Urmila Devi Pal vs State Of U.P. Thru. Secy. Bal Vikas ...
2023 Latest Caselaw 14966 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

High Court of Judicature at Allahabad
 
Sitting at Lucknow
 
**********************
 
RESERVED                                                                                  AFR
 
Judgment Reserved on 08.05.2023
 
Judgment Delivered on 12.05.2023
 

 
Court No. - 1
 

 
Case :- SPECIAL APPEAL No. - 215 of 2023
 
Appellant :- Urmila Devi Pal
 
Respondent :- State Of U.P. Thru. Secy. Bal Vikas Sewa Evam Pustahar Vibhag U.P. Civil Secrt. Lko. And Others
 
Counsel for Appellant :- Om Prakash Mani Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

(Per: Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Om Prakash Mani Tripathi Advocate, the learned counsel for the appellant and Sri V. P. Nag, the learned Standing Counsel appearing on behalf of the State.

2. By instituting the instant Special Appeal filed under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952, the appellant -petitioner has challenged the judgment and order dated 19.04.2023, passed by an Hon'ble Single Judge dismissing the Writ-A No. 2924 of 2023, which was filed by the appellant-petitioner for quashing of the order dated 13.01.2023 passed by Director, Bal Vikas Seva Evam Pushtahar, rejecting her representation dated 29.09.2022.

3. Briefly stated, facts of the case, as pleaded in the writ petition, are that the petitioner was appointed on the post of Mukhya Sevika on 31.05.1995 and she joined her duties on 25.04.1996.

4. On 15.06.2005, the petitioner was transferred to Sultanpur. The petitioner challenged this transfer order by filing Writ Petition No. 4664 (S/S) of 2005 and on 25.07.2005 an interim order was passed in the aforesaid writ petition that the petitioner shall not be relieved in pursuance of the transfer order. The writ petition was finally disposed of by means of a judgment and order dated 30.09.2005, directing that if the petitioner makes any representation within a period of ten days for change of the place of posting in accordance with the Government Order dated 13.07.2000, she will be accommodated in any of the blocks in District Lucknow, except the home block, or in any block in any adjoining district and till then no coercive measure shall be taken against her. In furtherance of the aforesaid judgment and order dated 30.09.2005, the petitioner was given posting in District Lucknow.

5. The petitioner filed another writ petition, bearing Writ Petition No. 4848 (S/S) of 2014, raising her grievance of non-payment of some dues of salary, medical leave and benefit of 6th Pay Commission recommendations, which was disposed off by means of a judgment and order dated 04.09.2014 directing that the Director, Child Development and Nutrition, Lucknow should take a decision on the petitioner's representation.

6. On 27.3.2015, the Director passed an order in compliance of the aforesaid order dated 04.09.2014, passed by this Court in Writ Petition No.4849 (S/S) of 2014, stating that as per the report submitted by the District Program Officer, Lucknow, medical leave for the period 03.08.2007 to 20.08.2007 (18 days), 03.07.2008 to 17.07.2008 (15 days), 04.06.2009 and 26.06.2009 to 27.06.2009 (3 days), 01.02.2011 to 28.02.2011 (28 days) and 01.07.2013 to 31.08.2013 had already been sanctioned and no leave application was available for two days' absence in September, 2012 and three days' absence in May, 2013. It was further stated in the order that the benefit of the 6th Pay Commission's recommendations had already been given to the petitioner.

7. The petitioner thereafter filed Writ-A No.6123 of 2022 claiming salary for the period 02.03.2001 to 31.10.2001, salary and other allowances for the period 16.05.1998 to 01.03.2001, assured carrier progression for the year 2003 and some other dues. However, after advancing submissions at some length in support of the writ petition, the learned counsel for the petitioner confined his prayer for issuance of a direction to the Director, Bal Vikas Seva Evam Pushtahar to consider and decide the petitioner's representation dated 10.08.2022. The Hon'ble Single Judge disposed off the writ petition without entering into the merits of the case by directing the Director, Bal Vikas Seva Evam Pushtahar to consider and decide the petitioner's representation dated 10.08.2022 with a reasoned and speaking order, in accordance with law.

8. In compliance of the aforesaid order, the Director, Bal Vikas Seva Evam Pushtahar decided the petitioner's representation by a detailed and reasoned order dated 13.01.2023.

9. Regarding the petitioner's claim for payment of salary for the period 20.06.2005 to 26.10.2006, it has been stated that by means of a letter dated 24.04.2007 sent by the Directorate, the petitioner had been informed that in case she submits a leave application for the period of her absence, the same will be considered in accordance with the rules but the petitioner did not submit any leave application and, therefore, she was not entitled to receive salary of the period of her absence without leave.

10. Regarding petitioner's claim for payment of salary for the period 02.03.2001 to 31.10.2001, it has been stated that Rs.17,120/- had been paid to the petitioner for the dates on which she had attended her duties during the period between March, 2001 to August, 2001, as against her claim for payment of salary for 8 days in March, 2001, 7 days in April, 2001, 29 days in March, 2001, 2 days in June, 2001, 9 days in July, 2001 and 26 days in August, 2001 and for the rest of the days, when she was unauthorizedly absent without any prior information / leave application, she was not entitled to receive payment of salary.

11. Regarding the petitioner's claim for payment of salary for the period of her suspension, the Director has stated that as per a letter dated 04.01.2023 sent by the District Program Officer, Barabanki, the arrears of salary for the period of suspension (16.05.1998 to 09.02.2001) has been paid to the petitioner by Child Development Project, Pure Dalai, Barabanki.

12. In respect of the petitioner's claim for payment of salary of two days in September, 2012 and three days in May, 2013 it has been stated that the petitioner was absent without any information on the aforesaid days and therefore her claim for payment of salary was not found to be proper.

13. Regarding the petitioner's claim for payment of arrears of increment in salary it was stated in the order that Rs.6,39,057/- only has been paid to her through Token No.464142024 dated 10.01.2023 and the salary for the days on which the petitioner remained absent without leave, was not paid to her.

14. After the aforesaid detailed discussion, the order states that the petitioner remained unauthorizedly absent for 23 days between 01.03.2001 to 23.03.2001, for 61 days in the year 2001-02, for 276 days in the year 2005-06, for 209 days in the financial year 2006-07, for two days in the financial year 2012-13 and for 30 days in financial year 2013-14. Thus, the petitioner remained unauthorizedly absent from her duties for a total of 665 days in her service tenure, without obtaining any kind of leave and, therefore, her service was not continuous and she is not entitled to claim the Assured Carrier Progression (ACP) benefit.

15. The aforesaid order dated 13.01.2023 was challenged by the petitioner by filing Writ A No. 2924 of 2023. The Hon'ble Single Judge dismissed the writ petition by means of a judgment and order dated 19.04.2023, which is under challenge in this special appeal. The Hon'ble Single Judge held that the order passed by the Director narrates the facts and circumstances of the case and reasons for non-payment of salary etc. and this court would not substitute the reasoning given in the impugned order, which takes notice of the fact that the petitioner had remained unauthorizedly absent from duty for 665 days.

16. The Hon'ble Single Judge held that earlier the petitioner had filed multiple writ petitions and the subsequent writ petition filed by the petitioner suffers from gross delay and latches, as it had been filed 27 years after accrual of the alleged cause of action. The Hon'ble Single Judge further held that the writ petition had been filed in respect of the stale claim which the petitioner chose not to raise while approaching this court on two earlier occasions by filing two writ petitions. The Hon'ble Single Judge held that the writ petition had been filed raising monetary claims and such a writ petition could not be entertained 27 years after accrual of the cause of action. The Hon'ble Single Judge observed that the writ petition was liable to be dismissed with exemplary cost but the court refrained from imposing cost, keeping in view the fact that the petitioner is a Class III employee, who is on the verge of retirement.

17. Sri O. P. M. Tripathi, the learned counsel for the appellant has submitted that non-payment of service related dues is a continuing cause of action and, therefore, the writ petition did not suffer from any delay or latches. He has relied upon two judgments of Hon'ble the Supreme Court in the cases of Tukaram Kana Joshi and others Vs. M.I.D.C.: (2013) 1 SCC 353 & Sukh Dutt Ratra and another Vs. State of Himachal Pradesh and others: (2022) 7 SCC 508.

18. In Sukh Dutt Ratra v. State of H.P. (Supra), the petitioners' land was utilized by the respondent State for construction of a Road in the year 1972-1973, without any land acquisition proceedings and without payment of any compensation. Pursuant to a judgment by the Himachal Pradesh High Court in Devender Singh v. State of H.P., CWP No. 816 of 1992 directing the State to initiate land acquisition proceedings, a Notification under Section 4 of the Land Acquisition Act, 1894 was issued on 16-10-2001 and the award was passed on 20-12-2001. Proceedings under Section 18 of the Act for enhancement of compensation were initiated by ten neighbouring land owners, whose lands were similarly utilised for the construction of the same road and an award dated 4-10-2005 was passed by the Reference Court in their favour. This led the appellants to file a writ petition before the High Court in 2011, seeking compensation for the subject land or initiation of acquisition proceedings. The High Court held that the matter involved disputed questions of law and fact for determination on the starting point of limitation, which could not be adjudicated in writ proceedings. The writ petition was disposed of, with liberty to file a civil suit in accordance with law. In the aforesaid background, the Hon'ble Supreme Court held that: -

"19. The facts of the present case reveal that the State has, in a clandestine and arbitrary manner, actively tried to limit disbursal of compensation as required by law, only to those for which it was specifically prodded by the courts, rather than to all those who are entitled. This arbitrary action, which is also violative of the appellants' prevailing Article 31 right (at the time of cause of action), undoubtedly warranted consideration, and intervention by the High Court, under its Article 226 jurisdiction."

19. The Hon'ble Supreme Court referred to the following passage from Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn. (MIDC), (Supra), wherein the Court was dealing with a similar fact situation: -

"11. There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode."

(Emphasis supplied)

20. The aforesaid observations were made keeping in view the facts of the cases that government had utilized the land of the petitioners without payment of compensation. The right to property is a constitutional right protected by Article 300-A of the Constitution of India and, therefore, the Hon'ble Supreme Court had held that the State could not deprive a citizen of his property without sanction of law and in such circumstances, the delay in initiating the litigation would not be an absolute impediment. However, the Hon'ble Supreme Court explicitly observed that there are authorities pertaining to service jurisprudence which state that delay and laches extinguish the right to put forth a claim.

21. In Union of India v. Tarsem Singh, (2008) 8 SCC 648, the Hon'ble Supreme Court held that: -

"7. To summarise, normally, a belated service related claim will be rejected on the ground 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 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 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 supplied)

22. The learned Counsel for the appellant has submitted that the Writ Petition was filed in respect of a continuing cause of action and, therefore, it could not have been dismissed on the ground of delay. However, as has already been noted above, the Writ Petition was filed claiming certain arrears of salary, which was not paid on the ground of the petitioner's unauthorised absence and it is not a continuing cause of action and we do not find merit in the aforesaid submission of the learned Counsel for the petitioner.

23. Sri O. P. M. Tripathi, the learned counsel for the appellant has next submitted that she had made several representations for payment of salary and as she had been pursuing her grievances with the authorities by making representations, it cannot be said that the writ petition suffers from delay and latches. He has further submitted that as by means of the order dated 22.09.2022, passed in Writ-A No.6123 of 2022, this court had directed the Director, Bal Vikas Seva Evam Pushtahar to consider and decide her representation dated 10.08.2022, the subsequent writ petition filed by her challenging the order of rejection of her representation and claiming payment of salary is not barred by delay.

24. The aforesaid submission also does not have any merit because it is settled law that although there is no limitation prescribed for filing a writ petition, the same should necessarily be filed with reasonable promptitude and merely by making repetitive representations, the conduct of the appellant in not approaching the Court for redressal of her grievance for a very long period, which in the present case is more than two decades, cannot be justified and making repetitive representations would not dilute the effect of undue delay in filing the writ petition and will not create any fresh cause of action.

25. In the case of State of Uttaranchal and another Vs. Sri Shiv Charan Singh Bhandari and others: 2013 (12) SCC 179 the Hon'ble Supreme Court held that "it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time."

26. The aforesaid decision has been relied upon by the Hon'ble Supreme Court in a recent judgment in the case of The State of West Bengal Vs. Debabrata Tiwari and others: 2023 SCC OnLine 219, where after submitting an application in the year 2005-06 the petitioners did nothing further to pursue the matter for a period of ten years. The Hon'ble Supreme Court held that such prolonged delay in approaching the High Court may be regarded as a waiver of a remedy and such a delay would disentitle the writ petitioners to the discretionary relief under Article 226 of the Constitution of India.

27. In the present case, the appellant had approached this court on two occasions earlier by filing two writ petitions i.e. Writ Petition No. 4664 (S/S) of 2005 and Writ Petition No. 4848 (S/S) of 2014 but she chose not to raise her grievances of non-payment of salary for some period between the years 1998 to 2001, which was raised by her in Writ A No. 6123 of 2022, although cause of action for the same had already accrued to her. The writ petition filed for the reliefs which could have been claimed by the appellant while filing the earlier writ petitions and which were not claimed by her, would be clearly hit by the principles contained in Order II Rule 2 of the Code of Civil Procedure, 1908.

28. Even at the time of hearing of the aforesaid writ petition, the learned counsel for the appellant chose not to press for the reliefs claimed in the writ petition and he confined his prayer for a direction for decision of the appellant's representation. The representation has accordingly been decided by a reasoned and speaking order. We find ourselves in complete agreement with the view taken by the Hon'ble Single Judge that this court would not substitute the reasoning given by the Director in the impugned order.

29. We are also in agreement with the reason given by Hon'ble Single Judge for dismissing the writ petition that it had been filed with gross delay and as such it was liable to be dismissed for this reason also.

30. Therefore, we are not persuaded to take any view other than the view taken by Hon'ble Single Judge that the writ petition filed by the petitioner in the year 2003 regarding her grievances against non-payment of salary for various intermittent periods starting from the period 1998, suffers from gross delay and latches and also that the order under challenge in the writ petition was a well reasoned order and this court would not substitute the reasoning given by the Director in the order.

31. In view of the aforesaid discussions, we are of the considered opinion that the special appeal lacks merit which is accordingly dismissed. However, there will be no order as to the costs.

[Subhash Vidyarthi,J.] [D.K. Upadhyaya, J.]

Order Date :- 12th May, 2023.

Ram.