Jharkhand High Court
Bishwanath Prasad vs The State Of Jharkhand on 10 September, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 461 of 2024
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Bishwanath Prasad, aged about 61 years, son of Late Rajkeshwar,
Resident of Patel Nagar, Sector-I, P.O. Dhurwa, P.S. Jagannathpur,
District-Ranchi.
... ... Appellant/Petitioner
Versus
1. The State of Jharkhand, through the Chief Secretary, Government of
Jharkhand, office at Project Building, P.O. and P.S. Dhurwa, District
Ranchi, Jharkhand.
2. The School Education and Literacy Department, Government of
Jharkhand, through the Principal Secretary/Secretary, having its office
at Project Building, P.O. and P.S. Dhurwa, District Ranchi, Jharkhand.
3. The Director, Secondary Education, School Education and Literacy
Department, Government of Jharkhand, having its Office at Project
Building, P.O. and P.S. Dhurwa, District Ranchi, Jharkhand.
4. The Deputy Commissioner-cum-District Establishment Deputy
Collector, Office at Kuchhery, P.O. - GPO, P.S. - Kotwali, District -
Ranchi.
5. The Regional Deputy Director of Education/Regional Joint Director of
Education, South Chhotanagpur Division, Ranchi, having its Office at
Kutchery, P.O. - GPO, P.S. - Kotwali, District Ranchi, Jharkhand.
6. The Regional Development Commissioner/Additional Regional
Development Commissioner, Secretariat, Project Building, P.O. &
P.S. - Dhurwa, District - Ranchi.
7. The Deputy Development Commissioner, Ranchi, Kutchery, P.O. -
GPO and P.S. Kotwali, District Ranchi, Jharkhand.
... ... Respondents/Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellant : Mrs. Rakhi Rani, Advocate
Mr. Akhilesh Prasad, Advocate
For the Respondents : Mr. Mohan Kumar Dubey, AC to AG
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02/Dated: 10th September, 2024
Per Sujit Narayan Prasad, A.C.J.:
Prayer:
1. The instant appeal under Clause 10 of the letters patent is directed against
the order dated 18.06.2024 passed by learned Single Judge of this Court
in W.P.(S) No. 5491 of 2023 by which the claim of the appellant-writ
petitioner for considering his appointment initially from 08.08.1998 by
shifting it from 17.08.2001, has been refused by declining to pass
positive direction in favour of the appellant-writ petitioner.
Facts:
2. The brief facts of the case, as per the pleadings in the writ petition which
requires to be enumerated herein, read as under:
It is the case of the appellant-writ petitioner that the father of
the appellant-writ petitioner, working on the post of clerk in the office of
District Superintendent of Education, Ranch, died in harness on
23.11.1996. Then, the District Compassionate Committee in its meeting
held on 08.08.1998, recommended for appointment on compassionate
ground of appellant-writ petitioner on the post of clerk.
In pursuance thereof, respondent no.4 vide letter contained in
memo no.1122(ii) dated 02.09.1998 directed the respondent no.5 to issue
appointment letter to the appellant-writ petitioner but the said
appointment letter was not issued by the respondent no.5, as such, the
appellant-writ petitioner made representation dated 15.01.1999 before the
Commissioner, South Chhotanagpur Division, Ranchi stating all the
facts.
Thereafter, vide letter no.117(ii) dated 16.01.1999, respondent
no.4 again directed the respondent no.5 to take expeditious action in the
matter of appointment of the appellant-writ petitioner on compassionate
ground but no action was taken and thereafter several representations
were submitted but the respondent no.5 was sitting tight over the matter
and no action was taken.
Being aggrieved thereof, the appellant-writ petitioner
approached to this Court by filing writ petition being C.W.J.C. No. 2350
of 2000 (R) which was disposed of vide order dated 05.07.2001 directing
the respondent no.5 to issue letter of appointment to the appellant-writ
petitioner on the basis of the decision by the District Establishment
Committee. In pursuance thereof, appointment letter was issued to the
appellant-writ petitioner vide office order contained in memo no.1753
dated 17.08.2001, thereafter, the appellant-writ petitioner joined the post
on 01.10.2001.
The appellant-writ petitioner superannuated from service on
31.12.2001 and retiral dues were paid but it is the grievance of the
appellant-writ petitioner that the retiral dues to which he is entitled has
not been paid as because if the appointment letter would have been issued
immediately after the recommendation of the District Establishment
Committee then the pensionary benefits would have been enhanced but
the same has not been done and being aggrieved thereof, the appellant-
writ petitioner filed representations on 25.07.2022; 08.08.2022 and
25.08.2022 but when no action has been taken on the said representation,
the appellant-writ petitioner again approached to this Court by filing writ
petition being W.P.(S) No. 5491 of 2023 in which the learned Single
Judge has declined to pass any positive direction taking into
consideration the unexplained delay and laches against which the present
appeal has been preferred.
3. It is evident from the facts as referred hereinabove that the father of the
appellant-writ petitioner died in harness on 23.11.1996 and thereafter, he
made application for consideration of his case for appointment on
compassionate ground. The case of the appellant-writ petitioner was
considered by the District Compassionate Committee and finally decision
was taken on 08.08.1998 but no appointment order was issued which
prompted the appellant-writ petitioner to approach this Court by filing
writ petition being C.W.J.C. No. 2350 of 2000 (R) raising grievance that
in the light of the decision so taken by the District Compassionate
Committee, the concerned respondent had not issued appointment letter
to the appellant-writ petitioner.
This Court while disposing of the said writ petition directed the
respondent to issue letter of appointment to the appellant-writ petitioner
and the letter of appointment was issued on 17.08.2001 mentioning
therein that the appellant-writ petitioner will be appointed from the date
of joining.
The appellant-writ petitioner, pursuant thereto, has joined the
service on 01.10.2001. Thereafter, the appellant-writ petitioner retired
from service on attaining the age of superannuation w.e.f. 31.12.2021.
The appellant-writ petitioner, after three years, has filed writ
petition being W.P.(S) No. 5491 of 2023 praying therein for considering
his appointment from the date when the District Compassionate
Committee had made recommendation of his appointment. The same was
rejected against which the present appeal has been preferred.
Argument on behalf of the Appellant-Writ Petitioner:
4. Mrs. Rakhi Rani, learned counsel for the appellant-writ petitioner has
taken the following grounds:
(i) The learned Single Judge has not appreciated the fact that when the
District Compassionate Committee has already taken decision for
appointment way back in the year 1998 and if there is delay in
issuance of appointment letter then why the appellant-writ
petitioner will be made to suffer and as such, the delay is on the
part of the State authority, hence, the appellant-writ petitioner will
be treated to be appointed from the date of the decision so taken by
the District Compassionate Committee.
(ii) The ground has been taken that the learned Single Judge has
declined to pass positive direction only on the ground of delay but
the principle of delay and laches will not be applicable in a case
where the case is in the nature of re-occurring.
(iii) The argument has been advanced that herein since the writ
petitioner has retired and he is now getting the pension and if his
appointment will be treated from the date of the decision so taken
by the District Compassionate Committee on 08.08.1998 then the
pensionary benefits will be increased and in that view of the
matter, the case of the appellant-writ petitioner will be said to be
re-occurring cause of action.
5. The learned counsel for the appellant-writ petitioner, based upon the
aforesaid ground, has submitted that the learned Single Judge has not
appreciated the aforesaid issued and as such, the order impugned suffers
from error and hence, not sustainable in the eyes of law.
Argument on behalf of the Respondents:
6. Mr. Mohan Kr. Dubey, learned counsel for the respondent-State has
submitted while defending the order impugned that there is no error in
the impugned order reason being that the issue which is the subject
matter of the present case cannot be said to be re-occurring cause of
action as it is not that the appellant-writ petitioner is not getting the
pensionary benefits rather he is getting the same and now only for the
purpose of enhancement, he has raised the issue which has been closed
way back in the year 2001 when the appointment letter was issued that
too on the basis of the direction passed by this Court in C.W.J.C. No.
2350 of 2000 (R).
7. The learned State counsel, based upon the aforesaid ground, if has
declined to pass positive direction, the same cannot be said to suffer from
error.
Analysis:
8. We have heard learned counsel for the appellants-respondents and gone
across the findings recorded by the learned Single Judge in the impugned
order.
9. The issue which requires consideration are as follows:
(i) Whether while seeking the relief of shifting the date of
appointment from 17.08.2001 to 08.08.1998, can it be said to be
re-occurring cause of action for the purpose of getting enhanced
pensionary benefits?
(ii) Whether the appellant-writ petitioner being conscious with the
issue after acceptance of the appointment letter, is it now available
for the appellant-writ petitioner to raise the grievance after lapse of
20 years?
(iii) Whether merely by making recommendation by the District
Compassionate Committee, can it be said to be creating a right for
the purpose of consideration of shifting of date of appointment
from 17.08.2001 to 08.08.1998?
(iv) Whether the appointment letter which has been issued in pursuance
of the direction passed by this Court in C.W.J.C. No.2350 of 2000
(R) wherein no direction has been passed for grant of appointment
letter from the date of the decision so taken by the District
Compassionate Committee, if it will be allowed, will it not amount
to reviewing the direction passed by this Court way back in the
year 2001?
10. Since all the issues are interlinked, as such, are being taken up together
for its consideration.
11. This Court, in order to answer the aforesaid issues, needs to refer herein
that the principle of delay and laches is applicable in the writ proceeding.
This is for the reason that the extraordinary jurisdiction created by way of
Article 226 of the Constitution of India has not been made for such
litigant who after rising from deep slumber will come to the Court after
lapse of reasonable period rather the requirement is that the writ court is
to be approached within the reasonable period.
Even though the law of limitation is not applicable in writ
proceeding but the consideration is to be given by observing the principle
of delay and laches so as to exercise the extraordinary jurisdiction
conferred under Article 226 of the Constitution of India.
Exception is there with respect to the aforesaid applicability of
the principle of delay and laches wherein the delay is cause due to the
conduct of the State and in such circumstances, it is not available for the
State to take the ground of delay and laches which is due to the reason
that a wrong doer cannot be allowed to take advantage, therefore, it
depends upon the facts as to whether the principle of delay and laches
will be applicable or not.
12. The said issue has been taken into consideration by the Hon'ble Apex
Court in the case of State of Uttar Pradesh and Ors. Vrs. Arvind Kumar
Srivastava and Ors., (2015) 1 SCC 347, wherein at paragraphs-18 and 19
it has been observed which reads as under:
"18. ......... in U.P. Jal Nigam v. Jaswant Singh reported in (2006)
11 SCC 464 where the issue was pertaining to entitlement of the
employees of U.P. Jal Nigam to continue in service up to the age of
60 years. In Harwindra Kumar v. Chief Engineer, Karmik reported
in (2005) 13 SCC 300 this Court had earlier held that these
employees were in fact entitled to continue in service up to the age of
60 years. After the aforesaid decision, a spate of writ petitions came
to be filed in the High Court by those who had retired long back. The
question that arose for consideration was as to whether the
employees who did not wake up to challenge their retirement orders,
and accepted the same, and had collected their post-retirement
benefits as well, could be given relief in the light of the decision
delivered in Harwindra Kumar reported in (2005) 13 SCC 300. The
Court refused to extend the benefit applying the principle of delay
and laches. It was held that an important factor in exercise of
discretionary relief under Article 226 of the Constitution of India is
laches and delay. When a person who is not vigilant of his rights and
acquiesces into the situation, his writ petition cannot be heard after
a couple of years on the ground that the same relief should be
granted to him as was granted to the persons similarly situated who
were vigilant about their rights and challenged their retirement. In
para 7, the Court quoted from Rup Diamonds reported in (1989) 2
SCC 356. In para 8, S.M. Kotrayya reported in (1996) 6 SCC 267
was taken note of.
19. Some other judgments on the same principle of laches and delay
are taken note of in paras 9 to 11 which are as follows: (Jaswant
Singh case reported in (2006) 11 SCC 464, SCC pp. 469-70)
"9. Similarly in Jagdish Lal v. State of Haryana reported in (1997) 6
SCC 538 this Court reaffirmed the rule if a person chose to sit over
the matter and then woke up after the decision of the court, then such
person cannot stand to benefit. In that case it was observed as
follows: (SCC p. 542)"
"The delay disentitles a party to discretionary relief under Article
226 or Article 32 of the Constitution. The appellants kept sleeping
over their rights for long and woke up when they had the impetus
from Union of India v. Virpal Singh Chauhan reported in (1995)
6 SCC 684. The appellants‟ desperate attempt to redo the
seniority is not amenable to judicial review at this belated stage.‟
10. In Union of India v. C.K. Dharagupta reported in (1997) 3 SCC
395 it was observed as follows: (SCC p. 398, para 9)
"9. We, however, clarify that in view of our finding that the
judgment of the Tribunal in R.P. Joshi v. Union of India gives
relief only to Joshi, the benefit of the said judgment of the
Tribunal cannot be extended to any other person. The respondent
C.K. Dharagupta (since retired) is seeking benefit of Joshi case.
In view of our finding that the benefit of the judgment of the
Tribunal dated 17-3-1987 could only be given to Joshi and
nobody else, even Dharagupta is not entitled to any relief.‟
11. In Govt. of W.B. v. Tarun K. Roy reported in (2004) 1 SCC 347,
Their Lordships considered delay as serious factor and have not
granted relief. Therein it was observed as follows: (SCC pp. 359-60,
para 34) „
"34. The respondents furthermore are not even entitled to any
relief on the ground of gross delay and laches on their part in
filing the writ petition. The first two writ petitions were filed in
the year 1976 wherein the respondents herein approached the
High Court in 1992. In between 1976 and 1992 not only two writ
petitions had been decided, but one way or the other, even the
matter had been considered by this Court in State of W.B. v.
Debdas Kumar reported in (1991) Supp (1) SCC 138. The plea of
delay, which Mr Krishnamani states, should be a ground for
denying the relief to the other persons similarly situated would
operate against the respondents. Furthermore, the other
employees not being before this Court although they are
ventilating their grievances before appropriate courts of law, no
order should be passed which would prejudice their cause. In
such a situation, we are not prepared to make any observation
only for the purpose of grant of some relief to the respondents to
which they are not legally entitled to so as to deprive others
therefrom who may be found to be entitled thereto by a court of
law."
Again, in the case of State of Orissa and anr. v. Mamata Mohanty,
(2011) 3 SCC 436, the Hon'ble Apex Court has been pleased to hold: -
"53. Needless to say that the Limitation Act, 1963 does not apply in
writ jurisdiction. However, the doctrine of limitation being based on
public policy, the principles enshrined therein are applicable and writ
petitions are dismissed at initial stage on the ground of delay and
laches. In a case like at hand, getting a particular pay scale may give
rise to a recurring cause of action. In such an eventuality, the petition
may be dismissed on the ground of delay and laches and the court
may refuse to grant relief for the initial period in case of an
unexplained and inordinate delay. In the instant case, the respondent
claimed the relief from 1-1-1986 by filing a petition on 11-11-2005
but the High Court for some unexplained reason granted the relief
w.e.f. 1-6-1984, though even the Notification dated 6-10-1989 makes
it applicable w.e.f. 1-1-1986.
54. This Court has consistently rejected the contention that a petition
should be considered ignoring the delay and laches in case the
petitioner approaches the Court after coming to know of the relief
granted by the Court in a similar case as the same cannot furnish a
proper explanation for delay and laches. A litigant cannot wake up
from deep slumber and claim impetus from the judgment in cases
where some diligent person had approached the Court within a
reasonable time."
13. The issue has also been taken into consideration by the Hon'ble Apex
Court in the case of Union of India and Ors. vs. Tarsem Singh, (2008) 8
SCC 648 wherein the facts was that the respondent while working in the
Indian Army was invalidated out of army service, in medical category, on
13.11.1983. He approached the High Court in the year 1999 seeking a
direction to the appellants therein to pay him disability pension. The
learned Single Judge by order dated 06.12.2000 allowed the writ petition
and directed the appellants to grant him disability pension at the rates
permissible. Insofar as arrears are concerned, the relief was restricted to
thirty-eight months prior to the filing of the writ petition. The respondent
was also directed to appear before the Re-survey Medical Board as and
when called upon by the appellants. The appellants did not contest the
said decision and granted disability pension to the respondent and also
released the arrears of disability pension for 38 months.
The respondent however was not satisfied. According to him the
disability pension ought to be paid from the date it fell due on
13.11.1983. He therefore filed a letters patent appeal. The said appeal
was allowed by the Division Bench of the High Court by judgment dated
06.12.2006. The Division Bench held that the respondent was entitled to
disability pension from the date it fell due, and it should not be restricted
to a period of three years and two months prior to the filing of the writ
petition. By a subsequent modification order dated 23-2-2007, the
Division Bench also granted interest on the arrears at the rate of 6% per
annum.
The question which was under consideration before the Hon'ble Apex
Court was that whether the High Court was justified in directing payment
of arrears for a period of 16 years instead of restricting it to three years.
14. The Hon'ble Apex Court in the circumstances that the issue originally
crept up on 13.11.1983 but the litigation was started in the year 1999
therefore, applying the principle of limitation act which is available under
the Limitation Act, 1963 for filing the money suit, i.e., three years, the
said order has been passed in the said case that the arrears of pensionary
benefits will be settled only for the period of three years.
15. The factual aspect which has been taken by the Hon'ble Apex Court in
that case that even though the appellant of the said case was conscious
with his legal right of getting the disability pension but he has invoked
the jurisdiction of the Court after the reasonable period but this Court by
taking into consideration the mandate of the Persons With Disabilities
(Equal Opportunities, Protection of Rights and Full Participation) Act,
1995, has passed the order on disability pension but the litigant has been
imposed with arrears of salary only for the period of three years.
16. Adverting to the facts of the present case wherein it is admitted that the
writ petitioner after the recommendation having been made by the
District Compassionate Committee on 08.08.1998 has approached to this
Court by filing writ petition being C.W.J.C. No. 2350 of 2000 (R)
wherein direction was passed and based upon that the letter of
appointment was issued on 01.10.2001.
17. The writ petitioner has not made objection at that moment rather he has
accepted the offer of appointment and accordingly, started discharging
his duty. There is no direction by this Court to issue the appointment
letter from the date of recommendation so made by the District
Compassionate Committee, i.e., on 08.08.1998.
18. The question, therefore, is that if the relief which has been sought for by
the writ petitioner at this moment will be allowed, will it not amount to
reviewing the direction passed by this Court in C.W.J.C. No. 2350 of
2000 (R).
19. This Court is of the view that if any direction will be passed in favour of
the appellant-writ petitioner by commanding the State to consider the
date of the appointment of the appellant-writ petitioner w.e.f. 08.08.1998,
i.e., the date of recommendation by the District Compassionate
Committee, it will amount to reviewing the direction passed by this Court
in CWJC No. 2350 of 2000 (R) that too whether the said prayer was
made in the writ petition or not, the same is not evident from the pleading
of the writ petition and even not from the impugned order.
20. The further issue which has been considered by this Court is that the
appellant-writ petitioner is getting pension after his superannuation but
only for the purpose of enhancement, the writ petition has been filed by
construing the date of appointment from the date of recommendation by
the District Compassionate Committee but this Court is of the view that
if, as has been held by the Hon'ble Apex Court regarding the
interpretation of the word "re-occurring" which means a continuing
wrong which refers to a single wrongful act which causes a continuing
injury as would be evident from the judgment rendered by the Hon'ble
Apex Court in Union of India and Ors. vs. Tarsem Singh (supra).
Relevant paragraph of the said judgment is being referred as under:
"4. The principles underlying continuing wrongs and
recurring/successive wrongs have been applied to service law
disputes. A "continuing wrong" refers to a single wrongful act which
causes a continuing injury. "Recurring/successive wrongs" are those
which occur periodically, each wrong giving rise to a distinct and
separate cause of action. This Court in Balakrishna Savalram Pujari
Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [AIR 1959 SC
798] explained the concept of continuing wrong (in the context of
Section 23 of the Limitation Act, 1908 corresponding to Section 22 of
the Limitation Act, 1963): (AIR p. 807, para 31)
"31. ... It is the very essence of a continuing wrong that it is an
act which creates a continuing source of injury and renders the
doer of the act responsible and liable for the continuance of the
said injury. If the wrongful act causes an injury which is
complete, there is no continuing wrong even though the damage
resulting from the act may continue. If, however, a wrongful act is
of such a character that the injury caused by it itself continues,
then the act constitutes a continuing wrong. In this connection, it
is necessary to draw a distinction between the injury caused by
the wrongful act and what may be described as the effect of the
said injury."
21. Further in the case of M.L. Patil (dead) through Legal Representatives
vs. State of Goa and Anr., (2023) 1 SCC 660 wherein the pension has
been considered to be a re-occurring cause of action. For ready reference,
relevant paragraphs, i.e., paragraph-6 is being referred as under:
"6. As such, the High Court may be right and/or justified in denying
any salary for the period of two extra years to the writ petitioners if
they would have continued in service, on the ground of delay. However,
as far as the pension is concerned, it is a continuous cause of action.
There is no justification at all for denying the arrears of pension as if
they would have been retired/superannuated at the age of 60 years.
There is no justification at all by the High Court to deny the pension at
the revised rates and payable only from 1-1-2020. Under the
circumstances, the impugned judgment and order [Laxman J.
Chavan v. State of Goa, 2020 SCC OnLine Bom 236] passed by the
High Court is required to be modified to the aforesaid extent."
22. We are not in dispute with the settled position of law that if the
pensionary benefits is not being given, the same will be re-occurring
cause of action reason being that due to non-payment of the pension, the
pensioner who is to get the pension is suffering on daily basis and that is
the reason the non-payment of pension has been considered to be re-
occurring cause of action and even after lapse of 30 years, if the
pensionary issue has been raised, it is to be adjudicated by the Court of
Law by following the principle of re-occurring cause of action.
23. But herein, the factual aspect of the present case is that the appellant-writ
petitioner was getting the pension and after his superannuation on
attaining the age of superannuation, has raised the issue that the date of
appointment be shifted from 17.08.2001 to the date of recommendation
by the District Compassionate Committee, i.e., on 08.08.1998.
24. This Court, therefore, is of the view that in the present case the principle
of re-occurring cause of action will not be applicable since the appellant-
writ petitioner was getting pension and the said issue of shifting the date
of appointment has not been raised within reasonable time even though
the appellant-writ petitioner was conscious with the aforesaid fact
regarding the recommendation which was made by the District
Compassionate Committee on 08.08.1998.
25. This Court has also considered that merely because the District
Compassionate Committee had made recommendation that does not
confer any right to claim his appointment from the date of such
recommendation since the recommendation which has been made only
resulted into the issuance of offer of appointment.
26. The principle so far as service jurisprudence is concerned, that the
moment the right will be said to be created the day when the offer of
appointment will be issued in favour of one or the other person.
Conclusion:
27. This Court, after having discussed the factual aspect along with the legal
issues, is now coming to the judgment passed by the learned Single Judge
wherein the consideration has been given by taking the ground of delay
of 20 years in approaching the Court for shifting the date of appointment
from 17.08.2001 to 08.08.1998.
28. The learned Single Judge has also considered the ratio of the judgment
rendered by the Hon'ble Apex Court in Union of India and Ors. vs.
Tarsem Singh (supra) which after discussion has been found to be not
identical so far as the factual aspect is concerned of the present case.
29. It is evident from the order passed by the learned Single Judge as would
be evident from paragraph-21 wherein consideration has been given with
respect to the stand inter alia taken by the respondent regarding the delay
in issuance of the appointment letter which has been found to be not due
to the mistake of the respondent rather there was confusion with regard to
the father's name of the appellant-writ petitioner which was different in
the educational certificate of the appellant-writ petitioner as compared to
the name of the ex-employee as mentioned in the service record. But
even after the specific finding so recorded by this Court while disposing
of the writ petition being W.P.(S) No. 5491 of 2023, the appellant-writ
petitioner has chosen not to challenge the said order for shifting the date
of appointment.
30. This Court, in view of the aforesaid discussion, is of the view that the
impugned order needs no interference.
31. Accordingly, the instant appeal fails and stands dismissed.
(Sujit Narayan Prasad, A.C.J.)
(Arun Kumar Rai, J.)
Saurabh/
A.F.R.
