Registrar vs The State Of Jharkhand
2023 Latest Caselaw 3838 Jhar

              IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       (Letters Patent Appellate Jurisdiction)
                                L.P.A. No. 127 of 2022
                                        ---------
1. Registrar, Nilambar Pitambar University, P.O. & P.S.- Daltonganj, Dist.-
Palamau.
2. The Principal, GLA College, P.O. Sadar, P.S.- Daltonganj, Dist.-
Palamau.                                          ... Respondents/Appellants
                                 Versus
1. The State of Jharkhand
2. The Secretary, Human Resources Development Department,
Government of Jharkhand, Project Building, P.O. & P.S.- Dhurwa, Dist.-
Ranchi.
3. Ranchi University through its Vice Chancellor, P.O. & P.S.- Kotwali,
Dist.- Ranchi.
4. Registrar, Ranchi University, P.O. +P.S.- Kotwali, Dist.- Ranchi.
                                              ... Respondents/ Respondents

5. Madan Mehta, Son of Bali Mahto, Resident of Village- Nimia, P.O.
Sudna, P.S.- Town Thana, Dist.- Palamau, Jharkhand.
6. Bigawam Ram, Son of Mangal Ram, Resident of Village- Jamudih, P.O.-
Phulang, P.S.- Lesliganj, Dist.- Palamau, Jharkhand.
7. Bijay Kumar Singh, Son of Suryadeo Singh, Resident of Village and
P.O.-Ukahi, P.S.- Jaidernagar, Dist.- Palamau, Jharkhand.
8. Harendra Lal, Son of Late Hargovind Lal, Resident of Village & P.O.-
Bilauti, P.S.- Sahpur, Dist.- Palamau, Jharkhand.
9. Rajeshwar Singh, Son of Suryadeo Singh, Resident of Kukahi, P.O.-
Kukahi, P.S.- Haidernagar, Dist.- Palamau, Jharkhand.
10. Damodar Sahu, Son of Late Yaduri Sao, Resident of Village- Rajpur,
P.O.- Phulang, P.S. Lesliganj, Dist.- Palamau, Jharkhand.
11. Kuldip Ram, Son of Late Yadurai Ram, Resident of Village-
Ambakhurd, P.O. Phulng, P.S. Lesliganj, Dist.- Palamau, Jharkhand.
                                                .... Petitioners/Respondents
                                        ---------
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
       HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
                                        ---------

For the Appellants        : Dr. Ashok Kumar Singh, Advocate
For the Pvt. Respondents : Mr. Amit Kumar Das, Advocate
For Ranchi University : Mr. Anoop Kumar Mehta, Advocate
                   ---------
                                                       ORDER

th 10 October 2023 Per Shree Chandrashekhar, J.

Seven persons claiming themselves engaged by the Ranchi University (now falling under Nilambar Pitambar University) came to the

writ Court in W.P (S) No.5282 of 2014 to challenge the order dated 19th June 2014 passed by the Registrar of the Nilambar Pitambar University.

2. By the aforesaid order, the writ petitioners were informed that the orders of regularization passed by the Ranchi University in the years 1994, 1995 and 1996 attained finality and after lapse of about 19 years they could not have been accorded similar benefits. This was also a ground indicated in the aforesaid order that the Syndicate's decision dated 20th October 2003 in pursuance of which the notification of regularization dated 29th December 2003 was issued attained finality and, therefore, a modification in the notification dated 29 th December 2003 is not permissible in the year 2011; after lapse of 8 years. The Registrar of the Nilambar Pitambar University who is the respondent no.5 informed the writ petitioners that they had accepted the notification dated 29 th December 2003 without any protest and now after a lapse of 8 years the issue cannot be reopened.

3. In the order dated 22nd December 2021, the writ Court held that there was no delay on the part of the writ petitioners to raise a claim based on parity and, that, the respondent-University made a hostile discrimination against them. The writ Court dealt with the rival contentions in the following manner:

"11. At this stage it is relevant to mention here that the impugned order as well as the main contention of the Respondent counsel is about delay and latches. Having regard to the facts of the case, this Court holds that this case requires interference for following reasons:

(i) The grounds of delay cannot be sustained in the eyes of law for the following reasons: -

(a) In the previous round of litigation, the Hon'ble High Court after hearing both the parties remanded the matter back to the Vice Chancellor and the representations were made pursuant to the direction of this Hon'ble Court and thereafter, the same could not have been rejected on the ground that it was made after 8 years which was in fact made after disposal of the writ application by the Hon'ble High Court.

(b) In the instant case, the petitioners have pleaded and established violation of their fundamental rights guaranteed under Articles 14, 16 and 19 of the Constitution of India and specifically pleaded and demonstrated discrimination by the respondents who had adopted a pick & choose policy and regularized the services of the employees who were juniors to the petitioners with effect from the prior date thereby, discriminating the petitioners.

(c) It is settled position of law that there is no bar under the law for entertaining the writ application which has been filed after delay and whenever there is an allegation of infringement of rights, delay cannot be a ground for rejecting the writ application. Reference in this regard may be made to the judgments passed by the Hon'ble Supreme Court in case of Assam Sanmilita Mahasangha & Ors. Vs. Union of India & Ors, reported in (2015) 3 SCC 1, paras 26, 27, 29, 31 and 32, which read as under:

"26. In Ramchandra Shankar Deodhar v. State of Maharashtra, (1974) 1 SCC 317, a Constitution Bench was invited to dismiss a petition filed under Article 32 on the ground of laches. The petitioner having approached the court after a delay of at least eight years, the Court held that barring a writ petition containing stale claims is not a rule of law but a rule of practice based on sound and proper discretion. There is no inviolable rule that whenever there is a delay, the court must necessarily refuse to entertain the petition. After referring to Tilokchand Motichand and Rabindranath Bose, the Court held that the claim for enforcement of the fundamental right of equal opportunity under Article 16 cannot be dismissed solely on the ground of delay/laches etc. The Court also went on to hold that promotions being provisional, no rights have been conferred on those who are promoted whose interest can therefore be defeated if ultimately it is found that such promotions are not warranted in law.

27. In Express Publication (Madurai) Ltd. v.Union of India, (2004) 11 SCC 526, the employer newspaper wished to challenge paragraph 80 of the Employees Provident Fund Scheme, 1952, which came into force in 1956. The challenge was made in a writ petition under Article, 32, 45 years later in 2001. This was turned down by a Bench of two Judges with a caveat, that if it was the case of the petitioners that with the passage of time, a certain provision had become unconstitutional, then obviously the very passage of time would not amount to delay for which a writ petition would not be entertained.

29. In Bangalore City Co-operative Housing Society v. State of Karnataka, (2012) 3 SCC 727, a two Judge Bench of this Court understood the ratio of Tilokchand Motichand as follows: "46. In Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110] the Constitution Bench considered the question whether the writ petition filed under Article 32 of the Constitution for refund of the amount forfeited by the Sales Tax Officer under Section 21(4) of the Bombay Sales Tax Act, 1953, which, according to the petitioner, was ultra vires the powers of the State Legislature should be entertained ignoring the delay of almost nine years. Sikri and Hedge, JJ. were of the view that even though the petitioner had approached the Court with considerable delay, the writ petition filed by it should be allowed because Section 12-A(4) of the Bombay Sales Tax Act, 1946 was declared unconstitutional by the Division Bench of the High Court (sic Constitution Bench of the Supreme Court) Bachawat and Mitter, JJ.opined that the writ petition should be dismissed on the ground of delay.

47. Hidayatullah, C.J. who agreed with Bachawat and Mitter, JJ. in Tilokchand case[(1969) 1 SCC 110] noted that no period of limitation has been prescribed for filing a petition under Article 32 of the Constitution and proceeded to observe: (SCC p. 116, para 11) "11. Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within the Limitation Act by reason of some article but this Court need not necessarily give the total time to the litigant to move this Court under Article 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the fundamental right and the remedy claimed are when and how the delay arose."

48. The ratio of the aforesaid decision is that even though there is no period of limitation for filing petitions under Articles 32 and 226 of the Constitution, the petitioner should approach the Court without loss of time and if there is delay, then cogent explanation should be offered for the same. However, no hardand-fast rule can be laid down or a straitjacket formula can be adopted for deciding whether or not this Court or the High Court should entertain a belated petition filed under Article 32 or Article 226 of the Constitution and each case

must be decided on its own facts."

31. Given the contentions raised specifically with regard to pleas under Articles 21 and 29, of a whole class of people, namely, the tribal and non- tribal citizens of Assam and given the fact that agitations on this core are ongoing, we do not feel that petitions of this kind can be dismissed at the threshold on the ground of delay/laches. Indeed, if we were to do so, we would be guilty of shirking our Constitutional duty to protect the lives of our own citizens and their culture. In fact, the time has come to have a relook at the doctrine of laches altogether when it comes to violations of Articles 21 and 29.

32. Tilokchand Motichand is a judgment involving property rights of individuals. Ramchandra Deodhar's case, also of a Constitution Bench of five judges has held that the fundamental right under Article 16 cannot be wished away solely on the 'jejune' ground of delay. Since Tilokchand Motichand's case was decided, there have been important strides made in the law. Property Rights have been removed from part III of the Constitution altogether by the Constitution 44th Amendment Act. The same amendment made it clear that even during an emergency, the fundamental right under Article 21 can never be suspended, and amended Article 359 (1) to give effect to this. In Maneka Gandhi v. Union of India, (1978) 1 SCC 248 decided nine years after Tilokchand Motichand, Article 21 has been given its new dimension, and pursuant to the new dimension a huge number of rights have come under the umbrella of Article 21 (for an enumeration of these rights, see Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1 at para 57).

Further, in Olga Tellis & Ors. vs. Bombay Municipal Corporation, (1985) 3 SCC 545, it has now been conclusively held that all fundamental rights cannot be waived (at para 29). Given these important developments in the law, the time has come for this Court to say that at least when it comes to violations of the fundamental right to life and personal liberty, delay or laches by itself without more would not be sufficient to shut the doors of the court on any petitioner."

In view of the aforesaid discussions the judgments relied upon by the learned counsel for the respondents is not applicable in the facts and circumstances of this case.

(ii) The respondents, in the course of argument, without there being any pleading to that effect, tried to make reference of the reports of Justice S.C. Agarwal Commission, Justice S.B. Sinha Commission and the orders passed by the Hon'ble Apex Court in Appeal (Civil) no. 6098 of 1997. The issues involved in those cases have no nexus with the present matter in hand. As stated herein above, the petitioners' case was required to be considered in the light of the order passed by the Supreme Court in Annexure 1 and Annexure 2. The respondents after regularizing the services of the juniors in 1993-95, ultimately regularized the petitioners vide Annexure - 7 dated 29.12.2003, which goes to show that there is serious discrimination and they have been deprived of the past services of benefits.

In the instant case, the Hon'ble Apex Court did not make any mention of availability of vacant post or sanction of post as contended by the respondent, rather it passed an order of absorption only on the basis of the agreement between the Employees Union and the State Government and on the circular issued on that basis.

(iii) Last but not the least, giving appointment on compassionate basis to the other employees and leaving behind these petitioners is clear cut discrimination, inasmuch as, the Hon'ble Apex Court has categorically directed that out of the identified 955 posts, only such persons were to be regularized who at the relevant point of time were in employment of the University and further directed that others who were not in service, were

liable to be terminated.

Even otherwise, the impugned order itself speaks about the fact that the absorption of the petitioners was as per the directions of Hon'ble Apex Court."

4. Having thus found substance in the plea put forth by the writ petitioners, the order dated 19th June 2014 passed by the respondent no.5 was found unsustainable and, accordingly, quashed by the writ Court.

5. As a consequence thereof, the writ Court issued the following direction:

"13. The respondents-authorities are hereby directed to consider the seniority of the petitioners with effect from their initial date of appointment and to regularize the services of the petitioners with effect from 20.08.1993 and to pay the salary of the petitioners with effect from November, 1993 as has been done in the case of other similarly situated employees, whose services have also been regularized in the light of the directions by the Hon'ble Supreme Court in W.P. (C) No. 409 of 1991 and Contempt Application No. 280 of 1993."

6. The admitted facts of this case are that the writ petitioners were appointed between the period 1982 to 1986 on different Class-III and Class-IV posts in Y.S.N. Mahila College and Janta Sivratri College, both at Daltonganj and under the Ranchi University. This is the common ground that the Bihar State University and College Employees' Federation (in short, "Federation") agitated the claim on behalf of the employees for their regularization and the matter went upto the Hon'ble Supreme Court in the Writ Petition (C) No. 409 of 1991. The Hon'ble Supreme Court after taking note of an agreement dated 26th April 1989 between the Federation and the State Government which was incorporated in the notification dated 1st May 1989 issued a direction to the Ranchi University to determine the staffing pattern in terms of the aforementioned agreement. The order dated 25th September 1991 passed by the Hon'ble Supreme Court seems to have been clarified in Contempt Petition No.280 and 404 of 1993 to the effect that the employees who were not validly appointed may be terminated. It further appears that the total number of sanctioned posts was 955 against which hundreds of Class-III and Class-IV employees were working under 40 constituent colleges in the erstwhile State of Bihar. There is a reference of termination of large number of employees who were found not validly appointed or working on the sanctioned posts. There is also a reference of the letter dated 10th May 1991 which indicates that the employees who were appointed in the newly constituted colleges were permitted by the

Government of Bihar to continue in service till such posts were sanctioned by the State Government.

7. From the materials on record, it further appears that the dispute regarding identification of the validly appointed employees refused to die down and Hon'ble Justice S.C. Agrawal Committee was constituted to identify the validly appointed teaching and non-teaching staff. Even so, the dispute could not be finally resolved and various claims were agitated considering which Hon'ble Justice S.B. Sinha Committee was constituted by the Hon'ble Supreme Court.

8. Before the writ Court, the writ petitioners nowhere claimed that at any stage before they filed WP(S) No.4739 of 2011 they were identified or admitted by the respondents as validly appointed since inception. Mr. A.K. Das, the learned counsel for the writ petitioners refers to the statements made in paragraph no.12 of the writ petition to submit that the respondents were raising their grievance since long and were discriminated vis-a-vis other similarly situated employees. However, this remains unexplained why the writ petitioners did not approach the Court after the order dated 17th January 1994 was passed in Contempt Petition Nos. 280 and 404 of 1993 by the Hon'ble Supreme Court. The findings recorded by the writ Court that there was no delay on the part of the writ petitioners cannot be countenance in law. No doubt a writ petition can be entertained and delay may not be a ground to decline relief to the aggrieved party, but then, the aggrieved party is required to establish a right in law.

9. On the basis of the materials laid before the Court, the writ petitioners cannot establish a right seeking parity with others who were found validly appointed and working within the sanctioned staffing pattern. Merely because this Court in WP(S) No.4739 of 2011 referred the writ petitioners to approach the authorities that order by itself shall not clothe the writ petitioners with a legal right. Moreover, simply saying that they had been raising their grievance before the competent authority since long is not sufficient explanation for delay of about 8 years in approaching the writ Court to challenge the conditions of regularization contained in the notification dated 29th December 2003. The writ petitioners failed to establish that they were working on sanctioned posts and within the sanctioned strength at the time when the agreement dated 26th April 1989

was entered into between the Federation and the State Government, they cannot seek regularization w.e.f. 20th August 1993 as has been done in other cases. The writ petitioners have failed even to indicate when the posts on which they started working were sanctioned by the State Government. May be there is a citation in the notification dated 29th December 2003 that pursuant to the order of the Hon'ble Supreme Court the order of regularization has been issued, that shall not mean that the writ petitioners were working on sanctioned vacant post since the date of their respective initial appointment.

10. In the first place, a direction for regularization about eighteen years after the writ petitioners were taken as regular employees cannot be countenanced in law for any reason whatsoever. Secondly, a further direction to pay salary as regular employee for a period of over fourteen years is equally unsustainable in law. The writ Court exercising the powers under Article 226 of the Constitution of India is required to examine

(i) whether there is sufficient pleadings for seeking a relief (ii) whether the relief sought is barred by limitation or any law (iii) whether the relief if granted may have cascading effect in the cadre and (iv) whether the prayer made in the writ petition is in the realm of private law or public law domain. The writ petitioners have failed to demonstrate that it was an illegal act of the respondents on account of which they were deprived of the benefit of regularization since August 1993. As regards duty of the writ Court, in "City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala" (2009) 1 SCC 168, the Hon'ble Supreme Court observed as under:

"29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or direction in a public law remedy. Further, while considering the validity of impugned action or inaction the Court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution.

30. The Court while exercising its jurisdiction under Article 226 is duty- bound to consider whether:

(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

(b) the petition reveals all material facts;

(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;

(d) person invoking the jurisdiction is guilty of unexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(f) grant of relief is against public policy or barred by any valid law; and host of other factors.

The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief could be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter-affidavit opposing the writ petition. Further, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public law remedy to which he is not otherwise entitled to in law."

11. Recently, in "Vishal Ashwin Patel v. CIT" 2022 SCC OnLine SC 366 the Hon'ble Supreme Court has observed as under:

"3. The manner in which the High Court has dealt with and disposed of the writ petitions without passing any reasoned order is not appreciated by this Court. When a number of issues/grounds were raised in the writ petitions, it was the duty cast upon the court to deal with the same and thereafter, to pass a reasoned order. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the Courts to give such relief in appropriate cases and the Courts would be failing to perform their duty if relief is refused without adequate reasons.

4. The High Court in exercise of powers under Article 226 of the Constitution of India was required to have independently considered whether the question of reopening of the assessment could be raised in a writ petition and if so, whether it was justified or not.

5. While emphasising the necessity to pass a reasoned order, in the case of Central Board of Trustees v. Indore Composite Private Limited, (2018) 8 SCC 443, it is observed and held by this Court that the courts need to pass a reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising in the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues arising in the case and urged by the learned counsel for the parties in support of its conclusion. It is further observed in the said decision that an order bereft of reasoning causes prejudice to the parties because it deprives them to know the reasons as to why one party has won and other has lost.

6. In the recent decision in the case of Union Public Service Commission v. Bibhu Prasad Sarangi, (2021) 4 SCC 516, while emphasising the reasons to be given by the High Court while exercising powers under Article 226 of the Constitution of India, it is observed and held by this Court that the reasons constitute the soul of judicial decision and how Judges communicate in their judgment is a defining characteristic of judicial process since quality of justice brings legitimacy to the judiciary. It is further observed that though statistics of disposal of cases is important of higher value is the intrinsic content of judgment. It is further observed that in exercise of powers under Article 226 the courts require to independently consider the issues involved."

12. The learned counsel for the writ petitioners has submitted that by virtue of the order of regularization vide notification dated 29th

December 2003 the writ petitioners would lose benefit of most of the services rendered by them and they may not even be entitled for pension. Be that as it may, this issue is no longer res integra and authoritatively decided by a Full Bench of this Court in "Bholanath Hansda @ Bhola Hansda v. The State of Jharkhand and others" 2017 (3) JCR 795 (Jhr) (FB).

13. In the background of the aforesaid legal position and having regard to the facts and circumstances in the case, we find that the order of regularization issued through notification dated 29th December 2003 could not have been interfered by the writ Court and, consequently, it is held that the writ petitioners are not entitled for regularization w.e.f 20th August 1993 and salary from November 1993.

14. L.P.A. No. 127 of 2022 is allowed and, consequently, WP(S) No.5282 of 2014 is dismissed.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) R.K.