Dismissed

Rakesh Kumar v. State of H.P.

Himachal Pradesh HC8 Nov 2024CWP/1004/2016

Case brief

AI extract

What is this about?

Dismissing a Civil Writ Petition filed by a former Physical Education Teacher seeking salary release and re-engagement. The court held that the petition did not maintain due to an inordinate delay of over seven years, lack of explanation for the delay, and failure to substantiate the claim of a rule-compliant appointment where the school was already a Government Middle School.

What did the court decide?

The petition was dismissed with consequent disposal of any pending applications.

Rakesh Kumar Vs State of H.P. — Service and Employment | Himachal Pradesh HC (2024)

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2024:HHC:10973

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 1004 of 2016 Reserved on: 18.10.2024 Decided on: 08.11.2024.

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__________________________________________________________ Rakesh Kumar ...Petitioner

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Versus

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State of Himachal Pradesh and others …Respondents

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_________________________________________________________ Coram_

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The Hon'ble Mr. Justice Satyen Vaidya, Judge

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1 Whether approved for reporting? No

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______________________________________________________ For the petitioner : Mr. Anupam Anzaranni, Advocate. For the respondents: Mr. Pranay Pratap Singh, Additional Advocate General, for respondents No. 1 to 3.

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None for respondent No.4.

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Satyen Vaidya, Judge

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By way of instant petition, petitioner has prayed for the following substantive reliefs:-

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(I) Kindly allow the Civil Writ Petition and kindly issue the writ of mandamus to respondent No.1 to release the petitioner salary from the PTA account which has been come from the Grant-InAid allotted by the Government to the School.

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(II) Kindly issue the writ of mandamus to respondent No.1 to re-engage petitioner on the post of Physical Education Teacher on PTA basis

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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on which he had been worked from …..which has been still lying vacant.

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Alternative Relief

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In alternative relief kindly issue the writ of mandamus to the respondent to conduct the fresh interview for the post of Physical Education Teacher on PTA basis which has been still lying vacant since the time petitioner disengaged and give the first preference to the petitioner.

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(III) Kindly issue the writ of certiorari to quash and set-aside the impugned finding of the respondent No. which has been annexed here as Annexure XXX – 12.

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The petitioner claims to have worked as Physical Education Teacher (PET) in GMS, Langehar from 10.10.2007 to 07.11.2008. He claims to have been

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appointed by the Parents Teacher Association (PTA) of the school. It is alleged by the petitioner that he was not paid

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from the grant-in-aid under the PTA (GIA) Rules. Further grievance of the petitioner is that his services were illegally terminated w.e.f. 07.11.2008.

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Respondents No. 1 to 3 have filed reply stating therein interalia that the Government Primary School, Langehar, District Mandi was upgraded as Government

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Middle School and was made functional w.e.f. 10.10.2007, therefore, there could not have been any PTA of the school before such date. The appointment as claimed by the petitioner is alleged to be not in accordance with the rules. It is also submitted that since the appointment of petitioner was not in terms of the relevant service rules, he was not entitled to the payment of salary under PTA (GIA) Rules. As per respondents No. 1 to 3, petitioner had himself abandoned the job w.e.f. 07.11.2008.

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I have heard learned counsel for the parties and have also gone through the records of the case carefully.

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Since, this Court has been called upon to examine the case of petitioner under Article 226 of the Constitution of India, this Court cannot remain oblivious to the aspect of huge delay and laches that have taken place in this case.

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It is more than settled that the delay defeats equity. In State of Jammu and Kashmir vs. R.K. Zalpuri and others (2015) 15 SCC 602 , the Hon’ble Supreme Court has held as under:

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“ 27 . The grievance agitated by the respondent did not deserve to be addressed on merits, for doctrine of delay and laches had already visited his claim like the chill of death which does not spare anyone even the one who fosters the idea and nurtures the attitude that he can sleep to avoid death and eventually proclaim “Deo gratias” – ‘thanks to God’.

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28 . Another aspect needs to be stated. A writ court while deciding a writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Stale claims are not to be adjudicated unless non-interference would cause grave injustice. The present case, need less to emphasise, did not justify adjudication. It deserved to be thrown overboard at the very threshold, for the writ petitioner had accepted the order of dismissal for half a decade and cultivated the feeling that he could freeze time and forever remain in the realm of constant present.”

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Similar exposition of law can be found in Union

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of India and others vs. N. Murugesan and others (2022)

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2 SCC 25 wherein it has been held as under:

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“ DELAY, LACHES AND ACQUIESCENCE :

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20 . The principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions. However, they have their distinct characters and distinct elements. One can say that delay is the genus to which laches and acquiescence are species. Similarly, laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, but not laches. These principles are common law principles, and perhaps one could identify that these principles find place in various statutes which restrict the period of limitation and create nonconsideration of condonation in certain circumstances. They are bound to be applied by way of practice requiring prudence of the Court than of a strict application of law. The underlying principle governing these concepts would

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be one of estoppel. The question of prejudice is also an important issue to be taken note of by the Court.

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LACHES:

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21 . The word laches is derived from the French language meaning “remissness and slackness”. It thus involves unreasonable delay or negligence in pursuing a claim involving an equitable relief while causing prejudice to the other party. It is neglect on the part of a party to do an act which law requires while asserting a right, and therefore, must stand in the way of the party getting relief or remedy.

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22 . Two essential factors to be seen are the length of the delay and the nature of acts done during the interval. As stated, it would also involve acquiescence on the part of the party approaching the Court apart from the change in position in the interregnum. Therefore, it would be unjustifiable for a Court of Equity to confer a remedy to a party who knocks its doors when his acts would indicate a waiver of such a right. By his conduct, he has put the other party in a particular position, and therefore, it would be unreasonable to facilitate a challenge before the Court. Thus, a man responsible for his conduct on equity is not expected to be allowed to avail a remedy.”

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8. Recently, in Mrinmoy Maity vs. Chhanda Koley

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and others, (2024) SCC Online SC 551 , it has been held

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as under:

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“ 11 . For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and latches alone, the appeal ought to be dismissed or the applicant ought to

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be non-suited. If it is found that the writ petitioner is guilty of delay and latches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court. This Court in the case of Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768 has held to the following effect:

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“56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.

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57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR 261], Moon Mills Ltd. v. Industrial Court [AIR 1967 SC 1450] and Bhoop Singh v. Union of India [(1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR 969]). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110], Durga Prashad v. Chief Controller of Imports &

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Exports [(1969) 1 SCC 185] and Rabindranath Bose v. Union of India [(1970) 1 SCC 84]).

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58. There is no upper limit and there is no lower limit as to when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose.”

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12. It is apposite to take note of the dicta laid down by this Court in Karnataka Power Corportion Ltd. v. K. Thangappan, (2006) 4 SCC 322 whereunder it has been held that the High Court may refuse to exercise extraordinary jurisdiction if there is negligence or omissions on the part of the applicant to assert his right. It has been further held thereunder:

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“ 6 . Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. 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 right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports [(1969) 1 SCC 185 : AIR 1970 SC 769]. Of course, the discretion has to be exercised judicially and reasonably.

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7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [(1874) 5 PC 221 : 22 WR 492] (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri Balwant Regular Motor Service [(1969) 1 SCR 808 : AIR 1969 SC 329]. Sir Barnes had stated:

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“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 limitation, 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 it relates to the remedy.”

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8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India [(1970) 1 SCC 84 : AIR 1970 SC 470] that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.

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9. It was stated in State of M.P. v. Nandlal Jaiswal [(1986) 4 SCC 566 : AIR 1987 SC 251] that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may

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decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. 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.”

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13. Reiterating the aspect of delay and latches would disentitle the discretionary relief being granted, this Court in the case of Chennai Metropolitan Water Supply & Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 has held:

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“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 scrutinise 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.”

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The cause of action, if any, had arisen in favour of the petitioner on 07.11.2008 when his services were allegedly terminated. Concededly, the petitioner preferred representation for the first time on 26.3.2014, that too, to the Deputy Commissioner, Mandi, who had nothing to do with the alleged grievance of petitioner. In response, the Sub Divisional Magistrate, Sarkaghat, District Mandi, had informed the petitioner vide communication dated 23.06.2014 regarding non-maintainability of his appeal/representation before the Deputy Commissioner. Except as above, the petitioner had not raised any grievance before respondent No.1 at any point of time. Though, petitioner has averred in the petition that he made representations to the authorities, but nothing except as above, has been placed on record. Petitioner filed the instant petition on 11.03.2016 i.e. after a lapse of more than 7 years of his alleged termination. The petitioner has not rendered any explanation for such a huge delay and inaction on his part. On this ground alone, this Court is not inclined to exercise its writ jurisdiction in favour of the petitioner.

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Even on merits, the petitioner has not been able to make out any case for interference by this Court. The petitioner has not been able to controvert the stand of the respondents that the school was upgraded as Middle School on 10.10.2007. Petitioner has also not been able to place on record any authentic material to substantiate the plea of having been appointed according to rules. Firstly, there is no credible material on record to show that how and when the PTA was constituted. The petitioner has claimed that the PTA had invited applications for appointment of Physical Education Teacher (PET) on 08.10.2007, in response to which, the petitioner had submitted his application. The interview was held on 09.10.2007 and the petitioner was declared successful. To support his contention, petitioner has placed reliance of a document Annexure XXX-5, which reveals that the petitioner was the only candidate allegedly interviewed on 09.10.2007. Thus, the manner in which petitioner was allegedly appointed is not beyond the shadow of doubt. The applications were allegedly invited on 08.10.2007 and petitioner was selected on the very next day i.e. 09.10.2007 speaks for itself as to

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the manner in which alleged appointment was made. There is no evidence that in what manner the invitation for applications from interested and eligible candidates was published.

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In the aforesaid factual backdrop, the petitioner has not been able to prove existence of any right to be paid under PTA (GIA) Rules or to be retained in service.

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In result, there is no merit in the petition and the same is dismissed. The petition stands disposed of, so also

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the pending application(s), if any.

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8^th November, 2024

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(GR)

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(Satyen Vaidya) Judge

Rakesh Kumar v. State of H.P.

Case brief

What is this about?

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Rakesh Kumar v. State of H.P.

Case brief

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