ORDER K. S. GUPTA, J.
1. This appeal by the appellants is directed against the judgment dated 28th February, 1994 of a learned Single Judge of this court setting aside the order dated 11th December, 1984 of termination of services of the respondent and holding him entitled to full wages till 11th August, 1986, i.e. the date on which a new man was appointed, as compensation.
2. Facts giving rise to the appeal lie in a narrow compass. Zille Singh/respondent was appointed as Clerk-cum-Typist with the College of Vocational Studies on 10th October, 1979. He absented from duty from 8th eptember, 1984 to 11th September, 1984 and, therefore, made an application for leave for that period on the ground that he could not attend duty because of urgent piece of work. Respondent was told that as the annual accounts for 1983-84 had to be finalised, it was necessary to utilise his services and he could not take any further leave. Despite that, respondent again absented from duty from 13th September, 1984 onwards and made an application on 15th September, 1984 asking for leave from 13th September, 1984 to 30th September, 1984 on the same ground. On 17th September, 1984 a memo refusing to sanction leave from 10th September, 1984 to 12th September, 1984 was issued to the respondent by the Principal of the College and he was directed to resume the duty immediately. He was also informed that his absence w.e.f. 8th September, 1984 was being treated as extraordinary leave (without pay). It is stated that despite the said memo respondent did not join duty and again applied for leave on 1st October, 1984 for three months, i.e. upto 31st December, 1984. Again, the respondent was informed on 11th October, 1984 that his leave had not been sanctioned and he was to join duty immediately failing which disciplinary action will be initiated against him. Thereafter on 11th December, 1984 respondent was informed that as he had absented from duty without permission continuously for more than 90 days w.e.f. 8th September, 1984, he was being treated as absconding from duty and his services stand terminated w.e.f. 7th December, 1984 under clause 49(v) of Section II of University Non-teaching Employees (Terms & Conditions of Service) Rules, 1971. Respondent again sent a letter on 18th December, 1984 asking for leave without pay for another one month, i.e. upto 31st January, 1985. On 10th January, 1985 respondent was informed by the appellant/college that since his services already stood terminated, the question of granting leave did not arise. It is further stated that the question of termination of the services of the respondent was placed on 13th November, 1985 before the Governing Body of the College who decided that the case be sent to Delhi University Counsel for legal opinion and the item was deferred till the opinion was obtained. The Governing Body further authorised the Chairman and the Principal of the College to take further action in the matter after receipt of legal opinion.
3. On 20th January, 1986 appellant/college advertised the post held by the respondent and another person was appointed on permanent basis on 11th August, 1986. Thereafter, on 25th May, 1990, for the first time, the respondent sent a representation to the Vice Chancellor, Delhi University, seeking reinstatement in service. Again, the matter was placed before the Governing Body and it was decided that legal opinion be obtained on the representation from the legal cell of Delhi University. Respondent went on making representations to the Vice chancellor as also the Chairman of the Governing Body. However, the Governing Body reiterated its decision that services stood terminated through the memo dated 11th December, 1984. On 28th September, 1992 the respondent filed writ petition under Article 226 of the Constitution of Indian seeking the reliefs of release of salary etc. Writ petition was partly allowed in the manner stated above.
4. Indisputably L.P.A. 14/94 filed by respondent against the order under appeal seeking reinstatement in service in lieu of compensation, was dismissed in limine by a Division Bench of this Court on 4th April, 1994. SLP being No. 11425/94 taken out against that order by the respondent was also dismissed in limine by the Supreme Court on 19th August, 1994.
5. Only submission advanced by Sh. Ishwar Sahai, Sr. Advocate appearing for the appellants was that against the deemed termination of the services of the respondent under Rule 49-2(v) dated 11th December, 1984 the respondent for the first time after more than 5 years made a representation dated 25th May, 1990 to the Vice Chancellor, Delhi University and thereafter the writ petition was filed on 28th September, 1992. Thus on the ground of delay and latches the petition ought to have been dismissed by learned Single Judge. In support of the contention reliance was placed on the decisions in State of Punjab & Ors. Vs. Gurudev Singh, Ashok Kumar, and State of Madhya Pradesh and Anr. Vs. Bhailal Bhai & Ors., . On the other hand, it was urged by the respondent, who argued in person, that the Governing Body of the College in the meeting dated 13th November, 1985 had decided to keep in abeyance the order of termination of services dated 11th December, 1984 till the legal opinion of the University Counsel was obtained. Legal opinion by the University Counsel dated 6th September, 1991 which was against the respondent, was accepted by the Governing Body in the meeting dated 7th April, 1992. Respondent sought review of the decision taken in the said meeting dated 7th April, 1992, on 9th April, 1992 and the Governing Body turned down the review sought by the respondent in the meeting held on 6th August, 1992. Thus, there was no delay in filling the petition on 28th September, 1992 against the decisions taken in the meetings dated 7th April, 1992 and 6th August, 1992.
6. In Gurudev Singh's case (supra) it was held by the Supreme Court that suit for declaration that dismissal is wrong or ultra vires is governed by Article 113 of the Limitation Act, 1963 and the limitation of three years commences to run when the right to sue accrues.
7. In Bhailal Bhai's case (supra) in paras 20 & 21 of the report it was held:-
"It was necessary for the High Court to consider this question of delay before any order for refund was made. It does not appear however that any attention was paid to this question. In making the orders for refund in each of these cases the High Court merely said this:-
"The present case is governed by Bhailal Bhai's case, 1960 M.P.C. 304. Learned Government Advocate formally raised the question of the remedy open to the petitioner for refund of tax in order to keep the point open in the Supreme Court. We accordingly allow this petition and issue a writ directing the opponents to refund to the applicant firm the amount of tax collected from it during the above-mentioned period."
"The learned Judges appear to have failed to notice that the delay in these petitions was more than the delay in the petition made in Bhailal Bhai's case, 1960 M.P.C. 304 out of which Civil Appeal No. 362 of 62 has arisen. On behalf of the respondentspetitioners in these appeals (C.A. Nos. 861 to 867 of 1962) Mr. Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund. He argued that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Article 226 of the Constitution. Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us, however, that the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. This court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more then this period, it will almost always be proper for the court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by the mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonble. If, on the other hand, as Mr. Andley seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these 7 cases cannot be sustained."
8. To appreciate the submissions referred to above advanced on behalf of both the sides, reference to certain paras of the reply filed on behalf of the appellants to the writ petition is necessary. By way of preliminary objections in para No. 1 it is alleged that the petition deserves dismissal as it suffers from inordinate delay and latches, which have not been explained. In para 11 on merits it is pleaded that pursuant to the minutes dated 13th November, 1985 the then Principal had personally taken the file to University Counsel who gave opinion orally that the termination of the services of respondent was valid and no further action was called for in the matter. Therefore, the post held by the respondent was filled up on permanent basis after advertisement in the newspaper dated 20th January, 1986. Sub-paras (a), (b) & (c) of para 2 of the reply on merits which too are material are reproduced below:-
"(a) Thereafter it was for the first time in May, 1990 that the petitioner made a representation to the Vice-Chancellor, University of Delhi, a copy of which was received in the college vide letter dated 5/6 July, 1990 of the Joint Registrar, University of Delhi, South Delhi Campus. The copy of letter dated 25th May, 1990 is Annexure R-20 and copy of letter dated 5/6 July is Annuxure R-21. Although the petitioner had styled his communication dated 25th May, 1990 (copy Annexure R-20) as an appeal for reinstatement, no appeal lay against automatic termination of service due to continuous absence from duty for 90 days and the office of the University, had treated the said communication only as a representation and asked for comments of the college. It may also be mentioned here that the limitation for any appeal under the rules is 45 days and the period for review is 6 months from the date of the order proposed to be reviewed. Therefore, the communication dated 25th May, 1990 was treated as a representation. The college after the receipt of the said letter dated 5th July, 1990 of the Joint Registrar, South Delhi Campus, Delhi University (Annexure R-21) placed the matter before the Governing Body, which on 10th December, 1990 decided as under:-
"On the representation of Mr. Ziley Singh, received through the Director, South Delhi Campus, it was decided to seek advice from the Legal Cell of the University."
Legal Cell gave its opinion which was communicated vide letter 31st May/3rd June, 1991 of the Assistant Registrar, South Delhi Campus, which reads as under:-
"In view of the rule 49-2(v), the services of Mr. Ziley Singh stand terminated after the expiry of 90 days of continuous absence from duties without prior permission. He may be informed accordingly. The true copy of the said letter dated 31st May/3rd June, 1991 is Annexure R-22."
(b) However, a letter dated 27th September, 1991 alongwith representation dated 17th June, 1991 was again received by the Principal from Assistant Registrar, University of Delhi, suggesting to the Governing Body to take a sympathetic view of the case on humanitarian grounds, (copy of the said letter dated 27-9-91 is Annexure R-24 and representation dated 17th June, 1991 is Annexure-23. The Governing Body thereafter reconsidered the matter at its meeting held on 28-9-1991 and decided to refer back the matter to the University Legal Cell for the reconsideration alongwith the representations from petitioner dated 17-6-1991. The Legal Cell after considering the representation dated 17th June, 1991 of Sh. Ziley Singh again advised on 27th September, 1991 that the services of the petitioner stood terminated in December 1984. The opinion of the Legal Cell of the University of Delhi was as under:-
"The facts on record are that Sh. Ziley Singh absented himself from duty since 8-9-1984 without prior permission. By Memo, dated 17-9-84 he was informed that leave w.e.f. 8-9-84 has not been sanctioned. He was also required to explain his conduct for not resuming duty immediately. The statement in the said memo to the effect "And he has been treated as an extra-ordinary leave (without pay) w.e.f. 8-9-1984" read in the context of the previous statement that leave has not been sanctioned means that his absence was unauthorised and he would not get any pay. The period of 90 days stipulated in Rule-49 (2) (V) expired in his case on 6-12-1984. As he absented himself from duty without prior permission for continuous period of 90 days from 8-9-1984 to 6-12-1984 and failed to give satisfactory explanation on his conduct in response to the Memo dated 17-9-1984 in terms of the aforesaid Rule or he shall be treated as absconding from duty and his services be deemed as terminated. I am, therefore, of the opinion that his services stood terminated. I am, therefore, of the opinion that his services stood terminated on 7-12-1984 as stated in the memo, dated 14(?)-12-1984."
(c) The petitioner again made representations which were forwarded to the college vide letters dated 9-6-1992 and 10-6-1992. The same were again considered by the Governing Body at its meeting held on 6th August, 1992 and item No. 7 of the minutes reads as under:-
"The Governing Body considered letter No. SDC-CB-1/92/3137 dated 9-6-1992 and SDC-CB-1/92/3150 dated 10-6-1992 in respect of Mr. Ziley Singh, former Jr. Assistant-cum-Typist for review of his case. It was decided that since the Governing Body has considered all aspects of the decision there was nothing further to be considered."
9. In para 2(d) of the reply it is further stated that with an ulterior motive the respondent has mentioned as if the termination of the service was approved and confirmed on 7th April, 1992.
10. As is manifest from the aforesaid sub paras of Para 2 of the reply, pursuant to the minutes of the Governing Body dated 13th November 1985 legal opinion from the University counsel was obtained orally by the then Principal before issuing advertisement dated 20th January 1986 in the newspapers to fill up the post. Legal cell opinion, which was communicated vide letter dated 31st May/3rd June, 1991 of the Assistant Registrar, South Delhi Campus, was on the representation dated 25th May, 1990 made by the respondent to the Vice-Chancellor, Delhi University. Further, opinion of legal cell dated 6th September 1991 (at page 56) of which mention is made in para 2(b) of the reply, was on yet another representation of the respondent dated 17th June, 1991. Said legal advice is stated to have been accepted by the Governing Body in the meeting held on 7th April 1992.
11. Needless to repeat that the order of termination of the services of respondent under aforesaid rule 49(2)(v) was made on 11th December 1984. Assuming for the sake of argument that this order was kept in abeyance by the Governing Body of the college in the meeting dated 13th November, 1985 till the opinion of the University counsel was obtained, such an opinion upholding the said termination order as legal was obtained orally by the then Principal from the University counsel before issuing the advertisement in the newspapers dated 20th January, 1986. Thus a civil suit for declaration that the said order was invalid with consequential reliefs for arrears of salary etc which in substance are the reliefs claimed in the writ petition, could be filed by the respondent within three years thereafter. Issuance of advertisement itself was sufficient indication to bring the order of termination in operation. At any rate, 7th April, 1992 on which date legal opinion dated 6th September 1991 on the respondent's representation dated 17th June 1991 was accepted by the Governing Body, could not be taken as the date of accrual of cause of action for filing such a suit by the respondent. It may be noticed that the plea of delay and latches was raised not only in the reply by the appellants but was also pressed on its behalf during the course of arguments before the learned single Judge who also noticed that the respondent had no explanation for this delay, as is evident from the judgment under appeal. In view of the said facts and on the ratio in Bhailal Bhai's case (supra) the writ petition which was filed after about eight years of the making of the order of ermination of the services of the respondent dated 11th December 1984 deserved to be dismissed on the ground of delay and latches.
12. Consequently, the appeal is allowed, judgment under appeal is set aside and the writ petition is dismissed. No order as to costs.