Allahabad High Court

Rajesh Kumar Shukla vs State Of U.P. Thru Secy. Sectt. ... on 13 August, 2015

Bench: Anil Kumar




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. / Reserved  
 
Court No. - 18
 
Case :- SERVICE SINGLE No. - 3658 of 2013
 
Petitioner :- Rajesh Kumar Shukla
 
Respondent :- State Of U.P. Thru Secy. Sectt. Administraton Deptt. & Ors
 
Counsel for Petitioner :- Raj Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Shri Raj Kumar Singh, learned counsel for the petitioner, learned Standing Counsel for the State and perused the record.

Facts in brief of the present case are that in order to carry out the Census work under Census Act, 1998, the Directorate of Census Operations have been established in each State. In the State of U.P., Directorate of Census Operations, U.P., Lucknow has been established having its Head Quarters at Lucknow. On 1.5.2000, petitioner was appointed/engaged as Census Clerk for conducting census work by District Magistrate/Collector, Balrampur, in the Regional Tabulation Office, Lucknow.

In the said capacity, petitioner worked and discharged his duties for merely one and a half years. Thereafter, his services were retrenched, and petitioner moved an application to the Official respondent No. 3 regarding absorption of his services on the suitable post. As no heed has been paid in the matter in question, petitioner approached this court and filed Writ Petition No. 4532 of 2001 (Rajesh Kumar Shukla vs. State of U..P. & ors), which has been disposed of by an order dated 3.9.2001 with the following direction:-

"The writ petition is finally disposed of with a direction to opposite parties nos. 1 and 2 to consider and decide the representation of the petitioner dated 27.8.2001, in accordance with law, within four weeks from the date a certified copy of this order is produced, keeping in view that the petitioner has already worked for about one year."

In pursuance of the said direction, the case of the petitioner has been considered and decided by means of order dated 8.11.2001 passed by opposite party no.3. Hence, the present writ petition.

Learned Standing Counsel has raised preliminary objection to the effect that as by means of the present writ petition, petitioner has challenged the order dated 8.11.2001 in the year 2013 without giving any satisfactory explanation in respect to delay and laches in filing this writ petition, as such the same is liable to be dismissed.

In response to the aforesaid fact, it is submitted by learned counsel for the petitioner that the impugned order dated 8.11.2001 passed by opposite party no. 3 is an un-reasoned and non-speaking order and is in violation of principles of natural justice. The said order was neither communicated nor served till date upon the petitioner but for the first time, the petitioner came to know about it in the month of May, 2012 when one of the similarly situate candidate namely Jawahar Lal Prajapati told the petitioner that the petitioner's representation has been rejected thereafter, petitioner several times came to the office of respondent no. 3 to get the impugned order but no heed was paid. Subsequently, by way of R.T.I., the said order is available to him. Thus, keeping in view the said facts, objection as raised by learned Standing Counsel that the present writ petition is liable to be dismissed on the ground of delay and laches, has got no force, liable to be heard on merits.

Accordingly, first and foremost question which is to be considered in the present case is whether the present petition filed by the petitioner whereby challenging the order dated 8.11.2001 (Annexure 1 to the writ petition) passed by respondent no. 3 is liable to be dismissed on the ground of laches and delay as stated above.

As per undisputed facts, petitioner was a retrenched employee of Census Department. He approached the respondent no.3 for absorption of his services, no heed paid so petitioner filed a writ petition No.4532 of 2005 (Rajesh Kumar Shukla vs. State of U.P. & ors), which was disposed of by an order dated 3.9.2001 with a direction to consider the case of the petitioner. In pursuance to the same, the case of petitioner has been considered and decided by order dated 28.11.2011 by opposite party no. 3, and as per averment mention therein, the same has been communicated to him. Even other course as per direction given by this Court dated 3.9.2001 in writ petition No. 4533 of 2001 (S/S) the opposite party no. 3 has to decide the representation within four weeks from the date of certified copy produced of the said order, thus it is the duty of the petitioner to know the fate of his representation, but nothing has been done on his part, in this regard, there is no pleading in the matter. Also in view of the facts petitioner cannot derive any benefit on the basis of pleading made in para 2 of the writ petition keeping the fact that after more than a decade, the petitioner has challenged the impugned order dated 8.11.2001, and 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 because Hon'ble the Apex Court in the case of P.S. Sadasivasway Vs. State of Tamil Nadu, ( 1975) 1 SCC, 152, stated 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 SCC 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;

(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."

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.

For the foregoing reasons, the writ petition is dismissed.

No order as to costs.

Order Date :- 13.8.2015