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1996 DIGILAW 870 (ALL)

TARA DEVI v. MUKHYA CHIKITSA ADHIKARI

1996-08-07

B.S.CHAUHAN

body1996
B. S. CHAUHAN, J. The petitioner was appointed as Nurse and Midwife vide order dated 13-2-90, which is contained in Annexure No. 1 to this writ petition. The services of the petitioner were terminated vide order dated 22nd April, 1993 and the impugned order ter minating the services of the petitioner, which is contained in Annexure No. 2 to this writ petition, reveals that the petitioner had contained the employment by producing the forget certificate of her qualification and she was not eligible. The petitioner has filed instant writ petition after the lapse of 3 years and 4 months from the date of passing of the impugned order. The first question to be considered by this Court is whether such an enquiry in exercise of extra- ordinary jurisdiction under Article 226 of the Constitution of India is required in such a stale claim. 2. In the case of Aflatoon v. Lt. Gover nor of Delhi, A. I. R. 1974 S. C. 2077, the Constitution Bench of the Apex Court has observed that a stale claim cannot be entertained in writ jurisdiction. A similar view was taken by the Supreme Court in the case of State of Mysore \. V. K. Kangan, A. I. R. 1975 S. C. 2190 holding that the party must approach the Court within reasonable time. A Constitution Bench of the Apex Court has considered this issue in the case of M/s. Tilok Chand Moti Chand and others v. KB. Munshi, A. I. R. 1990 S. C. 898, and held that the petition filed at a belated stage cannot be entertained. 3. Similarly, a Constitution Bench of the Supreme Court in the case ofrabinder Nath Base v. Union of India, A. I. R. 1970 S. C. 470 observed as under:- "it would not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Con stitution makers that this Court should discard all principles and grant relief in petition filed after inordinate delay. " 4. It is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Con stitution makers that this Court should discard all principles and grant relief in petition filed after inordinate delay. " 4. The issue of applicability of the provisions of Limitation Act in the writ jurisdiction were considered by a Full Bench of the Kerala High Court in the case of M. P. Raghavan Nair v. State Insurance Officer and others A. I. R. 1971 Ker. 175 and it observed as under: "the principles underlying statutory provision lies the Limitation Act. . . . . or. . . . . . . applicable to petitions are not to be regarded as embodying technical rules of procedure. They are based upon principles of public policy aiming at justice, the securing of which is the very object of Article 226. The principles are principles of repose and pease. Long dormant claims have often more of cruelty than of justice in them, Said Best. C. J. in A. Court v. Cross, (1825) 130 ER 540. " 5. In the case of Union of India and others v. Athose Lop Fernandes and others, A. I. R. 1977 Goa 14, it was held that the period of limitation prescribed by the In dian Limitation Act, 1963 is not strictly applicable in cases ofwrit jurisdiction. The Full Bench of Punjab and Haryana High Court in the case of Teja Singh v. Union Territory of Chandigarh and others, A. I. R. 1982 P & H169 has taken the view that the provisions of Code of Civil Procedure etc. may be made applicable in the writ juris diction. 6. On the issue of applicability of the provisions of Limitation Act, the Privy Council in case of General Accident Fire and Life Assurance Corporation Ltd. v. Jan-mahemed Abdul Rahim, A. I. R. 1941 P. C. 6, relied upon the writings of Mr. may be made applicable in the writ juris diction. 6. On the issue of applicability of the provisions of Limitation Act, the Privy Council in case of General Accident Fire and Life Assurance Corporation Ltd. v. Jan-mahemed Abdul Rahim, A. I. R. 1941 P. C. 6, relied upon the writings of Mr. Mitra in Tagore Law Lectures 1932 wherein it has been said that a law of limitation and prescription may appear to operate harsh ly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the Judge cannot, on applicable grounds, enlarge the time al lowed by the law, postpone its operation, or introduce exceptions not recognised by law. " In the case of Rajendm Singh and others v. Santa Singh and others, A. I. R. 1973 S. C. 2537, the Supreme Court has relied upon the Halsburys laws of England (Vol. 24) 181 as under: "the policy of Limitation Acts. The Courts have expressed at least three different reasons supporting the existence of Statutes of limitation, namely (1) that long doremant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a state claim, and (3) that persons of good causes of actions who peruse them with reasonable deligence. " 7. The Apex Court reached the con clusion that the object of law of limitation is to prevent deprivation of what may have been clear in equity jnd justice by long enjoyment or what may have been lost by a party on in action, negligence or laches. In the case of Smt. Sudama Devi v. Commis sioner and others, 1983 (2) S. C. C. 1, the Supreme Court has observed as under: "there is no period of limitation prescribed by any law for filing a writ petition under Article 226 of the Constitution of India. It is infact doubtful whether any such period of limitation can be prescribed by law. In any event once this is clear and beyond doubt that no such period of limitation can be laid down either by rules made by the High Court or by practice. It is infact doubtful whether any such period of limitation can be prescribed by law. In any event once this is clear and beyond doubt that no such period of limitation can be laid down either by rules made by the High Court or by practice. In every case it would have to be decided on the facts andi circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period of limitation. There may be cases where even short delay may be evidenced of laches on the part of the petitioner. " 8. In view of the above discussed legal position I reach the unescapable con clusion that even if the provisions of Limitation Act, 1963 are not applicable in the proceedings in writ petition, the un reasonable delay on the part of the petitioner does pot warrant this Court to exercise the extraordinary discretionary jurisdiction under the provisions of Ar ticle 226of the Constitution of India. 9. Sri Gopal Krishna, learned Coun sel for the petitioner further submits that this Court while deciding the Special Appeal No. 181 of 1992 vide its judgment and order dated 12th July, 1995 has held that in case like this services of the petitioner cannot be terminated without holding the enquiry and in view of the judgment the petition is to be entertained by writ Court and the same order is to be passed, which was passed in the said Special appeal. 10. I am of the considered opinion that the contentions raised by the learned Counsel for the petitioner are preposterous and have no merits, the Court must pass the similar order and must maintain consistency when the facts of the case are identical. The Supreme Court has held in various judgments par ticularly in MA. Vinod leading Co. v. Union of India and others, 1982 (2) S. C. C. 40; Bir Bajrang Kumar v. State of Bihar and others, A. I. R. 1987 S. C. 1345 and in Vishnu Traders v. State ofharyana and others, 1995 Suppl. The Supreme Court has held in various judgments par ticularly in MA. Vinod leading Co. v. Union of India and others, 1982 (2) S. C. C. 40; Bir Bajrang Kumar v. State of Bihar and others, A. I. R. 1987 S. C. 1345 and in Vishnu Traders v. State ofharyana and others, 1995 Suppl. (2) S. C. C. 461, that there must be consistency of approach and uniformity in the exercise of judicial discretion par ticularly in cases where identical facts are involved and the same legal question is raised by the parties but the issue at stale-ness was not involved in the said Special appeal and the judgment has been delivered in the said Special appeal on the facts and circumstances of that case even if the facts of this case are identical. The writ petition cannot be entertained at such a belated stage as per the discussion above. 11. My view stand fortified by the judgment of the Honble Supreme Court in the case of H. H. Maharaja Dhiraj Madhav Rao Sivaji Rao Scindia Bahadur and others v. Union of India, AIR 1971sc 530, the Supreme Court observed as under: "it is difficult to regard a word, a clause or a sentence occurring in a judgment of this Court divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment. " 12. Similarly, in Mis. Amar Nath Om Prakash and others v. State of Punjab and others, A. I. R. 1985 SC 213, the Supreme Court has observed that it is needless the repeat the often quoted truism of Lord Halsbury that a case is only an authority for what it actually decides and not for what may seem to follow logically from it. 13. In Sarva Sharmik Sangh Bombay v. Indian Hume Pipe Company Ltd. and another, 1993 (2) S. C. C. 386, the Apex Court has observed that the observations made in a judgment must be understood in the facts and circumstances of that case. It cannot be treated as having any binding force if a question raised now in a case where the earlier judgment is sought to be relied upon, has neither been in issue nor considered in that judgment. 14. It cannot be treated as having any binding force if a question raised now in a case where the earlier judgment is sought to be relied upon, has neither been in issue nor considered in that judgment. 14. Similarly, in C. I. T. v. Sun En gineering Works (P) Ltd. , 1988 (4) SCC 363, the Apex Court had made the following observations: "it is neither desirable nor permissible to pick out a work of a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete law declared by this Court. The judgment must be read as a whole and the observations from the judgments have to be considered in the light of the question which were before this Court. A decision of this Court takes its colour from the question involved in the case in which it surrendered and while apply ing the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decfsion of this Court and not to pick out words or sentences from the judg ments, divorced from the context of the ques tions under consideration by this Court, to sup port their reasonings. " As the issue of delay and laches was not involved in the said Special appeal, the judgment delivered in the said appeal can not be treated to be binding in this case, hence the writ petition is accordingly dis missed. Petition dismissed. .