Nand Lal vs State Of U.P.Thr.Prin.Secy.Home ...
2013 Latest Caselaw 6729 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Case :- SERVICE SINGLE No. - 3723 of 2013
 

 
Petitioner :- Nand Lal
 
Respondent :- State Of U.P.Thr.Prin.Secy.Home (Civil Difence ) Lko.& Anr.
 
Counsel for Petitioner :- Angrej Nath Shukla
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Sri Angrej Nath Shukla, learned counsel for the petitioner , Sri Amitabh Chaturvedi , learned Standing Counsel and perused the record.

Petitioner was initially appointed on 12.6.1984 on the post of Store Superintendent Grade-II under opposite party no.2 . On 17.6.1984 promoted to the post of Store Superintendent Grade-I and in the year 1992 promoted to Assistant Deputy Controller, retired from service on 31.1.2009 .

While petitioner was in service a Government Order dated 6.9.1971 regarding fixation of pay scale in respect to the post of Store Superintendent Grade I and II has been challenged by one Sri Rajendra Prasad Singh by filing Claim Petition No. 215/V/HM3/87 before State Public Service Tribunal, Lucknow with the prayer that he shall be allowed to pay scale of Rs. 225-500 on the post of Store Superintendent Grade-I.

By order dated 1.10.1996 the State Public Service Tribunal allowed the claim petition, the operative portion of the same is reproduced as under:-

" Petition is allowed. The opposite parties are directed to ignore the annexure no.2 and 3 and to grant the petitioner the same pay scale on the post of Store Superintendent Grade-I , which the police personnel have been allowed. It should be done within three months from the date of this order and arrears of pay should be paid within three months from today."

Aggrieved by the said order/ directions, Director Civil Defence/ other respondents etc filed a Writ Petition No. 601(SS) of 1997( later on converted as Division Bench i.e. 601 (SB) of 1997 ( Director Civil Defence and another Vs. Rajendra Prasad and others ) , dismissed by order dated 12.4.2012.

Thereafter , the order dated 12.4.2012 has been challenged by the official respondents by filing Special Leave to Appeal before Hon'ble the Supreme Case bearing Special Leave to Appeal (Civil) CC 15074/2012, dismissed by order dated 14.9.2012.

After the above said development which has taken place , petitioner , who has already retired from service on 31.1.2009 from the post of Assistant Deputy Controller made a representation on 10.5.2013 to opposite party no.2/Director, Civil Defence, U.P. Lucknow to give the same benefits to him which has been given to Sri Rejendra Prasad Singh by order dated 1.10.1996 in claim petition no. 215/V/HM3/87. When no heed paid by opposite party no.2, the present writ petition has been filed by the petitioner with the following main relief:-

" To issue a writ , order or direction in the nature of mandamus commanding the opposite parties to extend the benefit of the judgment and order dated 20.2.2013 passed by this Hon'ble Court Judicature at Allahabad in Writ Petition No. 17929(Writ-A) of 2000, Sayed Hasan Jafri Vs. Joint Director Civil Defence and another ( Annexure no.4) and also the benefit of the judgment and order dated 1.10.1996 passed by learned State Public Service Tribunal in Claim Petition no. 215/V/HM3/87, Rajendra Prasad Singh Vs. Director Civil Defence State of U.P. Jawahar Bhawan Lucknow and others (Annexure no.1) as the petitioner is also the similarly situated person."

Learned counsel for the petitioner while pressing the said relief submits that once the relief has been given to similarly situated person, Sri Rajendra Prasad Singh by order dated 1.101996 passed by the State Public Service Tribunal in claim petition filed by the said person in the year 1987and the said order was affirmed by order dated 12.4.2012 by a Division Bench of this Court in Writ Petition No. 601(SS) of 1997 later on converted into division Bench i.e. 601(SB) of 1997, (Director Civil Defence and another Vs.Rajendra Prasad and others), thereafter Special Leave to Appeal (Civil) CC 15074/2012 filed by the official respondents has been dismissed by order dated 14.9.2012, taking into the said facts as well as the order dated 20.2.2013 passed by this Court at Allahabad in Writ -A 17929 of 2000(Syed Hasan Jafri Vs. Joint Director Civil Defence and another), there is no justification on the part of opposite party no.2 not to extend the said benefits to the petitioner , so a direction may be issued to the said authority to grant the same to the petitioner. In this regard, learned counsel or the petitioner has placed reliance in the judgement given by Hon'ble Apex Court in the case of M.R. Gupta Vs. Union of India (1995) 5 SCC 628.

Sri Amitabh Chaturvedi, learned Standing Counsel while opposing the said relief submits that the present writ petition filed by the petitioner is not maintainable on the ground of delay and latches because and the cause of action which has been occurred for the said petitioner when he has entered in service or in any case on 1.10.1996 when the judgment has been passed by the State Public Service Tribunal . However , at that relevant point of of time he has to agitate his claim but at the belated stage on the basis of representation made by him on 10.5.2013, the relief as claimed by the petitioner cannot be granted coupled with the fact that while filing the present writ petition no satisfactory explanation has been given by him for filing the same at the belated stage, so liable to be dismissed on the said ground.

In rebuttal , learned counsel for the petitioner submits that the objection which has been raised by learned Standing Counsel in regard to delay and latches is incorrect , unsustainable as after the judgment given by the State Public Services Tribunal on 1.10.1996 which was affirmed by this Court by order dated 12.4.2012 as well as the Hon'ble the Apex Court by order dated 14.9.2012, petitioner made a representation on 10.5.2013 so keeping in view the said fact as well as the principle of equity before law to every one and no citizen will be deprived of his legal and fundamental rights which is permissible under law to everyone applying the principle of 'equal pay for equal work' , so the relief as claimed by the petitioner may be granted.

I have heard learned counsel for the parties and gone through the record.

In the instant case , petitioner has entered into service in the year 1984 while he was working and discharging his duties in the capacity of Store Superintendent Grade -I , a Government Order dated 6.9.1971 has been challenged by one Sri Rajendra Prasad Singh, co- employee working with the petitioner in the department by filing claim petition before the State Publice Service Tribunal allowed on 1.10.1996. Thereafter writ petition filed by the official respondents was dismissed on 12.4.2012 against which Special Leave to Appeal filed by the official respondents was also dismissed on 14.9.2012.

After the said development petitioner for the first time made a representation on 10.5.2013 regarding that the benefit of the order dated 1.10.1996 passed by the State Public Service Tribunal in favour of the Sri Rajendra Prasad Singh should also be given to him by opposite party no. 2, when the same has not been decided, he filed the present writ petition for redressal of his grievances.

Further, from the perusal of material on record/ averments as made in the writ petition , petitioner has not explained the delay and latches in filing the present writ petition only an averment has been made that for the first time he made a representation on 10.5.2013 to opposite party no.2 with a prayer that in view of the order dated 1.10.1996 passed by State Public Service Tribunal in the case of the Sri Rajendra Prasad Singh the said benefit may also be given to him. So keeping in view the said facts as well as though, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, yet ordinarily a writ petition should be filed within a reasonable time (See, New Delhi Municipal Council Vs. Pan Singh and others, JT 2007 (4) SC 253) argument as raised by by learned State counsel that the writ petition filed by the petitioner at a belated stage , is liable to be dismissed on the delay and lateches as no satisfactory explanation has been given in this regard , has got a force.

Because in the instant case Government Order dated 6.9.1971 in existence when the petitioner entered into service on 12.6.1984 so the cause of action arisen to the petitioner for claiming the relief in question when he has entered into service or at the time when the order dated 1.10.1996 passed by State Public Service Tribunal in claim petition in favour of Sri Rajendra Prasad Singh but at that relevant point of time petitioner has not agitated his claim and kept silent, lastly on 10.5.2013 for the first time he has raise his claim after lapse of 17 years so keeping in view the said facts delay and latches is the relevant factor in the present case, due to which the relief as claimed by the petitioner can not be granted in view of the law as laid down by Hon'ble the Apex Court in the case P.S. Sadasivasway Vs. 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 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 the 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 matters.

In the case of Union of India and others Vs. Tarsem Singh, (2008) 8 SCC 648 after relying on the earlier judgment in the case of Shivdas Vs. Union of India (2007) 9 SCC 274 the Hon'ble Apex Court in Paragraph 6 has held as under :-

"The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustice, 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 weights with the High Court in deciding whether or not to exercise such jurisdiction."

In the case of C. Jacob Vs. Director of Geology & Mining AIR 2009 SC 264, the Apex court held as under :-

"We are constrained to refer to the several facets of the issue only to emphasize the need for circumspection and care in issuing directions for consideration. If the representation is on the face of it is stale, or does not contain particulars to show that it is regarding a live claim courts should desist from directing consideration of such claims."

In the case of Union of India and others Vs. M.K. Sarkar ( 2010) 2 Supreme Court Cases, 59 , the Hon'ble Apex Court has held as under:-

" When a belated representation in regard to a "stale" or "dead" issue/ dispute is considered and decided , in compliance with a direction by the court/ tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the " dead " issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation , or erase the delay and laches."

Further, the Hon'ble Apex Court in the case of Kanaiyalal Lal Chand Sachdev and others Vs. State of Maharashtra and others (2011) 2 SCC 782, in para Nos. 23 and 24 held as under:-

"Para - 23 - In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the Appellants under Section 17 of the Act. It is well-settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See: Sadhana Lodh v. National Insurance Co. Ltd. and Anr. (2003) 3 SCC 524; Surya Dev Rai v. Ram Chander Rai and Ors. (2003) 6 SCC 675; State Bank of India v. Allied Chemical Laboratories and Anr. (2006) 9 SCC 252).

Para - 24- In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors. (2009) 1 SCC 168, this Court had observed that:

The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:

(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

(b) the petition reveals all material facts;

(c) the Petitioner has any alternative or effective remedy for the resolution of the dispute;

(d) person invoking the jurisdiction is guilty of unexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(f) grant of relief is against public policy or barred by any valid law; and host of other factors."

Recently, Hon'ble the Supreme Court in the case of Mahanagar Telephone Nigam Limited Vs. State of Maharashtra and others, (2013) 9 SCC 92 has dismissed the case on the ground of delay and latches after placing reliance on the judgment of the Constitution Bench in State of M.P. Vs. Bhailal Bhai , AIR 1964 SC 1006 has held that it has been made clear more than that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it.

Thus , keeping in view the above said facts as well as the facts that the petitioner has agitated the claim in question after lapse of 17 years ,without giving any proper explanation in regard to delay and laches copulled with the facts that he has already retired from service on 31.1.2009, no relief as claimed by the petitioner can be granted to him further he cannot derive any benefit from the law as laid down by Hon'ble the Supreme Court in the case of M.R. Gupta V.s Union of India and others ( 1995) 5 SCC 628 . as in the said case , the claim has been agitated by a person who is in service and Hon'ble the Supreme Court has taken into consideration the said facts held that so long as the appellant is in service , a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules.

For the foregoing reasons, the writ petition is dismissed.

No order as to costs.

Order Date :- 30.10.2013

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