Himachal Pradesh High Court
Inder Pal Thakur vs State Of Himachal Pradesh & Ors on 2 August, 2021
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CWPOA No.7771 of 2019
.
Date of Decision:2.8.2021
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Inder Pal Thakur ......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
.
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 1979 as Salesman Class-III 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 regular service in the
Fisheries Department, superannuated on 31.10.2009 from the of
Office of Assistant Director of Fisheries, Shimla, District Shimla,
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 28 years
regular service with the Federation, which is a Government
Department, respondents ought to have taken into consideration
aforesaid period of 29 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
Salesman 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
salesman in the respondent Department on 8.8.2007 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 salesman 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 (Annexures 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.
.
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
salesman in the Office of Assistant Director of Fisheries Shimla,
District Shimla, H.P, on 8.8.2007 without any protest. It is also
not in dispute that petitioner retired as Fisherman on 31.10.2009
and during his services in the office of Assistant Director of
Fisheries, Shimla, District Shimla, 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 31.10.2009, but even thereafter
for seven 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 2016 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 Fisherman 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 the instant
petition on account of his having joined in the Department of
.
Fisheries in the year, 2007 as Fisherman, 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.
r to
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
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) Judge
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