Jharkhand High Court
Fulena Devi vs The State Of Jharkhand Through The ... on 1 March, 2021
1 W.P. (S) No. 4210 of 2016
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 4210 of 2016
Fulena Devi, W/o Late Ganesh Bhagat, R/o Village- Sonwaria, P.O.
Kathia Mathia, P.S. Kangali, Dist. West Champaran (Bihar- 845307)
... Petitioner
-Versus-
1. The State of Jharkhand through the Secretary, Dept. of Home, P.O,
P.S. & Dist.- Ranchi
2. The Accountant General, P.O. & P.S. Doranda, Dist.- Ranchi
3. Deputy Inspector General of Police, P.O., P.S. & Dist. Ranchi
4. Accountant General (ARE) Birenchi Patel Marg, P.O., P.S. & Dist.- Patna
5. Commandant, BMP Deoghar, Now JAP-5, P.O. & P.S. Deoghar
6. Director General/Inspector General of Police, P.O., P.S. & District-
Ranchi ... Respondents
-----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-----
For the Petitioner : Mr. Vishal Kumar Tiwari, Advocate
Mr. Pramod Kumar, Advocate
For the Respondent-State : Mr. Arun Kumar Dubey, A.C. to G.P.-III
For Respondent No.2 : Mr. Amit Kumar Verma, Advocate
-----
13/01.03.2021. Heard Mr. Vishal Kumar Tiwari, learned counsel for the petitioner,
Mr. Arun Kumar Dubey, learned counsel for the respondent-State and Mr.
Amit Kumar Verma, learned counsel for respondent no.2.
2. This writ petition has been heard through Video Conferencing in view
of the guidelines of the High Court taking into account the situation arising
due to COVID-19 pandemic. None of the parties have complained about any
technical snag of audio-video and with their consent this matter has been
heard on merit.
3. The petitioner has preferred this writ petition for quashing the
dismissal order dated 20.06.1986 passed by the Commandant, BMP
Deoghar now JAP-5, Deoghar and appellate order dated 21.02.1987,
whereby, the husband of the petitioner was dismissed from service on the
ground of absconder.
4. The husband of the petitioner was appointed as Constable in
Jharkhand Armed Police on 06.06.1975, but a case being Deoghar P.S. Case
No. 115/1985 was registered under Sections 415 and 364 of the Indian
Penal Code against him and two other person, but all the accused including
the husband of the petitioner were acquitted vide order dated 18.07.1988,
contained in Annexure-1 of the writ petition. The husband of the petitioner
died on 30.12.1997. The petitioner earlier moved before this Court in
W.P.(S) No. 5791 of 2013, which was dismissed in light of Section 101(a) of
the Bihar Pension Rules, 1950 as the petitioner has not challenged the
dismissal order. The petitioner is an illiterate lady. She seek dismissal order
under Right to Information Act, which was provided to the petitioner. After
receiving the dismissal order, the petitioner again represented before the
respondent-authority on 27.02.2015 for setting aside the dismissal order,
but no decision was taken. The petitioner filed another writ petition being
W.P.(S) No.1119 of 2015, which was withdrawn on 18.01.2016 to pursue
L.P.A. No.76 of 2016, filed by the petitioner. The said L.P.A. was disposed of
vide order dated 27.06.2016 with liberty to the petitioner to challenge the
dismissal order in a fresh writ petition. Thereafter, the petitioner has filed
the present writ petition. The co-accused, namely, Saheb Singh @ Saheb
Prasad Singh has also filed a writ petition being W.P.(S) No. 3182 of 2005
for payment of arrears of salary for the period between 17.06.1987 to
10.12.2003, which was allowed by a coordinate Bench of this Court vide
order dated 18.04.2013 and direction was issued to pay 50% back wages
for the period between 17.06.1987 to 10.12.2003. The order passed in the
said writ petition is annexed in Annexure-8 of the writ petition. The
petitioner made several representations before the respondent-authorities to
provide the same benefits. The co-accused, namely Saheb Singh @ Saheb
Prasad Singh has earlier filed C.W.J.C. No. 11459 of 1998, which was
allowed on 17.02.2003 and the matter was remanded for reconsideration in
accordance with law. The petitioner's husband died on 30.12.1997.
5. Mr. Tiwary, learned counsel appearing for the petitioner submits that
the petitioner is a widow of late Ganesh Bhagat, who died on 30.12.1997
and he had not been able to challenge the dismissal order. When the
petitioner came to know about the dismissal order, she obtained the
dismissal order, being the widow of late Ganesh Bhagat under Right to
Information Act and thereafter she is continuously taking steps. He further
submits that in the L.P.A. No. 76 of 2016, entire aspect of the matter has
been considered by the Division Bench including the judgment passed by
the learned Single Judge dated 05.01.2015 and liberty was provided to the
petitioner to challenge the dismissal order. He also submits that once the
liberty was provided, this Court may not dismiss the writ petition on the
ground of delay and laches. He further submits that in the writ, the delay
under Article 226 of the Constitution of India is self-restrained by the High
Court and in appropriate cases, that can be considered. He refers to the
judgment delivered by the Hon'ble Supreme Court in the case of Tukaram
Kana Joshi and Others v. Maharashtra Industrial Development
Corporation and Others, reported in (2013) 1 SCC 353.
6. Paragraph 12 of the said judgment is quoted herein below:
"12. The State, especially a welfare State which is governed
by the rule of law, cannot arrogate itself to a status beyond
one that is provided by the Constitution. Our Constitution is
an organic and flexible one. Delay and laches is adopted as a
mode of discretion to decline exercise of jurisdiction to grant
relief. There is another facet. The Court is required to exercise
judicial discretion. The said discretion is dependent on facts
and circumstances of the cases. Delay and laches is one of
the facets to deny exercise of discretion. It is not an absolute
impediment. There can be mitigating factors, continuity of
cause action, etc. That apart, if the whole thing shocks the
judicial conscience, then the Court should exercise the
discretion more so, when no third-party interest is involved.
Thus analysed, the petition is not hit by the doctrine of delay
and laches as the same is not a constitutional limitation, the
cause of action is continuous and further the situation
certainly shocks judicial conscience."
7. Learned counsel for the petitioner further relied upon the judgment
delivered by the Hon'ble Supreme Court in the case of Ramchandra
Shankar Deodhar and Others v. The State of Maharashtra and
Others, reported in (1974) 1 SCC 317.
8. Paragraph 10 of the said judgment is quoted herein below:
"10. The first preliminary objection raised on behalf of the
respondents was that the petitioners were guilty of gross
laches and delay in filing the petition. The divisional cadre of
Mamlatdars/Tehsildars were created as far back as November
1, 1956 by the Government Resolution of that date, and the
procedure for making promotion to the posts of Deputy
Collector on the basis of divisional select-list, which was a
necessary consequence of the creation of the divisional cadre
of Mamlatdars/ Tehsildars, had been in operation for a long
number of years, at any rate from April 7, 1961, and the Rules
of July 30, 1959 were also given effect to since the date of
their enactment and yet the petitioner did not file the petition
until July 14, 1969. There was a delay of more than ten or
twelve years in filing the petition since the accrual of the
cause of complaint, and this delay, contended the
respondents, was sufficient to disentitle the petitioners to any
relief in a petition under Article 32 of the Constitution. We do
not think this contention should prevail with us. In the first
place, it must be remembered that the rule which says that
the Court may not inquire into belated and stale claims is not
a rule of law, but a rule of practice based on sound and proper
exercise of discretion, and there is no inviolable rule that
whenever there is delay, the Court must necessarily refuse to
entertain the petition. Each case must depend on its own
facts. The question, as pointed out by Hidayatullah, C.J., in
Tilokchand Motichand v. H.B. Munshi"is one of discretion for
this Court to follow from case to case. There is no lower limit
and there is no upper limit .... It will all depend on what the
breach of the fundamental right and the remedy claimed are
and how the delay arose". Here the petitioners were informed
by the Commissioner, Aurangabad Division, by his letter dated
October 18, 1960 and also by the then Secretary of the
Revenue Department in January 1961 that the rules of
recruitment to the posts of Deputy Collector in the
reorganised State of Bombay had not yet been unified, and
that the petitioners continued to be governed by the rules of
Ex-Hyderabad State and the Rules of July 30, 1959 had no
application to them. The petitioners were, therefore, justified
in proceeding on the assumption that there were no unified
rules of recruitment to the posts of Deputy Collector and the
promotions that were being made by the State Government
were only provisional to be regularised when unified rules of
recruitment were made. It was only when the petition in
Kapoor case was decided by the Bombay High Court that the
petitioners came to know that it was the case of the State
Government in that petition -- and that case was accepted by
the Bombay High Court -- that the Rules of July 30, 1959
were the unified rules of recruitment to the posts of Deputy
Collector applicable throughout the reorganised State of
Bombay. The petitioners thereafter did not lose any time in
filing the present petition. Moreover, what is challenged in the
petition is the validity of the procedure for making promotions
to the posts of Deputy Collector -- whether it is violative of
the equal opportunity clause -- and since this procedure is not
a thing of the past, but is still being followed by the State
Government, it is but desirable that its constitutionality should
be adjudged when the question has come before the Court at
the instance of parties properly aggrieved by it.. It may also
be noted that the principle on which the Court proceeds in
refusing relief to the petitioner on ground of laches or delay is
that the rights which have accrued to others by reason of the
delay in filing the petition should not be allowed to be
disturbed unless there is reasonable explanation for the delay.
This principle was stated in the following terms by
Hidayatullah, C.J. in Tilokchand v. H.B. Munshi (supra):
"The party claiming fundamental rights must move the
Court before other rights come into existence. The action of
courts cannot harm innocent parties if their rights emerge by
reason of delay on the part of the person moving the
Court." *
Sikri, J., (as he then was), also re-stated the same principle
in equally felicitous language when he said in R.N. Bose v.
Union of India: "It would be unjust to deprive the respondents
of the rights which have accrued to them. Each person ought
to be entitled to sit back and consider that his appointment
and promotion affected a long time ago would not be set
aside after the lapse of a number of years." Here, as admitted
by the State Government in para 55 of the affidavit in reply, all
promotions that have been made by the State Government
are provisional and the position has not been crystallised to
the prejudice of the petitioners. No rights have, therefore,
accrued in favour of others by reason of the delay in filing the
petition. The promotions being provisional, they have not
conferred any rights on those promoted and they are by their
very nature liable to be set at naught, if the correct legal
position, as finally determined, so requires. We were also told
by the learned counsel for the petitioners, and that was not
controverted by the learned counsel appearing on behalf of
the State Government, that even if the petition were allowed
and the reliefs claimed by the petitioners granted to them,
that would not result in the reversion of any Deputy Collector
or officiating Deputy Collector to the post of Mamlatdar/
Tehsildar; the only effect would be merely to disturb their inter
se seniority as officiating Deputy Collectors or as Deputy
Collectors. Moreover, it may be noticed that the claim for
enforcement of the fundamental right of equal opportunity
under Article 16 is itself a fundamental right guaranteed under
Article 32 and this Court which has been assigned the role of a
sentinel on the qui vive for protection of the fundamental
rights cannot easily allow itself to be persuaded to refuse
relief solely on the jejune ground of laches, delay or the like."
9. Per contra, Mr. Arun Kumar Dubey, learned counsel for the
respondent-State submits that the petitioner has approached the Court after
a long period and the writ petition is fit to be dismissed on the ground of
delay and laches. He further submits that co-accused has filed writ petition
in time and that is why he has been provided the benefit, whereas, the
petitioner has approached the Court after much delay. He also submits that
on these grounds, the writ petition is fit to be dismissed.
10. Having heard learned counsel for the parties, the Court has ventured
to go through the materials on the record. It transpires that the learned
Single Judge vide order dated 05.01.2015 has rightly dismissed the writ
petition considering Section 101(a) of the Bihar Pension Rules, 1950. The
learned Single Judge has rightly considered that the dismissal order has not
been challenged. In L.P.A. No. 76 of 2016, the Division Bench of this Court
has considered entire aspect of the matter including the relief granted to
the co-accused, namely, Saheb Singh @ Saheb Prasad Singh and also
considered that the petitioner is an illiterate lady and she is not able to
approach the Court in time and, therefore, liberty was granted to the
petitioner to challenge the dismissal order. The petitioner is the widow of
Late Ganesh Bhagat, who died on 30.12.1997. the petitioner was not
knowing about the dismissal of service of her husband. She obtained the
said order under the Right to Information Act. The similarly situated person,
namely, Saheb Singh @ Saheb Prasad Singh has been allowed 50% back
wages and reinstatement in the service. The husband of the petitioner was
also acquitted vide order dated 18.07.1988, contained in Annexure-1 of the
writ petition. No third-party interest is involved in the case in hand and in
light of the judgments passed in the cases of Tukaram Kana Joshi and
Ramchandra Shankar Deodhar (supra), the writ petition succeeds.
Accordingly, the dismissal order dated 20.06.1986 and appellate order dated
21.02.1987 are quashed. The matter is remitted back to respondent no.3,
who will consider the case of the petitioner on the ground of parity, in light
of the discussions made herein above, particularly about the relief already
granted to Saheb Singh @ Saheb Prasad Singh and will pass a reasoned
order, within a period of eight weeks from the date of receipt/production of
a copy of this order.
11. With the above observations and directions, this writ petition stands
allowed and disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/
