Hirdan Singh vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 30.01.2008 (Annexure - P/1 page 12 of the petition), passed by the Sarpanch, Gram Panchayat, Badkabahra, Janpad Panchayat, Manendragarh, District Koria, whereby, the petitioner, working as Panchayat Karmi (Secretary), has been removed from service on the basis of resolution dated 17.01.2008 passed in the Gram Sabha. The petitioner further seeks quashing of the order dated 13.03.2008 (Annexure - P/1 page 13 of the petition), whereby the respondent No. 6 has been appointed as Panchayat Karmi (Secretary) in place of the petitioner, by the Gram Panchayat, Badkabahra, after approval of the Gram Sabha. The facts, in brief, as projected by the petitioner, are that the petitioner was appointed as Panchayat Karmi by passing a resolution on 19.11.1995 by the Gram Panchayat. Later on, by order dated 30.10.1999, the petitioner was declared as Panchayat Secretary. On a complaint made by certain persons, the Chief Executive Officer, Janpad Panchayat, conducted an enquiry and submitted report on 07.03.2007. The said enquiry was conducted without issuing notice to the petitioner. On the basis of the said enquiry report, the petitioner was removed from the post of Panchayat Secretary and in his place, the respondent No. 6 was appointed. Thus, this petition.

Shri Shrivastava, learned counsel appearing for the petitioner, would submit that the mandatory statutory provisions of Rule 7 of the Chhattisgarh Panchayat Service (Discipline & Appeal) Rules, 1999 (for short `the Rules, 1999'') were not followed before removing the petitioner from the post of Panchayat Karmi, thus, the impugned orders passed by the Gram Panchayat, is unsustainable in the eyes of law.

It is the case of the petitioner that thereafter, the petitioner made an application on 7.5.2008 (Annexure - P/9) for obtaining certain information under the provisions of the Right to Information Act, 2005 (for short "the RTI Act, 2005") including the resolution by which the petitioner has been removed from the post of Panchayat Karmi and the respondent No. 6 was appointed on the said post.

Shri Sao, learned counsel appearing for the State, would submit that admittedly, the provisions of Rule 7 of the Rules, 1995 has not been followed in this case before passing the impugned termination order, which is mandatory. The petitioner could have been removed only after complying with the provisions of Rule 7 of the Rules, 1999.

Despite service of notice, none appears on behalf of the respondent No. 5.

Submission of Shri Agrawal, learned counsel appearing for the respondent No. 6 is ad idem to the above.

Having heard learned counsel appearing for the parties, perused the pleadings and the document appended thereto, it is evident that by resolution dated 17.1.2008, it was resolved to terminate the services of the petitioner and the impugned order of termination was passed on 30.1.2008 (Annexure - P/1 page 12 of the petition). In the same resolution, it appears, a decision was taken to appoint the respondent No. 6 as Panchayat Karmi, however, the order of appointment was passed on 13.3.2008 (Annexure - P/1 page 13 of the petition) in favour of the respondent No. 6 i.e. after removal of the petitioner from the post of Panchayat Karmi on 30.1.2008.

According to the petitioner after the impugned order was passed on 30.1.2008, the petitioner moved an application under the provisions of the RTI Act, 2005 for obtaining certain documents including the resolution by which the petitioner has been removed from the post of Panchayat Karmi and the respondent No. 6 was appointed on the said post. In that process time was taken and ultimately he could file the instant petition before this Court only on 15.11.2010, after a period of more than 2+ years.

Contention of the petitioner that he had not received the impugned order does not merit acceptance, as the copy of the order was endorsed to him, which appears to have been declined by him, as there is an endorsement on the photocopy of the order, which was annexed by the petitioner. Even otherwise, if the petitioner was discontinued from working, the petitioner ought to have verified the facts and could have approached the Court immediately within a reasonable time.

The petitioner has taken more than 2+ years in approaching this Court. In the meantime, the respondent No. 6 was appointed and allowed to continue for a long period and, as such, it can safely be held that the third party interest of the respondent No. 6 was created and allowed to continue for more than 2+ years.

On laches and delay in agitating the grievances before the Court, the Supreme Court in State of Punjab and another v. Balkaran Singh1, observed as under :

According to us, the suit is also barred by acquiescence and estoppel. No one in a service can sleep over the question of seniority for more than 12 years and then come to court seeking a relief which will upset the seniority of a number of persons who had been shown as seniors in the respective seniority lists. Therefore, on the face of it, a declaratory relief that will have the effect of altering a twelve-year-old and a nine-year-old seniority list could not have been granted by the courts below.

In Yunus (Baboobhai) A Hamid Padvekar v. State of Maharashtra2, the Supreme Court observed as under :

Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party.

The Supreme Court in Shankara Cooperative Housing Society Limited v. M. Prabhakar & Others3, observed that "the Court can refuses relief on the ground of laches or delay when the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners."

In the case on hand, it is true that the right accrued in favour of the respondent No. 6 after the petitioner was terminated from the service. The petitioner filed the instant petition after lapse of more than 2+ years and the right accrued in favour of the respondent No. 6 was allowed to continue. In that view of the matter since third party right has been perfected on account of delay of 2+ years in filing the petition, the petition is not maintainable.

Though, it is well settled that the condonation of delay is a discretionary power of the Court and the right to get relief cannot be deprived on account of delay as held by the Supreme Court in M/s Tilokchand Motichand & Others v. H.B. Munshi and Another4, however, in the case on hand, third party interest has been created in favour of the respondent No. 6, as he has been appointed and continued in the service for more than 2+ years. Since the petitioner has failed to approach this Court within a reasonable time, the discretionary power cannot be exercised by this Court in favour of the petitioner. Applying the well settled principles of law to the facts of the present case and for the reasons mentioned hereinabove, the writ petition is liable to be and is hereby dismissed, leaving the parties to bear their own costs.