Ganesh Lal Rawtel vs The State Of Madhya Pradesh
2023 Latest Caselaw 16731 MP

                            1                W.P. No.25559/2023


 IN    THE    HIGH COURT OF MADHYA PRADESH
                   AT JABALPUR
                           BEFORE
      HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 10th OF OCTOBER, 2023
                WRIT PETITION No.25559 of 2023
BETWEEN:-
GANESH LAL RAWTEL S/O SHANKAR LAL,
AGED ABOUT 57 YEARS, ASSISTANT TEACHER
GOVT. PRIMARY SCHOOL BANKI, BLOCK
TAMIYA, DISTRICT CHHINDWARA (MADHYA
PRADESH)

                                                 .....PETITIONER
(BY SHRI BALDEV PRASAD PATEL - ADVOCATE)

AND
1.    THE STATE OF MADHYA PRADESH
      THROUGH ITS PRINCIPAL SECRETARY,
      TRIBAL   WELFARE     DEPARTMENT,
      VALLABH BHAWAN, BHOPAL (MADHYA
      PRADESH)

2.    COMMISSIONER,    TRIBAL    WELFARE
      DEPARTMENT,    VALLABH     BHAWAN,
      BHOPAL (MADHYA PRADESH)

3.    JOINT    DIRECTOR   TREASURY    AND
      ACCOUNT DIVISION, VALLABH BHAWAN
      DISTRICT BHOPAL (MADHYA PRADESH)

4.    DISTRICT     TREASURY   OFFICER
      CHHINDWARA DISTRICT CHHINDWARA
      (MADHYA PRADESH)

5.    ASSISTANT COMMISSIONER,   TRIBAL
      WELFARE DEPARTMENT, CHHINDWARA
      DISTRICT  CHHINDWARA    (MADHYA
      PRADESH)

6.    BLOCK EDUCATION OFFICER, TAMIYA
      DISTRICT  CHHINDWARA    (MADHYA
      PRADESH)
                                     2                   W.P. No.25559/2023


7.   PRINCIPAL, SHRI NAND LAL SOOD GOVT.
     EXCELLENCE HR. SEC SCHOOL BANKI
     BLOCK TAMIYA DISTRICT CHHINDWARA
     (MADHYA PRADESH)

                                                       .....RESPONDENTS
(BY SHRI SWAPNIL GANGULY - DEPUTY ADVOCATE GENERAL)
.........................................................................................................
      This petition coming on for admission this day, the court passed the
following:
                                    ORDER

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

I. This Hon'ble Court be pleased to direct the respondents to pass the order granting benefit to the petitioner in view of order passed in Usha Ranawat case as also passed in Writ Appeal filed before the Division Bench of this Hon'ble Court and the orders passed in W.A. No.946/2010 and W.A. No.744/2010.

II. That this Hon'ble Court may kindly direct the respondents to pay the arrears from the date of initial appointment as petitioner were entitled to regular pay scale from the date of initial appointment.

III. Any other relief which this Hon'ble Court deems fit and proper under the above said facts and circumstances may kindly be given with cost of litigation.

2. It is the case of petitioner that he is entitled for regular pay-scale from his initial date of appointment and arrears thereon because said benefit has been extended to similarly situated persons. Accordingly, petitioner has placed reliance on the order passed by Division Bench of this Court in the case of Usha Ranawat Vs. State of M.P. and Others in W.A. No.346/2008 (Indore Bench).

3. Heard learned counsel for the petitioner.

4. Paragraph 4 of Writ Petition reads as under:-

"4. DELAY, IF ANY, IN FILING THE PETITION AND EXPLANATION THERE FOR.

That the Petitioner declare that in the above said facts and circumstances, there is no delay in filing the present petition."

5. It is the case of petitioner that he was appointed as a Teacher by order dated 21/03/1988. Present petition has been filed in the year 2023 seeking regular pay-scale from the date of his initial appointment. Petitioner is relying upon the judgment passed by Division Bench of Indore Bench of this Court in the case of Usha Ranawat (supra) on 18/12/2008.

6. Undisputedly, petitioner was in service on 18/12/2008. He was all the time sleeping over his right.

7. Now the question for consideration is as to whether petitioner can be denied the benefit of relief which was granted to similarly situated persons.

8. This Court in the case of Lalpati Vs. State of Madhya Pradesh and others decided on 28/09/2020 in W.P. No.3964/2020 (Gwalior Bench) has held as under:-

"The case of the petitioner is that he has retired in the year 2011, whereas this petition has been filed in the year 2020. The petitioner never agitated before any Court that he is entitled for minimum pay scale. Further, the judgment of the Supreme Court in the case of Ram Naresh Rawat (supra) was passed in the month of December, 2016. It is well established principle of law that the delay frustrates equity.

This Court by order dated 4.9.2020 passed in W.P.No.12836/2020 has held as under:

"The delay defeats equity and if the petitioner

approaches the Court after a long delay, then the relief prayed by him may be denied on the ground of delay and laches irrespective of the fact that the similarly situated other candidates have been extended the benefit of judgment.

The Supreme Court in the case of Chairman/Managing Director, U.P. Power Corporation Limited and Ors. vs.Ram Gopal by order dated 30/01/2020 passed in Civil Appeal No.852 of 2020 (Arising Out of Special Leave Petition No. 36253 of 2016) has held as under:- ''iii) Inordinate delay in filing writ petition

14. Finally, the prolonged delay of many years ought not to have been overlooked or condoned. Services of the Respondent were terminated within months of his appointment, in 1978. Statedly, the Respondent made a representation and served UPPCL with a legal notice in 1982, however such feeble effort does little to fill the gap between when the cause of action arose and he chose to seek its redressal (in 1990).

15. Seen from a different perspective also, it is clear that the Respondent has shown little concern to the settled legal tenets. Even a civil suit challenging termination of services, if filed by the Respondent, would have undoubtedly been barred by limitation in 1990. In a similar situation where the appellant belatedly challenged the promotion of his junior(s), this Court in P.S. Sadasivaswamy v. State of Tamil Nadu, held as follows:

"2. ... if the appellant was aggrieved by it he should have approached the Court even in the year 1957, after the two representations made by him had failed to produce any result. One cannot sleep over the matter and come to the Court questioning that relaxation in the year 1971..... In effect he wants to unscramble a scrambled egg. It is very difficult for the Government to consider whether any relaxation of the rules should have been made in favour of the appellant in the year

1957. The conditions that were prevalent in 1957, cannot be reproduced now....It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters "

16. Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allowed illegalities to fester. Fence sitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to be treated alike with mere opportunists. On multiple occasions, it has been restated that there are implicit limitations of time within which writ remedies can be enforced. In SS Balu vs. State of Kerala, this Court observed thus:

"17. It is also well-settled principle of law that "delay defeats equity". It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are

similarly situated to the other candidates who obtain the benefit of the judgment." (emphasis supplied)

17. Similarly, in Vijay Kumar Kaul v. Union of India this Court while considering the claim of candidates who, despite being higher in merit, exercised their right to parity much after those who were though lower in merit but were diligently agitating their rights, this Court observed that:

"27. ...It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time."

18. We may hasten to add that these principles may not, however, apply to judgments which are delivered in rem. The State and its instrumentalities are expected In such category of cases to themselves extend the benefit of a judicial pronouncement to all similarly placed employees without forcing each person to individually knock the doors of courts. This distinction between operation of delay and laches to judgments delivered in rem and in personam, is lucidly captured in State of Uttar Pradesh vs. Arvind Kumar Srivastava laying down that:

"22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence

evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly.

Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. 22.2. However, this principle is subject to well- recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence- sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K. C. Sharma v. Union of India [ K. C. Sharma v. Union of India, (1997) 6 SCC 721 :

1998 SCC (L&S) 226]). On the other hand, if the judgment of the court was in

personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence."

(Emphasis applied)

19. The order passed by the High Court for retention of Shyam Behari Lal in service, does not possess any ingredient of a Judgment in rem. The above cited exception, therefore, does not come to the Respondent's rescue. It is also pertinent to mention that neither has it been pleaded nor is it apparent from the material on record that the Respondent was unable to approach the court of law in time on account of any social or financial disability. Had such been the case, he ought to have availed free legal aid and should have ventilated his grievances in a timely manner. Instead, he seems to be under the assumption that the termination order is illegal, that he consequently has a right to be reinstated, and that he can agitate the same at his own sweet-will. Neither of these three assumptions are true, as elaborated by us earlier.'' The Supreme Court in the case of State of Karnataka and Others vs. S. M. Kotrayya and Others, reported in (1996) 6 SCC 267 has held as under:-

''9. Thus considered, we hold that it is not necessary that the respondents should give an explanation for the delay which occasioned for the period mentioned in sub- sections (1) or (2) of Section 21, but they should give explanation for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should be

required to satisfy itself whether the explanation offered was proper explanation. In this case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub- sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievance before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal is wholly unjustified in condoning the delay. '' Faced with such a situation, the counsel for the petitioner submitted that although his prayer for grant of arrears of salary for the period up-to 31st May, 2018 may be barred by limitation, but if the said additional period of three years is added to the service of the petitioner, then it will affect the pension of the petitioner and therefore, the petitioner has recurring cause of action so far as the pension is concerned.

xxx The Supreme Court in the case of Secretary, Ministry of Defence vs. Babita Puniya and Others by order dated 17th February, 2020 in Civil Appeal Nos. 9367-9369 of 2011 has made direction applicable to a particular class of Women Army Officers. When certain Women Officers who have retired after the pronouncement of judgment but before formulation of scheme moved Miscellaneous Application No.1497- 1498/2020, then by order dated 03/09/2020, the said application was dismissed on the ground that it would amount to a review."

Merely because some other vigilant persons were prosecuting their case before the Court, cannot be a good ground to condone the delay of 9 long years. Furthermore, the petitioner has not explained as to why he did not file writ petition immediately after the

judgment in the case of Ram Naresh Rawat (supra) was pronounced.

9. The Supreme Court in the case of State of Orissa and Another Vs. Mamata Mohanty reported in (2011) 3 SCC 436 has held as under:-

"Delay/laches

52. In the very first appeal, the respondent filed writ petition on 11-11-2005 claiming relief under the Notification dated 6-10-1989 w.e.f. 1- 1-1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act, 1963, makes it obligatory on the part of the court to dismiss the suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at the appellate stage because in some of the cases it may go to the root of the matter. (See Lachhmi Sewak Sahu v. Ram Rup Sahu [AIR 1944 PC 24] and Kamlesh Babu v. Lajpat Rai Sharma [(2008) 12 SCC 577].)

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. (See Rup Diamonds v. Union of India [(1989) 2 SCC 356 : AIR 1989 SC 674], State of Karnataka v. S.M.

Kotrayya [(1996) 6 SCC 267 : 1996 SCC (L&S) 1488] and Jagdish Lal v. State of Haryana [(1997) 6 SCC 538 : 1997 SCC (L&S) 1550 : AIR 1997 SC 2366].) * * *

68. From the aforesaid discussion, the following picture emerges:

(i) The procedure prescribed under the 1974 Rules has not been followed in all the cases while making the appointment of the respondents/teachers at initial stage. Some of the persons had admittedly been appointed merely by putting some note on the noticeboard of the College. Some of these teachers did not face the interview test before the Selection Board. Once an order of appointment itself had been bad at the time of initial appointment, it cannot be sanctified at a later stage.

(ii) At the relevant time of appointment of the respondents/teachers there has been a requirement of possessing good second class i.e. 54% marks in Master's course and none of the said respondents had secured the said percentage.

(iii) Their appointments had been approved after a long, long time. In some cases after 10-12

years of their initial appointment by the statutory authority i.e. Director of Higher Education.

(iv) A candidate becomes eligible to apply for a post only if he fulfils the required minimum benchmark fixed by the rules/advertisement. Thus, none of the respondents could even submit the application what to talk of the appointments.

(v) The so-called relaxation by Utkal University was accorded by passing a routine order applicable to a large number of colleges, that too after a lapse of long period i.e. about a decade.

(vi) Fixation of eligibility falls within the exclusive domain of the executive and once it has been fixed by the State authorities under the 1974 Rules, the question of according relaxation by Utkal University could not arise and, therefore, the order of condonation, etc. is a nullity.

(vii) The relaxation has been granted only by Utkal University though Rule 2(i) of the 1974 Rules defined "University" means Utkal University, Berhampur University, Sambalpur University and Shri Jagannath Sanskrit Vishwa Vidyalaya.

(viii) Granting relaxation at this stage amounts to change of criteria after issuance of advertisement, which is impermissible in law. More so, it is violative of the fundamental rights enshrined under Articles 14 and 16 of the Constitution of the similarly situated persons, who did not apply considering themselves to be ineligible for want of required marks.

(ix) The exercise of condonation of deficiency had not been exercised by any university other than Utkal University.

(x) The post of the teachers i.e. the respondents is transferable to any college affiliated to any other university under the 1979 Rules.

(xi) The power to grant relaxation in eligibility had not been conferred upon any authority, either the university or the State. In the absence thereof, such power could not have been exercised.

(xii) This Court in Damodar Nayak [(1997) 4 SCC 560 : 1997 SCC (L&S) 979 : AIR 1997 SC 2071] has categorically held that a person cannot get the benefit of grant-in-aid unless he completes the deficiency of educational qualification. Further, this Court in Bhanu Prasad Panda (Dr.) [(2001) 8 SCC 532 : 2002 SCC (L&S) 14] upheld the termination of services of the appellant therein for not possessing 55% marks in Master's course.

(xiii) The aforesaid two judgments in Damodar Nayak [(1997) 4 SCC 560 : 1997 SCC (L&S) 979 : AIR 1997 SC 2071] and Bhanu Prasad Panda (Dr.) [(2001) 8 SCC 532 : 2002 SCC (L&S) 14], could not be brought to the notice of either the High Court or this Court while dealing with the issue. Special leave petition in Kalidas Mohapatra [SLPs (C) Nos. 14206-09 of 2001 decided on 11-3-2002] has been dealt with without considering the requirement of law merely making the reference to Circular dated 6-11-1990, which was not the first document ever issued in respect of eligibility. Thus, all the judgments and orders passed by the High Court as well as by this Court cited and relied upon by the respondents are held to be not of a binding nature. (Per incuriam)

(xiv) In case a person cannot get the benefit of grant-in-aid scheme unless he completes the deficiency of educational qualification, question of grant of UGC pay scale does not arise.

(xv) The cases had been entertained and relief had been granted by the High Court without considering the issue of delay and laches merely placing reliance upon earlier judgments obtained

by diligent persons approaching the courts within a reasonable time.

(xvi) The authority passed illegal orders in contravention of the constitutional provisions arbitrarily without any explanation whatsoever polluting the entire education system of the State, ignoring the purpose of grant-in-aid scheme itself that it has been so provided to maintain the standard of education.

(xvii) The High Court granted relief in some cases which had not even been asked for as in some cases the UGC pay scale had been granted with effect from 1-6-1984 i.e. the date prior to 1- 1-1986 though the same relief could not have been granted. Thus, it clearly makes out a case of deciding a case without any application of mind. (xviii) In some cases the UGC pay scale has been granted by the High Court prior to the date of according the benefit of grant-in-aid scheme to the teachers concerned which was not permissible in law in view of the law laid down by this Court in Damodar Nayak [(1997) 4 SCC 560 : 1997 SCC (L&S) 979 : AIR 1997 SC 2071]. (xix) The grievance of the respondents that not upholding the orders passed by the High Court in their favour would amount to a hostile discrimination is not worth acceptance for the reason that Article 14 of the Constitution envisages only positive equality. (xx) Concept of adverse possession of lien on post or holding over are inapplicable in service jurisprudence.

(xxi) The submission on behalf of the respondents that government orders/circulars/letters have been complied with, therefore, no interference is called for, is preposterous for the simple reason that such orders/circulars/letters being violative of statutory provisions and constitutional mandate are just to be ignored in terms of the judgment of

this Court in Ram Ganesh Tripathi [(1997) 1 SCC 621 : 1997 SCC (L&S) 186 : AIR 1997 SC 1446]."

10. Thus, it is clear that petition suffers from delay and laches as it has been filed decades after the cause of action and petitioner was merely a fence sitter.

11. Accordingly, it is dismissed on the ground of delay and laches.

(G.S. AHLUWALIA) JUDGE Shubhankar Digitally signed by SHUBHANKAR MISHRA Date: 2023.10.13 18:11:26 +05'30'