Madhya Pradesh High Court
Mahendra Kumar Sharma (Dead) Lrs ... vs The State Of Madhya Pradesh on 19 February, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:8384
1 W.P. No.5904/2005
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 19th OF FEBRUARY, 2025
WRIT PETITION No. 5904 of 2005
MAHENDRA KUMAR SHARMA (DEAD) THR. LR SANDEEP KUMAR TIWARI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
............................................................................................................................................
Appearance:
Shri Satya Prakash Mishra - Advocate for the petitioner.
Shri A.S. Baghel - Government Advocate for the respondents/State.
............................................................................................................................................
ORDER
The present petition is being filed assailing the order dated
28/09/2004 passed by respondent No.2, by which the representation
submitted by the petitioner in view of the order passed by this Court on
27/04/2004 for taking back him in service, has been rejected.
2. It is the case of the petitioner that he was appointed as Assistant
Sanitary Inspector in Special Area Development Authority, Khajuraho
along with others vide order dated 09/03/1990 in the pay scale of
Rs.870-1420/-. In the meantime, while the petitioner was working in the
respondents/Department, the Special Area Development Authority,
Khajuraho has been abolished and Nagar Panchayat Khajuraho came
into force. The case of the petitioner was that the recruitment of
petitioner was in terms of the Recruitment Rules, 1976 and after facing
the recruitment drive, appointment was made by the competent authority
according to the Rules. Since his appointment, petitioner worked with
utmost devotion and sincerity. Thereafter, petitioner was removed from
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service vide order dated 30/04/1990. Against the termination order,
petitioner filed a Miscellaneous Petition before this Court being M.P.
No.1039/1990, which was dismissed vide order dated 29/08/1990. It is
the case of the petitioner that similarly situated employee whose
services were terminated, has approached this Court by filing
Miscellaneous Petition seeking quashment of termination order. The
said petition was allowed and the termination order was quashed vide
order dated 04/08/2003 passed in M.P. No.1676/1990. It is argued that
once the termination order of the similarly situated employee has been
quashed by this Court holding it to be illegal, then the petitioner's case
should be considered by the Authorities for taking him back in service.
3. It is pointed out that one Nirankar Pathak was removed from
service and after quashment of the termination order, he has been taken
back in service by the respondents Authorities. When the petitioner
came to know about the aforesaid fact, he immediately preferred a
representation before the Authorities on 22/03/2004 along with copy of
the order passed by this Court in the case of Nirankar Pathak praying for
similar treatment to be given to him and he should also be reinstated in
service like Nirankar Pathak. The representation submitted by the
petitioner was rejected vide order dated 23/03/2004 observing that there
was an order of reinstatement of Nirankar Pathak by the High Court and
there is no order placed on record by the petitioner directing his
reinstatement in service. Thereafter, petitioner preferred a petition
before this Court seeking suitable direction for consideration of his case
in the light of order passed in the case of Nirankar Pathak. The said
petition was disposed off on 27/04/2004 directing respondent No.2 to
consider the case of the petitioner on the anvil of law laid down in the
case of Nirankar Pathak within a period of four months. Thereafter he
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again preferred a representation to the Authorities i.e. respondent No.2
and the same was rejected on the ground that the case of the petitioner is
not similar to that of Nirankar Pathak. The said order has been put to
challenge by filing the present petition.
4. It is argued that once the similarly situated employee has been
reinstated in service after quashment of his termination order coupled
with the fact that there is already an order by this Court in the earlier
round of litigation for consideration of the case of petitioner like that of
Nirankar Pathak, the Authorities have wrongly rejected the
representation of the petitioner. Therefore, the present petition is filed.
5. Per contra, learned counsel appearing for the respondents has
supported the impugned order and has refuted the petition averments by
filing a detailed reply. It is contended that after dismissal of the petition
vide order dated 29/08/1990, petitioner has kept quiet for considerable
period of almost 14 years and has not taken any action to challenge the
said order. He has waited for outcome of the judgment passed in the
case of Nirankar Pathak and thereafter, has chosen to file a
representation to the Authorities. It is contended that petitioner was a
fence-sitter and has kept quiet for more than 14 years, therefore, no
relief can be extended to the petitioner. He has prayed for dismissal of
the petition.
6. Heard learned counsel for the parties and perused the record.
7. The record indicates that the petitioner's services were terminated
vide order dated 30/04/1990. The said order was put to challenge by
filing M.P. No.1039/1990 which was dismissed on 29/08/1990.
Thereafter, petitioner kept quite and has not challenged the aforesaid
dismissal order at any point of time. It is only after the decision in the
case of Nirankar Pathak on 04/08/2003 in M.P. No.1676/1990,
NEUTRAL CITATION NO. 2025:MPHC-JBP:8384
petitioner woke up from his slumber and approached the Authorities by
filing a representation seeking reconsideration of his case for
reinstatement in service like that of Nirankar Pathak. When the
Authorities have not considered his case for reinstatement then he
preferred W.P. No.2370/2004 before this Court which was disposed off
vide order dated 27/04/2004. In terms of the said order, the Authorities
again considered the case of the petitioner and rejected his
representation.
8. The fact remains that there is no explanation given by the
petitioner for delay in approaching the Court even in the earlier round of
litigation or in the present case. The petitioner's counsel has brought on
record the petition memo filed by him in the earlier round of litigation
and there is no explanation for delay in approaching the Court. In this
petition also in paragraph 4, it has been mentioned that there is no delay
in filing the present petition but the fact remains that termination order
of the petitioner dated 30/04/1990 was upheld by this Court while
dismissing his Miscellaneous Petition being M.P. No.1039/1990 vide
order dated 29/08/1990. Thereafter petitioner kept quite for a long
period of almost 14 years. It is only after quashment of termination
order of similarly situated employee Nirankar Pathak, petitioner woke
up from his slumber and has approached the Authorities.
9. Considering the fact that petitioner being a fence-sitter has not
taken any initiative on the earlier occasion to challenge the order passed
in the earlier round of litigation whereby termination order was upheld
by this Court, no relief can be extended to the petitioner.
10. It is a trite law that no benefit can be extended to a fence-sitter.
The Hon'ble Supreme Court in the case of State of Orissa & Anr. Vs.
Mamata Mohanty reported in (2011) 3 SCC 436 has considered the
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aspect of delay in approaching the Court and has categorically observed
that a fence-sitter should not be extended any benefit and has held 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."
11. The petitioner has not challenged the order passed in the earlier
round of litigation whereby his MP was dismissed in the year 1990 and
it is only after lapse of 14 years, petitioner filed a representation to the
Authorities for consideration of his case in the light of order passed in
the case of Nirankar Pathak.
12. Under these circumstances, once petitioner himself is a fence-
sitter and merely the fact that petitioner got a direction from this Court
for reconsideration of his case in the light of order passed in the case of
Nirankar Pathak and to get his representation decided, does not create
any right in favour of the petitioner. Petitioner has to explain that why
he has kept quite for a long time of 14 years after dismissal of M.P.
No.1039/1990 vide order dated 29/08/1990, which he has not done even
in the present petition. Accordingly, no relief can be extended to the
petitioner.
13. The petition sans merit and is, accordingly, dismissed. No order
as to costs.
(VISHAL MISHRA)
JUDGE
Shbhnkr
