Anita Swaroop @APPELLANT@Hash State Of Uttarakhand And Others

Sharad Kumar Sharma, J

The petitioner to the present petition seeks following reliefs among others:-

a. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 09.03.2011 (contained in Annexure No.3 to the writ

petition).

b. Issue a writ, order or direction in the nature of mandamus directing the respondents to pay entire arrears of back wages with all the promotional

benefits from date 12.03.2007 to 18.04.2010.

c. Issue any suitable writ, order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.

d. Award the cost of petition in favour of petitioner.

Briefly put the facts of the case are that the petitioner who claims herself to be an Assistant Teacher in Primary School having posted at Awai,

Block- Yamkeshwar, District Pauri Garhwal. She was promoted on 28.02.2007 as consequent thereto she was posted as Assistant Teacher in a

Junior High School, Kandi by promotion order dated 28.02.2007 as passed by the order of District Education Officer, Pauri Garhwal.

In compliance of the order of promotion, she was relived on 12.03.2007 to enable her to join at her promoted place at Junior High School, Kandi, but

her case is that she was not allowed to join the promoted place by the Head Mistress of the said School. At that point of time despite of the fact that

she had made various efforts to seek her joining by personal meeting and filing representation. Petitioner’s case is that when all the efforts to

enable her to join there, apparently failed, according to the pleadings on record, she submitted representation and ultimately, on the basis of order of

promotion dated 28.02.2007, she was finally permitted to join only on 18.04.2010 on the promoted post. As per the petitioner’s case herself from

28.02.2007 till 18.04.2010, she was not permitted to work as per hindrance created in her joining by the then Principal.

The grievance of the petitioner is that the salary admissible to the promoted post payable to her was not paid to her for the period 28.02.2007

onwards, till she was promoted to join at Junior High School, Kandi on 18.04.2010. Consequently, she preferred WPSS No.786 of 2010, praying for a

writ of mandamus to grant the benefit of promotion and to pay all salary and other dues admissible to her as consequence of promotion. She sought

following reliefs:-

“ a. Issue a writ, order or direction in the nature of mandamus directing the respondents to give back wages with all the promotional benefits from

the date of promotion that is 28.02.2007 and to pay regular monthly salary with entire arrears according to law and rules to the petitioner.

b. Issue any suitable writ, order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.

c. Award the cost of the petition to the petitioner.â€​

The said writ petition came up for consideration before the Coordinate Bench of this Court and it was disposed of by an order dated 01.09.2010,

directing the respondents to take a considerate decision on the representation submitted by the petitioner. Based on the liberty granted by this Court

for filing of the representation, the petitioner is said to have filed her representation on 16.09.2010 along with the judgment of this Court dated

01.09.2010. The case of the petitioner is that the representation of the petitioner dated 16.09.2010 filed in compliance of the judgment of the

Coordinate Bench of this Court was not decided, hence she filed a contempt petition in the month of December. It is based on the said direction given

by this Court on 01.09.2010, the representation was rejected by the order dated 09.03.2011 (Annexure-3 to the writ petition).

For the reasons best known to the petitioner, she yet again filed Writ Petition No.580 (S/S) of 2011 before this Court, but she had chosen and not

challenged the order dated 09.03.2011, rejecting her claim for grant of salary for the period from 28.02.2007 to 18.04.2010. Ultimately, this writ

petition came up for consideration before the Coordinate Bench of this Court on 15.03.2018 and during the course of argument, an objection was

raised by the respondents’ counsel to the effect that the writ petition would not be tenable for the relief of mandamus for grant of salary for the

said period on the ground that the petitioner has not challenged the order dated 09.03.2011, by virtue of which, the relief claimed for was rejected in

compliance of judgment dated 01.09.2010, thus second writ would not lie. Faced with the situation, the petitioner got the writ petition dismissed as

withdrawn with a liberty to assail the order dated 09.03.2011. Consequently, the writ petition was dismissed as withdrawn on 15.03.2018 and hence

now the present writ petition. The same is quoted as under:-

“Mr. Manoj Mohan, Advocate for the petitioner.

Mr. K.N. Joshi, Dy. Advocate General for the State.

This writ petition was dismissed for non-prosecution on 17.02.2018.

Heard on Restoration Application No.314 of 2018.

In view of the grounds taken in the application, duly supported by the affidavit, the restoration application is allowed. Order dated 17.02.2018,

dismissing the writ petition for non-prosecution, is recalled and the writ petition is restored to its original number.

Learned counsel for the petitioner prays for and is permitted to withdraw the present writ petition with liberty reserved to assail

order dated 09.03.2011 in sequel to the judgment dated 01.09.2010 rendered in WPSS No.786 of 2010.â€​

On a question being raised as to laches which has occurred for challenging the order dated 09.03.2011, for reason being for the first time, the

instant writ petition was filed on 13.06.2018 that too almost after three months for grant of liberty by this Court and after seven years of passing the

order dated 09.03.2011. The reply extended by the learned counsel for the petitioner is that the instant writ petition since it has been filed in

compliance of the liberty given by the Coordinate Bench of this Court on 15.03.2018, it ought to be treated within the time and without suffering from

the vices of laches.

This Court is of the view that such a stand taken by the petitioner cannot be accepted for the reason that when the petitioner has filed a writ making

prayer of mandamus being Writ Petition No.580 (S/S) of 2011, at that point of time, the impugned order dated 09.03.2011 was in existence rejecting

her representation in compliance of the order passed by this Court on 01.09.2010, the order rejecting the representation was in her knowledge of the

petitioner, if the petitioner on the date of filing of the Writ Petition No.580 of 2011, had number of reliefs to be claimed before the court of law and the

petitioner by her own wisdom while modulating the relief while not challenging certain actions which could have deprived her right sought to be

agitated in the writ petition, it would amount to be that the petitioner has acquaintance his right as against the order dated 09.03.2011 by not giving

challenging to it. Hence on the ground that in the earlier phase of litigation, the petitioner has not challenged the order dated 09.03.2011, when the

relief was available at that point of time, she has acquaintance her rights so far the challenge to the said order dated 09.03.2011 is concerned and

couple with the fact that since the relief of mandamus was based upon only after setting aside the order dated 09.03.2011 rejecting the claim, this writ

petition would suffer from laches as well as principle of acquaintance, since having not challenged the order dated 09.03.2011, as such, this Court does

not find any merit in the writ petition.

Accordingly, the writ petition is dismissed.

However, there would be no order as to costs.