Bhanu Pratap Singh vs State Of Uttarakhand & Others

Lok Pal Singh, J

Petitioner has approached this Court seeking the following reliefs:-

"(i) Issue a writ, order or direction in the nature of certiorari quashing the regularization order dated 31.05.2012 (Annexure No.6 to the writ petition) so far concerned to the petitioner, who was working at that time as a Tube-Well Operator, in Tube-Well Division Haldwani.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondent nos.1, 2 and 3 to prepone the date of regularization since 01.10.1986 instead of 31.05.2012 and direct the concerned authority to pay all service benefits to the petitioner alongwith arrears, increment, including retrial benefits.

(iii) Issue a writ, order or direction in the nature of mandamus directing the respondent nos.1, 2 and 3 to treat the petitioner as a member of Old Pension Scheme and also further direct to release the entire retrial dues in favour of the petitioner."

Brief facts, as narrated in the writ petition, are that the petitioner was initially appointed on the post of part-time Tube-Well Operator on 28.03.1983. He was dismissed from service vide order dated 30.08.1986. Being aggrieved, petitioner raised an industrial dispute before the Labour Court, Haldwani which was registered as case no.38 of 1990. Vide judgment and order dated 19.10.1992, Labour Court decided the matter in favour of the petitioner and he was reinstated in service along with previous back wages. Respondent department, challenged the Award passed by the Labour Court before the Allahabad High Court by filing a Writ Petition No.2823 of 1993, wherein the operation of the Award was stayed subject to the condition that the employer shall reinstate the workman/petitioner and shall pay his regular salary and shall also deposit half of the back wages from 30th June 1986 to 21.05.1993. After bifurcation of the State of U.P., the said writ petition got transferred to this Court. As the authorities did not comply with the order dated 21.05.1993, petitioner filed a contempt petition before this Court. This Court, after hearing the parties, vide order dated 01.06.2004, vacated the stay order dated 21.05.1993 passed in Writ petition no.2823 of 1993 and permitted the petitioner to apply for execution of the award. Thereafter, the respondent department reinstated the petitioner in service, where he continued till his retirement. His services were regularized on 31.05.2012. The grievance of the petitioner is that his services ought to have been regularized w.e.f. 01.10.1986 and he is also entitled for regular pension as per Old Pension Scheme and other service benefits. It is contended that as per Rule 4 of U.P. Irrigation Department Regularization of Part-Time Tube -Well Operators on the post of Tube-Well Operator Rules, 1996, petitioner was entitled to be regularized in service w.e.f. 01.10.1986. According to him, similarly situated persons and several junior employees have been regularized but the petitioner could not be regularized w.e.f. 01.10.1986.

I have heard learned counsel for the parties and perused the entire material available on file.

Undisputedly, petitioner was regularized in service vide order dated 31.05.2012. He retired from service on 31.08.2018. During his service tenure, he never claimed his regularization w.e.f. 01.10.1986 and now after a lapse of almost seven years, he has approached this Court, claiming his regularization w.e.f 1.10.1986 and other service benefits. He has not filed single representation in this regard to demonstrate that he has ever raised his claim for regularization during service. On a query by the Court regarding delay, learned counsel for the petitioner would draw attention to the pleading made in the writ petition in para-11, which is extracted hereunder:-

"11. That the respondents' authority can raise objection in regard to delay of filing the writ petition and challenging the regularization order dated 31.05.2012. Hear, it is submitted that the petitioner was in impression, he will be given pensionary benefits and other retrial dues and he was not aware about the decision of regularization committee dated 25.04.1997, when he was entitled for regularization in service, what parameter was adopted by the State for regularization of the petitioner so delayed stage because of reason, he could not file the writ petition within time and the petitioner was in service and retired on 31.08.2018, in case, limitation is counted since 31.08.2018, then there is not any delay in filing the writ petition."

There is inordinate delay and laches in challenging the order of regularization and no justification has been provided by the petitioner for such delay. A perusal of the petition did not justify this enormous delay. Nowhere in the writ petition, the petitioner has explained the laches and delay in filing the writ petition. Petitioner has failed to show a cogent reason to approach this Court after an exorbitant delay of seven years. Petitioner has filed the present writ petition seeking his regularization w.e.f. 01.10.1986, whereas his services were regularized vide order dated 31.05.2012. Petitioner could have raised the issue of regularization w.e.f. 01.10.1986 and other benefits while he was in service but he chose to sleep over his right for a considerable long time. Anyone who sleeps over his right is bound to suffer.

Hon'ble Apex Court in State of Uttaranchal and another v. Sri Shiv Charan Singh Bhandari and others, 2013 (12) SCC 179, Hon'ble the Supreme Court, while considering the issue regarding delay and laches and referring to earlier judgments on the issue, has held as under:-

"26. Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivaswamy v. State of Tamil Nadu[11], wherein it has been laid down that: (SCCp.154, para 2)

"2.....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 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."

We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Anyone who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion.

Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the Tribunal and accepted by the High Court.

True it is, notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation of pay and the pension. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadagi. But equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, it has been said that everything may stop but not the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time."

Hon'ble Apex Court in Gulam Rasool Lone Vs. State of Jammu Kashmir and Another, (2009) 15 SCC 321, has held as under:

"19. It is beyond any cavil of doubt that the remedy under Article 226 of the Constitution of India is a discretionary one. For sufficient or cogent reasons a court may in a given case refuse to exercise its jurisdiction; delay and latches being one of them while considering the question of delay and latches on the part of the petitioner, the Court must also consider the effect thereof"

In the light of aforesaid, this Court is of the view that the petitioner has approached this Court belatedly and has not explained the delay and laches in filing the writ petition. When the alleged cause of action arose to him he did not challenge it before his retirement and chose to sleep over his rights, which would be construed as waiver of right or claim by him.

Writ petition is devoid of any merit. Same is accordingly dismissed in limine. No order as to costs.