Sri Ramakrishna Reddy N vs The State Of Karnataka
2021 Latest Caselaw 152 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 5TH DAY OF JANUARY, 2021

                         PRESENT

        THE HON'BLE Mr. JUSTICE ARAVIND KUMAR

                           AND

     THE HON'BLE Mr. JUSTICE PRADEEP SINGH YERUR

       WRIT PETITION No.71 OF 2021 (S-KSAT)

BETWEEN:

SRI RAMAKRISHNA REDDY N.
S/O.LATE N.YARAMAREDDY
AGED ABOUT 63 YEARS
(RETIRED RECEPTIONIST)
KARNATAKA CHARITIES, TIRUMALA
'SRIDHAR NIVAS' NO. 201
2ND FLOOR, VISHNU TOWERS
TUDA PLOTS, ROYAL NAGAR
R.C.ROAD, THIRUPATHI - 571 501               ... PETITIONER

(BY SRI VIJAYA SIMHA REDDY D.V., ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       REP. BY ITS CHIEF SECRETARY
       GOVERNMENT OF KARNATAKA
       VIDHANA SOUDHA
       BENGALURU - 560 001

2.     THE STATE OF KARNATAKA
       REP. BY ITS PRINCIPAL SECRETARY
       DEPARTMENT OF REVENUE
       M.S BUILDING
       BENGALURU - 560 001
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3.   THE COMMISSIONER
     RELIGIOUS AND ENDOWMENT DEPARTMENT
     CHAMARAJPET
     BENGALURU - 560 018

4.   THE SPECIAL OFFICER
     KARNTAKA STATE CHARITIES
     TIRUMALA, CHITTUR DISTRICT
     ANDRA PRADESH - 517 504                   .... RESPONDENTS

(BY SMT.SHILPA S.GOGI, HCGP)

                             *****
     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
WRIT OF MANDAMUS DIRECTING THE FIRST RESPONDENT TO
CONSIDER     THE     REPRESENTATION          DATED        17.07.2018
SUBMITTED BY THE PETITIONER VIDE ANNEXURE-A21 WITH
FURTHER    DIRECTION    TO     THE   SECOND    RESPONDENT        TO
CONSIDER AND MODIFY THE CLAIM OF THE PETITIONER FOR
PENSIONABLE POST OF RECEPTIONIST WITH EFFECT FROM
01.01.2001 INSTEAD OF 01.07.2007 GRANTED AS PER THE
ORDER     DATED    19.12.2007       PASSED    BY   THE      SECOND
RESPONDENT       (ANNEXURE-A15)       AND     TO     EXTEND      ALL
CONSEQUENTIAL       BENEFITS    ARISING      THERETO       AND   TO
RELEASE    THE    PENSIONARY    BENEFITS     AND     TO    PAY   HIS
RETIREMENT PENSION AS ADMISSIBLE AND TO PAY ARREARS
INCLUDING    INTEREST    ON     THOSE     BENEFITS     INCLUDING
PENSIONARY BENEFITS ADMISSIBLE TO THE PETITIONER WITH
EFFECT FROM 01.01.2001 AND ETC.


     THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, ARAVIND KUMAR J., MADE THE FOLLOWING:
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                         ORDER

Though matter is listed for preliminary hearing, by

consent, it is taken up for final disposal.

2. Petitioner has sought for the following reliefs:

"a) Call for relevant records pertaining to the impugned Order dated 19.12.2018 passed by the Hon'ble Tribunal in Application No.9011/2018 vide Annexure-A and issue a Writ Certiorari quashing the same is unjust, arbitrary and contrary to the law of land.

b) Call for relevant records pertaining to the impugned Endorsement dated 26.10.2018 passed by the 2nd Respondent vide ANNEXURE- A22 and issue a Writ Certiorari quashing the same is unjust, arbitrary and contrary to the law of land.

c) Call for relevant records pertaining to the impugned order dated 10.03.2017 passed by the Hon'ble Tribunal in application No.279/2009 vide ANNEXURE- A17 and issue a Writ Certiorari quashing the same is unjust, arbitrary and contrary to the law of land.

d) Issue Writ of Mandamus directing the 1st Respondent to consider the representation dated 17.07.2018 of the Petitioner submitted by the Petitioner vide ANNEXURE - A21 with further direction to the 2nd Respondent to consider and modify the claim of the Petitioner for pensionable post of Receptionist with effect from 01.01.2001 instead of 01.07.2007 granted as per the order No. Kom 3 Mu Se Vi 2006 dated 19.12.2007 passed by the second Respondent (Annexure-A15) and to extend all consequential benefits arising thereto and to release the pensionary benefits and to pay his retirement pension as admissible and to pay arrears including interest on those benefits including pensionary benefits admissible to the Petitioner with effect from 01.01.2001."

3. In the year 1974, petitioner came to be

appointed as a room boy at Karnataka State Tirumala-

Tirupathi Charities. Fourth respondent requested third

respondent for considering the case of petitioner for the

post of attender and subsequently, third respondent by

communication dated 27.09.1999 addressed to the second

respondent recommended for upgradation of six (6) posts

of room attenders in the office of fourth respondent to that

of non-pensionable receptionist. Pursuant to the

recommendation made by third respondent, second

respondent passed an order on 17.06.2000 giving

concurrence for upgrading six (6) posts of room attenders

in the office of fourth respondent and six persons, who

have passed SSLC examination and who are seniors. In

the list of room attenders as per order dated 17.06.2000

(Annexure-A6), name of petitioner is found at Sl.No.4.

4. On the ground that petitioner has been working in

the office of fourth respondent since 1974 in Group-'D' non

pensionable post and one Sri Venkateshalu who is found at

Sl.No.2 who had worked in Forest Department of Andhra

Pradesh and there was break in service, he had got his pay

and allowance and had also been treated for grant of

pension resulted in the President of Karnataka State

Employees Association addressing a letter to third

respondent on 05.08.2002 (Annexure-A7), to treat

petitioner for said pensionable post with all monetary

benefits. On account of non consideration of said

representation, petitioner filed an application before

Karnataka State Administrative Tribunal (for short

'tribunal') in Application No.279/2009 for quashing of

communication dated 19.12.2005 (Annexure-A12) issued

by second respondent and for a mandamus to the

respondents to consider the case of petitioner-applicant for

pensionable post of receptionist with effect from

01.01.2001 with all monetary benefits by declaring the

treatment extended to fourth respondent therein

(Sri R.Venkateshalu) as illegal and void. Tribunal after

considering rival contentions raised therein found that the

cause of action arose on 01.01.2001 and application had

been filed on 13.01.2009. It was further held that even if

cause of action is construed from 19.12.2005, there is a

delay of four years in filing the application and there being

no cause shown for delay muchless sufficient cause,

dismissed the application by order dated 10.03.2017.

5. Undisputedly, said order was not challenged. It is,

thereafter, petitioner submitted representation to

respondent Nos.1 to 3 on 23.12.2017 requesting to

consider his case for pensionable post with effect from

01.01.2001 on the ground that three officials similarly

placed had been granted pension and to extend the same

benefit arising thereto. Second respondent by

endorsement dated 26.10.2018 (Annexure-A22) rejected

the claim of petitioner. Hence, petitioner revived the cause

of action and basing his claim on the said endorsement

dated 26.10.2018, filed one more application before the

tribunal in Application No.9011/2018. Tribunal after

noticing that petitioner-applicant had sought for quashing

not only the order dated 19.12.2005 (Annexure-A12) but

had also sought for a mandamus to consider the case of

applicant for pensionable post of receptionist with effect

from 01.01.2001 in the earlier proceedings viz., in

Application No.279/2009 and same had been dismissed on

10.03.2017, which had not been challenged and said order

having become final, held that second application was not

maintainable for the same relief and as such, dismissed

the application.

6. Though Sri Vijaya Simha Reddy D., learned

counsel for petitioner has vehemently contended that

cause of action for filing this application is distinct and

separate, we are not inclined to accept the said

submission.

7. In the matter of Karnataka Power Corpn. Ltd.

v. K.Thangappan reported in (2006)4 SCC 322, it has

been held by Apex Court that mere making of

representations to the authority concerned cannot justify a

belated approach. It has been further held at paras 6 to 9

as under:

"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the

applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v Chief Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v Prosper Armstrong Hard (PC at p. 239) was approved by this Court in Moon Hills Ltd. V M R Meher and Maharashtra SRTC v Shri Balwant Regular Motor Service. Sir Barnes had stated:

"Now the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a

situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy".

8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of Constitution. It is apparent that what has been stated as regards that article would apply, a

fortiori, to Article 226. It was observed in Rabindranath Bose v Union of India that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petition filed after inordinate delay.

9. It was stated in State of M.P. v Nandlal Jaiswal that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised

after unreasonable delay. It may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction."

8. In the instant case, as noticed in the facts

explained hereinabove, petitioner had sought for quashing

of order dated 19.12.2015 in earlier round of litigation viz.,

Application No.279/2009 whereunder selection list was

published and petitioner has been placed at Sl.No.4. This

selection list was questioned by petitioner in Application

No.279/2009 before tribunal whereunder the Endowment

Commissioner had passed the said order extending

pensionable facility to fourth respondent therein (Sri

R.Venkateshalu) keeping in mind the Government

instructions contained in letter dated 23.11.2005. This

selection list which was challenged by petitioner on the

ground that fourth respondent therein

(Sri R.Venkateshalu) who was working in the Department

of Forest in Andhra Pradesh had been wrongly extended

the pay and allowances, though there was break in

service. However, this plea of petitioner was not accepted

by the tribunal on the ground that petitioner-applicant had

approached the tribunal after a period of four years. In

other words, the challenge laid to the selection list dated

19.12.2005 had been negatived on the ground of delay. If

at all, petitioner-applicant was aggrieved, he could have

challenged the said order at that point of time and he did

not do so for reason best known. On the other hand, he

submitted a representation dated 17.07.2018 (Annexure-

A21) to the Chief Secretary, Government of Karnataka

seeking for extending benefit of pension on par with three

others which was granted. Obviously, petitioner having

failed in his earlier attempt before tribunal has sought to

revive the dead cause of action by submitting fresh

representation. It is in this background, judgment referred

to herein supra of the Apex Court would squarely

applicable and only on rejection of said representation

dated 17.07.2018 (Annexure-A21) by an endorsement

dated 26.10.2018 (Annexure-A22), petitioner has

commenced second round of litigation on the basis of an

illusory cause of action which was not available while filing

the application No.9011/2018, and as already noticed by

us hereinabove, second application was rejected by the

tribunal on the ground that the same is not maintainable.

9. In fact, in the present writ petition under which

the order of the tribunal dated 19.12.2018 passed in

Application No.9011/2018 is challenged, prayer (c) for

quashing of earlier order dated 10.03.2017 passed by the

tribunal in Application No.279/2009 is also sought.

However, there is not even a whisper as to why this order

was not challenged at earlier point of time i.e., in 2017.

This would clearly indicate that challenging the earlier

order passed on 10.03.2017 in Application No.279/2009,

petitioner is intending to revive the prayer and as such,

has devised the method of submitting representation on

17.07.2018 (Annexure-A21) and on its rejection on

26.10.2018 (Annexure-A22), petitioner filed the present

application in question. It is for these reasons, tribunal

has rightly held that second attempt by circumventing the

earlier order of the tribunal would be impermissible. In

fact, petitioner has sought for direction to the second

respondent to consider his claim for pensionable post of

receptionist with effect from 01.01.2001 instead of

01.07.2007 which was also the prayer made in the earlier

application No.279/2009 which has been extracted by the

tribunal in paragraph-5 of its order under challenge and

rightly negatived on the ground that the said order passed

on 10.03.2017 by the tribunal having not been challenged,

the present prayer would not be maintainable. We do not

find any error committed by the tribunal or any good

ground to interfere with the reasoned order passed by the

tribunal.

Hence, the following:

ORDER

(i) Writ petition is dismissed;

(ii) Order dated 19.12.2018 passed in

Application No.9011/2018 (Annexure-A)

stands confirmed.

(iii) No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

LB