Fulena Devi vs State of Jharkhand And Ors

Heard Mr. Vishal Kumar Tiwari, learned counsel for the petitioner, Mr. Arun Kumar Dubey, learned counsel for the respondent-State and Mr.

Amit Kumar Verma, learned counsel for respondent no.2.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been

heard on merit.

The petitioner has preferred this writ petition for quashing the dismissal order dated 20.06.1986 passed by the Commandant, BMP Deoghar now

JAP-5, Deoghar and appellate order dated 21.02.1987, whereby, the husband of the petitioner was dismissed from service on the ground of

absconder.

The husband of the petitioner was appointed as Constable in Jharkhand Armed Police on 06.06.1975, but a case being Deoghar P.S. Case No.

115/1985 was registered under Sections 415 and 364 of the Indian Penal Code against him and two other person, but all the accused including the

husband of the petitioner were acquitted vide order dated 18.07.1988, contained in Annexure-1 of the writ petition. The husband of the petitioner died

on 30.12.1997. The petitioner earlier moved before this Court in W.P.(S) No. 5791 of 2013, which was dismissed in light of Section 101(a) of the

Bihar Pension Rules, 1950 as the petitioner has not challenged the dismissal order. The petitioner is an illiterate lady. She seek dismissal order under

Right to Information Act, which was provided to the petitioner. After receiving the dismissal order, the petitioner again represented before the

respondent-authority on 27.02.2015 for setting aside the dismissal order, but no decision was taken. The petitioner filed another writ petition being

W.P.(S) No.1119 of 2015, which was withdrawn on 18.01.2016 to pursue L.P.A. No.76 of 2016, filed by the petitioner. The said L.P.A. was disposed

of vide order dated 27.06.2016 with liberty to the petitioner to challenge the dismissal order in a fresh writ petition. Thereafter, the petitioner has filed

the present writ petition. The co-accused, namely, Saheb Singh @ Saheb Prasad Singh has also filed a writ petition being W.P.(S) No. 3182 of 2005

for payment of arrears of salary for the period between 17.06.1987 to 10.12.2003, which was allowed by a coordinate Bench of this Court vide order

dated 18.04.2013 and direction was issued to pay 50% back wages for the period between 17.06.1987 to 10.12.2003. The order passed in the said writ

petition is annexed in Annexure-8 of the writ petition. The petitioner made several representations before the respondent-authorities to provide the

same benefits. The co-accused, namely Saheb Singh @ Saheb Prasad Singh has earlier filed C.W.J.C. No. 11459 of 1998, which was allowed on

17.02.2003 and the matter was remanded for reconsideration in accordance with law. The petitioner's husband died on 30.12.1997.

Mr. Tiwary, learned counsel appearing for the petitioner submits that the petitioner is a widow of late Ganesh Bhagat, who died on 30.12.1997 and

he had not been able to challenge the dismissal order. When the petitioner came to know about the dismissal order, she obtained the dismissal order,

being the widow of late Ganesh Bhagat under Right to Information Act and thereafter she is continuously taking steps. He further submits that in the

L.P.A. No. 76 of 2016, entire aspect of the matter has been considered by the Division Bench including the judgment passed by the learned Single

Judge dated 05.01.2015 and liberty was provided to the petitioner to challenge the dismissal order. He also submits that once the liberty was provided,

this Court may not dismiss the writ petition on the ground of delay and laches. He further submits that in the writ, the delay under Article 226 of the

Constitution of India is self-restrained by the High Court and in appropriate cases, that can be considered. He refers to the judgment delivered by the

Hon'ble Supreme Court in the case of Tukaram Kana Joshi and Others v. Maharashtra Industrial Development Corporation and Others, reported in

(2013) 1 SCC 353.

Paragraph 12 of the said judgment is quoted herein below:

“ 12. The State, especially a welfare State which is governed by the rule of law, cannot arrogate itself to a status beyond one that is provided by

the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction

to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and

circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be

mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the

discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not

a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.â€​

Learned counsel for the petitioner further relied upon the judgment delivered by the Hon'ble Supreme Court in the case of Ramchandra Shankar

Deodhar and Others v. The State of Maharashtra and Others, reported in (1974) 1 SCC 317.

Paragraph 10 of the said judgment is quoted herein below:

“10. The first preliminary objection raised on behalf of the respondents was that the petitioners were guilty of gross laches and delay in filing the

petition. The divisional cadre of Mamlatdars/Tehsildars were created as far back as November 1, 1956 by the Government Resolution of that date,

and the procedure for making promotion to the posts of Deputy Collector on the basis of divisional select-list, which was a necessary consequence of

the creation of the divisional cadre of Mamlatdars/ Tehsildars, had been in operation for a long number of years, at any rate from April 7, 1961, and

the Rules of July 30, 1959 were also given effect to since the date of their enactment and yet the petitioner did not file the petition until July 14, 1969.

There was a delay of more than ten or twelve years in filing the petition since the accrual of the cause of complaint, and this delay, contended the

respondents, was sufficient to disentitle the petitioners to any relief in a petition under Article 32 of the Constitution. We do not think this contention

should prevail with us. In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is

not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay,

the Court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J.,

in Tilokchand Motichand v. H.B. Munshi“is one of discretion for this Court to follow from case to case. There is no lower limit and there is no

upper limit .... It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay aroseâ€. Here the

petitioners were informed by the Commissioner, Aurangabad Division, by his letter dated October 18, 1960 and also by the then Secretary of the

Revenue Department in January 1961 that the rules of recruitment to the posts of Deputy Collector in the reorganised State of Bombay had not yet

been unified, and that the petitioners continued to be governed by the rules of Ex-Hyderabad State and the Rules of July 30, 1959 had no application to

them. The petitioners were, therefore, justified in proceeding on the assumption that there were no unified rules of recruitment to the posts of Deputy

Collector and the promotions that were being made by the State Government were only provisional to be regularised when unified rules of recruitment

were made. It was only when the petition in Kapoor case was decided by the Bombay High Court that the petitioners came to know that it was the

case of the State Government in that petition â€" and that case was accepted by the Bombay High Court â€" that the Rules of July 30, 1959 were the

unified rules of recruitment to the posts of Deputy Collector applicable throughout the reorganised State of Bombay. The petitioners thereafter did not

lose any time in filing the present petition. Moreover, what is challenged in the petition is the validity of the procedure for making promotions to the

posts of Deputy Collector â€" whether it is violative of the equal opportunity clause â€" and since this procedure is not a thing of the past, but is still

being followed by the State Government, it is but desirable that its constitutionality should be adjudged when the question has come before the Court at

the instance of parties properly aggrieved by it.. It may also be noted 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. This principle was stated in the following terms by Hidayatullah, C.J. in Tilokchand v.

H.B. Munshi (supra):

“The party claiming fundamental rights must move the Court before other rights come into existence. The action of courts cannot harm innocent

parties if their rights emerge by reason of delay on the part of the person moving the Court.â€​ *

Sikri, J., (as he then was), also re- stated the same principle in equally felicitous language when he said in R.N. Bose v. Union of India: “It would

be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his

appointment and promotion affected a long time ago would not be set aside after the lapse of a number of years.†Here, as admitted by the State

Government in para 55 of the affidavit in reply, all promotions that have been made by the State Government are provisional and the position has not

been crystallised to the prejudice of the petitioners. No rights have, therefore, accrued in favour of others by reason of the delay in filing the petition.

The promotions being provisional, they have not conferred any rights on those promoted and they are by their very nature liable to be set at naught, if

the correct legal position, as finally determined, so requires. We were also told by the learned counsel for the petitioners, and that was not

controverted by the learned counsel appearing on behalf of the State Government, that even if the petition were allowed and the reliefs claimed by the

petitioners granted to them, that would not result in the reversion of any Deputy Collector or officiating Deputy Collector to the post of Mamlatdar/

Tehsildar; the only effect would be merely to disturb their inter se seniority as officiating Deputy Collectors or as Deputy Collectors. Moreover, it may

be noticed that the claim for enforcement of the fundamental right of equal opportunity under Article 16 is itself a fundamental right guaranteed under

Article 32 and this Court which has been assigned the role of a sentinel on the qui vive for protection of the fundamental rights cannot easily allow

itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like.â€​

Per contra, Mr. Arun Kumar Dubey, learned counsel for the respondent-State submits that the petitioner has approached the Court after a long

period and the writ petition is fit to be dismissed on the ground of delay and laches. He further submits that co-accused has filed writ petition in time

and that is why he has been provided the benefit, whereas, the petitioner has approached the Court after much delay. He also submits that on these

grounds, the writ petition is fit to be dismissed.

Having heard learned counsel for the parties, the Court has ventured to go through the materials on the record. It transpires that the learned Single

Judge vide order dated 05.01.2015 has rightly dismissed the writ petition considering Section 101(a) of the Bihar Pension Rules, 1950. The learned

Single Judge has rightly considered that the dismissal order has not been challenged. In L.P.A. No. 76 of 2016, the Division Bench of this Court has

considered entire aspect of the matter including the relief granted to the co-accused, namely, Saheb Singh @ Saheb Prasad Singh and also considered

that the petitioner is an illiterate lady and she is not able to approach the Court in time and, therefore, liberty was granted to the petitioner to challenge

the dismissal order. The petitioner is the widow of Late Ganesh Bhagat, who died on 30.12.1997. the petitioner was not knowing about the dismissal of

service of her husband. She obtained the said order under the Right to Information Act. The similarly situated person, namely, Saheb Singh @ Saheb

Prasad Singh has been allowed 50% back wages and reinstatement in the service. The husband of the petitioner was also acquitted vide order dated

18.07.1988, contained in Annexure-1 of the writ petition. No third-party interest is involved in the case in hand and in light of the judgments passed in

the cases of Tukaram Kana Joshi and Ramchandra Shankar Deodhar (supra), the writ petition succeeds. Accordingly, the dismissal order dated

20.06.1986 and appellate order dated 21.02.1987 are quashed. The matter is remitted back to respondent no.3, who will consider the case of the

petitioner on the ground of parity, in light of the discussions made herein above, particularly about the relief already granted to Saheb Singh @ Saheb

Prasad Singh and will pass a reasoned order, within a period of eight weeks from the date of receipt/production of a copy of this order.

With the above observations and directions, this writ petition stands allowed and disposed of.