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2020 DIGILAW 727 (HP)

Vijay Kumari v. State of Himachal Pradesh

2020-10-12

SANDEEP SHARMA

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JUDGMENT Sandeep Sharma, J. - Petitioner was recommended for appointment with the District Rural Development Agency, Bilaspur against the post of Steno-typist by Himachal Pradesh Public Service Commission in a selection process undertaken by it in the year 1986 for filling up regular posts of Steno-typists in various Departments of State of Himachal Pradesh, through direct recruitment. Pursuant to her selection as a Steno-typist, petitioner was assigned to District Rural Development Agency, Bilaspur. Though the petitioner has claimed that her aforesaid assignment to the District Rural Development Agency is not on the basis of any specific criteria, rather same was on the basis of pick and choose method adopted by the Public Service Commission, but since, no challenge, if any, to the aforesaid method adopted by Public Service Commission ever 'came to be laid, as such, it has lost its relevance, as far as present proceedings are concerned. Petitioner has averred in the petition that at the time of her aforesaid appointment, she genuinely believed that pursuant to her selection as a Stenotypist against regular post advertised by Himachal Pradesh Public Service Commission, she would be sent to State Department and she will have the benefits at par with others selected in the selection process. She has averred that the requisition, Annexure P-2 sent by the DRDA was not in her knowledge at the time of appointment but, as has been observed herein above, since the petitioner, pursuant to her aforesaid selection, accepted her appointment in the office of DRDA, Bilaspur and thereafter continued to work in the same organisation till the time of merger of DRDA borne staff in the Rural Development Department, it is not open for her to rake up the aforesaid issue at this belated stage. Staff of Rural Development Agency in the State was merged with the Rural Development Department, whereby services of the petitioner also came to be merged with the said Department vide communication dated 29.9.2012 (Annexure P-10). Staff of Rural Development Agency in the State was merged with the Rural Development Department, whereby services of the petitioner also came to be merged with the said Department vide communication dated 29.9.2012 (Annexure P-10). It clearly emerges from the record that vide Notification dated 28.9.2012 (Annexure P-11) DRDA borne staff was merged on permanent basis in the Rural Development Department and as per said Notification officials so merged are/were to be placed at the bottom of the respective grade/cadre and their seniority was to be determined on the basis of their merger whereas, pensionary benefits are/were to be regulated as per instructions of the State Government issued vide FD's letter No. Fin(Pen)A(3)-1/96 dated 15.5.2003 and as per provisions of HP Civil services Contributory Pension Rules, 2006. It stands specifically mentioned in the instructions dated 28.9.2012 (Annexure P-11) that after merger, only those officials, who were entitled to regular pay scale shall fall under the provisions of new pension scheme. besides above, options of the officials were also called accepting terms and conditions, from all the concerned employees and petitioner also consented for the same as is evident from Annexure R-1 annexed with the reply filed by respondents Nos. 1 to 3. 2. Now, the precise prayer as has been made in the instant petition by the petitioner is that her entire service with effect from 27.2.1987 may be taken into consideration for seniority and pension alongwith consequential benefits and she be held entitled to pension under old scheme after her superannuation. 3. Having heard learned counsel for the parties and perused the material available on record, this Court finds that though in the year 1986, petitioner participated in the selection process undertaken by the Himachal Pradesh Public Service Commission for filling up regular posts of Steno-typists in various Departments of the State through direct recruitment but, it is also a matter of fact that the petitioner, after having been selected, was assigned to District Rural Development Agency, Bilaspur. Petitioner happily accepted the job in the year 1987 as is evident from Annexure P-3 and thereafter, at no point of time, raked up the issue with regard to her wrong assignment to DRDA, where she continued to work uninterruptedly without break, till her merger in the Rural Development Department vide Notification dated 29.9.2012. Petitioner happily accepted the job in the year 1987 as is evident from Annexure P-3 and thereafter, at no point of time, raked up the issue with regard to her wrong assignment to DRDA, where she continued to work uninterruptedly without break, till her merger in the Rural Development Department vide Notification dated 29.9.2012. Perusal of aforesaid office order dated 29.9.2012 clearly reveal that DRDA borne staff was ordered to be merged on permanent basis in Rural Development Department as per terms and conditions contained in the aforesaid Notification, which specifically provides that the DRDA borne staff shall be placed at the bottom of their respective cadre/grade and their seniority shall be fixed on the basis of merger and pensionary benefits shall regulated as per Notification dated 15.5.2003 and as per provisions of Himachal Pradesh Civil Services Contributory Pension Scheme issued vide Notification dated 17.8.2006. 4. Careful perusal of Annexure R-1 (supra) placed on record, clearly reveals that the petitioner specifically opted for taking over of her services in Rural Development Department on the terms and conditions contained in the Notification dated 29.9.2012 and as such, now it is not open for her to claim that the services rendered by her with effect from 27.2.1987 may be counted towards seniority and pension. It is not in dispute that earlier services rendered by the petitioner with DRDA were governed by Bye-laws of DRDA, which is a society registered under Societies Registration Act, 1860 and as per these Rules, there is no provision of pension to the employees engaged purely on temporary basis with DRDA. 5. This is an admitted fact that the DRDA, Bilaspur, sent a requisition to the Himachal Pradesh Public Service Commission on 23.12.1986 thereby requisitioning one post of Hindi Steno-typist and in the requisition, under Clause 5, it has been mentioned that the post is non-pensionable. Pursuant to that requisition, petitioner, who had qualified the selection process, was sponsored to the DRDA, for appointment on 5.2.1987. The DRDA, vide office order dated 21.2.1987, offered appointment to the petitioner, which was duly accepted by her. Even while submitting option in the year 2012, at the time of taking over of her services from DRDA Bilaspur by Rural Development Department, petitioner has bound herself by the terms and conditions issued vide Notification dated 24.9.2012 and letter dated 28.9.2012, both of which provide for new pension scheme only. Even while submitting option in the year 2012, at the time of taking over of her services from DRDA Bilaspur by Rural Development Department, petitioner has bound herself by the terms and conditions issued vide Notification dated 24.9.2012 and letter dated 28.9.2012, both of which provide for new pension scheme only. Having accepted appointment in the year 1987 in the DRDA, the terms and conditions imposed at the time of taking over of her services in the Rural Development Department, now it is not open for the petitioner to take a U turn and lay challenge to her appointment made in the year 1987 in the District Rural Development Agency or claim benefit of past service rendered since 1987 till 2012 for the purpose of seniority and pension. 6. Besides this, the petition at hand is hit by delay and laches. Admittedly the cause of action arose in favour of the petitioner in the year 1987 when she was sponsored by the Public Service Commission to the DRDA and as such, petition, if any, against said cause ought to have been filed immediately or within a reasonable period thereafter. But the petitioner has chosen to file the petition after around 26 years i.e. in the year 2013, for which no explanation has been rendered by the petitioner. 7. By now, it is well settled that relief cannot be extended to the persons who have approached the court after a long delay, especially who approach the court after inordinate delay. Reliance is placed on B.S. Bajwa and another vs. State of Punjab and others, (1998) 2 SCC 523 , wherein the Hon'ble Apex Court has held as under:- "7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the single Judge and, therefore, the Judgments of the single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance made by B. S. Bajwa and B. D. Kapoor only in 1984, which was long after they had entered the department in 1971-72. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance made by B. S. Bajwa and B. D. Kapoor only in 1984, which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystallised which ought not to have been re-opened after the lapse of such a long period. At every stage the others were promoted before B. S. Bajwa and B. D. Kapoor and this position was known to B. S. Bajwa and B. D. Kapoor right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be re-opened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition." 8. The Hon'ble Apex Court in case titled as State of Uttar Pradesh and others vs. Arvind Kumar Srivastava and others, (2014) AIRSCW 6519 , held that relief cannot be extended to the persons who have approached the Court after long delay, that too, who are fence-sitters. It is apt to reproduce para 24 of the judgment herein: "24. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above." 9. Even Division Bench of this Court, while placing reliance upon the aforesaid judgments passed by Hon'ble Apex Court, has held in LPA No.604 of 2011, titled Karan Singh Pathania vs. State of Himachal Pradesh and Others that "fencer cannot be held entitled to any relief" 10. In I. Chuba Jamir & Ors. versus State of Nagaland & Ors., (2009) AIRSCW 5162 , the Apex Court has held that the inordinate delay is a very valid and important consideration. It is apt to reproduce para 17 of the judgment herein: "17. On a careful consideration of the materials on record and the submissions made by Mr. Goswami we are unable to accept the claims of the appellants-writ petitioners. In our view the inordinate delay of 7 or 8 years by the appellants-writ petitioners in approaching the High Court was a very valid and important consideration. This aspect of the matter was also brought to the notice of the Single Judge but he proceeded with the matter without saying anything on that issue, one way or the other. It was, therefore, perfectly open to the Division Bench to take into consideration the conduct of the appellants-writ petitioners and the consequences, apart from the legality and validity, of the reliefs granted to them by the learned single Judge." 11. In Banda Development Authority, Banda vs. Moti Lal Agarwl and Ors., (2011) AIRSCW 2835 , similar principle has enunciated by Hon'ble Apex Court, wherein it has been held as under: 15. In Banda Development Authority, Banda vs. Moti Lal Agarwl and Ors., (2011) AIRSCW 2835 , similar principle has enunciated by Hon'ble Apex Court, wherein it has been held as under: 15. In our view, even if the objection of delay and laches had not been raised in the affidavits filed on behalf of the BDA and the State Government, the High Court was duty bound to take cognizance of the long time gap of 9 years between the issue of declaration under Section 6(1) and filing of the writ petition and declined relief to respondent No.1 on the ground that he was guilty of laches because the acquired land had been utilized for implementing the residential scheme and third party rights had been created. The unexplained delay of about six years between the passing of award and filing of writ petition was also sufficient for refusing to entertain the prayer made in the writ petition. xxx xxxx xxx 25. In this case, the acquired land was utilized for implementing Tulsi Nagar Residential Scheme inasmuch as after carrying out necessary development i.e. construction of roads, laying electricity, water and sewer lines etc. the BDA carved out plots, constructed flats for economically weaker sections and lower income group, invited applications for allotment of the plots and flats from general as well as reserved categories and allotted the same to eligible persons. In the process, the BDA not only incurred huge expenditure but also created third party rights. In this scenario, the delay of nine years from the date of publication of the declaration issued under Section 6(1) and almost six years from the date of passing of award should have been treated by the High Court as more than sufficient for denying equitable relief to respondent No.1." 12. Hon'ble Apex Court in Chennai Metropolitan Water Supply and Sewerage Board and others vs. T.T. Murali Babu, (2014) AIRSCW 1171 , has held that the doctrine of delay and laches should not be lightly brushed aside. Hon'ble Apex Court has held as under: "16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. Hon'ble Apex Court has held as under: "16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold." 13. Besides this, learned Counsel appearing for the petitioner has also stated that the case of his client is squarely covered by judgment rendered by this Court in CWP No. 1802 of 2002, State of Himachal Pradesh & others vs. Mr. Basheshar Lal (decided on 31.7.208), whereby this Court has upheld decision of Himachal Pradesh Administrative Tribunal rendered in OA(D) No. 283 of 1996 decided on 8.5.2002, whereby benefit of past service was given to the petitioners, therein, who were initially appointed under Panchayat Samitis and later on absorbed in Panchayati Raj Department. However, in that case, the concerned persons stood absorbed in the Department in the year 1978, when there was provision of pension, but in the case at hand, petitioner has been absorbed in the Rural Department in the year 2012 i.e. nine years after the old pension scheme was given up on 15.5.2003, as such, petitioner cannot claim benefit of pension, which is not available to anyone in the State of Himachal Pradesh after 15.5.2003. As such, plea of learned Counsel appearing for the petitioner that the case of petitioner is squarely covered by judgment (supra), does not hold ground and is rejected. 14. Learned Counsel appearing for the petitioner has also placed reliance upon a judgment rendered by Hon'ble Supreme Court of India in Civil Appeal no. 3984 of 2010, V. Sukumaran vs. State of Kerala & Anr., decided on 26.8.2020, to emphasize that the services rendered by an employee in one Department of a State can be taken into consideration alongwith service rendered in another Department of the State. In the case (supra), appellant joined Department of Fisheries of the State Government of Kerala as a casual labour on 7.7.1976 in a pilot project on Peral Culture at Vizhinjam, Thiruvananthapuram and worked upto 29.11.1983 rendering 7 years, 4 months and 23 days of service. In the case (supra), appellant joined Department of Fisheries of the State Government of Kerala as a casual labour on 7.7.1976 in a pilot project on Peral Culture at Vizhinjam, Thiruvananthapuram and worked upto 29.11.1983 rendering 7 years, 4 months and 23 days of service. Appellant thereafter joined Revenue Department, Kannur District as a Lower Division Clerk on his selection in a direct recruitment process. Appellant sought his transfer back to Fisheries Department and joined there on 18.9.1987. However, in the case at hand, petitioner joined DRDA Bilaspur initially in the year 1987 and worked there till 2012, when services of all the employees under DRDA were taken over en masse by Rural Development Department. It may be pertinent to note here that in the case at hand, earlier establishment was non-pensionable one and latter was pensionable, whereas, in the case relied upon by learned Counsel appearing for the petitioner i.e. V. Sukumaran (supra), both the establishments were pensionable being State Government Departments, as such, petitioner cannot derive any beenfit from the judgment (supra), as the facts of the said case are totally different from the present one. 15. Thus, the present petition is hopelessly barred by time. Accordingly, in view of detailed discussion above, this court finds no merit in the present petition, and as such, same is accordingly dismissed alongwith all pending applications. The petition stands dismissed alongwith all pending applications.