Uttarakhand High Court
Naveen Chandra Pathak And Others vs Secretary on 14 November, 2024
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2024:UHC:8493-DB
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE ACTING CHIEF JUSTICE MR. MANOJ KUMAR TIWARI
AND
HON'BLE SRI JUSTICE VIVEK BHARTI SHARMA
14TH NOVEMBER, 2024
SPECIAL APPEAL No. 417 OF 2021
Naveen Chandra Pathak and others.
...Appellants
Versus
Secretary, School Education and others.
...Respondents
Counsel for the appellants. : Mr. Lalit Samant, learned counsel.
Counsel for respondent nos. 1 to : Mr. K.N. Joshi, learned Deputy
4. Advocate General for State of
Uttarakhand.
JUDGMENT :
(per Mr. Manoj Kumar Tiwari, A.C.J.)
This intra-Court appeal is directed against
judgment dated 28.10.2021 rendered by learned Single
Judge in Writ Petition (S/S) No. 1332/2021. Operative
portion of said judgment is reproduced below :
"We are in 2021 now. Consciously the impugned
orders dated 27.03.2019 and 12.04.2019, was solicited
by the petitioners themselves, at the behest of their
representation which was submitted before the
authorities in view of the earlier orders, so the
petitioners cannot have a case, that they were not
conscious or aware of the orders of the 27.03.2019 and
12.04.2019. Preferring a writ petition by filing the same
on 08th October, 2021, and that too, this Court being
conscious of the fact that the limitation may not be
specifically creating a bar in entertaining a writ petition
at the belated stage, but still the petitioners
simultaneously also owes a responsibility to rationally
explained the laches for not approaching the court,
within an appropriate or a reasonable time, there is not
even a single word in the pleadings, as to what
obstructed the petitioners to approach the writ court
within an appropriate time. Hence, this writ petition
would be barred by the laches too. Apart from the fact
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that as I have already observed, that in fact under the
garb of the decision of the 2019, what the petitioners
are trying to endeavour to press is the same relief,
which was earlier denied to be granted, or rather it
would be presumed, that it was not pressed by the
petitioners by seeking an alternative relief of getting
the representation decided, without reserving the rights
any further.
In that view of the matter, I am not inclined to
interfere in the writ petition. The writ petition is
dismissed."
2. Learned counsel for appellants-writ petitioners
submits that appellants had earlier filed Writ Petition
(S/S) No. 1678/2011, which was allowed by learned
Single Judge of this Court, vide order dated 05.03.2018.
Operative portion of order dated 05.03.2018 is
reproduced below :
"Case of the petitioners, in a nutshell, is that the
similarly situate employees serving in other districts
have been granted regular pay scale but the same has
been denied to them who are serving in the Pithoragarh
District.
There cannot be any discrimination only on the
basis of geographical condition. Petitioners constitute a
homogenous class vis-à-vis other employees who are
serving in other parts of the State.
Accordingly, the writ petition is allowed. Order,
under challenge, is quashed and set aside. Respondents
are directed to consider the case of petitioners for
regular pay scale on the analogy of their counterparts
serving in other parts of the State within ten weeks
from today.
3. Learned counsel for appellants-writ petitioners
further submits that, pursuant to order passed by learned
Single Judge, Director, Elementary Education passed an
order on 27.03.2019, providing therein that appellants-
writ petitioners shall be absorbed against sanctioned
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Group-D posts, as and when vacancies are available, and
service benefits will be paid to them only thereafter.
District Education Officer, Elementary Education,
Pithoragarh passed a consequential order on 12.04.2019,
whereby some of appellants-writ petitioners were
absorbed against sanctioned Group-D posts, but only
from the date of availability of vacancy for such
absorption.
4. Since appellants-writ petitioners were claiming
all service benefits from date of their initial appointment
on a Group-D post, and they were not satisfied with the
orders passed by Director, Elementary Education and
District Education Officer, Elementary Education,
Pithoragarh, whereby they were given service benefits,
only from the date of their absorption against sanctioned
vacant Group-D posts, therefore, they challenged the
orders passed by Director, Elementary Education and
District Education Officer, Elementary Education, on
27.03.2019 & 12.04.2019 respectively, in Writ Petition
(S/S) No. 1332/2021. The said Writ Petition was filed on
18.10.2021. Learned Single Judge dismissed said Writ
Petition, on the ground of delay and laches. It was
observed in the impugned judgment passed by learned
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Single Judge that, since the relief, which the appellants-
writ petitioners claimed in Writ Petition (S/S) No.
1332/2021, was earlier denied to them, or they had not
pressed the relief claimed in said Writ Petition, and had
prayed that Competent Authority be directed to take
decision on their representation, therefore, subsequent
Writ Petition for the same relief would be barred.
5. Learned counsel for appellants-writ petitioners
submits that impugned judgment passed by learned
Single Judge is unsustainable in the eyes of law. He
submits that no limitation period is prescribed for Writ
Petition, and provisions of Limitation Act are not attracted
to proceedings under Article 226 of Constitution of India,
therefore, dismissal of Writ Petition, on the ground of
delay and laches, that too, when Writ Petition was filed
after little more than two years of passing of impugned
orders, cannot be sustained. He further submits that,
between the date of passing of impugned orders and the
date of filing of Writ Petition, lockdown was imposed in
the country, due to COVID-19 pandemic. In view of
unprecedented situation arising due to lockdown, Hon'ble
Supreme Court had intervened by passing orders in Suo
Motu Writ Petition (C) No. 3/2020, and by those
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orders, it was provided that limitation would stop running
from the date of passing of the first order in aforesaid
Suo Motu Writ Petition (C) No. 3/2020. He, thus,
submits that appellants-writ petitioners were entitled to
the benefit of orders passed by Hon'ble Supreme Court,
however, this vital aspect was completely overlooked by
learned Single Judge. He submits that, due to outbreak
of COVID-19 pandemic, and consequent lockdown, it was
not possible for appellants-writ petitioners to immediately
approach this Court by filing Writ Petition, therefore,
dismissal of Writ Petition, on the ground of delay and
laches, is improper and unsustainable.
6. He further submits that Writ Petition (S/S) No.
1678/2011, filed by appellants-writ petitioners, was
allowed, and respondents were directed to consider the
case of appellants-writ petitioners for regular pay-scale,
on the analogy of their counterparts serving in other
parts of the State, within ten weeks from the date of
order. He submits that order dated 05.03.2018, passed
in Writ Petition (S/S) No. 1678/2011, nowhere indicates
that appellants-writ petitioners did not press the reliefs
claimed in said Writ Petition, or they sought alternate
relief of getting the representation decided. He submits
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that, in fact, the submission made by appellants-writ
petitioners found favour with the learned Single Judge,
and the learned Single Judge, not only allowed the Writ
Petition, but also directed the authorities to consider the
case of appellants-writ petitioners for regular pay-scale.
He, thus, submits that the second reason assigned by
learned Single Judge, for dismissing the Writ Petition, is
also unsustainable.
7. This Court finds substance in the aforesaid
submission. Provisions of Limitation Act are not
applicable to writ proceedings. There is no Statute,
which lays down period of limitation for filing a Writ
Petition. A Writ Petition can be dismissed on the ground
of delay and laches, if it is found that the person filing
Writ Petition was not diligently pursuing the remedy, or
he/ she is a fence sitter, who was sleeping over his/ her
rights. In the present case, there is no material to form
such an opinion. The orders, impugned in the Writ
Petition, were passed on 27.03.2019 & 12.04.2019, and
the Writ Petition was filed about 2½ years thereafter.
However, in the meantime, lockdown was imposed due to
outbreak of COVID-19 pandemic, and Hon'ble Supreme
Court had also passed orders in Suo Motu Writ Petition
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(C) No. 3/2020, which were meant to protect the rights
of persons, who could not seek remedy before higher
judicial/ quasi-judicial forums, within period of limitation
prescribed in the relevant Statute. Since COVID-19
pandemic broke-out in the month of March, 2020, and
lockdown was also imposed in the country within less
than a year of passing the orders impugned in the Writ
Petition, therefore, the delay, if any, has to be seen in the
backdrop of then prevailing circumstances. Therefore,
appellants-writ petitioners were entitled to the benefit of
orders passed by Hon'ble Supreme Court in Suo Motu
Writ Petition (C) No. 3/2020. This material aspect,
however, appears to have been overlooked by learned
Single Judge, thus, the impugned judgment deserves to
be set-aside.
8. The second reason assigned by learned Single
Judge that the relief, which appellants-writ petitioners
claimed in Writ Petition (S/S) No. 1332/2021, was not
pressed by them in the earlier Writ Petition (S/S) No.
1678/2011, and appellants-writ petitioners sought
alternate relief of getting the representation decided in
their earlier Writ Petition, without reserving any right to
further agitate the matter, also does not appear to be
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correct. Learned Single Judge was referring to the order
passed in Writ Petition (S/S) No. 1678/2011, which was
allowed vide judgment dated 05.03.2018. Operative
portion of the said judgment is already extracted above.
From perusal of the said judgment, it is revealed that the
adverse inference drawn by learned Single Judge is not
supported by the judgment dated 05.03.2018; the said
judgment does not indicate that appellants-writ
petitioners had not pressed their principal reliefs, and
asked for decision on their representation; on the other
hand, learned Writ Court had not only set-aside the
orders passed against appellants-writ petitioners, but had
also directed the authorities to consider their case for
regular pay-scale, on the analogy of their counterparts
serving in other districts.
9. Learned counsel for appellants-writ petitioners
has also placed reliance upon judgment rendered by a
Coordinate Bench of this Court in Writ Petition (M/S) No.
1243/2022, Rajkumar Adlakha v. The Cantonment
Board Landour & others, 2022 (2) U.D. 43. Relevant
paragraphs of the said judgment are extracted below :
"10. In that view of the matter, we are of the opinion
that Section 20 of the Act generally barred the Court from
giving any liberty to the petitioner to reagitate the issue,
especially, when we have already held in the case of Pradeep
Singh vs. Director General, Assam Rifles UPAO Branch
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(NEIII) & others, 2022 SCC Online Utt 428, that Order II Rule
2 read with Section 141 of the Code of Civil Procedure, 1908
leads to the conclusion that Order II Rule 2 of Code is not
applicable to a petition for a high prerogative writ under
Article 226 of the Constitution. We have also taken note of
the reported case of Brahma Singh & others vs. Union of
India & others, (2020) 12 SCC 762, wherein the Hon'ble
Supreme Court has held as under:-
"9. As far as the second submission made on
behalf of the Union of India is concerned, we have
carefully gone through the earlier order and the writ
petition. Though it is correct that in the writ petition
there was a general claim to grant all the benefits
under Rule 6 which would include retiral benefits but it
appears that the Court did not go into the same. There
is no rejection of the plea and as such we are of the
considered view that this petition is maintainable and
cannot be rejected on this hypertechnical ground.
10. In relation to applicability of Order II Rule 2
of the Civil Procedure Code, 1908 this Court has held in
Devendra Pratap Narain Rai Sharma v. State of Uttar
Pradesh and Others as follows:
"12. ...The bar of Order 2 Rule 2 of the Civil
Procedure Code on which the High Court
apparently relied may not apply to a petition for a
high prerogative writ under Article 226 of the
Constitution, but the High Court having
disallowed the claim of the appellant for salary
prior to the date of the suit, we do not think that
we would be justified in interfering with the
exercise of its discretion by the High Court."
Placing reliance on the case of Devendra Pratap
Narain Rai Sharma (supra), this Court in
Gulabchand Chhotalal Parikh v. State of Gujarat
in relation to Order II Rule 2 held as follows (AIR
p. 1159, para 26):
"26. ...By its very language, these
provisions do not apply to the contents of a
writ petition and consequently do not apply
to the contents of a subsequent suit."
10. For the reasons, already indicated above, we
are of the considered opinion that the impugned
judgment, rendered by learned Single Judge, cannot be
sustained in the eyes of law.
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11. We, accordingly, allow the present Special
Appeal, and set-aside impugned judgment dated
28.10.2021 passed by learned Single Judge in Writ
Petition (S/S) No. 1332/2021, and the matter is
remanded back to learned Single Judge to decide the Writ
Petition afresh, on merits.
12. Pending application(s), if any, also stand
disposed of accordingly.
________________________
MANOJ KUMAR TIWARI, A.C.J.
_____________________
VIVEK BHARTI SHARMA, J.
Dt: 14th November, 2024
Rahul
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serialNumber=303B55CC3063D34AC45BF8A192FCAD15C390A1
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Date: 2024.11.21 11:23:42 +05'30'
