Madhya Pradesh High Court
Smt. Kiran Sahu vs The State Of Madhya Pradesh on 15 October, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 15 th OF OCTOBER, 2024
WRIT PETITION No. 28422 of 2023
SMT. KIRAN SAHU
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Subodh Kathar - Advocate for petitioner.
Shri Prabhanshu Shukla - Government Advocate for respondents/State.
ORDER
The present petition is filed seeking the following reliefs-
"(i) To issue a writ in the appropriate nature to direct the respondents to give
regular appointment to the petitioner from the date of initial appointment dated
26-09-2003 with all consequential benefit and back wages along with interest.
(ii) To direct the respondents to decide the pending representation of the
petitioner contained as Annexure P-7.
(iii) Any other relief which this Hon'ble Court deems fit and proper may
kindly be passed."
It is the case of the petitioner that husband of the petitioner late Ayodhya
Prasad Sahu who was working as Sub-Engineer in the office of respondent No.4
passed away on 21.12.2001. The petitioner, being duly qualified having requisite
qualification to hold the post duly applied for grant of compassionate
appointment. Her case was considered in terms of the policy applicable to the case
of petitioner and she was granted compassionate appointment on contractual post
of Samvida Shala Shikshak vide order dated 06.09.2003. Since then the petitioner
is continuously working on the said post. Vide order dated 01.07.2008, the
petitioner was appointed as Sahayak Adhyapak Samvarg on a minimum pay scale
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for a probationary period. Case of the petitioner was considered for grant of
Krammonati benefits on completion of 12 years of service and the same was
extended to her.
It is the case of the petitioner that she has been granted compassionate
appointment on contractual post which is against the policy. It is argued that the
Division Bench of this Court has considered the similar aspect in W.A. No.977 of
2021 (Dharmendra Kumar Tripathi v. State of M.P.) decided on 12.07.2022
wherein it was held that the compassionate appointment cannot be granted on the
contractual post. The petitioner placing reliance upon the judgment passed by the
Division Bench in Dharmendra Kumar Tripathi (supra) seeks the relief to grant the
appointment on the regular post from the initial date of appointment.
The fact remains that the compassionate appointments are to be granted in
terms of policy prevailing in the relevant time. The case of the petitioner was duly
considered by the department and the compassionate appointment was granted
vide order dated 26.09.2003. Since then the petitioner is continuously working on
the said post without raising any objection. The judgment which has been relied
upon is passed on 12.07.2022. There is no explanation given by the petitioner
regarding the delay in approaching the Court. This Court on 30.11.2023 has
directed the petitioner to explain the same. In pursuance to the same vide covering
memo dated 21.01.2024 the explanation has been submitted to the effect that as
and when the petitioner came to know about the judgment passed by the Division
Bench in Dharmendra Kumar Tripathi (supra) she has immediately approached
this Court for grant of similar relief.
The fact remains that for almost 24 years the petitioner kept mum and
continued to work on the contractual post of Samvida Shala Shikshak. Subsequent
appointment to the post of Sahayak Adhyapak Samvarg on a minimum pay scale
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for a probationary period was also accepted by the petitioner without raising any
objections. There is virtually no explanation for challenging the contractual
appointment of the petitioner for 20 years. Even today virtually no explanation has
been given for keeping quite for a considerable period of more than two decades.
The petitioner being a sleeping litigant cannot be granted any benefit.
The Hon'ble Supreme Court has considered the aspect of delay in
approaching the Court in the case Esha Bhattacharjee vs. Managing Committee of
Raghunathpur Nafar Academy and Ors. reported in (2013) 12 SCC 649 wherein
the Hon'ble Supreme Court has held as under :-
"21. From the aforesaid authorities the principles that can broadly be culled
out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, nonpedantic
approach while dealing with an application for condonation of delay, for
the courts are not supposed to legalise injustice but are obliged to remove
injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper
spirit, philosophy and purpose regard being had to the fact that these terms
are basically elastic and are to be applied in proper perspective to the
obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical
considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay
but, gross negligence on the part of the counsel or litigant is to be taken
note of.
21.5. (v) Lack of bonafides imputable to a party seeking condonation of
delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not
affect public justice and cause public mischief because the courts are
required to be vigilant so that in the ultimate eventuate there is no real
failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the
conception of reasonableness and it cannot be allowed a totally unfettered
free play.
21.8. (viii) There is a distinction between inordinate delay and a delay of
short duration or few days, for to the former doctrine of prejudice is
attracted whereas to the latter it may not be attracted. That apart, the first
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one warrants strict approach whereas the second calls for a liberal
delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its
inaction or negligence are relevant factors to be taken into consideration. It
is so as the fundamental principle is that the courts are required to weigh
the scale of balance of justice in respect of both parties and the said
principle cannot be given a total go-by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in
the application are fanciful, the courts should be vigilant not to expose the
other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud,
misrepresentation or interpolation by taking recourse to the technicalities of
law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the
approach should be based on the paradigm of judicial discretion which is
founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective
cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking
note of the present day scenario. They are:-
22.1. (a) An application for condonation of delay should be
drafted with careful concern and not in a haphazard manner
harbouring the notion that the courts are required to condone
delay on the bedrock of the principle that adjudication of a lis
on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be
dealt with in a routine manner on the base of individual
philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard
being had to the concept of judicial discretion, yet a conscious
effort for achieving consistency and collegiality of the
adjudicatory system should be made as that is the ultimate
institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non-
serious matter and, hence, lackadaisical propensity can be
exhibited in a nonchalant manner requires to be curbed, of
course, within legal parameters.
The Hon'ble Supreme Court in the case of State of Orissa & Anr. vs.
Mamata Mohanty, (2011) 3 SCC 436 has opined as under:-
"54. This Court has consistently rejected the contention that a petition should be considered
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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."
In W.P. No.5409/2012 (Jageshwar Kurmi (Patel) vs. State of M.P. &
Others) decided on 30.8.2017 and in W.P. No.10923/2019 (Dr. Sunil Surange vs.
State of M.P. and others) decided on 10.3.2022, wherein, it is categorically held
that a sleeping litigant is not entitled for any relief.
A Division Bench of this Court in Focus Energy Ltd. (M/s) vs Government
of India, (DB) reported in I.L.R. (2011) M.P. 53; relying upon judgments of the
Hon'ble Supreme Court has observed as under :
"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 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
stale claims where the right of third parties crystallizes in the interregnum."
The Hon'ble Supreme Court in the case of Karnataka Power Corpn. Ltd. vs
K. Thangappan reported in (2006) 4 SCC 322 has held as follows:
"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
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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 [(1969) 1
SCC 185 : AIR 1970 SC 769] . 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 [(1874) 5 PC
221 : 22 WR 492] (PC at p. 239) was approved by this Court in
Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC 1450] and
Maharashtra SRTC v. Shri Balwant Regular Motor Service
[(1969) 1 SCR 808 : AIR 1969 SC 329] . 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."
It is further held by the Hon'ble Supreme Court in the case of Ashok Kumar
vs District Magistrate, Basti reported in (2012) 3 SCC 311 that :-
"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."
Thus, the petitioner being a fenciter has not made any efforts to claim the
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legal rights at the relevant time keeping quite for a considerable period of more
than two decades, no relief can be extended to the petitioner.
Petition sans merit and is accordingly dismissed. No order as to costs.
(VISHAL MISHRA)
JUDGE
L.Ra
