Madhya Pradesh High Court
Jitendra Kumar Shrivastava vs The State Of Madhya Pradesh on 1 May, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR-IV
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 1st OF MAY, 2024
WRIT APPEAL No.959 of 2024
BETWEEN:-
JITENDRA KUMAR SHRIVASTAVA S/O
LATE SHRI MAHESH PRASAD
SHRIVASTAVA, AGED ABOUT 55 YEARS,
OCCUPATION: UNEMPLOYED R/O B.L. 28
DEENDAYAL NAGAR GWALIOR DISTRICT
GWALIOR (MADHYA PRADESH)
........APPELLANT
(BY SHRI JITENDRA KUMAR SHARMA - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH
THE PRINCIPAL SECRETARY, SCHOOL
EDUCATION DEPARTMENT, GOVT. OF
MADHYA PRADESH, VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. THE COMMISSIONER, PUBLIC
INSTRUCTIONS, GOVT. OF MADHYA
PRADESH, GAUTAM NAGAR, BHOPAL
(MADHYA PRADESH)
........RESPONDENTS
(BY SHRI VIVEK KHEDKAR - ADDITIONAL ADVOCATE GENERAL
FOR STATE )
2
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This appeal coming on for admission this day, Justice Milind
Ramesh Phadke passed the following: :
JUDGMENT
Heard on I.A.No.3344 of 2024, which is an application for
condonation of delay of 536 days in filing the present appeal.
2. The present intra-Court Appeal under Section 2(1) of Madhya
Pradesh Uchcha Nyayalaya (Khandpeeth Ko Appeal) Adhiniyam, 2005
has been filed by the appellant assailing the order dated 02.08.2022
passed by learned Single Judge in Writ Petition No.875 of 2022;
whereby, challenge to order dated 08.12.2017 has been negatived by
observing as under;
"Heard the learned counsel for the parties.
The present petition has been filed on 10/01/2022 against
the order dated 08/12/2017. Initially the petition was
filed by relying upon the order passed by the respondents
in the case of another person and on the date of filing of
the writ petition even the petitioner was not in possession
of the order dated 08/12/2017.
Clause 4 of the writ petition reads as under:-
(4) DELAY, IF ANY, IN FILING THE
PETITION AND EXPLANATION THEREFOR:
The present petition though is filed after some delay
but however, the fact remains that the petitioner is a
poor person, is fighting for his livelihood and he is
compelled to file petition time and again. However,
the fact remains that the similar writ petitions being
W.P. No.28311/2019, W.P. No.28306/2019, W.P.
No.28407/2019 and W.P. No.28307/2019 are still
pending consideration before this Hon'ble Court and
the similar order, which are passed in respect of
similarly situated persons, are still to be adjudicated
upon by the Hon'ble Court, in that circumstance, in
the most humble submission of the petitioner, the
delay in filing of the present petition may be
condoned and the writ petition may be heard along
with other aforesaid writ petitions in the interest of
justice.
In the writ petition, it has not been pleaded by the
petitioner that after his writ petition No.2100/2014 was
decided, he had ever approached the respondents for
supply of decision. He did not apply under the RTI Act.
He did not approach this Court for early disposal of the
representation. He was conveniently sleeping over his
right. He woke up only after the notices were issued in
the writ petitions filed by the similarly situated persons.
He also moved an application under the RTI Act only
when he was granted time to file correct impugned order.
It is well established principle of law that delay
defeats equity. Merely because notices have been issued
in some of the writ petitions that will not create any right
in favour of the petitioner because according to the
counsel for the petitioner himself the question of delay
and latches has not been considered in those petitions at
all.
The petitioner is asking for appointment on the
basis that he had worked as a part time Teacher till 1999.
He was sleeping over his right after the impugned order
dated 08/12/2017 was passed. No sufficient/plausible
explanation has been given for not filing the petition at
the earliest. Much water must have flown under the
bridge. It is not known as to whether any vacancy is
there or not. Even according to the impugned order, it is
clear that recruitment process had already begun. Under
these circumstances, this Court is of the considered
opinion that this petition suffers from delay and latches.
Accordingly, the petition fails and is hereby dismissed.
3. Learned Single Judge had observed that the petitioner was asking
for appointment on the basis that he had worked as a part time Teacher
till 1999 but he slept over his right after the impugned order therein
dated 08/12/2017 was passed and no sufficient/plausible explanation
has been given for not filing the petition at the earliest, much water must
have flown under the bridge, as it is not known as of date as to whether
any vacancy is there or not and even according to the impugned order
therein, it is clear that recruitment process had already begun. Under
these circumstances, learned Writ Court was of the considered opinion
that the writ petition had suffered from delay and laches.
4. Trite it is that the relief can be denied on the ground of laches. In
Focus Energy Ltd. (M/s) v. Government of India, (DB):[I.L.R.
(2011) M.P. 53]; relying upon judgments of the Apex Court, the
Division Bench of this Court had observed -
"10- Thus, facts stated supra leads to irresistible
conclusion that appellant is guilty of delay and laches. Its
conduct disentitles it to any relief. In New Delhi
Municipal Council v. Pan Singh and Others, AIR 2007
SC 1365 the Supreme Court has held that delay and
laches are relevant factors for exercise of equitable
jurisdiction. In Municipal Council, Ahmednagar v. Shah
Hyder Beig, (2000) 2 SCC 48 the Supreme Court has
observed that discretionary relief can be provided to one
who has not by his act or conduct given a go-bye to his
rights. Equity W.P.No.16693/2013 favours a vigilant
rather than an indolent litigant. In the State of Haryana v.
Aravali Khanij Udyog, (2008) 1 SCC 663 it has been
held that where third party rights are created, the High
Court should not interfere. Similarly, in Shiba Shankar
Mohapatra (supra) it has been held that the Court
exercising public law jurisdiction does not encourage
agitation of state claims where the right of third parties
crystallizes in the interregnum."
5. In Ashok Kumar vs. District Magistrate, Basti:[(2012) 3 SCC
311], it is held -
"10. ........... It is time and again, stated that a party who
has slept over his right since is not entitled to the
discretionary relief of the High Court ........."
6. It is settled proposition of law that mere filing of repeated
representations to the authorities will not give any cause of action or
will condone the delay in approaching the Court as a sleeping litigant is
not entitled for any equity from the Court and herein, the appellant is
unable to explain inordinate delay in approaching the Court and
assailing the impugned order
7. The law relating to delay and laches was considered by the
Hon'ble Supreme Court in the case of State of T.N. v. Seshachalam
reported in (2007) 10 SCC 137, wherein the Hon'ble Supreme Court,
testing the equality clause on the bedrock of delay and laches pertaining
to grant of service benefit, has ruled thus:
"....filing of representations alone would not save the period
of limitation. Delay or laches is a relevant factor for a court
of law to determine the question as to whether the claim
made by an applicant deserves consideration. Delay and/or
laches on the part of a government servant may deprive him
of the benefit which had been given to others. Article 14 of
the Constitution of India would not, in a situation of that
nature, be attracted as it is well known that law leans in
favour of those who are alert and vigilant."
8. The Hon'ble Supreme Court in the case of Union of India and
OthersVs. M.K. Sarkar reported in (2010) 2 SCC 59 has held as
under:-
"15. When a belated representation in regard to a "stale" or
"dead" issue/dispute is considered and decided, in
compliance with a direction by the court/tribunal to do so,
the date of such decision cannot be considered as furnishing
a fresh cause of action for reviving the "dead" issue or time
barred dispute. The issue of limitation or delay and laches
should be considered with reference to the original cause of
action and not with reference to the date on which an order
is passed in compliance with a court's direction. Neither a
court's direction to consider a representation issued without
examining the merits, nor a decision given in compliance
with such direction, will extend the limitation, or erase the
delay and laches."
9. The Hon'ble Supreme Court in the case of Karnataka Power
Corpon. Ltd. Vs. K. Thangappan reported in (2006) 4 SCC 322 has
held 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 Hurd (PC at p.
239) was approved by this Court in Moon Mills 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 the 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 petitions 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."
10. The Hon'ble Supreme Court in the case of Jagdish Lal Vs. State
of Haryana reported in (1997) 6 SCC 538 has held as under
"18. That apart, as this Court has repeatedly held, the delay
disentitles the party to the discretionary relief under Article
226 or Article 32 of the Constitution."
11. The Supreme Court in the case of NDMC Vs. Pan Singh reported
in (2007) 9 SCC 278 has held as under :
"16. There is another aspect of the matter which cannot be
lost sight of. The respondents herein filed a writ petition
after 17 years. They did not agitate their grievances for a
long time. They, as noticed herein, did not claim parity with
the 17 workmen at the earliest possible opportunity. They
did not implead themselves as parties even in the reference
made by the State before the Industrial Tribunal. It is not
their case that after 1982, those employees who were
employed or who were recruited after the cutoff date have
been granted the said scale of pay. After such a long time,
therefore, the writ petitions could not have been entertained
even if they are similarly situated. It is trite that the
discretionary jurisdiction may not be exercised in favour of
those who approach the court after a long time. Delay and
laches are relevant factors for exercise of equitable
jurisdiction. (See Govt. of W.B. v. Tarun K. Roy, U.P. Jal
Nigam v. Jaswant Singh and Karnataka Power Corpn. Ltd.
v. K. Thangappan.)
17. Although, there is no period of limitation provided for
filing a writ petition under Article 226 of the Constitution
of India, ordinarily, writ petition should be filed within a
reasonable time. (See Lipton India Ltd. v. Union of India
and M.R. Gupta v. Union of India.)
18. In Shiv Dass v. Union of India this Court held: "9. It has
been pointed out by this Court in a number of cases that
representations would not be adequate explanation to take
care of delay. This was first stated in K.V. Rajalakshmiah
Setty v. State of Mysore. There is a limit to the time which
can be considered reasonable for making representations
and if the Government had turned down one representation
the making of another representation on similar lines will
not explain the delay. In State of Orissa v. Pyarimohan
Samantaray making of repeated representations was not
regarded as satisfactory explanation of the delay. In that
case the petition had been dismissed for delay alone. (See
also State of Orissa v. Arun Kumar Patnaik.) 10. In the case
of pension the cause of action actually continues from
month to month. That, however, cannot be a ground to
overlook delay in filing the petition. It would depend upon
the fact of each case. If petition is filed beyond a reasonable
period say three years normally the Court would reject the
same or restrict the relief which could be granted to a
reasonable period of about three years. The High Court did
not examine whether on merit the appellant had a case. If
on merits it would have found that there was no scope for
interference, it would have dismissed the writ petition on
that score alone." 19. We, therefore, are of the opinion that
it was not a fit case where the High Court should have
exercised its discretionary jurisdiction in favour of the
respondents herein."
12. In the case of State of Orissa & Anr. vs. Mamata Mohanty
reported in (2011) 3 SCC 436, the Hon'ble Supreme Court opined as
under:-
"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. In light of the above enunciations if the present case is analyzed,
it could be observed that in the present case, the petitioner/appellant
was asking for appointment on the basis that he had worked as a part
time Teacher till 1999 but he was sleeping over his rights after the
impugned order therein dated 08/12/2017 was passed, also no
sufficient/plausible explanation was given for filing the writ petition at
the earliest. As much water must have flown under the bridge by now
and it is also not known as to whether any vacancy is there and even
according to the impugned order therein, it was clear that the
recruitment process had already begun. Under the aforesaid
circumstances, learned Writ Court had dismissed the writ petition being
suffered from delay and latches, which according to this Court, is legal
and doesn't warrant any indulgence.
14. Thus, there is no reason to interfere with order dated 02.08.2022
at the behest of a person who had continuously slept over his rights and
woke up after inordinate delay. Likewise, the appellant here also had
approached this Court after approximately 536 days with an
unexplainable delay. This Court has time and again reiterated that delay
defeats equity and if the appellant approaches the Court after long delay
then the relief prayed by him may be denied on the ground of delay and
laches. Therefore, no relief can be extended to the appellant.
15. Accordingly, I.A.No.3344 of 2024 stands dismissed. As a
consequence thereof, the present appeal is also dismissed on the ground
of being barred by time.
(RAJENDRA KUMAR-IV ) (MILIND RAMESH PHADKE)
JUDGE JUDGE
pwn*
PAWAN KUMAR
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH
GWALIOR,
2.5.4.20=b864d1ab4ace2215bfcf3ab301c34d631287f1b1cdd90b
4a49f265f02d9d593f, postalCode=474001, st=Madhya Pradesh,
serialNumber=61B9D129971D2EA4FD4455ED49EA436EA65E26
164BEEED89153191C56E98CE21, cn=PAWAN KUMAR
Date: 2024.05.08 17:57:53 +05'30'
