Dismissed

Anil Kumar v. State of Uttarakhand through Secretary Fisheries Government of U.K. Dehradun

Uttarakhand HC1 Aug 2023SPA/76/2023

Case brief

AI extract

What is this about?

This special appeal challenged a judgment dismissing a writ petition filed regarding seniority disputes due to delay and laches. The High Court upheld the dismissal, citing precedents that allow courts to refuse relief for stale claims based on inordinate delay, thereby preventing the upsettlement of settled seniority lists after five years.

What did the court decide?

The special appeal was dismissed; the impugned judgment dismissing the writ petition on grounds of delay and laches was allowed.

Anil Kumar Vs State of Uttarakhand… — Pension and Retirement Benefits | Uttarakhand HC (2023)

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Reserved Judgment

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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JUSTICE SHRI MANOJ KUMAR TIWARI

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AND

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JUSTICE SHRI PANKAJ PUROHIT

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SPECIAL APPEAL No. 76 OF 2023

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Reserved on :05.07.2023 Delivered on :01.08.2023

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Between: Anil Kumar. …… Appellant

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Vs.

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State of Uttarakhand & others. …… Respondents

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Counsel for the appellant : Dr. Gyanendra Kumar Sharma and Mrs. Indu Sharma Counsel for the State : Mr. S.S. Chaudhary, Brief Holder.

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Upon hearing the learned counsel, the Court made the following

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JUDGMENT: ( Per Shri Manoj Kumar Tiwari, J.)

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This intra-court appeal is filed challenging the judgment dated 19.12.2022 passed in Writ Petition (S/S) No.1079 of 2013. By the said judgment, writ petition filed by the appellant was dismissed on the ground of delay and laches.

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It is not in dispute that appellant filed a writ petition in the year 2013, challenging the seniority list of Senior Fisheries Inspector issued on 20.02.2008. He also challenged the order dated 20.06.2005, rejecting his objection against

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tentative seniority list.

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Before the Writ Court, appellant contended that since he was regularly appointed as Fisheries Inspector earlier in point of time, therefore, he should be placed above respondent no.3 in the seniority list. It was contended that appellant was regularly appointed on the said post on 29.09.1997; while, respondent no. 3 was regularly promoted as Fisheries Inspector only on 09.07.1999, therefore, appellant is senior. Respondent no. 3, who was initially appointed as Fisheries Development Worker, was given ad-hoc promotion as Fisheries Inspector w.e.f. 02.05.1985 and he was regularly promoted to the said post only on 09.07.1999. However, on his representation, Director, Fisheries passed an order on 03.06.2005, whereby respondent no.3 was given regular promotion as Fisheries Inspector w.e.f. 28.08.1996. On the strength of said order, respondent no. 3 was placed above appellant in the seniority list. It is a fact that appellant did not challenge the order dated 03.06.2005 before any judicial forum, consequently, it attained finality. The final seniority list issued on 20.02.2008 was challenged by him after 5 years by filing writ petition in 2013. Learned Single Judge of this Court dismissed the writ petition on the ground of delay and laches by relying upon the law laid down by Hon’ble Apex Court in the case of Ajay Kumar Shukla Vs. Arvind Rai, (2022) 12 SCC 579 and Shiba Shankar Mohapatra Vs. State of Orissa, (2010) 12 SCC 471.

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Learned counsel for the appellant submits that the impugned judgment is unsustainable. It is contended that appellant had no knowledge about the order dated 03.06.2005, whereby respondent no. 3 was promoted retrospectively as Fisheries Inspector w.e.f. 28.08.1996. The

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said submission, however, is belied from the order passed by Director Fisheries on 20.06.2005, whereby appellant’s representation was rejected. In paragraph no.3 of the said order, there is a reference to the order passed on the representation of respondent no.3, whereby he was given promotion as Fisheries Inspector w.e.f. August, 1996. Thus, appellant cannot contend that he was not aware about the order dated 03.06.2005.

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Learned Single Judge has considered the issue of delay and laches in great detail. It is held that settled seniority list cannot be unsettled at the instance of a person who challenges the list after inordinate delay. The view taken by learned Single Judge is in conformity with the law of the land.

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A Constitution Bench of Hon’ble Supreme Court in the case of Tilokchand Motichand & others Vs. H.B. Munshi, reported in (1969) 1 SCC 110 has made the following observations on the question of delay and laches in paragraph no.18 of the said judgment, which is reproduced below:

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“ 18. It seems to me, however, that the above solution is not quite appropriate for petitions under Article 32. A delay of 12 years or 6 years would make a strange bed-fellow with a direction or order or writ in the nature of mandamus, certiorari and prohibition. Bearing in mind the history of these writs I cannot believe that the Constituent Assembly had the intention that five Judges of this Court should sit together to enforce a fundamental right at the instance of a person, who had without any reasonable explanation slept over his rights for 6 or 12 years. The history of these writs both in England and the U.S.A. convinces me that the underlying idea of the Constitution was to provide an expeditious and authoritative remedy against the inroads of the State. If a claim is barred under the Limitation Act, unless there are exceptional circumstances, prima facie it is a stale claim and should not be entertained by this Court. But even if it is not barred under the Indian Limitation Act, it may not be

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entertained by this Court if on the facts of the case there is unreasonable delay. For instance, if the State had taken possession of property under a law alleged to be void, and if a petitioner comes to this Court 11 years after the possession was taken by the State, I would dismiss the petition on the ground of delay, unless there is some reasonable explanation. The fact that a suit for possession of land would still be in time would not be relevant at all. It is difficult to lay down a precise period beyond which delay should be explained. I favour one year because this Court should not be approached lightly, and competent legal advice should be taken and pros and cons carefully weighed before coming to this Court. It is common knowledge that appeals and representations to the higher authorities take time; time spent in pursuing these remedies may not be excluded under the Limitation Act, but it may ordinarily be taken as a good explanation for the delay.”

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The aforesaid view was reiterated by another Constitution Bench of Hon’ble Supreme Court in the case of Ramchandra Shankar, Deodhar & others Vs. State of Maharashtra & others, reported in (1974) 1 SCC 317, where it was observed that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches or delay 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 reasonable explanation for the delay.

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Similarly, in the case of P.S. Sadasivaswamy Vs. State of Tamil Nadu, reported in (1975) 1 SCC 152, Hon’ble Supreme Court has held that “a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers

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under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal.”

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In the present case also, there is inordinate and unexplained delay of 5 years in challenging the seniority list issued by competent authority. Certain rights accrued in favour of respondent no. 3, based on said seniority list. Since petitioner slept over his rights and allowed the seniority list to become final, therefore, settled seniority cannot be permitted to be unsettled at the instance of the appellant, who slept over his rights for 5 long years.

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