Raj Kumari vs State Of Himachal Pradesh & Ors
2021 Latest Caselaw 3318 HP

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     IN        THE           HIGH           COURT OF HIMACHAL                                 PRADESH,
                                               SHIMLA

                                                                               CWPOA No.5901 of 2019




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                                                                              Date of Decision:2.8.2021
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    Raj Kumari                                                                            ......Petitioner





                                                     Versus

    State of Himachal Pradesh & Ors.                                                ....Respondents





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    Coram
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting1? Yes.
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    For the Petitioner:

                         Mr. Ajay Kumar Dhiman, Advocate.

    For the Respondents: Mr. Sudhir Bhatnagar and Mr. Desh Raj
                         Thakur, Additional Advocate Generals
                         with Mr. Narender Thakur, Deputy
                         Advocate General, for the respondents


                         /State.

                                           Mr. Rajiv Rai, Advocate, for respondent
                                           No.3.




                          Through video-conferencing





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    Sandeep Sharma, J. (Oral)

By way of instant petition, petitioner has prayed for

the following reliefs:-

"1. That the applicant may be granted the benefit of the service rendered by the applicant in the Govind Sagar Fisheries Co-operative Marketing and Supply Federation Bilaspur, Himachal Pradesh for the purpose of counting of his past

1Whether reporters of the Local papers are allowed to see the judgment?

service for pensionary and other consequential benefits for which he is otherwise entitled.

2. That the respondent may kindly be directed to

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considered the case of the applicant for the

counting of his past service for the purpose of pensionary benefits."

2. For having bird's eye view, certain undisputed facts

as emerge from the record are that the petitioner herein was

initially appointed on 5.7.1979 as a Clerk (Typist) in the pay

scale of Rs.130-6-160/8-200/10-250 in "Govind Sagar Fisheries

Co-operative Marketing and Supply Federation, Bilaspur,

Himachal Pradesh" (for short 'Federation'). Since, aforesaid

Federation came to be wound up during July, 2007 on account of

financial losses, petitioner herein was adjusted in the Department

of Fisheries, H.P., with prospective effect, whereafter petitioner

after having rendered his five years regular service in the

Fisheries Department, superannuated on 30.9.2012 from the of

Office of Assistant Director of Fisheries, Bilaspur, District

Bilaspur, Himachal Pradesh. Since after retirement benefit of

services rendered by the petitioner in the Federation was not

taken into consideration by the respondents for salary, seniority,

promotion, qualifying service for pension, gratuity, provident fund

and leave encashment, he approached this Court in the instant

proceedings, praying therein reliefs, as have been reproduced

hereinabove.

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3. Mr. Ajay Kumar Dhiman, learned counsel

representing the petitioner, vehemently argued that since it is not

in dispute that petitioner prior to taking over his services by the

Department of Fisheries in July 2007 had rendered 28 years

regular service with the Federation, which is a Government

Department, respondents ought to have taken into consideration

aforesaid period of 28 years while computing qualifying service for

the purpose of pension, gratuity, provident fund, salary and leave

encashment etc. Mr. Dhiman further submitted that since

petitioner had been getting all allowances, benefits and salary in

terms of instructions issued by the Government of Himachal

Pradesh from time to time while he was rendering his services in

the Federation, it cannot be said that petitioner was not the

employee of Fisheries Department and as such, he is not entitled

to claim the benefit of services rendered by him in the Federation

prior to his joining in the Department of Fisheries in July, 2007.

4. Mr. Desh Raj Thakur, learned Additional Advocate

General while refuting the aforesaid submission made on behalf

of learned counsel representing the petitioner, contended that

services rendered by the petitioner prior to his having joined as

Clerk in the year, 2007 in the Department of Fisheries cannot be

.

counted towards qualifying service for the purpose of pension for

the reason that Federation was not a Government Department,

rather same being a society was being managed as per its own by-

laws. Learned Additional Advocate General further contended that

petitioner was absorbed in the Department of Fisheries in the

year, 2007with prospective effect and such offer was happily

accepted by the petitioner when he joined as Clerk in the

respondent Department on 10.8.2007 and as such, prayer made

in the petition otherwise cannot be considered after inordinate

delay of eight years.

5. Having heard learned counsel representing the parties and

perused the material available on record, this Court finds that

petitioner was initially appointed as Clerk in "Govind Sagar

Fisheries Co-operative Marketing & Supply Federation Bilaspur",

which was subsequently ordered to be wound up on account of

financial loss. It also emerge from the record that employees of

aforesaid Federation were adjusted in the Department of Fisheries,

H.P as per the policy/decision of Government dated 31.07.2007

(Annexure A-1), perusal whereof of reveals that employees of Fish

Federation, Bilaspur were adjusted in the Department of Fisheries

H.P. with prospective effect. It has been categorically mentioned

in the aforesaid communication that the adjustment was purely

.

temporary and was to be regulated in accordance with C.C.S

(Temporary Services) Rules 1965, as amended from time to time.

Though, vide aforesaid communication pay of employees of Fish

Federation was ordered to be protected, but they were made

aware that enrolment towards GPF/CPF and Pension Policy shall

be in accordance with the instructions issued by the Finance

Department. Most importantly, it was clarified in the aforesaid

communication that officials shall be treated to be appointed in

the Department with effect from their joining at the place of

posting as a result of their adjustment and all the employees of

Fish Federation after absorption in the Fisheries Department

shall be junior to all the incumbents of the their cadre/category

against which they shall be absorbed. It was also made clear to

the petitioner as well as other similar situate persons that balance

earned leave of employees of Fish Federation earned during their

employment with the Federation shall be counted/carried forward

subject to the condition that employees can avail this leave, but

encashment of same shall not be allowed. It is not in dispute that

pursuant to aforesaid order dated 31.7.2007 petitioner joined as

Clerk in the Office of Assistant Director of Fisheries Chamba,

District Chamba, H.P, on 10.8.2007 without any protest. It is also

not in dispute that petitioner retired as Clerk on 30.9.2012 and

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during his services in the office of Assistant Director of Fisheries,

Bilaspur, District Bilaspur, Himachal Pradesh, he never raised

issue with regard to counting of his past services rendered by him

in the fish Federation for the purpose of pension, seniority and

other services benefits. It also emerge from the record that though

petitioner was retired on 30.9.2012, but even thereafter for three

years, he did not institute any legal proceedings claiming therein

reliefs, as has been prayed for in the petition. Petition at hand

came to be filed in the year 2015 and there is no explanation,

worth credence, with regard to inordinate delay in filing the

petition. Though, petitioner claimed that prior to his being

absorbed in the Fisheries Department, he was working in

Government Department, but there is no material available on

record suggestive of the fact that Fish Federation was a

Government Department, rather it being co-operative society

subsequently came to be wound up on account of financial crises.

6. Leaving everything aside, once petitioner himself

accepted order dated 31.7.2007, appointing him as clerk in the

Fisheries department with prospective effect, he is not entitled to

claim benefit of the services rendered by him in Fish Federation at

this belated stage. Though, this Court in the given facts and

circumstances of the case is of definite view that petitioner is not

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entitled to any reliefs, as has been prayed for in the instant

petition on account of his having joined in the Department of

Fisheries in the year, 2007 as Clerk, accepting terms and

conditions contained in the order dated 30.7.2007, whereby it

was made clear to the petitioner that appointment shall be with

prospective effect, but even otherwise also, petition having been

filed by the petition deserves to be rejected on the ground of

inordinate delay.

7. The Hon'ble Apex Court in case titled as State of

Uttar Pradesh and others vs. Arvind Kumar Srivastava and

others, 2014 AIR SCW 6519, held that relief cannot be extended

to the persons, who have approached the Court after long delay,

that too, who are fence-sitters. It is apt to reproduce para 24 of

the judgment herein:

"24. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that

time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the

.

service nor working like the employees who succeeded in earlier

case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition

after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be

almost 50 years of age or above."

8. Even Division Bench of this Court, while placing

reliance upon the aforesaid judgments passed by Hon'ble Apex

Court, has held in LPA No.604 of 2011, titled Karan Singh

Pathania vs. State of H.P. and Others that "fencer cannot be held

entitled to any relief"

9. In I. Chuba Jamir & Ors. versus State of Nagaland &

Ors., reported in 2009 AIR SCW 5162, the Apex Court has held

that the inordinate delay is a very valid and important

consideration. It is apt to reproduce para 17 of the judgment

herein:

"17. On a careful consideration of the materials on record and the submissions made by Mr. Goswami we are unable to accept the claims of the appellants-writ petitioners. In our view the inordinate delay of 7 or 8 years by the appellants-writ petitioners in approaching the High Court was a very valid and important consideration. This aspect of the matter was also brought to the

notice of the Single Judge but he proceeded with the matter without saying anything on that issue, one way or the other. It was, therefore, perfectly open to the Division Bench to take into

.

consideration the conduct of the appellants-writ petitioners and

the consequences, apart from the legality and validity, of the reliefs granted to them by the learned single Judge."

10. In Banda Development Authority, Banda vs. Moti

Lal Agarwl and Ors., 2011 AIR SCW 2835, similar principle has

enunciated by Hon'ble Apex Court, wherein it has been held as

under:

15. In our view, even if the objection of delay and laches had not

been raised in the affidavits filed on behalf of the BDA and the

State Government, the High Court was duty bound to take cognizance of the long time gap of 9 years between the issue of declaration under Section 6(1) and filing of the writ petition and declined relief to respondent No.1 on the ground that he was guilty of laches because the acquired land had been utilized for

implementing the residential scheme and third party rights had been created.

The unexplained delay of about six years between the passing of award and filing of writ petition was also sufficient for refusing

to entertain the prayer made in the writ petition. xxx xxxx xxx

25. In this case, the acquired land was utilized for implementing Tulsi Nagar Residential Scheme inasmuch as after carrying out necessary development i.e. construction of roads, laying

electricity, water and sewer lines etc. the BDA carved out plots, constructed flats for economically weaker sections and lower income group, invited applications for allotment of the plots and flats from general as well as reserved categories and allotted the same to eligible persons. In the process, the BDA not only incurred huge expenditure but also created third party rights. In this scenario, the delay of nine years from the date of publication of the declaration issued under Section 6(1) and almost six years from the date of passing of award should have been treated by the High Court as more than sufficient for denying equitable relief to respondent No.1."

11. Consequently, in view of the detailed discussion made

herein above as well as law laid down by the Hon'ble Supreme

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Court, this court finds no merit in the claim of the petitioner and

accordingly, present petition is dismissed being devoid of any

merits and hopelessly time barred. Pending application(s), if any,

also stand(s), disposed of accordingly.

    2nd August, 2021                                        (Sandeep Sharma),
          (shankar)      r                                        Judge