Gopal Krishan vs State Of Himachal Pradesh & Ors
2021 Latest Caselaw 3323 HP

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     IN        THE           HIGH           COURT OF HIMACHAL                                 PRADESH,
                                               SHIMLA

                                                                              CWPOA No.7774 of 2019




                                                                                      .

                                                                          Date of Decision: 2.8.2021
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    Gopal Krishan                                                                ......Petitioner





                                                     Versus

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





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    Coram
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting1?
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    For the Petitioner:
                            r              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 30.1.1981 as Plant Assistant 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 7 ½ years regular service in

the Fisheries Department, superannuated on 31.3.2015 from the

of Office of Assistant Director of Fisheries, Pongdam, District

Kangra, 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.

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 26 years

regular service with the Federation, which is a Government

Department, respondents ought to have taken into consideration

aforesaid period of 26 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

Fisheries Field Assistant 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, 2007 with prospective effect

and such offer was happily accepted by the petitioner when he

joined as Fisheries Field Assistant in the respondent Department

on 13.8.2007 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 Plant Assistant 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 Fisheries, H.P as per the policy/decision of

Government dated 31.07.2007 (Annexure R-II and R-III), 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.

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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

Fisheries Field Assistant in the Office of Assistant Director of

Fisheries, Palampur, District Kangra, H.P, on 13.8.2007 without

any protest. It is also not in dispute that petitioner retired as

Fisheries Field Assistant on 31.3.2015 and during his services in

the office of Assistant Director of Fisheries, Palampur, District

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Kangra, 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 31.3.2015, but even thereafter for one

year, 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 Fisheries Field

Assistant 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 entitled to any reliefs, as has been prayed for in

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the instant petition on account of his having joined in the

Department of Fisheries in the year, 2007 as Fisheries Field

Assistant, 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

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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

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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

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

accordingly, present petition is dismissed being devoid of any

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

also stand(s), disposed of accordingly.

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



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