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2022 DIGILAW 709 (RAJ)

Birbal Ram Meghwal v. State Of Rajasthan

2022-03-02

ANOOP KUMAR DHAND, MANINDRA MOHAN SHRIVASTAVA

body2022
JUDGMENT 1. Heard. 2. This appeal is directed against the order dated 20.09.2021 passed by the learned Single Judge by which petitioner's writ petition was dismissed on the ground of latches. 3. The order of the learned Single Judge shows that learned Single Judge was not inclined to exercise his discretionary jurisdiction in exercise of its power under Article 226 of the Constitution of India because the appellant had approached the writ court by filling petition after 15 years and that too, without giving any explanation whatsoever as to why he could not approach the court for almost one and a half decades. 4. Though, the order of learned Single Judge does not show that any other contention was raised before the learned Single Judge, learned counsel appearing for the appellant, at the appellate stage, has sought to raise an issue that the order against which the writ petition was filed gave a recurring cause of action because the effect of the order was that in times to come, the appellant's benefit in terms of increments and all other benefits to which he would have been entitled, but for the impugned order, would have continued in his entire service. For this purpose, he has placed reliance upon the decisions of the Hon'ble Supreme Court in the cases of Vidya Devi v. State of Himachal Pradesh And Others, (2020) Vol.2 Supreme Court Cases 569, Vetindia Pharmaceuticals Limited v. State of Uttar Pradesh And Another, (2021) Vol.1 Supreme Court Cases 804 and Tukaram Kana Joshi And Others through Power-of-Attorney Holder v. Maharashtra Industrial Development Corporation And Others, (2013) Vol.1 Supreme Court Cases 353. 5. On the strength of the aforesaid judgments, learned counsel would argue that it is not a rule of thumb that in every case where petition suffers from delay and latches, writ remedy has to be necessarily declined. He would submit that where third party interest is not involved and the nature of injustice to which a person has been subjected over-weighs delay, matter ought to be examined on merits rather than dismissing the petition on the ground of delay. 6. He would submit that where third party interest is not involved and the nature of injustice to which a person has been subjected over-weighs delay, matter ought to be examined on merits rather than dismissing the petition on the ground of delay. 6. Another submission made before this court is that the appellant has a very good case on merits as the impugned order suffers from violation of principles of natural justice, discrimination and the appellant having very strong case on merits in view of the law laid down by this Court in the cases of Kailsah Chand Sethi Verus State of Rajasthan And Others, 1993 (3) Western Law Cases (Raj.) 188, Mohan Lal Meena, deceased through L.Rs. v. State of Raj. & Anr., 1996 (1) RLR 479 and Mohan Lal Bairwa v. The State of Rajasthan and Others, for additional reasons, learned Single Judge instead of throwing the petition on the ground of delay and latches ought to have entertained the same on merits ignoring delay. 7. We find that most of the arguments which have been advanced before this Court were not raised before the learned Single Judge because it is not reflected from the order of the learned Single Judge. 8. The appellant while working as a librarian, suffered an order when on account of unauthorized absence, an order was passed on 03.06.2006 by which period of service from 12.02.2004 to 10.03.2004 and 04.06.2004 to 04.12.2005 was omitted from the service period and he was held not entitled to payment of salary for that period. The appellant was not a rustic villager, nor an illiterate. He was working as a librarian. The order had an impact on his service because it amounted to break the service. The appellant chose not to challenge this order for long until he woke-up from slumber and filed a petition before this court after about a decade and half. In the writ petition, as we see and it has also been noticed by the learned Single Judge that no explanation whatsoever was given as to why appellant could not file petition for such a long period. Present is not a case where the appellant was altogether dismissed from service or deprived of his source of livelihood. In the writ petition, as we see and it has also been noticed by the learned Single Judge that no explanation whatsoever was given as to why appellant could not file petition for such a long period. Present is not a case where the appellant was altogether dismissed from service or deprived of his source of livelihood. The effect of the order was that certain period of service would not be counted for the purposes of his service and he would not be paid salary for that period. 9. Apparently, appellant, having remained in service and continued, was at that stage, not inclined to challenge the order. He waived right, if any, to challenge the order by passage of time. Fifteen years thereafter, he filed a writ petition. In this background and the facts and circumstances of the case, the learned Single Judge exercised his discretion to dismiss the writ petition. 10. The discretionary nature of jurisdiction under Article 226 of the Constitution of India is well recognized and it has been reiterated by the Constitutional courts from time to time that in order to invoke discretionary jurisdiction, the aggrieved person is required to approach the court promptly. Delay and latches which are unexplained, by itself, could be made a basis to refuse to exercise discretionary jurisdiction in favour of an employee, particularly when he is not an illiterate or belonging to lowest cadre like Class-IV Employee. The writ-appellant was a librarian. 11. The argument that the cause of action was continuing one cannot be accepted. The order treating break in service manifestly has certain consequences to flow, but it cannot be said that it is a continuing cause of action. Cascading effects on the future service prospect like promotion, increments, pay-scales are only the consequences. Those consequences would ensue because an order of break in service has been passed by the authority. That would not mean that it is continuing cause of action. 12. Therefore, the reliance placed on Vidya Devi (supra) is misplaced in law. In that judgment also, their Lordships in the Supreme Court clearly held that condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of the case. It was observed that it will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. It was observed that it will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. True it is that there is no period of limitation prescribed, in order to do substantial justice in appropriate cases, on the facts and circumstances, court may grant relief. In the case of Vidya Devi (supra), the compelling circumstances of the case were taken into consideration by their Lordships in the Supreme Court. That is not a case here. 13. In another decision of the Hon'ble Supreme Court in the case of Tukaram Kana Joshi And Others through Power-of-Attorney Holder (supra), the principles of discretionary jurisdiction on the face of delay and latches were also taken into consideration by the Hon'ble Supreme Court and it was held that ultimately it would be a matter within the discretion of the court and such discretion is required to be exercised judiciously, fairly and justly. The Hon'ble Supreme Court likewise held that no hard and fast rule can be laid down as to when the High Court should refuse to exercise his jurisdiction in favour of the parties, who moves it after considerable delay and is otherwise guilty of latches. 14. In another decision of the Hon'ble Supreme Court in the case of Vetindia Pharmaceuticals Limited (supra), the issue of delay and latches was also examined by the Hon'ble Supreme Court. On facts, it was find that the appellant therein was acting with promptitude. 15. In all the aforesaid decisions, the judgments have turned on the facts and circumstances of every case. The common thread running in all these judgments is that the exercise of jurisdiction under Article 226 of the Constitution of India is discretionary in nature and the discretion is required to be exercised judiciously, fairly and justly. No straight jacket formula or hard and fast rule can be applied. 16. The other few decisions which have been cited by the appellant in the cases of Kailsah Chand Sethi (supra), Mohan Lal Meena, deceased through L.Rs. (supra) and Mohan Lal Bairwa (supra) are the decisions which have been decided on the merits of the case. These decisions are distinguishable also. It is not the case of the appellant that decision was not known to him. Even then, the appellant chose not to challenge the order. 17. (supra) and Mohan Lal Bairwa (supra) are the decisions which have been decided on the merits of the case. These decisions are distinguishable also. It is not the case of the appellant that decision was not known to him. Even then, the appellant chose not to challenge the order. 17. We would have gone into the other aspects of the matter had there been some explanation given for delay. But except giving representation for one and a half decades, nothing has been stated in the petition which should require this court to allow the petitioner to seek indulgence of this court in exercise of discretionary jurisdiction under Article 226 of the Constitution of India. 18. We have considered the aforesaid submissions, even though, such submissions which have not been advanced before the learned Single Judge only to satisfy ourselves that the petition has been rightly dismissed on the ground of delay and latches. Therefore, we do not find any perversity in the order passed by the learned Single Judge, calling for any interference in the writ appeal. 19. Accordingly, the appeal is dismissed.