Himachal Pradesh High Court
Dr. Y. S. Parmar University Of ... vs Shri Joginer Singh on 5 January, 2021
Bench: Tarlok Singh Chauhan, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 3562 of 2020 alongwith
CWP Nos. 3563, 3564, 3565, 3566 &
.
3567 of 2020
Decided on: 28.12.2020
CWP No. 3562 of 2020
Dr. Y. S. Parmar University of Horticulture and Forestry
...Petitioner
Versus
Shri Joginer Singh ...Respondent
CWP No. 3563 of 2020
r to
Dr. Y. S. Parmar University of Horticulture and Forestry
Versus
...Petitioner
Shri Bhupinder Sharma ...Respondent
CWP No. 3564 of 2020
Dr. Y. S. Parmar University of Horticulture and Forestry
...Petitioner
Versus
Shri Uma Kant ...Respondent
CWP No. 3565 of 2020
Dr. Y. S. Parmar University of Horticulture and Forestry
...Petitioner
Versus
Shri Sarwan Kumar Sharma ...Respondent
CWP No. 3566 of 2020
Dr. Y. S. Parmar University of Horticulture and Forestry
...Petitioner
Versus
Shri Rajneesh Thakur ...Respondent
CWP No. 3567 of 2020
Dr. Y. S. Parmar University of Horticulture and Forestry
...Petitioner
Versus
Ms. Nisha Negi ...Respondent
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2
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
.
Yes.
Whether approved for reporting? 1
For the Petitioner(s) : Mr. Ankush Dass Sood, Sr. Advocate with Mr.
Inder Sharma, Advocate.
For the Respondent(s) : Mr. J. L. Bhardwaj, Advocate.
(Through Video Conferencing)
Tarlok Singh Chauhan, Judge (Oral)
Since common question of law and facts arise for consideration in these petitions, therefore, they are taken up together and are being disposed of by way of a common judgment.
2. The respondent(s) approached the erstwhile learned Administrative Tribunal with the grievance that on the recommendation of the Selection Committee, the Vice-
Chancellor of the University had been pleased to offer appointment to the respondent(s), however, because of non-
receipt of the funds from the National Afforestation and Eco-
Development (for short 'NAED), their services were dis-engaged from 16.10.2014 vide letter dated 01.10.2014 whereas their juniors were retained.
3. The erstwhile learned Administrative Tribunal allowed all these petitions and directed the University to take the services of the respondent(s) on its regular establishment as 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 3 had been done in the cases of Ms. Arpana Garg, Ms. Kamlesh Rani, Ms. Taruna Sharma, Shri Pawan Kumar, Shri Devender .
Rathore and Shri Nagesh Kumar Chandel vide order dated 07.09.2017 and respondent(s) were also held to be entitled for all consequential benefits, without any further loss of time. The outer limit for implementation of the judgment was set at three months, as is evident from the relevant observations made in para-24 of the order, which reads as under:-
"24. The above discussion brings me to hold that the applicants are entitled for relief. The original applications are accordingly allowed with a direction to the respondent-University, through its Registrar, to take the services of the applicants on its regular establishment as has been done in the cases of the aforesaid Ms. Arpana Garg, Ms. Kamlesh Rani, Ms. Taruna Sharma, Shri Pawan Kumar and Shri Devender Rthore, vide office order dated 07.09.2017, Annexure A-26, and Nagesgh Kumar Chandel, vide office order 07.09.2017, Annexure A-27, alongwith all consequential benefits, without any further loss of time, but in any case not later than three months from today."
4. Aggrieved by the order of the learned Tribunal, the petitioner(s) filed these petitions on 28.08.2020, for the grant of following substantive relief(s):-
"i) That the impugned order dated 01.07.2019 passed by the erstwhile learned Administrative Tribunal of Himachal Pradesh may kindly be quashed and set aside."
5. When these petitions came up for hearing on 10.09.2020, this Court passed the following orders:-
::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 4 "Caveat Pet. No. 165 of 2020Discharged. The petition stands disposed of.
.CMP No. 8857 of 2020
Allowed and disposed of.
CWP No. 3562 of 2020 & CMP No. 8858 of 2020 "Notice. Mr. J. L. Bhardwaj, Advocate, appears and waives service of notice on behalf of the respondent. The order impugned herein was passed as far back as on 01.07.2019 by the erstwhile H.P. Administrative Tribunal and there is no explanation as to why this petition has been prepared and filed after delay of more than one year. Therefore, supplementary affidavit, explaining the delay in filing the petition, be filed within four weeks.
List on 15.10.2020.
Authenticated copy of this order be supplied by the Secretary/Private Secretary."
6. In compliance to the aforesaid directions, the Registrar of the University has filed his personal affidavit, relevant portion whereof reads as under:-
"3. That in compliance of the above order passed by the Hon'ble Court, it is respectfully submitted that the copy of order passed by erstwhile Ld. Administrative Tribunal of H.P. received in this University on 10.07.2019 and the same was put up before the Registrar, Dy. Y.S. Parmar University of Horticulture and Forestry Nauni (Solan) for further order and the Registrar put up the same to the Vice Chancellor for further order on 18.07.2019. Thereafter the matter was discussed with the Vice Chancellor Dr. Y. S. Parmar University of Horticulture and Forestry, Nauni (Solan) by the Registrar on 29.07.2019. The Vice Chancellor, Dr. Y. S. Parmar University of Horticulture and Forestry, Nauni (Solan) had desired that ::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 5 the matter may be placed before the Board of Management. It is submitted that the Recruitment Section of this University prepared the agenda on 01.08.2019 and .
the same was sent to the Vice-Chancellor for approval for placing the same before the Board of Management in its ensuring meeting. The Vice-Chancellor approved the agenda on 03.08.2019. The Vice Chancellor approached to the Additional Chief Secretary (Finance) and Additional Chief Secretary (Horticulture) to the Govt. of H.P. for obtaining suitable date and time for holding the meeting of the Finance Committee and the Board of Management vide letters both dated 24.07.2019 (Annexure P-1) and (Annexure P-2). As the meetings of Finance Committee as well as of Board of Management of this University were overdue and also new Board of Management was constituted, therefore, the Principal Secretary (Finance) to the Govt. of H.P. was also again requested for holding these meetings vide letter dated 25.08.2019 (Annexure P-
3). But due to certain administrative reasons and busy schedule of the Administrative Secretaries, the meeting of the Finance Committee as well as of Board of Management of this University could not be held upto 05.03.2020. It is further submitted that the 107 th (Special) Meeting of Board of Management was convened in a short notice due to 10th Convocation of the University which was held on 06.03.2020. Apart from this, the budget session of the Himachal Pradesh Legislative Assembly was also in progress and the Administrative Secretaries of the State Government including Horticulture & Finance Secretaries were also remained busy with the assembly budget session forthwith being an urgent nature of work.
Therefore, it was decided that the Administrative Secretaries of the State Government will be approached at the end of budget session of the legislative assembly for fixing the suitable dates to hold the Finance ::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 6 Committee & Board of Management Meeting in near future with due consultation with them. Thereafter, the lockdown was imposed in the entire country by the .
Government of India with effect from 24.03.2020 due to spread of COVID-19 pandemic worldwide.
4. Whereas under directions of the National Disaster Management Authority (NDMA), guidelines on lockdown measures to contain the spread of COVID-19 in all parts of the country were issued on 24.03.2020 under the Disaster Management Act, 2005 for a period of 21 days initially with effect from 25.03.2020 and same was extended from time to time and the said lockdown imposition in the State of Himachal Pradesh was extended upto 31.05.2020 under lockdown 4.0. It will not be out of place to mention here that the Government offices including this University related to administrative matters etc. had started functioning since 01.06.2020.
5. That this University had started functioning with effect from 01.06.2020 in the matters related to administration and other issues. That the meeting of the Board of Management was convened on 20.06.2020 in the premises of this University i.e. 108 th Meeting of Board of Management to comply the court order(s) dated 01.07.2019 in its true spirit. The Principal Secretary (Finance) and Secretary (Horticulture), to the Government of Himachal Pradesh, Shimla were also present in the said meetings amongst other members. The matter related to implementing the decision passed on 01.07.2019 by the erstwhile Ld. Administrative Tribunal in OA No. 1320 of 2018 titled as Joginder Singh versus Dr. Y. S. Parmar University of Horticulture and Forestry Nauni (Solan) was discussed at length in the aforesaid meeting held on 20.06.2020. further the Board of Management perused the decision of the erstwhile Ld. Administrative Tribunal, Shimla dated 01.07.2019. After threadbare discussion, it ::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 7 was decided to seek legal opinion for examination this case and assail the same before the Hon'ble High Court. In view of the above decision of the Board of .
Management, legal opinion was obtained from the University Standing Counsel on 16.07.2020 who has intimated that it is a fit case to file before the Hon'ble High Court to challenge the order/judgment passed by the erstwhile Ld. Administrative Tribunal on 01.07.2019. Accordingly, this office drafted six similar petitions duly vetted by the University Standing Legal Counsel and filed the same in the Hon'ble High Court of Himachal Pradesh, Shimla on 01.09.2020."
7. The allegations set out by the petitioner(s) in its affidavit were controverted by the respondent(s) by filing reply. The averments contained in paras 3 to 5 of the reply reads as under:-
"3. That in the supplementary affidavit, it has been stated that the meeting of the Finance Committee as well as the Board of Management of the University could not held up to 05.03.2020 due to certain administrative reasons and busy schedule of the Administrative Secretaries. It is admitted by the petitioner-University that the meeting that the meeting of the Board of Management was convened on 06.03.2020, but the issue regarding implementation of the order passed by the learned Tribunal was not placed in the said meeting due to a short notice on account of 10th Convocation of the petitioner- University. It is further submitted in the supplementary affidavit that since the Budget Sessions of the Himachal Pradesh Legislative Assembly was also in progress and the Administrative Secretaries of the State Government including Horticulture and Finance Secretaries also remained busy with the Assembly Budget Session, it was decided that the Administrative Secretaries will be ::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 8 approached at the end of the Budget Session of the Legislative Assembly for fixing the suitable dates to hold the Finance Committee and Board of Management .
meetings in near future with due consultation with them.
However, in the meantime, the lockdown was imposed on 24.03.2020 and the functioning of the petitioner-
University started w.e.f. 01.06.2020.
4. That the meeting of the Board of Management was convened on 20.06.2020 in the premises of the petitioner- University and the matter regarding implementation of the order dated 01.07.2019 was discussed in the meeting and it was decided to seek the legal opinion for examining the case which was obtained on 16.07.2020 and thereafter the petition has been filed on 01.09.2020.
5. That the petitioner-University in the entire petition has not disclosed that at one point of time, it had taken the decision to implement the order dated 01.07.2019 passed by the learned Tribunal on 22.07.2019 and the said aspect has been concealed by the petitioner-University while filing the supplementary affidavit. Further, in the entire supplementary affidavit nothing has been stated that what steps were taken by the petitioner-University w.e.f.
25.08.2019 to 05.03.2020 and thereafter from 06.03.2020 to 20.06.2020, why the matter which was pertaining to the implementation of the directions issued by the competent Tribunal was not placed before the Board of management shows lackadaisical attitude on the part of the petitioner-University and show scant regards to the directions passed by the Tribunals/Courts. It is submitted that the Hon'ble Supreme Court has held in recent Judgments that the Government has no right to walk into the Court as and when they want and in the present case, since the petitioner-University has not explained the delay in not placing the matter in the meeting of the Board of Management held on 06.03.2020 and further there is no ::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 9 explanation from 25.08.2019 till 06.03.2020 and from 06.03.2020 to 20.06.2020, 16.07.2020 to 01.09.2020, the writ petition filed by it deserves to be dismissed on the .
ground of delay and latches of 426 days delay in view of the recent decisions rendered by the Hon'ble Supreme Court of India in the following cases:-
I) (2020) 7 SCC 263, date of decision 19.06.2020
ii) Special Leave Petition (Criminal) Diary No(s).
9616/2020, titled the State of Andhra Pradesh versus M. Srinivasa Rao (Three Judges), dated of decision 28.08.2020.
iii) civil Appeal No. 3007-3008 of 2020, Sagufa Ahmed and others versus Upper Assam Plywood Products Private Limited and others date of decision 18.09.2020.
iv) Special Leave Petition (Civil) diary No(s). 13348/2020, titled the State of Madhya Pradesh and another versus Chat Ram Maywade, date of decision 27.10.2020. The copies of the aforementioned decisions are enclosed for the kind perusal of this Hon'ble Court."
8. It would be noticed that the erstwhile learned Tribunal in its judgment had directed the grant of all consequential benefits, without any further loss of time and in any case not later than three months from the judgment.
Therefore, it was not open to the petitioner(s) to sit over the judgment merely because the implementation of the judgment was in their hands.
9. Even otherwise the contents of the supplementary affidavit and rejoinder thereto (supra) does not indicate much less prove that the University was serious to contest the claim of the respondents by filing a writ petition. Though at the initial ::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 10 stage it did not show any promptness but after the receipt of the order on 10.07.2019, the Registrar of the University put the .
same to the Vice-Chancellor for further order on 18.07.2019.
Thereafter the matter was discussed with the Vice-Chancellor on 29.07.2019 and in sequel thereto an Agenda was prepared by the Recruitment Section of the University on 01.08.2019, which was approved by the Vice-Chancellor on 03.08.2019. The vice-
Chancellor even approached the Additional Chief Secretary (Finance) and Additional Chief Secretary (Horticulture) to the Government of H.P. for suitable date and time for holding meeting of the Finance Committee and Board of Management vide letter dated 24.07.2019 and thereafter issued another reminder dated 25.08.2019, but unfortunately thereafter the petitioner(s) did not even bother to take any follow up action.
10. We are fully conscious of the fact that we are dealing with the writ petitions for which there is no prescribed period of limitation nonetheless the principle of delay and latches equally apply to these cases.
11. It is not in dispute that the officials of the University were well aware and conversant with the issue involved including the outer limit granted by the learned Tribunal for implementation of the order.
12. In such circumstances, it was incumbent upon the petitioner to have acted with promptitude by filing a writ petition ::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 11 before the outer limit granted by the learned Tribunal had expired.
.
13. Even while filing these petitions, the petitioner-
University had taken it for granted that these petitions would be entertained as a matter of right without any question being raised regarding the delay and latches or else there should have at least been slightest whisper in the writ petition(s) and in the prayer to this effect seeking condonation of delay and latches.
14. It is more than settled that in absence of plausible and acceptable explanation merely because the wing of the government happens to be the party, the same cannot be done mechanically, especially when there is negligence, inaction or lack of bonafide exhibited by the petitioner(s)-University.
15. The Hon'ble Supreme Court has repeatedly deprecated the practice of the Government/Boards /University(ies) moving the Court(s) belatedly only by way of formality.
16. The Hon'ble Supreme Court in Special Leave Petition (Civil) No(s). 13348 of 2020, titled as The State of Madhya Pradesh & Anr. vs. Chaitram Maywade, decided on 27.10.2020, observed as under:-
"The State of Madhya Pradesh continues to do the same thing again and again and the conduct seems to be incorrigible. The Special Leave Petition has been filed after a delay of 588 days. We had an occasion to deal ::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 12 with such inordinately delayed filing of the appeal by the State of Madhya Pradesh in SLP(C) D. No. 9217/2020- State of Madhya Pradesh & Ors. vs. Behru Lal in terms of .
our order dated 15th October, 2020.
We have penned down a detailed order in that case and we see no purpose in repeating the same reasoning again except to record what are stated to be the facts on which the delay is sought to be condoned. On 05.01.2019, it is stated that the Government advocate was approached in respect of the judgment delivered on 13.11.2018 and the Law Department permitted filing of the SLP against the impugned order on 26.05.2020. Thus, the Law Department took almost about 17 months' time to decide whether the SLP had to be filed or not. What greater certificate of incompetence would there be for the legal Department! We considered it appropriate to direct the Chief Secretary of the State of Madhya Pradesh to look into the aspect of revamping the legal Department as it appears that the Department is unable to file appeals within any reasonable period of time much less within limitation. These kinds of excuses, as already recorded in the aforesaid order, are no more admissible in view of the judgment in Office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & Anr.-(2012) 3 SCC 563.
WE have also expressed our concern that these kinds of the cases are only "certificate cases" to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue. The object is to save the skin of officers who may be in default. We have also recorded the irony of the situation where no action is taken against the officers who sit on these files and do nothing."
17. Similar reiteration of law can also be found in another judgment of the Hon'ble Supreme Court in Special ::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 13 Leave Petition (Civil) Diary No(s). 971/2020, titled as The State of Uttar Pradesh & Anr. vs. Prem Chandra, decided .
on 27.11.2020, wherein it was observed as under:-
"We have set out the aforesaid facts to show the callous manner in which these proceedings have gone on. The fact that the matter should have gone on for two decades before the Tribunal in case of a labour dispute is itself a travesty of justice. That the petitioner takes its own time to assail the same before the High Court is the next stage and finally it has taken them almost three years to get this petition before the Supreme Court.
The application for condonation of delay is a usual one showing the file moving from one place to the other. The reliance again on different judgments including Collector, Land Acquisition, Anantnag & Anbr. vs. Mst. Katiji & Ors. - (1987) 2 SCC 107 is followed by referring to judgments of the different vintage, if one may say so. There is complete non-reference to the judgment in the case of Office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & Anr. (2012) 3 SCC 563. It is the latter judgment which sets out the position after technology has come to the aid of the Governments.
We have had opportunity to deal with such matters and have extended cautions to the State Governments not to come to this Court only to obtain the certificate of dismissal what we have called as "certificate cases", so as to put the quietus to the matter and absolve the officers of the responsibility of not having performed their duties. A detailed discussion in this behalf is in SLP(C) Diary No. 9217/2020- State of Madhya Pradesh & Ors. vs. Bherulal decided on 15.10.2020. It appears that the cautions extended from time to time are falling on deaf ear. If the petitioners feel that the period of limitation prescribed by the Legislature is not sufficient, given their ::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 14 inefficiencies and incompetence, then it is for them to persuade the Legislature to change the Law of Limitation so far as applicable to the Government concerned. Till the .
Law remains, it must be applied as it stands.
We also find that no action is ever taken against the personnel responsible for the delay and to save their skin, these special leave petitions are filed wasting judicial time.
We are thus, not inclined to let go the matter at this and do consider appropriate, as in the other cases, to impose costs on the petitioners for having wasted judicial time.
18. Not only this, the Hon'ble Supreme Court has repeatedly reiterated that government cannot take the plea of differential treatment in matters of condonation of delay. As a matter of fact, the Hon'ble Supreme Court very recently in case of SLP(C) Diary No(s). 19059 of 2020, titled as Deputy Conservator of Forests vs. Timblo Irmaos Ltd. & Ors., decided on 18.12.2020, refused to differentiate between the government and private party in the matter of belatedly approaching the Court without sufficient cause. The relevant portion whereof reads as under:-
"A perusal of the impugned order shows that once again a reference has been made, as in similar cases of delay by the State to the judgment of this Court in the case of Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors., AIR 1987 SC 1353. A claim was also made that the petitioner should not suffer for the fault of the counsel. The High Court opined that such substantial delay could not be condoned by mere shifting the blame on the counsel as the parties are required to keep track of the ::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 15 matter and there is negligence despite numerous opportunities.
We have dealt with the issue of Government authorities in .
approaching courts belatedly as if the Statute of Limitation does not exist for them. While referring to some reasons given for insufficiencies, we observed that the parties cannot keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government, (Collector, Land Acquisition, Anantnag & Anr. (supra). This situation no more prevail and this position had been elucidated by the judgment of this Court in office of the Chief Post Master General & Ors. vs. Living Media India Ltd. & Anr. (2012) 3 SCC 563.
These aspects have been analyzed by us recently in SLP (C) No. D. 9217/2020-State of Madhya Pradesh & Ors. vs. Bheru Lal decided on 15.10.2020.
In the aforesaid judgment we have defined "certificate cases" the objective of which is only to put a quietus to the issue by recording that nothing could be done because the highest Court had dismissed the appeal. We have repeatedly deprecated such practice and process.
The irony is that despite observations, no action was ever taken against officers who sit on the file and do nothing. The matter is further aggravated in the present case and even the present petition is filed with a delay of 462 days and once again the excuse is of change of counsel. We have repeatedly deprecated such attempts of the State Governments to approach this Court only to complete a mere formality. Learned counsel for the petitioner strenuously contends that there is valuable land involved. In our view, if it was so, then the concerned officers responsible for the manner in defending this petition must be made to pay for it.
::: Downloaded on - 05/01/2021 20:15:52 :::HCHP 16We are thus constrained to dismiss the petition as barred by time and impose cost of Rs. 15,000/- on the petitioner for wastage of judicial time. We put it to the learned .
counsel that the cost would have been much greater but for the fact that a young counsel is appearing before us and we have given considerable concession in the costs on that factor alone.
19. We are of the considered view that the instant petitions are barred by the principle of delay and latches and r to accordingly the same are dismissed on this ground alone.
(Tarlok Singh Chauhan) Judge (Jyotsna Rewal Dua) 28 th December, 2020. Judge (sanjeev) ::: Downloaded on - 05/01/2021 20:15:52 :::HCHP