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2010 DIGILAW 436 (ALL)

Ram Gopal Shukla v. State of U. P. and Ors.

2010-02-02

RAJIV SHARMA

body2010
Heard learned Counsel for the petitioner and learned Standing Counsel. 2. By means of the instant writ petition, the petitioner has assailed the order dated 30.3.2007 so far as it relates to the petitioner, whereby the representation of the petitioner for regularization of his services on the post of Van Rakshak (Guard) has been rejected on the ground that he is unfit for the post of Van Rakshak. 3. Learned Counsel for the petitioner sub­mits that the petitioner was engaged as Ardali in the year 1983 on daily wage basis and pres­ently, he is discharging his duties as Van Rakshak and is being paid minimum wages. He submits that as the services of the peti­tioner and other similarly situated persons, namely, Om Prakash, Umashanker, Mathura Prasad, Azaz Ahmad, Ram Pher Tiwari, Govind Bahadur Singh, Sohbat Lal Yadav, Arvind Tiwari, Suresh Chandra Tiwari and Angad Prasad were not regularized in spite of several representation, they filed a writ pe­tition, which was numbered as writ petition No. 6937 of 2001 (SS) and this Court, vide order dated 15.12.2006, while disposing of the writ petition, had permitted the petitioner to submit a representation to the competent authority to ventilate their grievances and the competent authority was directed to decide the same in accordance with law keeping in view the Regularization Rules by passing a speaking and reasoned order. 4. Learned Counsel for the petitioner sub­mits that in compliance of the order dated 15-12-2006, the petitioner along with similarly situated persons, namely, Om Prakash, Umashanker, Mathura Prasad, Azaz Ahmad, Ram Pher Tiwari, Govind Bahadur Singh, Sohbat Lal Yadav, Arvind Tiwari, Suresh Chandra Tiwari and Angad Prasad, who have been arrayed as petitioners No. 2, 1,3, 4. 5, 6, 7, 8, 9, 10, 11 in writ petition No. 6937 of 2001 (SS). gave a representation to the op­posite party No.3-Divisional Forest Officer. Gonda Division, Gonda but as the same was not decided by the Divisional Forest Officer, Gonda within the time provided in the order dated 15.12.2006 and as such, they preferred a contempt petition before this Court, which was numbered as Criminal Misc. Case No. 1607 (C) of 2007, in which, notice was is­sued and the opposite parties have filed a counter affidavit in the month of October, 2007 annexing the impugned order dated 30.3.2007, whereby the opposite party No.3-Divisional Forest Officer, Gonda Division, Gonda, rejected the claim of the petitioner for regularization. Case No. 1607 (C) of 2007, in which, notice was is­sued and the opposite parties have filed a counter affidavit in the month of October, 2007 annexing the impugned order dated 30.3.2007, whereby the opposite party No.3-Divisional Forest Officer, Gonda Division, Gonda, rejected the claim of the petitioner for regularization. Feeling aggrieved, the pe­titioner filed the instant writ petition. 5. Learned Counsel for the petitioner sub­mits that in the Forest Department of Gonda Division, Gonda, there are 60 regular post, out of which 53 persons were engaged but still 7 posts are lying vacant. He submits that as per the provisions of Rules 5 and 8 of the Forest Rules, 1980, 65% vacancies are to be filled from amongst seasonal worker, who should have passed High School Examina­tion and in case of seasonal workers weightage shall be given to the total length of service put in as Seasonal Worker and their record of service but the petitioner, who had passed Intermediate Examination from U.P. Board and was engaged as a Seasonal Worker on the post of Ardali way back in 1983 and his total length of service is 26 years, his ser­vice record has always been unblemished and has also been appreciated by the superior of­ficer, has not been regularized and instead seven persons junior to the petitioner have been regularized on the post of Van Rakashak in the department. The action of the opposite parties in not regularizing the services is not only discriminatory but is also against the documentary evidence. 6. In support of his submission, he has re­lied upon the judgment of this Court rendered in the case of Krishna Murari Mishra and oth­ers v. State of U.P. and others decided on 5.1.2010 in writ petition No. 7813 of 2008 (SS). 7. 6. In support of his submission, he has re­lied upon the judgment of this Court rendered in the case of Krishna Murari Mishra and oth­ers v. State of U.P. and others decided on 5.1.2010 in writ petition No. 7813 of 2008 (SS). 7. On the other hand, learned Standing Counsel submits that the opposite party No.3, vide impugned order dated 30.3.2007, after considering the representation of the peti­tioner and similarly situated persons in ac­cordance with Uttar Pradesh Regularization of Daily Wages Appointments on Group 'D: Posts Rules, 2001 [hereinafter referred to as 'Rules 2001' for the sake of brevity], found that the claim for regularization of Om Prakash Shukla-petitioner No.1, Azaz Ahmad-petitioner No.5, Ram Pher Tiwari-petitioner No. 6, Govind Bahadur Singh-pe­titioner No.7 of writ petition No. 6937 of 2001 (SS) was fit and as such, their services was regularized and so far as Ram Gopal Shukla-petitioner No.2 [herein the sole petitioner], Uma Shanker-petitioner No.3, Mathura Prasad-petitioner No.4,- Sohbat Lal Yadav-petitioner No. 8 and Arvind Tiwari-petitioner No.9 of writ petition No. 6937 of 2001 (SS) are concerned, their claim for regularization for the post of Van Rakshak was not found fit and as such, their claim for regularization was rejected. However, pursuant to the law laid down by Hon'ble Apex Couit in the case of Uttar Pradesh and others v. Putti Lal decided on 21.2.2002 (reported in 2002 (2) UPLBEC 1595 (SQ) they have been paid minimum pay-scale but as Angad Prasad Shukla-peti­tioner No. 11 of writ petition No. 6937 of 2001 (SS) failed to prove his engagement prior to the cut of date i.e. 29.6.1991, neither he was paid minimum pay-scale nor he was regularized. It was also mentioned in the or­der dated 30-1-2007 that presently, in the department, the post of Class IV employee belonging to either General or OBC is vacant and as such, the services of Ram Gopal Shukla-petitioner No.2 [herein the sole petitioner], Uma Shanker-petitioner No.3, Mathura Prasad-petitioner No.4, Sohbat Lal Yadav-pe-titioner No. 8 and Arvind Tiwari-petitioner No.9 of writ petition No. 6937 of 2001 (SS) are not regularized. Thus, the petitioner has rightly not been considered for regularization but as his case falls within the zone of consid­eration for minimum pay-scale and as such, he was paid the minimum pay-scale in pursu­ant to judgment of Putti Lal (supra). 8. Thus, the petitioner has rightly not been considered for regularization but as his case falls within the zone of consid­eration for minimum pay-scale and as such, he was paid the minimum pay-scale in pursu­ant to judgment of Putti Lal (supra). 8. Learned Standing Counsel has also sub­mitted that the petitioner has came to know about the impugned order dated 30.3.2007 in the month of October, 2007 but he filed the instant writ petition after two years and 7 months and he has not explained (he laches in filing the instant writ petition and as such, on this ground alone, the writ petition de­serves to be dismissed. 9. I have heard learned Counsel for the parties and perused the records. 10. It is now well settled principle of law that "delay defeats equity" has its fullest ap­plication in the matter of grant of relief un­der Article 226 of the Constitution. It is cor­rect that no period of limitation is provided to invoke writ jurisdiction under Article 226 of the Constitution but the same does not mean that the machinery of writ jurisdiction can be set in motion at any time at the whims and fancies of a party. It is also settled that there may be cases where even the delay of shorter period would be considered sufficient to decline relief under Article 226 of the Con­stitution while in certain cases the court may be persuaded to condone the long delay if sufficient reasons are disclosed by such party. 11. In various legal pronouncements the Supreme Court has taken the limitation pe­riod which is prescribed for filing a civil suit as a guiding factor even for filing the writ petitions. A reference in this regard may be made to the judgment of the Supreme Court in Municipal Council, Ahmednagar and Anr. v. Shah Hyder Beig & Ors. (2000) 2 SCC 48 : ( AIR 2000 SC 671 ). The same is as under: "The High Court has thus misplaced the factual details and misread the same. It is now a well-settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the nor­mal course of events, the period the party is required for filing a civil proceeding ought to be the guiding factor. It is now a well-settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the nor­mal course of events, the period the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in gen­eral but it is not out of place to mention that this extraordinary jurisdiction has been con­ferred on to the Jaw Courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, "delay defeats equity" has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-by to his rights. Equity favours a vigilant rather than an indolent litigation and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise." 12. The Hon'ble Delhi High Court in the case of Smt. Krishna Chaubey v. Government of NGT of Delhi, III AD (Delhi) 576: (AIR 2004 Delhi 379), has held that if no satisfac­tory explanation given by the party for delay in approaching the Court, the remedy of in­voking writ jurisdiction would not be avail­able on the ground of delay and laches. Para 23 of the said judgment is reproduced below: "A conspectus of the aforesaid judgments would show that ordinarily the period of limi­tation prescribed for filing a civil suit would be a guiding factor. This period was over long time ago in case the appellant would have preferred a civil suit. Even assuming that the petition ought to be entertained after that pe­riod of time, there has to be satisfactory ex­planation for the period of delay. Leave aside any satisfactory explanation, there is no ex­planation whatsoever other than saying that the appellant was approaching the Depart­ment from time to time and orally represent­ing the matter. This is hardly a satisfactory explanation." 13. Leave aside any satisfactory explanation, there is no ex­planation whatsoever other than saying that the appellant was approaching the Depart­ment from time to time and orally represent­ing the matter. This is hardly a satisfactory explanation." 13. While exercising discretionary power under Article 226 of the Constitution, the Court has ample power to refuse the grant of writ of certiorari when it is found that there was delay due to negligence or omission by the petitioner to assert his right at a time where there was acquiescence in order on his part. By a catena of decisions, it has been settled that delay defeats equity and court helps only those who are vigilant and do not slumber over their rights. The writ petition suffers from inordinate, unexplained delay. There­fore, there is no averments as to why the pe­titioner remained idle for more than two and a half year. - 14. At the cost of repetition, it may be mentioned that admittedly, the petitioner had come to know about the impugned order dated 30.3.2007 in the month of October, 2007 itself but has filed the instant writ peti­tion beyond two years and seven months. Learned Counsel for the petitioner did not satisfy the Court as to why he has filed the instant writ petition beyond two years and seven months. From the bare perusal of the memo of writ petition, it is evident that the petitioner has failed to advance any reasons or any explanation much less any sufficient explanation for such a long delay in challeng­ing the impugned order. 15. The writ petition is dismissed on the ground of inordinate delay and laches. Petition dismissed.