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2011 DIGILAW 545 (GUJ)

P. B. Sikenis v. Union Of India

2011-07-18

G.B.SHAH, V.M.SAHAI

body2011
JUDGMENT HONOURABLE MR. JUSTICE V.M. SAHAI, J. 1. WE have heard learned counsel Mr. C.P. Jadav for the petitioner and Mr. Kalpesh N. Shastri for the respondents. 2. THE petitioner was working as Station Master till 30.6.1997, the date on which he retired from service. Earlier, he was found suitable and was placed in the provisional select list for promotion to the post of Station Superintendent and the name of the petitioner was at serial No.52. He also officiated as Station Superintendent, but was not promoted on regular basis. According to the petitioner, some other employees filed Original Application No.1017 of 1995, wherein the Tribunal passed an order dated 27.7.2001 and in pursuance thereof, the select list of Station Master was revised. The petitioner claimed that after the decision of Original Application No.1017 of 1995, he is entitled for promotion in view of the decision of the Honourable Apex Court in the case of Ajit Singh-II. The Tribunal has rejected the claim of the petitioner by judgment dated 8.12.2003 on the ground that there is no vacancy and also on the ground of limitation. After the retirement of the petitioner, his juniors were given promotion on the post of Station Superintendent. The petitioner filed Review Application No.23 of 2004 in Original Application No.207 of 2002 with M.A. No.188 of 2004, which was also rejected on 16.3.2004. 3. IT is not disputed that the petitioner retired in the year 1997. The petitioner started claiming the post of Station Superintendent on the basis of the judgment given in Original Application No.1017 of 1995, which was decided on 27.7.2001. While in service, the petitioner did not challenge his non-promotion to the post of Station Superintendent. Even after his retirement, he kept quite for a period of four years. 4. THE Honourable Apex Court in the case of State of Orissa and Another Vs. Mamata Mohanty (2011) 3 SCC 436 , in para 52 to 54, has held as under:- "52. In the very first appeal, the respondent filed writ petition on 11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f. 1.1.1986 without furnishing any explanation for such inordinate delay and on laches on her part. Mamata Mohanty (2011) 3 SCC 436 , in para 52 to 54, has held as under:- "52. In the very first appeal, the respondent filed writ petition on 11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f. 1.1.1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act,1963, makes it obligatory on the part of the court to dismiss the suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at the appellate stage because in some of the cases it may go to the root of the matter. (See Lachhmi Sewak Sahu v. Ram Rup Sahu and Kamlesh Babu v. Lajpat Rai Sharma) 53. Needless to say that the Limitation Act, 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986. 54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time. (See Rup Diamonds v. Union of India, State of Karnataka v. S.M. Kotrayya and Jagdish Lal v. State of Haryana.)." In view of the decision, since the petitioner approached the Honourable Tribunal after huge delay, he was not entitled for the relief. The other arguments of the learned counsel for the petitioner that since the other persons were granted relief in Original Application No.1017 of 1995, which was decided in the year 2001, the petitioner is also entitled to the relief. 5. IT is well settled that persons who were sleeping over their rights could not claim appointment after some body succeeds in the court of law. IT has been held by the Honourable Apex Court in the judgment in the case of Bharat Sanchar Nigam Limited Vs. Ghanshyam Dass and Ors.,2011(2) SCALE 479, in para 13, as under:- "13. The principle laid down in K.I. Shephard (supra) that it is not necessary for every person to approach the court for relief and it is the duty of the authority to extend the benefit of a concluded decision in all similar cases without driving every affected person to court to seek relief would apply only in the following circumstances: a) where the order is made in a petition filed in a representative capacity on behalf of all similarly situated employees; b) where the relief granted by the court is a declaratory relief which is intended to apply to all employees in a particular category, irrespective of whether they are parties to the litigation or not; c) where an order of rule of general application to employees is quashed without any condition or reservation that the relief is restricted to the petitioners before the court; and d) where the court expressly directs that the relief granted should be extended to those who have not approached the court." 6. WE do not find any merits in the petition. The petition fails and is accordingly dismissed. Rule is discharged. Interim relief, if any, stands vacated.