Uttarakhand High Court
Anil Kumar vs State Of Uttarakhand & Others on 1 August, 2023
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
JUSTICE SHRI MANOJ KUMAR TIWARI
AND
JUSTICE SHRI PANKAJ PUROHIT
SPECIAL APPEAL No. 76 OF 2023
Reserved on :05.07.2023
Delivered on :01.08.2023
Between:
Anil Kumar. ...... Appellant
Vs.
State of Uttarakhand & others. ...... Respondents
Counsel for the appellant : Dr. Gyanendra Kumar Sharma and Mrs. Indu Sharma
Counsel for the State : Mr. S.S. Chaudhary, Brief Holder.
Upon hearing the learned counsel, the Court made the
following
JUDGMENT: (Per Shri Manoj Kumar Tiwari, J.)
This intra-court appeal is filed challenging the
judgment dated 19.12.2022 passed in Writ Petition (S/S)
No.1079 of 2013. By the said judgment, writ petition filed by
the appellant was dismissed on the ground of delay and
laches.
2. It is not in dispute that appellant filed a writ petition
in the year 2013, challenging the seniority list of Senior
Fisheries Inspector issued on 20.02.2008. He also challenged
the order dated 20.06.2005, rejecting his objection against
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tentative seniority list.
3. Before the Writ Court, appellant contended that
since he was regularly appointed as Fisheries Inspector earlier
in point of time, therefore, he should be placed above
respondent no.3 in the seniority list. It was contended that
appellant was regularly appointed on the said post on
29.09.1997; while, respondent no. 3 was regularly promoted
as Fisheries Inspector only on 09.07.1999, therefore, appellant
is senior. Respondent no. 3, who was initially appointed as
Fisheries Development Worker, was given ad-hoc promotion as
Fisheries Inspector w.e.f. 02.05.1985 and he was regularly
promoted to the said post only on 09.07.1999. However, on
his representation, Director, Fisheries passed an order on
03.06.2005, whereby respondent no.3 was given regular
promotion as Fisheries Inspector w.e.f. 28.08.1996. On the
strength of said order, respondent no. 3 was placed above
appellant in the seniority list. It is a fact that appellant did not
challenge the order dated 03.06.2005 before any judicial
forum, consequently, it attained finality. The final seniority list
issued on 20.02.2008 was challenged by him after 5 years by
filing writ petition in 2013. Learned Single Judge of this Court
dismissed the writ petition on the ground of delay and laches
by relying upon the law laid down by Hon'ble Apex Court in the
case of Ajay Kumar Shukla Vs. Arvind Rai, (2022) 12 SCC 579
and Shiba Shankar Mohapatra Vs. State of Orissa, (2010) 12
SCC 471.
4. Learned counsel for the appellant submits that the
impugned judgment is unsustainable. It is contended that
appellant had no knowledge about the order dated
03.06.2005, whereby respondent no. 3 was promoted
retrospectively as Fisheries Inspector w.e.f. 28.08.1996. The
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said submission, however, is belied from the order passed by
Director Fisheries on 20.06.2005, whereby appellant's
representation was rejected. In paragraph no.3 of the said
order, there is a reference to the order passed on the
representation of respondent no.3, whereby he was given
promotion as Fisheries Inspector w.e.f. August, 1996. Thus,
appellant cannot contend that he was not aware about the
order dated 03.06.2005.
5. Learned Single Judge has considered the issue of
delay and laches in great detail. It is held that settled
seniority list cannot be unsettled at the instance of a person
who challenges the list after inordinate delay. The view taken
by learned Single Judge is in conformity with the law of the
land.
6. A Constitution Bench of Hon'ble Supreme Court in
the case of Tilokchand Motichand & others Vs. H.B. Munshi,
reported in (1969) 1 SCC 110 has made the following
observations on the question of delay and laches in paragraph
no.18 of the said judgment, which is reproduced below:
"18. It seems to me, however, that the above solution
is not quite appropriate for petitions under Article 32. A
delay of 12 years or 6 years would make a strange
bed-fellow with a direction or order or writ in the nature
of mandamus, certiorari and prohibition. Bearing in
mind the history of these writs I cannot believe that the
Constituent Assembly had the intention that five Judges
of this Court should sit together to enforce a
fundamental right at the instance of a person, who had
without any reasonable explanation slept over his rights
for 6 or 12 years. The history of these writs both in
England and the U.S.A. convinces me that the
underlying idea of the Constitution was to provide an
expeditious and authoritative remedy against the
inroads of the State. If a claim is barred under the
Limitation Act, unless there are exceptional
circumstances, prima facie it is a stale claim and should
not be entertained by this Court. But even if it is not
barred under the Indian Limitation Act, it may not be
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entertained by this Court if on the facts of the case
there is unreasonable delay. For instance, if the State
had taken possession of property under a law alleged to
be void, and if a petitioner comes to this Court 11 years
after the possession was taken by the State, I would
dismiss the petition on the ground of delay, unless
there is some reasonable explanation. The fact that a
suit for possession of land would still be in time would
not be relevant at all. It is difficult to lay down a precise
period beyond which delay should be explained. I
favour one year because this Court should not be
approached lightly, and competent legal advice should
be taken and pros and cons carefully weighed before
coming to this Court. It is common knowledge that
appeals and representations to the higher authorities
take time; time spent in pursuing these remedies may
not be excluded under the Limitation Act, but it may
ordinarily be taken as a good explanation for the
delay."
7. The aforesaid view was reiterated by another
Constitution Bench of Hon'ble Supreme Court in the case of
Ramchandra Shankar, Deodhar & others Vs. State of
Maharashtra & others, reported in (1974) 1 SCC 317, where it
was observed that the principle on which the Court proceeds in
refusing relief to the petitioner on ground of laches or delay is
that the rights which have accrued to others by reason of the
delay in filing the petition should not be allowed to be
disturbed unless there is reasonable explanation for the delay.
8. Similarly, in the case of P.S. Sadasivaswamy Vs.
State of Tamil Nadu, reported in (1975) 1 SCC 152, Hon'ble
Supreme Court has held that "a person aggrieved by an order
of promoting a junior over his head should approach the Court
at least within six months or at the most a year of such
promotion. 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
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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. The petitioner's
petition should, therefore, have been dismissed in limine.
Entertaining such petitions is a waste of time of the Court. It
clogs the work of the Court and impedes the work of the Court
in considering legitimate grievances as also its normal work.
We consider that the High Court was right in dismissing the
appellant's petition as well as the appeal."
9. In the present case also, there is inordinate and
unexplained delay of 5 years in challenging the seniority list
issued by competent authority. Certain rights accrued in
favour of respondent no. 3, based on said seniority list. Since
petitioner slept over his rights and allowed the seniority list to
become final, therefore, settled seniority cannot be permitted
to be unsettled at the instance of the appellant, who slept over
his rights for 5 long years.
10. Thus, there is no scope for interference with the
judgment impugned in this Appeal.
11. Accordingly, the Special Appeal fails and is
dismissed.
___________________
MANOJ KUMAR TIWARI, J.
______________
PANKAJ PUROHIT, J.
Dated: 01.08.2023
Arpan
