ROOP LAL Vs. STATE

JUDGEMENT

(1.) The petitioner was appointed as a Patwari in the Consolidation of Holdings Department at Arki on 1st May, 1960, but due to the retrenchment of the post his services were terminated and on a request by the Director of Consolidation of Holdings to all the Deputy Commissioners the petitioner was selected for appointment as & Patwari and on the 4th March. 1963. an offer was made to him for being appointed as a Patwari within Mahasu district, vide Annexure B. He joined his duty as Patwari on 8th March, 1963, but on the 15th September, 1965, he received a copy of an office order, dated 15th September, 1965, terminating his services along with some other employees mentioned in that office order. Thereafter the petitioner represented to the Collector. Mahasu, but he did not get any reply. He again sent his reminders and on 18th May, 1966, he was told that his representation has been rejected. Thereafter he made further representation to the Financial Commissioner, Himachal Pradesh in the month of June. 1966. The petitioner also represented to the Lt. Governor on the 27th December, 1966 who forwarded his representation to the Chief Secretary and informed him by a letter, dated 12th July, 1967, to get in touch with the Chief Secretary. During the month of July 1967, he was informed by the Under Secretary (Revenue) that the matter was under consideration and that certain information had been sought from the Deputy Commissioner, Mahasu. When he did not receive any reply he made a representation to the Chief Se-cretary by the end of December, 1967, requesting him to expedite his case. On the 29th October. 1968 and the 1st November, 1968 the petitioner was called by the Commissioner (Revenue) and he was given personal hearing in the matter and he was assured that his case would be finally decided in due course of time and the result of the representation made by him would be conveyed to him. The petitioner being a resident of an interior part of District Mahasu was waiting for the reply, as assured. But he did not get any reply and he finally sent reminder to the Chief Secretary on 11th August, 1970. and to that also no reply was received and the last reminder by the petitioner is marked Annexure E. It was further averred that respondents 4 to 7 were appointed as Patwaris in the Revenue Department after the appointment of the petitioner and accordingly they are junior to the petitioner in service, their services have been retained whereas the services of the petitioner, who was senior, had been terminated and the order, therefore, was in contravention of law and rules and contrary to the principle of natural justice and fair play. In the case of the petitioner the well recognised principle which has assumed the colour of law. i. e. "First come last go" has been completely ignored and violated and thereby the petitioner has been discriminated against in the matter of service. The order of termination of the services of the petitioner being contrary to the law and rules as also being in violation of the principle of natural justice and fair play is liable to be quashed and he, therefore, prayed for quashing the order of respondent No. 3, whereby his services were terminated and also prayed for a writ of mandamus to be issued directing respondents 1 to 3 to hold the petitioner entitled to emoluments and other benefits of the post, treating the order of termination of his services as ineffective,

(2.) The respondents 1 to 3 in their return raised preliminary objections that the petition suffers from the defect of laches, as it has been filed after a long lapse of time from the passing of the impugned order, dated 15-9-1965. The futile representation for which there was no statutory provision cited by petitioner could not condone the delay. That there was an alternate and effective remedy open to the petitioner by a civil suit for which he had served a notice under Section 80 of the Civil Procedure Code. There was no infringement of any rights of the petitioner much less any breach of fundamental right calling for the institution of the writ petition. The services of the petitioner were not terminated unjustly or inequitably. The post was temporary and his services were no longer required, hence these were dispensed with. It was submitted that a notice under Section 80 of the Civil Procedure Code was received but as the same was without any force so it required no action in the matter. The petitioner had not given any date of appointment of respondents 4 to 7 either with the Consolidation Department or their absorption in the Revenue Department or how they were junior to the petitioner. Therefore, the averment as made in para. 8 of the petition was vague and uncertain. There had been. no departure from the rules or any established practice having the force of rule nor there was any violation of the rules of natural justice and the order dispensing with the services of the petitioner is not liable to be quashed and it was on these averments that the petition was opposed.

(3.) The first preliminary point raised by the respondents is about laches. The petitioner himself has admitted in para. 12 of the petition that there had been delay in filing the writ petition, but according to him. the delay was caused because of the reasons as stated by him in the petition and the reasons, according to him. are that after the termination of his services he had been making representations against the order of termination of his services. The services of a temporary Government servant, like the petitioner, are governed by the Central Civil Services (Temporary Service) Rules, 1949. These rules do not provide for any appeal, revision, etc., against the order of termination of services nor it envisages any representation, etc, to be made by the person whose services have been terminated. But the contention of the petitioner is that he had been pursuing his case by making repeated representations to the authorities concerned for granting him relief for the unjust termination of his services. There is no limitation prescribed for filing a writ of certiorari. but as a rule a person who feels aggrieved against an order of a Tribunal or any other authority must take action with the least possible delay and if there is delay he must give adequate explanation for the same end if the explanation offered is by no means satisfactory, the High Court is justified in refusing to entertain the writ petition on the ground that it was a belated one. and this is supported by Bankhandi Lal v. Asst Supdt. of Police. AIR 1962 All 114. Similarly this view finds support from Roopsingh Devisingh v. Sanchalak. Panchayat and Samaj Sewa M. P., Indore. AIR 1962 Madh Pra 50 wherein it has been stated that though there is no limitation for an application for relief under Article 226. and the Court will not call upon the petitioner under Article 226. to give a strict arithmetical account of every day. delay that is considerable and unexplained disqualifies the petitioner to any assistance. It is certainly a principle of prudence and diligence to be applied reasonably, and further, the explanation of the delay, if any, should be considered sympathetically. But this does not mean that delay, especially of several months, should be overlooked as a matter of course. So, in order to apply this principle we have got to see whether the petitioner has offered any reasonable explanation. He has stated that he had been making representations against his termination of service. The order of termination, as stated in para. 4 of his petition, was passed on 15th September, 1965 and thereafter he made his representation on 2nd November, 1965 (Annexure C). There-after he says that he sent several re-minders and he received a letter from the office of the Deputy Commissioner on 18th May, 1966. saving that his representation has been rejected and this is not denied by the respondents also in their reply to para. 4. Thereafter the petitioner made a further representation, as stated in para. 5. in the month of June. 1966 and after numerous reminders, he received a copy of communication (Annexure D), dated 24th August, 1966. This Annexure D was. in fact, a letter written by the Under Secretary (Revenue) to the Deputy Commissioner, Mahasu, calling for his parawise comments on the representation of the petitioner and a copy of the letter was endorsed to the petitioner on the same date, According to him. he further represented to the Financial Commissioner to convey decision on Ms earlier representation, but no reply was received. Then he represented to the Lt. Governor on 27th December. 1966 and he was inform-ed on 12th July, 1967 to get in touch with the Chief Secretary, This fact Is not denied by the respondents. Later on he was informed in the month of July. 1967, by the Under Secretary (Revenue that his matter was under consideration and certain information had been sought from the Deputy Commissioner and when, no reply was received he represented to the Chief Secretary by the end of December, 1967. requesting him to expe-dite has case. This fact is also not denied by the respondents. Again he says that on the 29th October and on 1st November, 1968 he was given a personal hearing in the matter. This is also not specifically denied and according to him, he was given assurance. Thereafter it appears that he did not move in the matter at all till the 11th August 1970, when he sent a reminder (Annexure E) to the Chief Secretary. Himachal Pra-desh. Undoubtedly there is no provision for any representation, etc. to the rules under which the services of a temporary Government servant are governed, but even then it may be said that the petitioner rightly or wrongly had been making consistent efforts through his re-presentations to the authorities concerned to set aside the order of termination and the lest representation in this behalf was made on 27th December, 1966. However, according to the petitioner he had been given assurance by the authorities concerned that his case was being considered and the last time that this assurance was held out to him was in November, 1968. But thereafter there is nothing on the record to show if he had been making any representation or pursuing his case, except that on 11th August, 1970, he sent a notice (Annexure E) to the Chief Secretary to send him a reply within a week's time positively, failing which he will be compelled to pursue the case through the Court and this notice it appears was made by him simply to make a ground for covers Ing delay in filing the writ. After November. 1968, there is no explanation whatsoever tendered by the petitioner, excepting his bald assertion, and. therefore, the petition is definitely hit by laches. The Supreme Court authority Chandra Bhushan v. Dy. Director of Consolidation. U. P., AIR 1967 SC 1272 is not applicable to the facts of the present case, inasmuch as in that case a revision application under Section 48 of the U. P. Consolidation of Holdings Act filed by -the appellants against the order or the Settlement Officer Consolidation, was dismissed by the Deputy Director of Consolidation. Allahabad, by order, dated July 15, 1961. The appellant then moved on Nov-ember 13, 1961, the High, Court of Allahabad for the issue of a writ of certiorari quashing the orders, inter alia, of the Consolidation Officer and the Settlement Officer. The petition was sum-manly rejected by a Single Judge, observing that the period of limitation expired on 7th November, 1961 and no explanation had been furnished why the writ petition could not be filed on November 7. 1971. A special appeal against that order was also dismissed by a Division Bench of the Allahabad High Court and the Supreme Court in that case held that the High Court of Allahabad had not framed any rule .prescribing a period of limitation for filing petition for writs of certiorari under Article 226 of the Constitution. Ordinarily in the absence of a specific statutory rule, the High Court may be justified in rejecting a petition for a writ of certiorari against the judgment of a subordinate Court or Tribunal, if on a consideration of all the circumstances. It appears that there is undue delay, But the aggrieved party should have a reasonable time within which to move the High Court for certiorari. The Allahabad High Court has constantly laid down the practice that the period of 90 days, which is the period fixed for appeals to the High Court from the judgment of the lower court should be taken as the period for application for the issue of a writ of certiorari and the time can be extended only when circumstances of a special nature, which are sufficient in the opinion of the Court, are shown to exist But in the absence of a statutory rule the period prescribed [for preferring an appeal to the High Court is a rough measure: in each case the primary question is whether the applicant has been guilty of laches or undue delay. A rule of practice cannot Prescribe a binding rule of limitation. Hence this authority does not assist the petitioner, rather it assists the respondents. We have seen the facts as asserted by the petitioner, but the assertions remained unsubstantiated beyond November, 1968 and the petitioner had been quite indolent for about one year and mine months and this delay is quite fatal.