JACOB Vs. THE ENGINEER-IN-CHIEF

JUDGEMENT

(1.) THE petitioner was first appointed on 11th March 1954 as a Sectional Officer,Electrical(Junior Engineer)in the Central Public Works Department by the Chief Engineer Central P.W.D .,New Delhi.As from 13th October 1961 he was confirmed in the said post by order dated 23rd October 1962 of the Chief Engineer,Central P.W.D .,New Delhi.By order dated 29th April 1967 the Chief Engineer,promoted him to officiate temporarily as Assistant Engineer(Electrical)in C.E.E.S.Class II with effect from 11thApril 1967.Though,by 1970,the petitioner had satisfactorily completed the period of probation,no order declaring his probation,or confirming him in the post of Assistant Engi­neer,was passed by the Chief Engineer,P.W.D.It is averred in the writ petition that in May 1976,while the petitioner was working as officiating Assistant Engineer at Trivandrum,Central Electrical Sub Division,under Coimbatore Electrical Division,he received an order from C.P.W.D .,transferring him to New Delhi.The petitioner was relieved on 14th September 1976 from Central Electrical Sub Division,Trivandrum;he,however,instead of joining at New Delhi,applied for leave for 40 days.While matters stood like that,the petitioner received order No.56/123/ 66 -EC.III,dated 23rd September 1976 of the Government of India,Central Public Works Department,New Delhi,a true copy of which is Ext.P -1;and that reads as follows:" "Order. WHEREAS,the Engineer -in -Chief,Central P.W.D.New Delhi,is of the opinion that it is in the public interest to do so: NOW THEREFORE,in exercise of the powers conferred by clause(j)of Rule 56 of the Fundamental Rules,the Engineer -in -Chief,C.P.W.D,New Delhi,hereby retires Sri G.Jacob,Assistant Engineer(Electrical)attached to Central Electrical Sub Division,C.P.W.D .,Pettah,Trivandrum with immediate effect,he having already attained the age of fifty years on 29th May 1976.Sri Jacob shall be paid a sum equivalent to the amount of his basic pay plus allowances,for a period of three months calculated at the same rate at which he was drawing them immediately before the retirement." Ext.P -2 is the copy of representation dated 27th November 1976 submitted by the petitioner to the Engineer -in -Chief(the first respondent)for reconsidering the case of the peti­tioner,both on merits and on compassionate grounds,and to reinstate him in service.Ext.P -2(a)is an advance copy of Ext.P -2 forwarded by the petitioner to the Minister for Works and Housing.Ext.P -3 is a copy of the Official Memorandum of Government of India,Ministry of Works and Housing,dated 22nd March 1977,stating that the points raised by the petitioner in his representation had been considered by the competent authority,but it Was regretted that the decision already taken to retire him from service could not be reversed.Ext.P -4 is the copy of another representation dated 6th April 1977 submitted by the petitioner to the Prime Minister for reconsidering the matter and reinstating him in service.Ext.P -5 is the copy of the notice dated 18th July 1977 sent by the peti­tioner's advocate to the Secretary to Government of India,Ministry of Works and Housing,New Delhi.

(2.) THE writ petition is for quashing Exts.P -1 and P -3 orders passed by respondents 1 and 2 respectively,mainly on two grounds:( 1)Ext.P -1 order had been passed with mala fides;and,( 2)the provisions contained in sub­clause(i)of clause(j)of rule 56 of the Fundamental Rules for short the Rules,would not be applicable to the case of the petitioner inasmuch as,on the date of Ext.P -1 order,he was not holding the substantive post of a Class II Officer,( the Class II post held by him having been only an officiating one and he had not by then attained the age of 55 to make sub -clause(ii)of clause(j)of rule 56 of the Rules applicable to him.

(3.) BEFORE entering into a discussion on the basic question as to whether rule 56(j )(i)of the Rules could be invoked in the instant case,the contention raised by the Central Government Pleader with respect to the delay and laches has to be disposed of.Ext.P -1 order was passed on 23rd September 1976,and Ext.P -3 order disposing of Ext.P -2 representation of the petitioner was passed by the second respondent on 22nd March 1977.The writ petition is seen to have been filed on 9th August 1977.In other words,the filing of the writ petition is within one year from the date of passing of the retirement order Ext.P -1,and within six months from the date of Ext.P -3 order.In this connection we have to bear in mind that the rule that belated and stale claims could not be gone into by courts is more a question of practice than a rule of law;a matter of discretion on the peculiar facts and circumstances of each case.A period of six months,or even one year,may be a reasonable time in one case;but in another case a period of three months could be considered to be a reasonable time to come to the court.The decision is to rest on various factors like the explanation for the delay offered,the seriousness of the consequences that would follow from the decision of the court,whether,it would tend to perpetuate injustice or would amount to failure to do justice,whether it would unsettle settled positions and would upset balance of convenience.The Supreme Court has in Sadasivaswamy v. State of Tamil Nadu (A.I.R.1974 S.C.2271)on a consideration of the particular facts of the case,observed that the petitioner ought to have come to court at -least within six months or one year from the date of passing of the impugned order.Compulsory retirement is an exception to the general rule that by virtue of the pro­visions contained in rule 56(a)of the Rules a Government Servant shall retire on the day he attains the age of 58 years.In a matter involving serious consequences and affecting civil rights the courts will ordinarily be reluctant to deny relief solely on the ground of delay and laches unless manifest injustice had already resulted from the callousness of the person invoking the writ jurisdiction.There could be no hard and fast rule prescribing the upper or lower limit within which an order has to be challenged under article 226 of the constitution.Taking into con­sideration the fact that the petitioner had made Ext.P -2 representation,and other circumstances and the seriousness of the consequences that follow from Ext.P -1 order,I am of the view that the petitioner should not be denied relief if he is entitled to succeed on merits,on the sole ground of delay and laches.The contention with respect to delay and laches raised by the Central Government Pleader appearing for the respondents is,therefore,rejected.