Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 638 (GAU)

Anil Chandra Sen v. State of Tripura

2012-05-30

ADARSH KUMAR GOEL, SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. This intra-court appeal is directed against the judgment and order dated 16.12.2006 passed in W.P. (C) No. 450 of 2001, whereby the writ petition filed by the writ petitioners-appellants, the writ petitioners in short was dismissed. By seeking a writ of mandamus to issue on the respondents for providing them the benefit of two advance increments as per the Recruitment Rules for the posts of Constable in the Armed Branch of the Tripura police as published by Notification No.F.1(73)-PD/79(A), dated 14.12.1979 (Annexure-3 to the writ petition), the writ petitioners approached this Court under Article 226 of the Constitution. 2. The fact relevant for consideration of this appeal may briefly be noted. The writ petitioner No.1 joined as constable in the Armed Branch of the Tripura Police on 07.02.1977, whereas the writ petitioner No.2 joined in the said post on 15.04.1976. At the time of entry into service the qualification of the writ petitioner No.1 was Bachelor of Arts and the writ petitioner No.2 was Higher Secondary passed. By the said Notification dated 14.12.1979, the Recruitment Rules for the post of Constables were published providing some benefits to those who were having higher qualifications. 3. The relevant part of the Recruitment Rules is reproduced hereunder for appreciation:- 4. Scale of pay Rs.205-5-260-6-290/- (EB after 8th stages) or as prescribed from time to time with 2 advance increments to those who have passed intermediate or higher examinations at the time of entry in the service. 4. There is no dispute that the said Recruitment Rules have come into effect from 14.12.1979. Before approaching this Court, the writ petitioners submitted a series of representations but without any positive yield. 5. In the counter affidavit, the State-respondents projected that since the writ petitioners were appointed prior to 14.12.1979, they would not get the benefit of 2 advance increments as provided in the Recruitment Rules published vide Notification dated 14.12.1979, inasmuch as the said Recruitment Rules was not given retrospective effect. Moreover, the State-respondents contended that the writ petition should not be entertained for inordinate and unexplained delay in approaching this Court. Moreover, the State-respondents contended that the writ petition should not be entertained for inordinate and unexplained delay in approaching this Court. In response to what the writ petitioners contended in the para-6 that one Mihir Kumar Datta, a Constable bearing No.C/2590, was given the benefit of 2 advance increments even though he was appointed prior to the said Recruitment Rules, the State-respondents asserted categorically that on subsequent scrutiny the decision of the Inspector General of Police that 'if said Mihir Kumar Datta is H.S. passed, he might be given 2 advance increments with effect from the date from which the 'Government Order' came into effect' was found erroneous, but for sudden demise of said Mihir Kumar Datta no recovery could be asked. The question that falls for consideration is that whether the said Recruitment Rules as published vide Notification dated 14.12.1979 have created any right for the Constables, who were appointed before 14.12.1979. 6. The learned Single Judge by the impugned judgment and order held that unless the said notification is considered to have retrospective effect, the benefit as extended by the Recruitment Rules cannot be made available to the writ petitioners and, accordingly, it was held that the writ petitioners were not entitled to have any benefit out of the said Recruitment Rules as it was given effect from 14.12.1979. Moreover, the writ petition claiming the said benefit was filed after long 22 years without any explanation and, as such it cannot be entertained as the writ petitioners are guilty of laches in approaching the Court within a reasonable time. 7. Mr. S. Deb, learned senior counsel appearing for the passed in absence of the learned counsel of the writ petitioners on a day usually that was not declared to be a working day. He lambasted such procedure of disposing the writ petition in absence of the writ petitioners or their engaged counsel. Apart that, he submitted with vehemence that the relevant provision (Rule 4 of the Recruitment Rules) as published vide Notification dated 14.12.1979 provides that the persons who have passed intermediate or higher examinations at the time of entry in the service would be entitled to 2 advance increments. To buttress his contention, Mr. Apart that, he submitted with vehemence that the relevant provision (Rule 4 of the Recruitment Rules) as published vide Notification dated 14.12.1979 provides that the persons who have passed intermediate or higher examinations at the time of entry in the service would be entitled to 2 advance increments. To buttress his contention, Mr. Deb, learned senior counsel, referred to Annexure-4 to the writ petition whereunder one Mihir Kumar Datta, who was appointed prior to 14.12.1979 was given the benefit of 2 advance increments with effect from the date from which the 'Government Order' came into effect. 8. On the other hand, Ms. A.S. Lodh, learned Addl. Government Advocate appearing for the State-respondents submitted that the purpose of importing the said provision in the Recruitment Rules was to attract the persons having higher qualification for the post of the Constables at the material time. Since the writ petitioners had joined their services prior to the Notification dated 14.12.1979, the said benefit would not be available to them inasmuch as the purpose of Recruitment Rules is to regulate the recruitment of a particular post with the prescribed scale of pay and other financial benefits. As such the provision of Rule 4 of the Recruitment Rules would only be applicable to those who would be appointed or recruited under the said Recruitment Rules. Since it is not in dispute that both the writ petitioners were appointed prior to 14.12.1979, they would not be entitled to the said benefits. Apart, Ms. Lodh, learned Addl. Govt. Advocate contended with noticeable emphasis that the erroneous order cannot create a precedent for purpose of garnering any benefit. The concept of Article 14 of the Constitution is a positive concept. Such precedent cannot be pressed for holding any plank out of the equality clause. 9. Ms. Lodh, learned Additional Government Advocate relied on the decision as rendered by the Apex Court in H.P. Gupta & another vs. Union of India & other, (2002)10 SCC 658 , wherein it has been held:- That the object of giving two advance increments to those officials who did not possess degree in Engineering before joining the service, is only to encourage them to get such a degree so that they could improve themselves while in service. When that object is satisfied, we do not think the contentions advanced on behalf of the appellants that there would be equality in the matter of payment of salary or other emoluments or even there should be parity in the matter of giving increments, cannot be accepted. It is true that in such a situation, as pointed out by the learned senior counsel for the appellants, certain anomalies may arise in specific cases when the official who has acquired degree in Engineering subsequent to joining of service may get higher salary though junior to the appellants. There cannot be perfect equality in any matter on an absolute scientific basis and there may be certain inequities here and there. If the classification is correct and serves a particular purpose, the same is not to be judicially interfered with. If the argument advanced on behalf of the appellant is accepted then the scheme itself will become ineffective though it may result in giving uniform treatment to all. Thus the incentive scheme will stand scraped and such an event should be avoided. 10. On consideration of the rival contentions, we find that the provision of Rule 4 in the said Recruitment Rules was designed for a particular purpose for attracting the persons having higher qualification and this is not the part of the pay scale or other financial benefits as prescribed against a particular post. This special 'incentive' is designed for a specific purpose and, as such, the interpretation as given by the Inspector General of Police for extending the benefit to one Mihir Kumar Datta cannot be sustained. There is no infirmity in the findings of the learned Single Judge in this regard. We are generally in agreement with the findings of the learned Single Judge that the writ petition contained a belated claim inasmuch as the cause for approaching the Court arose on 14.12.1979 when by that special provision some incentive was extended to a special category of person having higher qualification for recruitment in the posts of Constable in the Armed Branch of Tripura police. 11. In the entire writ petition there is no explanation of such delay of long 22 years. It is apparent that the writ petitioners are guilty of laches and the law is well settled in this regard. 11. In the entire writ petition there is no explanation of such delay of long 22 years. It is apparent that the writ petitioners are guilty of laches and the law is well settled in this regard. Profitably the decision as rendered by the Apex Court in Sankara Cooperative Housing Society Ltd. vs. M. Pravhakar & other, (2011)5 SCC 607 be extracted hereunder:- 46. Delay and laches is one of the factors that requires to be borne in mind by the High Courts when they exercise their discretionary power under Article 226 of the Constitution of India. In an appropriate case, the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his rights taken in conjunction with the lapse of time and other circumstances. 47. The Privy Council in Lindsay Petroleum Co. vs. Hurd (1874) LR 5 PC 221, which was approved by this Court in Moon Mills Ltd. vs. Industrial Courts, AIR 1967 SC 1450 and Maharashtra State Road Transport Corporation vs. Balwant Regular Motor Service, AIR 1969 SC 329 , has stated: Lindsay Petroleum Co. case, (1874) LR 5 PC 221, LR pp. 239-40 Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy. 48. In Amrit Lal Berry v. CCE (1975)4 SCC 714 , this Court took the view that: (SCC p. 726. Para 16) 16. If a petitioner has been so remiss or negligent as to approach the Court for relief after an inordinate and unexplained delay, he certainly jeopardises his claims as it may become inequitable, with circumstances altered by lapse of time and other facts, to enforce, a fundamental right to the detriment of similar claims of innocent third persons. 49. In State of Maharashtra vs. Digambar (1995)4 SCC 683 , this Court observed that: (SCC p. 683d) Unless the facts and circumstances of the case at hand clearly justify the laches or undue delay, writ Petitioners are not entitled to any relief against anybody including the State. 50. In Shiv Dass vs. Union of India (2007)9 SCC 274 , this Court opined that: (SCC p. 277, para 8) 8. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. 51. In City and Industrial Development Corporation vs. Dosu Aardeshir Bhinandiwala (2009)1 SCC 168 , this Court held: (SCC p. 174, para 26) 26. It is well settled and needs no restatement at our hands that under Article 226 of the Constitution, the jurisdiction of a High Court to issue appropriate writs particularly a writ of Mandamus is highly discretionary. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. The relief cannot be claimed as of right. One of the grounds for refusing relief is that the person approaching the High Court is guilty of unexplained delay and the laches. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum. 52. Shri Ranjit Kumar, learned senior counsel for contesting Respondents, invites our attention to the observations made by this Court in State of M.P. vs. Nandlal Jaiswal (1986)4 SCC 566 , wherein this Court has stated: (SCC p. 595, para 24) 24. This rule of laches or delay is not a rigid rule which can be cast in a straitjacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the Petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and for between. Ultimately it would be a matter within the discretion of the Court ex-hypotheses every discretion must be exercised fairly and justly so as to promote justice and not to defeat it. 53. Reliance is also placed on the observations made by this Court in Dehri Rohtas Light Railway Co. Ltd. vs. District Board, Bhojpur (1992)2 SCC 598 , wherein it is observed: (SCC pp. 602-03, para 13) 13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the Petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. 54. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are:- (1) There is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the Petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the Petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the Petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay. 12. It is immaterial what the Petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay. 12. As we find that no right has been created by the Recruitment Rules as published vide Notification dated 14.12.1979 for the Constables alike the writ petitioners, the writ petition is liable to be dismissed on that ground alone. Apart that, the grievance, as envisaged by the writ petitioners, cannot also be entertained as the writ petitioners are so remiss or negligent to approach this Court for the relief after an inordinate and unexplained delay. In view of this, we affirm the impugned judgment and order of the learned Single Judge as this appeal is devoid of merit and, accordingly, the same is dismissed. However, there shall be no order as to costs. Appeal dismissed.