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2005 DIGILAW 280 (MP)

Chandramani Prasad Dubey v. State of M. P.

2005-02-23

A.K.SHRIVASTAVA

body2005
Judgment ( 1. ) "vigilantibus noa doermientibus jura subveniunt". I have quoted this maxim because the present case has been filed after more than two decades. ( 2. ) ON 15-6-1973 the petitioner who was serving on the post of Field Assistant in Veterinary Department was transferred from Panwar, Rewa to Circle Chhatarpur, but he failed to join at transferred place. Thereafter it is being said that on account of stay order passed by Deputy Director, Veterinary Services, the order could not be implemented and thereafter on 3-6-1975 an order was issued by Director, Veterinary Services directing the petitioner to submit his joining report at Chhatarpur in pursuance to transfer order dated 15-6-73. ( 3. ) ACCORDING to the petitioner on 5th July, 1975 he submitted an application (Annexure A-6) for obtaining leave since, according to him, he was ill. According to him he gave his joining report on 1st September, 1975 at Chhatarpur, but he was not allowed to join. As per contention of the petitioner his services were terminated vide letter dated 25-8-75 issued by Director, Veterinary Services. As per the averments made in the petition, Assistant Surgeon, Veterinary Services, Rewa vide its letter dated 30-8-75 intimated the petitioner that in pursuance to the order dated 25-8-75 of Director, Veterinary Services, his services have been terminated since he had not honoured the transfer order though he was relieved on 30-6-75 and he failed to join the transferred place. ( 4. ) IT has also been canvassed on behalf of the petitioner that on 1-9-75 he again submitted his joining report in the office of Assistant Director Veterinary Services at Rewa in which he prayed that the original order of his termination dated 25-8-75 be showed to him so that he may proceed further. Thereafter, according to petitioner, he made several representations to the Government either to allow him to join or to provide the termination order, but, nothing was done and thereafter on 28-11-86 vide Annexure A-17 he was informed by Deputy Director, Veterinary Services, Chhatarpur that in pursuance to the transfer order dated 30-6-75, petitioner submitted his joining report at Chhatarpur, therefore, there is no logic in submitting joining report after such a long period which is also contrary to the rules, hence the joining of the petitioner was not allowed and the same was referred to Director at Bhopal for proper consideration. According to petitioner, he was submitting representations to the higher authorities for the redressal of his grievance. According to petitioner on 12-12-1996 vide Annexure A-33 the Chief Minister directed to allow joining of the petitioner and directed to issue necessary order in that regard. But, nothing has been done so far and, therefore, it has been prayed that he be allowed to join his duties as Veterinary Field Assistant in accordance with the order of the Chief Minister dated 12-12-96. By amendment it is also prayed that during the pendency of the petition, the petitioner attained the age of superannuation on 15-7-97 since his date of birth is 15-7-39 and, therefore, he was required to retire on 31-7-97 afternoon. Thus, in this manner, petitioner has prayed that arrears of salary w. e. f. 1-7-75 to 31-7-97, after proper fixation in proper pay scale applicable to him from time to time, be paid alongwith interest at the rate of 24% per annum on the entire amount of salary. It is further prayed that he be benefited with all retiral dues, pension, gratuity etc. ( 5. ) IT be seen that the petition was filed before the M. P. State Administrative Tribunal at Jabalpur on 2-6-97 and after abolition of the Tribunal this petition has been received in this Court for its adjudication. ( 6. ) IN the return, it has been submitted by the respondents that the petitioner while he was in service, was transferred to Chhatarpur vide Annexure A-3. But, he utterly failed to join the transferred place and he voluntarily relinquished his services w. e. f. 30-6-75, because he contested the Assembly Election in the year 1977. Documents in that regard are filed as Annexures R-I and R-II. The petitioner contested the assembly election from Sirmour constituency as an independent candidate and he lost the election. According to respondents after the lapse of 20 years petitioner is not entitled for any relief and the petition, which was originally filed before the Tribunal, was barred by time and be dismissed. It has also been set forth in the return that according to petitioners own showing, cause of action accrued to him in the year 1975 and, therefore, since he did not join his services at the transferred place, he voluntarily left his services and thereafter contested the election of assembly in the year 1977. It has also been set forth in the return that according to petitioners own showing, cause of action accrued to him in the year 1975 and, therefore, since he did not join his services at the transferred place, he voluntarily left his services and thereafter contested the election of assembly in the year 1977. Inter alia it has also been pleaded in the return that only on 28-11-86 vide Annexure A-17 the petitioner submitted his joining report at Chhatarpur, but when his joining report was not accepted he kept silent and did not agitate the matter in the Court of law. So far as the averments made in the petition in regard to the termination of services, vide order dated 25-8-75 as well as issuance of letter dated 30-8-75 by Assistant Surgeon, Veterinary Hospital, Rewa are concerned, according to respondents, they are in fact cooked documents and not genuine. Similarly Order No. 24415, dated 3-6-75 also never existed. In this regard Annexure R-4 is filed. Document Annexure R-5 has also been filed which is a letter written by Veterinary Extension Officer and has been addressed to Joint Director, stating that on 30-8-75, no letter bearing No. 2573-6/dated 30-8-75 was dispatched. On that date only three letters were dispatched, numbers of which are given in the said annexure. It has been categorically mentioned that except those 3 letters no other letter was dispatched. In very specific words it is stated that no letter was issued on that date, i. e. , 30-8-75 to the petitioner. The photocopy of the dispatch register of that date is also filed. ( 7. ) THE petitioner also filed a rejoinder and contended therein that stand of respondents that document Annexure A-9 is a forged document is baseless since it has been relied on by the respondents throughout and on the basis of the said document petitioner was not allowed to join the services. According to petitioner the correspondence which took place between the officers, also demonstrate that the order dated 25-8-75 was issued. As per petitioner a detailed enquiry was initiated and ultimately it was said that services of the petitioner were terminated vide order dated 25-8-75. Copy of the enquiry report has been placed on record as Annexures A-34, A-35 and A-36. As per petitioner in the enquiry report it has been held that termination order was issued. ( 8. As per petitioner a detailed enquiry was initiated and ultimately it was said that services of the petitioner were terminated vide order dated 25-8-75. Copy of the enquiry report has been placed on record as Annexures A-34, A-35 and A-36. As per petitioner in the enquiry report it has been held that termination order was issued. ( 8. ) IT be seen that petitioner did not refute the allegation made by the respondents in the return that he did contest assembly election as an independent candidate and lost the same. Indeed, learned Counsel for petitioner has accepted this contention of respondents. ( 9. ) RESPONDENTS thereafter filed additional return saying that petitioner remained absent after 30-6-75 and did not initiate any proceeding in the law Court and, therefore, it is deemed that he has abandoned his services. ( 10. ) IT has been vehemently contended by the learned Counsel for petitioner that for years together petitioner was submitting representations to the authorities to allow him to join his services, but the authorities did not pay any heed to those representations. It has also been putforth by him that vide Annexure A-33 dated 12-12-96 the Chief Minister directed to pass necessary order allowing the joining of petitioner and since Annexure A-33 has been issued on 12-12-96, therefore, the petition which was filed on 2-6-97 can not be said to be a belated petition. In support of his contention, learned Counsel for petitioner has placed reliance on the decision in the case of Bachhitar Singh v. State of Punjab and Anr. , , AIR1963 SC 395 , [1962 ]supp3 SCR713 and a decision of the Division Bench of Orissa High Court in Pravati Bastia v. Management of Choudwar College and Ors. , 1992 (7) Services Law Reporter 401. ( 11. ) AFTER having heard the learned Counsel for the parties, I am of the view that this petition deserves to be dismissed. ( 12. ) IT is no more in dispute that petitioner was transferred from Rewa to Chhatarpur. According to petitioner, he submitted his joining report, while according to respondents he did not submit any joining report. ( 11. ) AFTER having heard the learned Counsel for the parties, I am of the view that this petition deserves to be dismissed. ( 12. ) IT is no more in dispute that petitioner was transferred from Rewa to Chhatarpur. According to petitioner, he submitted his joining report, while according to respondents he did not submit any joining report. But, this fact is admitted to both the parties that vide Annexure A-17, dated 28-11-86 Deputy Director, Veterinary Services, Chhatarpur issued letter to petitioner that he submitted his joining report on 21-11-86 in pursuance to his relieving letter dated 30-6-75 and, therefore, after such a long period it is not logical to accept the joining and which is also contrary to the rules and, therefore, by not accepting joining report of petitioner, his matter was referred to Bhopal. It be seen that even thereafter the petitioner kept silent and did not file any legal proceeding. ( 13. ) THE stand of petitioner is that his services were terminated vide order dated 25-8-75 issued by Director, Veterinary Services, Bhopal and the reference of which has been mentioned in Annexure A-9, dated 30-8-75 which, according to petitioner, is an order issued by Assistant Veterinary Surgeon, intimating him that his services have been terminated. Thus in all fairness, the petitioner ought to have filed appropriate proceedings for quashment of his termination order in proper time. The petitioner did not take any action in law Court by challenging the alleged termination order dated 25-8-75 and only after 22 years the present petition was filed on 2-6-97. Merely because petitioner was submitting repeated representations, would not confer any right in him or would not clothe his inaction of not filing appropriate proceeding before law Court. There can not be any such law. Indeed, the attitude of petitioner shows that by his conduct he had abandoned his services. In the case of Shahoodul Haque v. The Registrar, Cooperative Societies, Bihar and Anr. , , AIR1974 SC 1896 , [1974 (29 )FLR205 ], 1974 Lablc1276 , (1975 )3 SCC108 , 1974 (6 )UJ492 (SC ) the Apex Court in Para 4 has held as under :- ". . . In the case of Shahoodul Haque v. The Registrar, Cooperative Societies, Bihar and Anr. , , AIR1974 SC 1896 , [1974 (29 )FLR205 ], 1974 Lablc1276 , (1975 )3 SCC108 , 1974 (6 )UJ492 (SC ) the Apex Court in Para 4 has held as under :- ". . . The undenied and undeniable fact that the appellant had actually abandoned his post of duty for an exceedingly long period, without sufficient grounds for his absence, is so glaring that giving him further opportunity to disprove what he practically admits could serve no useful purpose. It could not benefit him or make any difference to the order which could be and has been passed against him. " If the ratio decidendi of the case of Shahoodul Haque (supra) is tested on the anvil of present factual scenario, it can safely be said that by not taking any action, against the so- called termination order, by his own conduct, the petitioner has abandoned his services. ( 14. ) IN the return it has been pleaded by the respondents that petitioner contested assembly election held in the year 1977. It has been vehemently contended by Shri Dixit, learned Counsel for petitioner that merely because petitioner had contested election, would not amount to any misconduct and would not debar him to deprive from the services, especially when he has lost the election. In this context he has placed reliance on the case of Pravati Bastia (supra ). The said decision of the Division Bench of Orissa High Court has been recently distinguished by this Court in the case of Prem Narain Dubey v. State of M. P. , 2004 (4) M. P. H. T. 163 = 2005 (1) Vidhi Bhasvar 21, where in Para 10, it has been specifically held by this Court that the Division Bench of Orissa High Court was dealing with a different set of rules altogether. In the case of Prem Narain Dubey (supra) the Government servant filed nomination paper to contest election and ultimately he contested the election and during the election campaign he received suspension order. The Single Bench, while magnifying Rule 5 of M. P. Civil Service (Conduct) Rules, 1965, has held that departmental enquiry for misconduct initiated, can not be said to be illegal and the writ petition was dismissed. The Single Bench, while magnifying Rule 5 of M. P. Civil Service (Conduct) Rules, 1965, has held that departmental enquiry for misconduct initiated, can not be said to be illegal and the writ petition was dismissed. Be that as it may, in all fairness the petitioner ought to have stated all these facts in his petition. Indeed, all these facts are brought on record by the respondents in their return. ( 15. ) SO far as the contention of the learned Counsel for the petitioner that vide Annexure A-33 the Chief Minister directed the department to issue letter of joining to petitioner is concerned, suffice it to state that no where in Annexure A-33 it has been so mentioned that petitioner be reinstated. According to petitioners own stand, his services stood terminated in the year 1975. I have already held hereinabove that by his conduct the petitioner has abandoned his services as he declined to take any action against his termination order in the Court of law. It be seen that petitioner remained silent for a long period, which is more than two decades and thus, according to me, he is not entitled for any relief. ( 16. ) THE applicability of the legal maxim "vigilantibus noa dormientibus jura subveniunt" has been triggered and set in motion in the present case. It is well settled in law that the equity aids the vigilant and not dormant. The person who is sleeping over his right for a considerable long period would not get any protection in the law Court. It would be condign at this juncture to rely the legal maxim "vigilantibus noa dormientibus jura subveniunt". ( 17. ) ACCORDING to me, on account of delay and laches on the part of the petitioner he is not entitled for any relief, moreover as per petitioners own showing no order has been issued by Chief Minister directing to reinstate the petitioner. ( 17. ) ACCORDING to me, on account of delay and laches on the part of the petitioner he is not entitled for any relief, moreover as per petitioners own showing no order has been issued by Chief Minister directing to reinstate the petitioner. Therefore, I am not dealing with the submission raised by the learned Counsel for respondents that the order of Chief Minister directing to issue order, allowing to join services to the petitioner is ineffective in view of Articles 154 and 166 of the Constitution of India that all executive steps of the State shall be expressed to be taken in the name of the Governor and the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution and for the same reason I am not dealing the submission raised by Shri Dixit, learned Counsel for petitioner that by exercising powers of rules of business enshrined under Article 166 of the Constitution, the order Annexure A-33 was issued by the Chief Minister. ( 18. ) IN the result this petition is found to be devoid of any substance and the same is hereby dismissed. No costs.