Madhya Pradesh High Court

Usha Rani Chandelia vs The State Of Madhya Pradesh on 19 July, 2022

Author: Gurpal Singh Ahluwalia

                          1

     IN THE HIGH COURT OF MADHYA PRADESH
                  AT GWALIOR

                      BEFORE

 HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA

              ON THE 19TH OF JULY, 2022

          WRIT PETITION NO.11072 OF 2022

  Between:-

  USHA RANI CHANDELIA W/O SH.
  D.R. CHANDELIA AGED ABOUT -
  57 YEARS, OCCUPATION- SERVICE
  RESIDENT:    GOVT.   PRIMARY
  SCHOOL, RAMNAGAR, TEHSIL
  NARWAR, DISTRICT SHIVPURI,
  MADHYA PRADESH.

                                      ........PETITIONER

  (BY SHRI SURAJ PRATAP SINGH KUSHWAH - ADVOCATE)

  AND

1. THE STATE OF MADHYA PRADESH
   THROUGH THE DPI OF SCHOOL
   EDUCATION, MADHYA PRADESH
   BHOPAL, MADHYA PRADESH.
2. THE    DISTRICT    EDUCATION
   OFFICER, DISTRICT NARWAR
   DISTRICT SHIVPURI, MADHYA
   PRADESH.
3. THE    BLOCK    DEVELOPMENT
   EDUCATION OFFICER, NARWAR,
   DISTRICT SHIVPURI, MADHYA
   PRADESH.
4. SANKUL PRACHARYA, GOVT. H.S.
   SCHOOL,    KARAHI,   DISTRICT
                                            2

        SHIVPURI, MADHYA PRADESH.
     5. SMT. DURGESH NANDANI RAWAT
        IN CHARGE HEAD MASTER OF
        GOVT.     PRIMARY   SCHOOL,
        RAMNAGAR, DISTRICT SHIVPURI,
        MADHYA PRADESH.
                                                            ........RESPONDENTS

        (BY SHRI A.K. NIRANKARI - GOVERNMENT ADVOCATE)
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       This petition coming on for hearing this day, the Court passed the
following:
                                       ORDER

This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-

"The petitioner therefore most humbly pray that this Hon'ble Court may kindly be pleased to allow the petition and issue a writ of mandamus/certiorari or any other suitable writ order or direction in the nature of writ thereby the respondents may kindly be directed to discontinue the service of the respondent No.5 and 42 others as mentioned in the order of annexure P/3 who were not found eligible vide order of Annexure A/6 and maintain the seniority of the petitioner."

2. It is submitted by the counsel for the petitioner that by order dated 20/4/2000 the respondent no.5 was appointed on the post of Shiksha Karmi and her name is at serial no.2, however, it is clear from the said order that the selection of candidates mentioned at serial nos.1 to 43 was already cancelled and fresh interviews were held and the candidates mentioned in the category of fresh interview were legally appointed. Thus, the petitioner has tried to file this petition in the nature of quo warranto.

3. It is submitted by the counsel for the petitioner that because of illegal appointment given to 43 candidates, the seniority of the petitioner has got badly effected and thus, she has sent a legal notice for enquiry into the appointments of the candidates mentioned at serial nos.1 to 43 in order dated 20/4/2000, but no action has been taken. It is also submitted that the petitioner applied for grant of certified copy of appointment order under the Right to Information Act immediately after she came to know about the illegal appointment of respondent no.5.

4. Heard learned counsel for the petitioner.

5. By this writ petition, the petitioner has challenged the appointment of 43 persons, but has impleaded only respondent no.5. When this fact was brought to the notice of the counsel for the petitioner, then he submitted that in fact the petitioner is aggrieved by the appointment of respondent no.5 only because she has been transferred in place of the petitioner as incharge Headmaster of Government Primary School, Ramnagar, District Shivpuri.

6. During the course of arguments, it was fairly conceded by Shri Kushwah that earlier the petitioner was working as incharge Headmaster and after the transfer of the respondent no.5, the respondent no.5 is working as incharge Headmaster.

7. Thus, it is clear that this petition has been filed with an oblique motive and the said fact has not been disclosed in the writ petition, except by mentioning that the seniority of the petitioner has got badly effected. Since the counsel for the petitioner was not interested in impleading the remaining 42 candidates, who would be adversely effected in case if the petition is allowed, therefore, this Court is of the considered opinion that this petition suffers from non-joinder of necessary party.

8. Furthermore, the respondent no.5 was appointed by order dated 20/4/2000 and the present petition has been filed after 22 years.

9. It is submitted by the counsel for the petitioner that there is no delay in filing this writ petition because as per Section 17 of the Limitation Act, the period of limitation starts running from the date of knowledge.

10. Section 17 of the Limitation Act reads as under:-

"17. Effect of fraud or mistake.--(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,--

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or

(c) the suit or application is for relief from the consequences of a mistake; or

(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him, the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:

Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which--

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or

(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in

which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or

(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.

(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:

Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be. "

11. From the plain reading of this Section, it is clear that mere knowledge is not sufficient, but the petitioner is also required to prove that in spite of exercise of reasonable diligence, he could not obtain the requisite information. There is nothing in the writ petition to show that any reasonable diligence was ever exercised by the petitioner. It appears that only when the petitioner was substituted by the respondent no.5 as incharge Headmaster of the school, the petitioner woke up. Thus, even otherwise, this Court is of the considered opinion that where the petition has been filed with an oblique motive, the petition suffers from delay and laches also.