Satyavan Randhirsingh Jat vs State Of Gujarat
2021 Latest Caselaw 10202 Guj

      C/SCA/10335/2021                                     ORDER DATED: 31/07/2021



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
          R/SPECIAL CIVIL APPLICATION NO.10335 of 2021
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                 SATYAVAN RANDHIRSINGH JAT
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR JAYANT P BHATT(169) for the Petitioner(s) No. 1
MR JEET J BHATT(6154) for the Petitioner(s) No. 1
NIGAM D SONI(9314) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 31/07/2021
                   ORAL ORDER

(1) The present petition has been filed by the petitioner seeking quashing and setting aside the impugned order dated 28.04.1998 passed by the respondent No.3, dismissing the petitioner from the post of Armed Police Constable, Buckle No.333, A-Company, State Reserve Police Force, Group-12, Gandhinagar.

It is pertinent to note that though such prayer is sought, the dismissal order is not produced on record.

(2) Learned advocate Mr.Nigam D. Soni appearing for the petitioner has submitted that the petitioner was not having the order under challenge and due to inadvertence and he has lost the order. It is further submitted that the petitioner had made a representation to the authority for supplying the said order. It is submitted that since similarly situated four co-

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delinquents were ordered to be reinstated by this court, the petitioner made representations dated 18.03.2021, 19.03.2021 and 24.03.2021 to the respondent authorities to provide him the order of dismissal. It is submitted that similarly situated Police Constables having similar type of misconduct, had filed a group of petitions, which were allowed by the judgement and order dated 25.11.2016 passed in Special Civil Application No.2224 of 2012 and hence, the petitioner may also to be given the same treatment. He has placed reliance on the judgement and order of the Coordinate bench dated 25.02.2019 passed in Special Civil Application No.6087 of 2017 in support of his submissions.

(3) Learned Assistant Government Pleader has submitted that the present petition has been filed after a period of 21 years, without there being any dismissal order and hence, the same may not be entertained.

(4) I have heard the learned advocates for the respective parties and perused the documents on record.

(5) I have considered the rival submissions. It is not in dispute that the petitioner is seeking setting aside of the order dated 28.04.1998, which is not produced on record. It is submitted

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that due to inadvertence, the order is misplaced and accordingly, after the judgment and order of this Court dated 25.11.2016 passed in Special Civil Application No.2224 of 2012 and allied matters in the matters of four co-delinquents, the petitioner applied to the respondent authority to supply him the impugned order of dismissal. It is submitted that the representations to that effect in the year 2021 were also made.

(6) At this stage it would be apposite to refer to the judgement passed by the Apex Court in the case of State of Uttar Pradesh and Ors. Vs. Arvind Kumar Srivastava and Ors., (2015) 1 S.C.C. 347, wherein the Apex Court, after examining the issue with regard to seeking of parity of similarly situated persons after considerable delay, has observed thus:

"22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:

22.1 The normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated

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persons did not approach the Court earlier, they are not to be treated differently.

22.2 However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence- sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3 However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."

Thus, the Supreme Court has held that the principle with regard to the extending the benefits to a particular set of employees on the premise of other identically situated persons will not apply and the same would be subject to well-recognized exceptions in the form of latches and delays as well as acquiescence. It is further

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observed that the persons, who did not challenge the wrongful action in their case and acquiesced into the same and woke up after long delay only because of the reasons that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons since they would be treated as fence- sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. However, the Supreme Court has observed this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons. In the present case, the persons or delinquents, who had approached the Court had specifically challenged their dismissal orders, which were passed individually in each of the cases. Hence, the judgments, which are passed in the cases of the delinquents cannot be said to be the judgment in rem as their dismissal orders are passed after holding departmental inquiry against such delinquents would be governing their individual case.

(7) Similar principle has been reiterated by the Supreme Court again in the case of

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Chairman/Managing Director, U.P. Power Corporation Ltd. & Ors. vs. Ram Gopal, JT 2020 (1) S.C. 591 has observed that a writ petition challenging termination after delay cannot be entertained on the ground that the similarly situated employees are granted benefits and the applicability of the judgment in rem would also apply. The Supreme Court has held thus:

"13 At the outset, it is apparent that Shyam Behari Lal and Ram Gopal share little similarity. Whereas the former had remained in service for over seven- teen years (except a brief period between August to November in 1978) and had fought his case tooth and nail, the Respondent has not been in the employment of UPPCL since 1978. The fact situation in Shyam Be- hari Lal s case was unique and altogether different from that of Ram Gopal, and there arises no reason to seek or grant parity. Even otherwise, it is a settled canon of common law that equity acts in per- sonam and not in rem. Hence, there could be no ex- tension of parity between the case of Shyam Behari Lal and Ram Gopal (Respondent).

iii) Inordinate delay in filing writ petition

14 Finally, the prolonged delay of many years ought not to have been overlooked or condoned. Services of the Respondent were terminated within months of his appointment, in 1978. Statedly, the Respondent made a representation and served UPPCL with a legal no- tice in 1982, however such feeble effort does little to fill the gap between when the cause of action arose and he chose to seek its redressal (in 1990).

15 Seen from a different perspective also, it is clear that the Respondent has shown little concern to the settled legal tenets. Even a civil suit chal- lenging termination of services, if filed by the Re- spondent, would have undoubtedly been barred by lim- itation in 1990. In a similar situation where the appellant belatedly challenged the promotion of his junior(s), this Court in P.S. Sadasivaswamy v. State of Tamil Nadu, [1975 (1) SCC 152], held as follows:

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"2. ... if the appellant was aggrieved by it he should have approached the Court even in the year 1957, after the two representations made by him had failed to produce any result. One cannot sleep over the matter and come to the Court questioning that relaxation in the year 1971. ... In effect he wants to unscramble a scrambled egg. It is very difficult for the Government to consider whether any relaxation of the rules should have been made in favour of the appellant in the year 1957. The conditions that were prevalent in 1957, cannot be repro- duced now. ...It is not that there is any pe- riod 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 can- not 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 to exercise their extraordi- nary 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 for- ward stale claims and try to unsettle settled matters......"

16 Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary juris- diction to protect those who have slept over wrongs and allowed illegalities to fester. Fence sitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant cit- izens ought not to be treated alike with mere oppor- tunists. On multiple occasions, it has been restated that there are implicit limitations of time within which writ remedies can be enforced. In SS Balu v. State of Kerala, [JT 2009 (2) sc 26] this Court ob- served thus:

"17. It is also well-settled principle of law that "delay defeats equity". ...It is now a trite law that where the writ petitioner ap- proaches the High Court after a long delay, re- liefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment." (emphasis supplied)

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17 Similarly, in Vijay Kumar Kaul v. Union of India, [JT 2012 (5) SC 474] this Court while considering the claim of candidates who, despite being higher in merit, exercised their right to parity much after those who were though lower in merit but were dili- gently agitating their rights, this Court observed that:

"27. ...It becomes an obligation to take into consideration the balance of justice or injus- tice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time."

18 We may hasten to add that these principles may not, however, apply to judgments which are delivered in rem. The State and its instrumentalities are ex- pected In such category of cases to themselves ex- tend the benefit of a judicial pronouncement to all similarly placed employees without forcing each per- son to individually knock the doors of courts.... ... ... ..."

(8) It is held by the Apex Court that " even otherwise, it is a settled canon of common law that equity acts in personam and not in rem". It is also observed that consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allowed illegalities to fester. Fence-sitters cannot be allowed to barge into courts and cry for their rights at their convenience and vigilant citizens ought not to be treated alike with mere opportunists. It is also held that even the Civil Suit would have been barred by

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limitation. Thus, the petitioner did not even bother to collect or preserve his dismissal order, and only woke up when other vigilant co- delinquents approached this Court and this Court had passed orders in their favour. The petitioners, in whose favour the orders are passed, were vigilant of their rights, and they had challenged the dismissal orders at appropriate time.

(9) As noted hereinabove, the petitioner is neither having his dismissal order and nor he has challenged the same at the relevant time. He has been lackadaisical of even preserving his dismissal order. Thus, in light of the law prescribed by the Supreme Court, I am not inclined to exercise the discretionary jurisdiction in favour of a person who has slept over the wrongs.

(10) In this view of the matter, the writ petition being bereft of merits is hereby rejected.

                                                                               Sd/-            .
                                                                      (A. S. SUPEHIA, J)
NVMEWADA