Arvind Chhotalal Rathod vs State of Gujarat

G.B. Shah, J.—Being aggrieved by the impugned order dated 28.9.2010 passed by the learned Single Judge in Special Civil Application No. 10730 of 2010, the Appellant, by way of this appeal, challenges the said order with a prayer to remand the matter to the learned Single Judge to decide it on merit.

We have heard Mr H.S. Munshaw, learned Advocate for the Appellant and Mr N.N. Pathak, learned Asstt. Government Pleader for the Respondents.

With the consent of the learned Advocates for the parties, we have taken this appeal for final disposal. The facts of the case in brief are that while the Petitioner was working as Mamlatdar of Bayad Taluka, District Sabarkantha, an FIR was registered against him u/s 7, 12 and 13 of the Prevention of Corruption Act, 1988 at Himatnagar ACB police station. Subsequently the Appellant was suspended with effect from 28.10.1998. He was reinstated on 21.12.2001. Thereafter the Appellant made application to the Departmental Promotion Committee for ad hoc promotion under Government Resolution dated 30.10.1993. The Departmental Promotion Committee, at its meeting held on 22.1.2007 had acted contrary to the instructions given in the Government Resolution dated 30.10.1993 and kept its findings in respect of the Appellant''s suitability for promotion in ''sealed cover'' on the ground of pending criminal trial. In December, 2007, the Appellant was acquitted of the criminal charges by the court. On 7th January, 2008, the Appellant made an application to the Respondent for regularization of his suspension period. Thereafter the Appellant has made application for promotion in the cadre of Deputy Collector. Since he has not received any reply from the Government/authorities, he tried to obtain information regarding the status of his applications under Right to Information Act and the Respondent authority has replied that the applications are under process for promotion and so far as the application for regularization of the suspension period is concerned the Government had refused to give information as it was not covered under the RTI Act. As he has not received any reply in the matter, he filed Special Civil Application No. 10730 of 2010 before this Court which was dismissed by the learned Single Judge by order dated 28.9.2010 on the ground of delay. It is this order which has been challenged in this appeal.

Learned Advocate for the Appellant has submitted that the learned Single Judge has erred in arriving at the conclusion that the petition was not entertainable on the ground of delay. The relevant paragraphs 2.0 and 3.0 of the order of the learned Single Judge reads as under:

2.0. It is the case of the Petitioner that one ACB case resulted into acquittal on 13th December, 2007 and after that acquittal, the Petitioner approached the authorities demanding the regularization of suspension period by letter dated 7th January 2008, a copy of which is produced at Annexure ''C"'' and also asked for promotion by letter dated 9th January, 2008 a copy of which is produced at Annexure ''D'' but the authorities have not replied the same till date.

3.0. On the short ground of delay, this petition is not entertained and same is dismissed. However, it is made clear that non-entertainment of this petition should not be construed to mean that the court has approved the non-action/slow action of the Government in the matter.

Learned Advocate for the Appellant has submitted that it was necessary for the learned Single Judge to consider that no period of limitation has been prescribed for a petition under Articles 226 and 227 of the Constitution of India. In support of his argument, the learned Advocate has placed reliance on a decision in the case of Lecturers'' Forum and Jag Mohan Mathodia and Others Vs. State of Rajasthan and Others, wherein in para 9 it is held as under:

No period of limitation has been prescribed in Articles 226 and 227. There is neither any upper limit of time nor lower limit of time for entertaining writ petitions by the High Court. No period can be indicated which may be regarded as the ultimate limit of filing writ petitions.

Learned Advocate for the Appellant further submitted that where the rights of third parties are not adversely affected on account of issuance of writ, the technical ground of delay cannot be a ground for refusing a relief where the case is found to be meritorious. He further submitted that the discretion to entertain or not to entertain a writ petition after some lapse of time has to be exercised judiciously and that is a parameter of deciding an objection regarding laches in filing of a writ petition.

Learned Advocate for the Appellant has drawn our attention to the order passed by the learned Single Judge and submitted that the learned Single Judge while dismissing the petition on the ground of delay had discussed in the order that the Petitioner became non-active after the reply dated 27.3.2009 and the Appellant had not taken any action in the matter until he had filed the Special Civil Application No. 10730 of 2010 on 31.8.2010.

Learned Advocate for the Appellant has drawn our attention to the two applications annexed by the Appellant at Annexure ''G'' dated 11.12.2009 and 18.1.2010 respectively at pages No. 27 and 29 and submitted that the learned Single Judge has committed error in not taking into consideration the said two applications by which the Appellant requested the Government to finalise his claims and this shows that the Appellant had not remained inactive and thus the observations made by the learned Single Judge does not appear to be correct. The learned Advocate has reiterated that the Limitation Act does not apply to an application under Article 226 of the Constitution of India and the petition is not barred by limitation because time for limitation commences as soon as cause of action takes place. In the present case, the Appellant had presented his claims by submitting application on 7.1.2008. If the claims of the Appellant had been rejected by the Government before filing writ petition, the cause of action would have been completed and the time for limitation would have started from the date when the claims were decided and the delay could have been calculated from such date. But in the present case the Government neither accepted nor rejected the claims of the Appellant and even not communicated the decision in the matter. Therefore, while the matter is pending with the Government, the Appellant had continuous cause of action. In support of the above submission, learned Advocate for the Appellant has placed reliance on a decision in Shiv Dass Vs. Union of India (UOI) and Others, wherein the Apex Court held the period of three years as a reasonable period for filing petition as under:

If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit Appellant had a case.

In the present case, the Appellant had submitted his applications to the Government in January, 2008 and after two years and eight months he came to the High Court and filed writ petition in September, 2010. So even if it is presumed that limitation period commences from the date of the application to the Government, still the writ petition of the Appellant was within reasonable period of three years as laid down by the Supreme Court.

Learned AGP Mr N N Pathak has not controverted the submissions made by the learned Advocate for the Appellant.

Having heard the learned Advocates for the parties and on perusing the documents referred to above,in our opinion, the order dated 28.9.2010 passed by the learned Single Judge in Special Civil Application No. 10730 of 2010 dismissing the petition on the ground of delay deserves to be quashed and set aside.

In the result, this Appeal succeeds and is allowed. The impugned order dated 28.9.2010 passed by the learned Single Judge in Special Civil Application No. 10730 of 2010 is quashed and set aside. The matter is remanded to the learned Single Judge to decide the same on merits.