal, the period of limitation would have commenced from the date when the statutory appeal was decided. In the instant case, there was no provision with regard to any statutory appeal. The respondent kept on making representations one after another and all the representations had been rejected. Submission of the respondent to the effect that the period of limitation would commence from the date on which his last representation was rejected cannot be accepted. If accepted, it would be nothing but travesty of the law of limitation. One can go on making representations for 25 years and in that event one cannot say that the period of limitation would commence when the last representation was decided. On this legal issue, we feel that the courts below committed an error ::: Downloaded on - 15/04/2017 20:22:31 :::HCHP
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by considering the date of rejection of the last representation as the date on which the cause of action had arisen. This could not have been done."
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18. As discussed hereinabove, mere filing of the representation will not give fresh cause of action.
Reliefs were sought by the petitioner, by the medium of O.A No. 1474 of 1992, which was dismissed and no of appeal has been preferred against the said judgment.
Thus the judgment made in O.A No. 1474 of 1992 has rt attained the finality.
19. Having glance of the above discussion, the learned Writ Court has fallen in an error in granting the writ petition.
20. Accordingly, the impugned judgment is set aside, the LPA is allowed and the writ petition is dismissed.
(Mansoor Ahmad Mir) Chief Justice.
May 17, 2016. (Tarlok Singh Chauhan) (cm Thakur) Judge.
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