Moti Lal Jain vs Director of Technical Education U.P.Kanpur,and Others

D. K. Seth, J.—The case of the petitioner, as made out in the Writ petition, inter alia, is that the petitioner''s appointment as lecturer on 2421967 in Civil Engineering in D. N. Polytechnic College, Meerut, was approved by the Staff Selection Committee on 27719t>7 and was confirmed by an order dated 2371969 with effect from 2671968. On 4101973 the petitioner was promoted as Senior Lecturer. On account of long leave the petitioner''s service was terminated by the Committee of Management of the College on 24121982 without prior approval, as contemplated under Section 22G(l) of U. P. Praydhic Shiksha Adhiniyam, 1962 (hereinafter referred to as 1992 Adhiniyam). The petitioner''s representation dated 1021983 was rejected by the Principal/Secretary through letter dated 2121983 on the ground that his services stood terminated with effect from 2111983. Thereupon the petitioner filed an appeal before the Director, Technical Education on 2651983. On 3051984 the petitioner served a notice through his Advocate, demanding reinstatement within fifteen days with a threat to legal action, in default. By letter dated 2861984 the Committee of Management replied to the said letter affirming their stand. The Director of Technical Education on 4111987 referred the case to the Committee of Management. The Managing Committee agreed to review on 28121987. Whereupon the Principal asked the petitioner to submit a representation on 1671988. On 1971938 the petitioner sent his representation to the Committee of Management which rejected the same on 2331989. Being aggrieved the petitioner has moved the present writ petition on 2211990.

Sri B. D. Mandhyan, learned counsel appearing on behalf of the petitioner contends that in view of Section 22G (1) of U. P. Pradhik Shiksha Adhiniyam, 1962, the services of the petitioner can not be terminated without prior approval of the Director. According to him, in the present case, the petitioner, who was granted long leave and did not join his duties, despite expiry of the sanctioned leave, is in effect over staying of the leave, which is a misconduct. According to him in such case the services can be terminated only after notice to show cause and that too after prior approval obtained from the Director. The alleged abandonment of service as pleaded by the Committee of Management in its resolution dated 19121982 (Annexure 5 to the writ petition) is not abandonment, but a termination of service.

Sri Vishnu Sahai, learned counsel appearing on behalf on the respondent, on the other hand, contends that it was not a case of termination but a case of abandonment of service and in such case Section 22G(l) has no manner of application. According to him Section 22G (1) of the Act applies only when the service is terminated. In support of his contention he elaborated, relying on Annexure6 to the writ petition, that the petitioner was on long leave, on account whereof all his leave due, were exhausted and he was on leave without pay with effect from 1771981 till 1671982. Despite the letter dated 3091982 to join his duties lates by 15101982, the petitioner failed to do so. Ultimately, by resolution dated 19121982, the petitioner was asked to join his duties latest by 2711983, failing which the petitioner would be deemed to have relinquished the post with effect from 2811983. But the petitioner did not join his duties on 2711983. On the other hand he had addressed a letter op 1021983 to the Committee of Management, which was replied by means of letter dated 2321983 that on account of relinquishment of the post by the petitioner, he was no more in service with effect from 2311 83 Relying on Annexure7 to the writ petition, which is a letter addressed by the petitioner to the Director, Technical Education, which the petitioner contended to be a Memorandum of appeal, to the Director, Technical Education, Sri Sahai, points out that in the said letter the petitioner had admitted that on account of his father''s death he was looking after his family business and running a factory, manufacturing Surgical appliances and, therefore, he required long leave of two years, without pay. In the said letter he had also admitted that he was going out of Maorut and he would sent request for extension of leave within a next few days. Accordingly, he had made a request vide letter dated 1021983 sent by registered post because he was required to attend some legal cases on behalf of the factory at Ahmedabad. Therefore, he may be permitted to join on 11319S3. While concluding the said letter the petitioner had expressed his hope that he would be sanctioned leave upto 3061983 and during the next session he may be able to resume his duties and if it would not be possible to join on 171983, he would make further request for extension of leave and would abide by the orders given by the Director, Technical Education. Relying on this statement Sri Sahai, contended that the petitioner was engaged in his business and was not interested in service and had, infact, abandonned his service. Sri Sahai further contended that by letter dated 3051984, served through his lawyer he demanded reinstatement within fifteen days from the date of receipt of the said letter, failing which he take legal action. The said letter was duly replied by the Chief Medical Officer and confirmed that the petitioner has abandoned his service. Sri Sahai also relied on Annexure10 to the writ petition, by which the petitioner had addressed the Director of Technical Education, requesting him to refer his case to the Chairman, D. N. Polytechnic, Meerut for his review, in order to avoid litigation. Relying on these facts Sri Sahai contends that the conduct of the petitioner shows that he had, infact, abandoned his service, which is not a termination, within the meaning of Section 22G(l) of the said Act, requiring prior approval. According to him the abandoment of service, in the facts and circumstances of the case does not come within the ambit of Section 22G (1) of the Act.

Sri Sahai, then contends that the writ petition is not maintainable because of the delay in moving the same. Relying on the dates given, he contends that the petitioner is guilty of inordinate delay and latches in invoking enquiry jurisdiction and has not shown bona fide. Inasmuch as, according to him he was more interested in carrying on the business than service. He is interested only to the benefit of service without performing the duties while gainfully employed in business. The alleged appeal is not an appeal. Inasmuch as there is no scope for preferring any appeal or making any representation under the Statute. Therefore, the time spent on it does not help him, in any manner. Then again the petitioner himself requested the Director to refer the matter for review by the Chairman of the College and thereby submitted to the jurisdiction of the college and obtained order on review, which he can no more challenge, according to him this remedy is outside the scope of Statute. Therefore, the delay of almost seven years cannot be said to have been explained and justified and, as such, the writ petition is liable to be dismissed. In support of his contention here lies on the decision in the case of Jagdish Narayad Maktiar v, The State of Bihar and others, AIR 1973 SC 1343. Wherein it was held that a person pursuing a remedy which was not duly appointed under the law puts in peril a right of high value and significance and by his conduct has disabled the High Court from exercising its extraordinary powers in his favour, in the said case the writ petition was preferred almost after eight years which was not entertained by the High Court on the ground of delay.

We propose to take up the last contention of Mr. Sahai as to the maintainability of the petition on the ground of delay and latches first.

It is by now an established principle of law as has been laid down through various decisions of the Supreme Court and the High Courts that though there is no specific period of limitation, the High Court may refuse to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India, where the petitioner is guilty of latches or undue delay for which he cannot offer satisfactory explanation. Right from the case of Union of India v. Verma T. R., AIR 1957 SC 882, the view taken by the Supreme Court has laid down that extraordinary power is discretionary and such discretion is exercised where the court finds that the person seeking to invoke the extraordinary jurisdiction is not guilty of latches or undue delay. The court would intervene when it is satisfied that there is no latches or such latches are not due to the fault of the petitioner and that the delay is properly explained. Such explanation may not be near or similar to the explanation as required to be explained in an application under Section 5 of the Limitation Act but a possible explanation acceptable at the discretion of the court. The courts have been of consensus opinion that pursuit of extralegal remedy such as departmental representation or correspondence in the nature of an appeal for mercy are not grounds for condoning delay unless such appeal or representation is provided in the StatuteRaja Lakshmaiah Setty v. State of Mysore, AIR 1967 SC 993 at page 997 ; Jagdish Narayan Maltiar, (supra) Gian Sing Mann v. High Court of Punjab and Haryana, AIR I960 SC 1894 (Para 3). Delay or latches have not been held to be absolute bar. Where it involves infringement of fundamental rights distinct from civil rights the doctrine leading to interfere as laid down in the case of Rochhunni v. State of Madras, AIR 1959 SC 725 ; Tata Iron and Steel Company v. Sarkar S. R., AIR I9ol SC 65 (68); Kharak Singh v. State of U. P., AIR 1963 SC 1925, was weakened seriously by latter decisions, viz., Tilok Chand Motichand v. Commissioner of Sales Tax, AIR 1970 SC 898 ; Rabindra Nath Base v. Union of India, AIR 1970 SC 470 ; Amritlal Barry v. Collector of Central Excise, Central Revenue. AIR 1975 SC 538 (Para16). The Courts refused to interfere even when there was invasion of fundamental rights on the ground of laches acquiescence or delay on the part of the petitioner. Making of repeated representation after the rejection does not exonerate delay in moving the court, State of Orissa v. Pyarimohan Samantary, AIR 19/6 SC 2617 (Para 6} and State of Orissa v, Arun Kumar, AIR 1976 SC 1639 (Para 14). Perusing an ill conceived remedy is not a proper explanation for the delay. The question has been left to the discretion of the Court, Ram Chandra Shanker Deodhar v. The State of Maharashtra, AIR 1974 SC 259 (Para 10). No hard and fast rule can be laid down. Each case is to be viewed on the facts and circumstances of each case. The consideration upon which the High Court refuses, to exercise its discretion in case of delay is not limitation but the matters relating to conduct of parties Dhanyalakshmi Rice Mills v. Commissioner of Civil Supplies, AIR 1976 SC 2243, (Para 26). In some cases it has been held that the court may take cognizance of the period of limitation where if the petitioner had brought a suit or the statutory remedy for the same relief it would have been barred by limitation. K. K. Srivastava v. Bhupendra Kumar Jain, AIR 1977 3C 1703. The proper standard hower, seems to be whether in the circumstances of the case the time that has elapsed can be said to be reasonable. Babu Singh v. Union of India, AIR 1979 SC 1713 (Para 11). or whether the delay has been explained properly. Arun Kumar Chatterjee v. South Eastern Railway, AIR 1985 SC 482. The reasonableness has to be assessed by the court having regard to facts and circumstances of the case ''touching the conduct of the parties the change in situation, the prejudice which is likely to be caused to the opposite party or to general public etc. Shri Vallabh Glass Works Ltd. v. Union of India, 1984 (3) SCC 362 (Para 9).

In the present case after having examined the provisions of the 1962 Act we have not been able to find out either any provision for making any representation to the Director or any provision for filing appeal. The representation was not, therefore a remedy duly appointed under the law. Then again by his own letter, being Annexure10 to the writ petition, which is dated 41 liy87, the petitioner had requested the Director . to refer the matter to the Chairman, D. N. Polytechnic: Meerut for review, which remedy is also not appointed by law. Such reference is nothing but repetition of representation to the same authority after the rejection of the earlier on through letter dated 2121982. Then he waited till November 1987 for the redress. Admittedly, he had plead in the said letter that the review was necessary to avoid litigation, while he himself had served notice on 3051984 through his learned Advocate, demanding reinstatement within fifteen days of the service of the said notice alongwith threat of legal action in default and even then he did not take any steps to invoke the writ jurisdiction. The conduct of the petitioner, as it appears from the facts disclosed, lacks diligence and bona fide.

The pursuing of extra legal remedy in the present case does not exonerate the delay. The conduct of the petitioner does not seem to be bana fide. The petitioner, admittedly, was busy with his business for which he could not make out time for attending his employment which might have been appeared to him lass lucrative than his business. No where in the petition he has pleaded that he was without employment during the period proceeding the writ petition or thereafter. There is sufficient reason to believe in the absence of any specific denial by the petitioner that he was gainfully employed in his own business during the said period as has been asserted in the counteraffidavit. Then again the right claimed herein is only a civil right and not a fundamental one. In our view, therefore, the time that had elapsed has not beau explained reasonably and properly so as to enable this court to exercise its description in favour of the petitioner, having regard to the conduct of the petitioner and the prejudice that might cause the respondent and to the public by imposing unnecessary burden on the public exchequer so as to enrich the petitioner.

In the facts and circumstance of the case it is very difficult to disagree with the contention of Sri Sahai that the petitioner was guilty of delay, laches and negligence for a long period of almost seven years and that the steps ought to have been taken in 198384 which he had lingered till 1990. It is also contended by Sri Sahai that the petitioner had in the meantime attained the age of superannuation as it appears from the supplementary affidavit where the petitioner has disclosed his age in 1994 as sixty years. The said fact has not been disputed by Sri Mandhyan. The facts as it appears, do not explain the delay to enable the petitioner to plead diligence and bonafids in invoking the writ jurisdiction.

In the facts and circumstances of the case we agree that the petitioner by his own conduct had put in peril his right of high value and significance and has disabled the High Court from exercising its extraordinary power in his favour, as indicated above. We are therefore, unable to persuade ourselves to agree with the contention of Sri Mandhyan on the other hand, we find substance in the submission made by Sri Sahai. In view of the delay and laches as found above, we are unable to persuade to exercise our discretion in entertaining the present application in favour of the petitioner.

In view of the reasons mentioned above though a controversy has been raised as to the validity of cessation of employment on account of absence of prior approval under Section 22G(l) of the said Act, we feel it unnecessary to enter into those questions in view of the facts and circumstances of the case on account of lack of bona fide and diligence on the part of the petitioner, as indicated above.

In the result the writ petition fails and is accordingly dismissed, however, without any costs,