Himachal Pradesh High Court
Karan Singh Pathania vs State Of H.P. And Others on 17 November, 2015
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
LPA No. 604 of 2011
Date of decision: 17th November, 2015.
Karan Singh Pathania .....Appellant
.
Versus
State of H.P. and others ...Respondents.
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 Yes.
of
For the appellant: Mr. Avneesh Bhardwaj, Advocate.
For the respondents: Mr. Shrawan Dogra, Advocate General
rt with Mr. Anup Rattan and Mr. Romesh
Verma, Additional Advocate Generals,
and Mr. J.K. Verma, Deputy Advocate
General, for respondents No. 1 and 2.
Mr. K.D. Sood, Sr. Advocate with Mr.
Sanjeev Sood, Advocate, for
respondents No. 3 and 4.
_____________________________________________________
Mansoor Ahmad Mir, Chief Justice (Oral)
This Letters Patent Appeal is directed against the judgment dated 27.8.2011, made by the learned Single Judge of this Court in CWP No. 8025 of 2010, titled Karan Singh Pathania versus State of H.P. and others, whereby the writ petition filed by the petitioner came to be dismissed on the ground of 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.
::: Downloaded on - 15/04/2017 19:21:16 :::HCHP -2-delay, for short "the impugned judgment", on the grounds taken in the memo of appeal.
2. We have gone through the impugned .
judgment and the record.
3. The petitioner had invoked the jurisdiction of the Writ Court in the year 2010 claiming the arrears from 1.1.1996 to 18.3.1999 which is hopelessly time of barred. Even otherwise, the arrears can only be granted three years prior to filing of the writ petition in rt view of the judgment delivered by the apex Court in Jai Dev Gupta versus State of Himachal Pradesh and another reported in AIR 1998 SC 2819.
4. The apex Court in another judgment delivered in case Union of India and others versus Tarsem Singh reported in (2008) 8 SCC 648, has laid down the same propositions of law.
5. The apex Court in a latest judgment delivered in case Asger Ibrahim Amin versus Life Insurance Corporation of India reported in JT 2015 (9) SC 329 has also laid down the same principles of law. It is profitable to reproduce paras 4 and 16 of the said judgment herein.
::: Downloaded on - 15/04/2017 19:21:16 :::HCHP -3-"4. As regards the issue of delay in matters pertaining to claims of pension, it has already been opined by this Court in Union of India v. Tarsem Singh, 2008 8 SCC 648 that in cases of continuing or successive wrongs, delay and laches or .
limitation will not thwart the claim so long as the claim, if allowed, does not have any adverse repercussions on the settled third-party rights. This Court held:
7. To summarise, normally, a belated service related claim will be rejected on the ground of of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative rt Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar ::: Downloaded on - 15/04/2017 19:21:16 :::HCHP -4- as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply.
As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to .
a period of three years prior to the date of filing of the writ petition.
[emphasis is ours] 5 to 15........... .... ...... ....
16. We thus hold that the termination of services of the Appellant, in essence, was voluntary of retirement within the ambit of Rule 31 of the Pension Rules of 1995. The Appellant is entitled for pension, provided he fulfils the condition of rt refunding of the entire amount of the Corporation's contribution to the Provident Fund along with interest accrued thereon as provided in the Pension Rules of 1995. Considering the huge delay, not explained by proper reasons, on part of the Appellant in approaching the Court, we limit the benefits of arrears of pension payable to the Appellant to three years preceding the date of the petition filed before the High Court. These arrears of pension should be paid to the Appellant in one instalment within four weeks from the date of refund of the entire amount payable by the Appellant in accordance of the Pension Rules of 1995. In the alternative, the Appellant may opt to get the amount of refund adjusted against the arrears of pension. In the latter case, if the amount of arrear is more than the amount of refund required, then the remaining amount shall be paid within two weeks from the date of such request made by the Appellant. However, if the amount of ::: Downloaded on - 15/04/2017 19:21:16 :::HCHP -5- arrears is less than the amount of refund required, then the pension shall be payable on monthly basis after the date on which the amount of refund is entirely adjusted."
[emphasis supplied] .
6. The learned counsel for the appellant argued that other similarly situated persons had obtained reliefs from the Court and thereafter he had of filed the writ petition. Meaning thereby the petitioner is a fencer and the fencer cannot be held entitled to any reliefs.
rt
7. Our this view is fortified by the judgment delivered by the Apex Court in a case titled as B.S. Bajwa and another versus State of Punjab and others, reported in (1998) 2 Supreme Court Cases
523. It is apt to reproduce para 7 of the judgment herein:
"7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the Judgments of the single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance made by B. S. Bajwa and B. D. Kapoor only in 1984, which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystallised which ought not to have been re-opened after the lapse of such a long ::: Downloaded on - 15/04/2017 19:21:16 :::HCHP -6- period. At every stage the others were promoted before B. S. Bajwa and B. D. Kapoor and this position was known to B. S. Bajwa and B. D. Kapoor right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period .
because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition."
8. The Apex Court in the case titled as State of of Uttar Pradesh and others versus Arvind Kumar Srivastava and others, reported in 2014 AIR SCW 6519, held that relief cannot be extended to the rt persons who have approached the Court after long delay, that too, who are fence-sitters. It is apt to reproduce para 24 of the judgment herein:
"24. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them ::: Downloaded on - 15/04/2017 19:21:16 :::HCHP -7- the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above."
9. This Court in LPA No. 99 of 2014 titled .
Sukhdev Kumar and others versus State of H.P. and others decided on 15.7.2015 has laid down the same propositions of law.
10. Having said so, the Writ Court has rightly of made the impugned judgment and we see no reason to interfere with the same. Accordingly, the LPA is rt dismissed along with pending applications if any.
(Mansoor Ahmad Mir) Chief Justice.
November 17, 2015. (Tarlok Singh Chauhan) (cm Thakur) Judge.
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