Vijay Kumar Jolhe (Scheduled Caste) vs High Court Of Chhattisgarh on 9 December, 2024

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Chattisgarh High Court

Vijay Kumar Jolhe (Scheduled Caste) vs High Court Of Chhattisgarh on 9 December, 2024

1. The petitioner has filed this writ petition assailing the order dated 24.10.2018 whereby on the recommendation of respondent No. 1, Page 2 of 15 respondent No. 2 has terminated the service of the petitioner.

2. The brief facts as reflected from the record are as under :-

A. The petitioner, belongs to Scheduled Caste category. On being qualified in the competitive examination at par with the General Candidates, the petitioner was directly appointed on probation as District Judge (Entry level) under the provisions of clause (c) of Sub-Rule (1) of Rule 5 of Chhattisgarh Higher Judicial Service (Recruitment & Conditions of Service) Rules 2006 and was posted as VIII Additional District & Sessions Judge, Raipur vide Order No.1123/Confdl./2014/II-2-1/2014/Bilaspur, Dated 30.10.2014.

Accordingly, the petitioner reported on duty on 31.10.2014 at Raipur in pursuant to the said appointment letter dated 30.10.2014. The services of the Petitioner on appointment as Additional District & Sessions Judge (Entry Level) in context to this writ petition were inter alia governed in terms with Rule 9 Sub-Rule (1), (2), (3)&(4) of the Notification vide F.No.2985/943/21-B/C.G. dated 7th April 2006 under the said Rules which inter alia provides the period of probation as 02 years.

B. On completion of the 1st year of service the Annual Confidential Report (ACR) of service was generated wherein apart from the general assessment the overall grading was allotted as Grade "C" to the petitioner as communicated vide respected Registrar General, C.G. High Court D.O. No. 873/Confdl./2014-15/2015 dated 30.09.2015. It was inter alia directed in the said letter of the respected Registrar General, "not to submit any representation against the advisory remarks." However, considering the direction by the Hon'ble Registrar General, not to make any Page 3 of 15 representation, the petitioner took it as not a harmful situation but at the same time became more cautious to meet the challenges in overall improvements.

C. Thereafter, the petitioner on completion of his succeeding year of service in F.Y. 2015-16, was again communicated the overall Grade-"C" by the Registrar General of this Court vide D.O. No.235/C.R.2015-2016/ Confdl./2017 dated 21.02.2017. In the said DO letter the remarks of the Hon'ble District judge were also captioned as "Integrity- Rumour heard but no confirmation....."

D. The petitioner, further received an Advisory remarks excerpted from the Annual Confidential Report for the period from 1st April 2016 to 31st March 2017 vide DO No.754/C.R.2016-2017/Confdl./2018 dated 25/06/2018 by the Registrar General C.G. High Court. It was directed therein to submit representation, if any, against the same within 15 days from the date of receipt of the communication as the representation received beyond the said date will not be entertained. The advisory remarks contained in the said DO letter dated 25/06/2018 of the Registrar General, High Court vis-à- vis the factual position against the same are stated subsequently below in chronology of the facts of the case below. E. The facts were elaborately submitted by the petitioner through his representation dated 10.07.2018 to the Registrar General Hon'ble High Court, Bilaspur through the District & Sessions Judge, Surguja at Ambikapur which was not accepted and he was terminated vide order dated 24.10.2018.

3. The respondent No. 1 has filed return raising preliminary objection about Page 4 of 15 maintainability of the writ petition mainly contending that the present petition has been filed on 22.11.2022 whereas the services of the petitioner were terminated on 24.10.2018, as such the petition has been filed after lapse of 4 years, therefore, petition is liable to be dismissed on account of delay and latches and without explanation for such inordinate delay of 4 years. On the contrary in paragraph 7 he has stated that there is no delay in filing of the petition. Respondent No. 1 denied the contention raised by the petitioner as the reporting authority duly takes into consideration multiple factors including quantitative work / disposal, performance in Legal-Aid / Lok-Adalat, level of knowledge as also various attributes like management qualities, relation with the bar and staff which cover all the judicial as well as administrative aspects of a Judicial Officer. Further, the reliance of the petitioner on the Circular Annexure P-9 is misplaced as this Circular itself makes it clear that the concession of criteria being 1 unit less is available only to newly appointed Judicial Officer for 2 years from the date of their joining. The petitioner joined the services on 31.10.2014. Regulation 5 (1) of the Chhattisgarh Judicial Officers (Confidential Rolls) Regulations, 2015 stipulates that the A.C.R. of a Judicial Officer is to be written on financial year basis i.e. from April to March. Thus, the petitioner could get the benefit contained in Annexure P- 9 only from 31.10.2014 to 31.03.2015 (1 financial year) and 01.04.2015 to 31.03.2016 (2nd financial year) and not beyond that. The A.C.R. contained in Annexure P-6 and P-7 relate to the period 01.04.2016 to 31.03.2017 and therefore the reliance of the petitioner on Annexure P-9 is misconceived. It is pertinent to mention here that none of the A.C.R.s prior to this wes ever agitated by the petitioner. Even in this period for the F.Y. Page 5 of 15 2016-17 the petitioner was duly and correctly awarded the category as average units came to be 5.65 per day. Lastly, it is respectfully contended that the representation of the petitioner was duly considered and rejected by the Standing Committee after due consideration of the same. Therefore, he would pray for rejection of the present writ petition.

4. Respondent No. 2 has filed reply contending that the contesting party in the present case would be the respondent No. 1. They have acted on the recommendation of the respondent No. 1 which is in their jurisdiction, therefore, there is no illegality or irregularity committed by them in terminating the petitioner.

5. The petitioner has filed rejoinder mainly contending that the petition has been filed after judgment passed by the Single Bench in WPS No. 825/2022 on 13.05.2022 and disposal of writ appeal on 16.06.2022 as the case of the petitioner is similar to the case of Ganesh Ram Berman as both the judicial officers are similarly situated persons, therefore, he is also claiming similar relief. As such, the petition cannot be held to be barred by limitation. It has also been contended that the issue of limitation has already been considered by the Hon'ble Division Bench of this Court in case of Krishna Kumar Kosariya vs. State of Chhattisgarh and Others in Writ Appeal No. 450/2021 decided on 12.06.2023. The petitioner in the rejoinder reiterated the same facts and has contended that the order dated 13.10.2018 was passed without sending the matter to the full Court in terms of the proviso to Rule 4(C) and also against the Rule 4 (O) of the Chhattisgarh High Court Judicial Service Rule, 2007, thus would pray for allowing the writ petition and reinstatement with full backwages.

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6. Learned counsel for the petitioner would submit that it is necessary to go behind the order of termination to find out the real cause of action in the matter. There are allegations of misconduct and a preliminary enquiry, not as a 'Departmental Enquiry Proceeding, was held to find out the truth in the alleged misconduct. But, an order impugned, terminating the service of petitioner was passed on the basis of the said preliminary enquiry. The impugned termination order dated 24.10.2018 is found on non-substantive grounds, prejudiced assessment of performance in the Annual Reports. It is also ground on the basis of an anonymous complaint which did not contain any direct allegation against the petitioner and lacked any material substance in the Inspection Report of the Registrar Vigilance, High Court, Bilaspur (C.G). The impugned order of termination is punitive in nature and in absence of any proper enquiry it amounts to in violation of Article 311(2) of the Constitution of India. The termination order dated 24.10.2018 is, therefore stigmatic and punitive and requires to be quashed by this Court in the interest of justice. To substantiate his submission he would refer to the judgment of Hon'ble Supreme Court in case of High Court of Rajasthan vs. Ramesh Chand Paliwal {1998 (3) SCC 72 }, Rajasthan High Court vs. Ved Priya and Another {(2020) SCC Online SC 337}, Dr. Vijayakumaran C.P.V. Vs. Central University of Kerala and Ors {(2020) 12 SCC 426}, Ratnesh Kumar Choudhary Vs. INdira Gandhi Institute of Medical Sciences { 2015 (15) SCC 151}, State of Bihar vs. Gopi Kishore Prasad {AIR (SC) 1960 - 0- 689}, State of U.P. Vs. Raj Bahadur Singh And Another { 1998 (8) SCC 685}, Maharastra State Road Transport Corporation Vs. Balwant Regular Motor Services {AIR (SC) 1969 329}, judgment of Hon'ble High Court of Page 7 of 15 Bihar in case of Sunil Kumar Verma vs. State of Bihar {Civil Writ Jurisdiction Case No. 8306/2020} and judgments of this Court in case of Ganesh Ram Berman vs. High Court of C.G. and Anr {WPS No. 825/2017}, High Court of Chhattisgarh vs. Ganesh Ram Berman {W.A. No. 281/2022}, Akanksha Bharadwaj vs. State of C.G. {WP(S) 2206/2017} and Krishna Kumar Kosariya vs. State of Chhattisgarh {W.A. No. 450/2021}.

7. Learned counsel for respondent No. 1 would submit that the petitioner's probation period has not been extended, as such, non-extension of probation will not fall within the ambit of termination in view of explanation of Rule 10 Sub Rule 8(a) therefore, it will not be classified as penalty as per Rule 10 of Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, 1966, therefore no regular departmental inquiry is required. He would further submit that the petitioner has claimed parity on the basis of judgment passed by the Hon'ble Division Bench of this Court in case of Ganesh Ram Berman (supra) but he has not placed true facts or subsequent events taken place in the matter as the full Court has already recommended the High Court to take action for termination from service. He would further submit that the petition suffers from delay and latches as his services were terminated on 10.07.2018 and he has filed this petition on November, 2022 after four years from the termination. As such, he would pray for dismissal of this writ petition on this count alone.

8. From the discussion above the points emerged for determination Page 8 of 15 by Court are as under :-

1. Whether the writ petition deserves to be dismissed on the count of delay and latches as delay defeats equity and disentitle the similarly situated person to be granted benefits similarly?

2. Whether the order of termination dated 10.07.2018, 24.10.2018 deserves to be quashed by this Court and the petitioner is entitled to be reinstated with consequential benefits ?

Point No. 1

9. The facts regarding termination of service on 10.07.2018, 24.10.2018 and filing of the petition in November, 2022 are undisputed facts. The petitioner initially has taken stand that there is no delay in filing of the petition but subsequently he has filed rejoinder to claim parity on the count of application of principle of similarly situated persons should be treated similarly. For elaborating the point it is expedient for this Court to first address the effect of delay in equitable relief as this Court in writ jurisdiction under Article 226 of the Constitution of India cannot grant extraordinary relief to the person who belatedly approaches the court. The effect of delay in filing of the petition has come up for consideration before the Hon'ble Supreme Court right from 1975 (1) SCC 152 in case of P.S. Sadasivaswamy vs. State of Tamil Nadu wherein the Hon'ble Supreme Court has held as under :-

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"A person aggrieved by an order of promoting a ju- nior over his bead should approach the Court at least within six months or at the most a year of such promotion. It is not that 'here 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 inter- fere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discre- tion 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- The petitioner's petition should, therefore have been dis- missed in limine. Entertaining such petitions is a waste of time of the court. It clogs the work of the Court and im- pedes the work of the court in considering legitimate griev- ances as also its normal work. We consider that the High court was right in dismissing the appellant's petition as well as the appeal."

10. Again Hon'ble Supreme Court in case of Tridip Kumar Dingal and Others vs. State of West Bengal and Others {(2009) 1 SCC 768} has held in paragraph 56 and 57 as under :-

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 Page 10 of 15 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, (1970) 1 SCC 84].

11.Again, Hon'ble Supreme Court in case of State of Uttaranchal And Another vs. Shiv Charan Singh Bhandari and Others {(2013) 12 SCC 179} in paragraph 23, 24,25, 26 and 28 has held as under :-

23.In State of T.N. v. 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: -

12. "....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 Kashmir and another[2009 15 SCC 321].

25 In New Delhi Municipal Council v. Pan Singh and others[2007 9 SCC 278], the Court has opined that though there is no period of limitation provided for fil- ing a writ petition under Article 226 of the Constitu- tion 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 seven- teen 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.

26.. Presently, sitting in a time machine, we may re- fer to a two-Judge Bench decision in P.S. Sadasivasway v. State of Tamil Nadu[1975 1 SCC 152], wherein it has been laid down that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six Page 11 of 15 months or at the most a year of such promotion. 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 extraordinary 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 mat- ters.

28.Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court.

13. The Hon'ble Supreme Court again in case of Rushibhai Jagdishchandra Pathak vs. Bhavnagar Municipal Corporation { } in paragraphs has held as under :-

10. At the same time, the law recognises a 'continuing' cause of action which may give rise to a 'recurring' cause of action as in the case of salary or pension. This Court in M.R. Gupta v. Union of India and Others,10 has held that so long as the employee is in service, a fresh cause of action would arise every month when they are paid their salary on the basis of a wrong computation made contrary to the rules. If the employee's claim is found to be correct on merits, they would be entitled to be paid according to the properly fixed pay-scale in future and the question of limitation would arise for recovery of the arrears for the past period. The 10 (1995) 5 SCC 628 Court held that the arrears should be calculated and paid as long as they have not become time-barred. The entire claim for the past period should not be rejected. 11. Relying upon the aforesaid ratio, this Court in the case of Union of India and Others v. Tarsem Singh,11 while referring to the decision in Shiv Dass v. Union of India and Others,12 quoted the following passages from the latter decision: "8...The High Court does not ordinarily permit a belated resort to the Page 12 of 15 extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third- party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.

xx xx xx

10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. ... If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years.

14. The Hon'ble Supreme Court again in case of Mrinmoy Maity vs. Chhanda Koley and Others { 2024 (4) SCR 506} in paragraphs 9, 10, 11, and 13 has held as under :-

9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been non-suited or in other words writ petition ought to have been dismissed on the ground of delay and laches itself.

An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or laches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.

10. The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the Page 13 of 15 conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described in a straight jacket formula with mathematical precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled.

11. For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and laches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and laches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and laches on the part of the applicant in approaching a writ court.

13. Reiterating the aspect of delay and laches would disentitle the discretionary relief being granted, this Court in the case of Chennai Metropolitan Water Supply & Sewerage Board and others v. T.Τ. Murali Babu, (2014) 4 SCC 108 has held:

"16. 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 scrutinise 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 Page 14 of 15 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."

15. From the above discussion it is quite vivid that the petitioner who was a judicial officer has approached the High Court after 4 years of his termination from service without any explanation for filing the petition at belated stage but claiming similar relief on the strength of judicial Officer Mr. Ganesh Ram Berman who has approached the High Court without any delay from order of termination passed by the State on the recommendation of the High Court as his WPS No. is 825/2017 and he was removed from the service on 06.02.2017. Thus, the petitioner cannot claim that he is similar to Mr. Berman and entitled to get same relief as he has been granted by the learned Single Bench and Hon'ble Division Bench of this Court. Though subsequently, Mr. Ganesh Ram Berman has again been terminated by the High Court therefore, the writ petition deserves to be dismissed on account of delay and latches. Thus, the point No. 1 is answered against the petitioner, consequently the petition is dismissed on the count of delay and latches.

Point No. 2

16. Since this Court has dismissed the petition on the count of delay and latches, Point No. 2 is not required to be answered Page 15 of 15 by this Court and this issue is left open.

17. Consequently, the writ petition is dismissed.

Sd/-

(Narendra Kumar Vyas) Judge Deshmukh

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Chattisgarh High Court