IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8468 of 2005 Ajay Kumar, s/o- Bihari Singh, r/o- village- Karadeeh, P.S.- Silao. District- Nalanda, Ex. Panchayat Sewak ……………. Petitioner. Versus 1. The State Of Bihar. 2. The District Magistrate, Gaya. 3. The District Panchayati Raj Officer, Gaya. 4. Sub-Divisional Officer, Sadar, Gaya. 5. The Circle-cum-Block Development Officer, Atari, Gaya. …………. Respondents For the petitioner : Mr. R.S. Roy, Sr. Advocate For the respondents : Mr. Mritunjay Kumar, A.C. to AAG-XIV ----------- 5 20.07.2011 Petitioner was appointed temporarily as Panchayat Sewak against the vacant post on fixed pay of Rs. 65/- plus C.L.A. as prescribed by the Government from time to time for such post. Such appointment was made by order dated 30.5.1969 passed by the Sub-Divisional Officer, Sadar, Gaya. It is the case of the petitioner that on 21.1.1976, he applied for leave and absented from duty. It is admitted position that he remained absent from duty for close to 03 years. On 20.2.1979, he submitted his joining in the office of respondent Block Development Officer. The matter was referred to the Sub-Divisional officer, whereafter an order contained in letter No. 179 dated 23.2.1979 (Annexure-2) was passed wherefrom it appears that for his willful absence for a long period, a departmental proceeding had already been initiated on 5.5.1976 which was pending in which Article of Charges were framed and sent to the petitioner. The request of the petitioner for accepting his 2 joining was thus referred to Sub-Divisional Officer for issuing appropriate order in this regard. The respondent Sub- Divisional Officer by an order contained in letter No. 49 dated 11.2.1980 directed for acceptance of his joining which will have no adverse effect on the on going proceeding pending against the petitioner. A copy of the said letter was forwarded to all concerned including the petitioner. It appears that in the departmental inquiry, one Deputy Collector was appointed as the Conducting Officer as would appear from communication/order as contained in Memo No. 385 dated 28.7.1976. The Article of Charge has been enclosed by the petitioner as Annexure-3 wherefrom it appears that the charge(s) inter alia pertained to his willful absence from duty and insubordination. By order contained in Memo No. 396 dated 15.7.1981, he was removed (wimukt) from service. Copy of the said memo was also forwarded to the petitioner. Sustainability of aforesaid order dated 15.7.1981 has been challenged in the present writ petition. Heard learned counsel for the petitioner and learned Assistant Counsel to A.A.G.-XIX for the State. Counter affidavit filed on behalf of the respondent Nos. 2 to 5 is on record. Learned counsel for the petitioner assailed the order on the ground that without affording appropriate 3 opportunity to the petitioner, the enquiry report was submitted and the impugned order was passed. It is also the stand of the petitioner that he remained ignorant of the departmental proceeding having been levied against him and as such the petitioner could not appear in the proceeding and file show cause. Learned counsel for the respondents, on the other hand, submits that there are materials on record to indicate that petitioner had the knowledge of the pending proceeding against him for his willful absence for 03 years from the place of his work and yet he did not care to participate in the proceeding. It is contended that the order of his appointment/engagement being purely temporary on fixed pay was liable to be terminated any time without any notice and assigning any reason and as such the petitioner cannot raise any grievance about his non-participation in the departmental proceeding. It is also contended that the order is appealable which has not been availed. Learned counsel also highlights that the present application would be barred by gross delay, laches, waiver and acquiescence and as such this Court may not invoke its extraordinary writ jurisdiction. Learned counsel for the petitioner, in reply, draws attention of the Court to the averments made in paragraph 12 and submitted that he had approached the Lokayukta in 4 the matter on 6.8.1982 which remained pending for some time. I have heard the parties and perused the materials. This Court deems it appropriate to first consider the issue whether, in the facts and circumstances of the case, this Court would invoke its extraordinary and discretionary writ jurisdiction in the matter based on the pleadings on record. In the mercy petition (Annexure-5), petitioner has not stated anything about the order of removal (wimukti) passed against him on 15.7.1981 copy whereof was duly forwarded to him. Instead, he pleaded that his salary for certain period was not being paid to him and as such the Lokayukta may take cognizance of the matter and grant relief. The petitioner remained satisfied with the aforesaid mercy petition for close to 22 years and ultimately knocked the door of this Court by instituting the present proceeding on 19.7.2005. In the counter affidavit, the respondents have brought on record the order dated 18.7.2007 passed by the Lokayukta (Annexure-7). It appears therefrom that the said proceeding was dropped. In the year 2007, the petitioner again approached the learned Lokayukta for revival of the proceeding stating that he was now dismissed from service on the basis of a departmental proceeding of which he had 5 no notice. The authorities including the District Magistrate, Gaya and Block Development Officer, Atri were noticed for hearing. In compliance thereof, the District Magistrate, Gaya and Block Development Officer, Atri appeared before the Lokayukta and disclosed that the petitioner had already approached the High Court by filing a writ proceeding on the same set of facts. The proceeding was thus dropped. It thus appears that the petitioner, in order to explain the delay of 22 years in approaching this Court made an application before the Lokayukta suppressing the fact that he had already filed a writ petition which persuaded the Lokayukta to order personal appearance of the authorities whereafter it was disclosed that the petitioner had already filed a writ petition. Accordingly, the said proceeding was disposed of. From the facts taken note hereinabove, it would manifest that petitioner has not approached this Court with clean hands. In order to get over the anticipated obstacle of gross delay and laches in assailing the impugned order, he made an application for revival of a dead proceeding suppressing the fact that he had already filed a writ petition. In my view, this act of the petitioner disentitles him from seeking invocation of extraordinary and equitable jurisdiction of this Court as he does not seem to have approached this Court with clean hands. It is also seen that delay of more than 22 years in approaching the Court has not been 6 explained by the petitioner. This Court, on the basis of materials on record, is persuaded to hold that writ application suffers from gross delay and laches. Materials on record further persuade this Court to hold that petitioner had acquiesced in the order for all these decades and ultimately, in his own wisdom, chose to file a writ petition after 22 years. The application, therefore, also suffers from the principle of waiver and acquiescence. Law is well settled. Writ Court would not open its door to assist the tardy, indolent or lethargic citizen like the petitioner. As I have already held that the writ application is barred by gross delay, laches, waiver and acquiescence, the other issues raised by the parties have not been delved into. The application is dismissed. pkj ( Kishore K. Mandal, J)