LETTERS PATIENT APPEAL No.1216 OF 1998 (In the matter of an appeal under clause 10 of the Letters Patent of the Patna High Court Rules) ANIL PRASAD son of Shri Rajendra Prasad, resident of village-Bari Nagla, Police Station-Malsalami, Patna City. --------------------------------- APPELLANT Versus 1. THE STATE OF BIHAR 2. The Bihar Public Service Commission through its Secretary, Patna. 3. The Secretary-cum-Commissioner, Department of Health, Bihar, Patna. 4. Director-in-Charge, Department of Health, Bihar, Patna. 5. Deputy Director, Department of Health, Bihar, Patna. ------------------------------ RESPONDENTS For the Appellant :- Mr. Chitaranjan Sinha, Sr.Adv. Mr. Bishnu Kant Dubey For the State :- Mr. Shashi Bhushan Kumar, S.C.16. For the B.P.S.C. :- Mrs. Nilu Agrawal, Adv. P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON'BLE MR. JUSTICE JYOTI SARAN Navin Sinha & Jyoti Saran,JJ. Heard learned counsel for the parties. The appellant was an applicant under advertisement No. 6 of 1985 published by Bihar Public Service Commission (hereinafter referred to as the ‘BPSC’) on a requisition made by the Health Department of the State Government for appointment on the post of “Health Educators”. 2 The appellant was recommended on 13.7.1994 by the Commission for appointment. An interview call dated 13.7.1994 required him to appear for interview on 19.7.1994 along with his original educational qualification certificates, date of birth certificate, caste certificate etc. for verification. Inability to participate or defect in original documents would render the candidate ineligible for appointment. It is the case of the petitioner that he participated in the interview. Appointment not forthcoming, the appellant filed C.W.J.C. No. 5702 of 1998. The writ Court held that there was delay of four years in moving the writ petition from the date of the recommendation. Even if his claim that a draft appointment letter lay in the file was considered still there was a delay approximately three years with no satisfactory explanation. The filing of representation was no explanation to condone the delay. In any view of the matter, the panel had lost its validity as was noticed in another Review application dated 10.7.1998 arising out of the advertisement. The writ petition was dismissed. Learned counsel for the appellant has strongly contended that the recommendation and interview call issued to the appellant are not in 3 dispute. A draft appointment letter of the appellant is also available in the records. The denial of appointment is arbitrary by creating a false and incorrect defense of non-participation by the appellant in the interview on 19.7.1994. The appellant did participate and also signed the attendance sheet in acknowledgment of his participation in the interview. His original documents were also verified. Strong reliance was placed on certain extracts of the file noting obtained by the appellant under the Right to Information Act that he had participated in the interview. The submission therefore was that the only ground taken in the counter affidavit of non participation at the interview stood falsified from the records. The respondents were guilty of trying to mislead the Court. To counter the finding of delay by the writ Court, reliance was placed on (2008)8 SCC 445 (Ashok Kumar versus State of Bihar and Ors.) to submit that pursuing his representations was adequate explanation. Learned counsel for the State supported impugned judgment under appeal by emphasizing delay and expiry of the panel. It was next contended that the appellant did not participate in the interview on 19.7.1994 and therefore his 4 recommendation was returned to the B.P.S.C. on 28.11.1995 for that reason. He is therefore not entitled to any relief. Delay is a factor considered relevant by Courts in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India. It satisfies the salutary purpose of shutting out stale and belated claims to unsettle things otherwise settled by time. The Court shall not come to the aid of those who are not vigilant about protection of their own rights and are indolent. Delay may render litigation frivolous also. Delay has been considered vital in service cases, as it necessarily has a cascading effect if relief is granted belatedly. A belated claim for appointment, if granted, may result in disturbing another who may be sanguine in his appointment and seniority. Therefore, unless there be a reasonable and plausible explanation for the delay, the Court may decline exercise of discretionary jurisdiction. The aspect of delay in service matters has been considered in (1998) 2 SCC 523 (B.S.Bajwa & anr. Vs State of Punjab & ors.) holding at paragraph 7 that in service matters questions should not be reopened after lapse of a reasonable period which results in disturbing settled position 5 which is not justifiable. Likewise in (1999) 1 SCC 729 (Union of India Vs Kishori Lal Bablani) it has been held at paragraph 6 in context of an appointment matter that delay defeats equity specially when there was no legal right to appointment to a post. The process of selection and notification could not be and ought not to be reopened belatedly in the interest of proper functioning and morale of the services concerned as it would jeopardize the existing position of a large number of members of that service. The Appellant additionally did not even seek any legal redress during the life of the panel on which he relies but only after the validity of the panel had expired. In fact, the appellant had no cause of action on the day that he filed the writ petition. The judgment under appeal notices that no explanation worth the name has been furnished by the appellant except that he had filed representations. That mere filing of representations is not sufficient explanation to explain delay unless a legal remedy was being pursued stands well settled. If an authority be needed for the proposition reference may be made to (2006) 4 SCC 322 [Karnataka Power Corporation 6 Limited Vs. K. Thangappan & anr.] holding at parqagraph 10 as follows;- “10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore (AIR 1967 SC 973). This was re-iterated in R.N. Bose's case (supra) by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. P. Samantaraj (AIR 1976 SC 2617) making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar.” A judgment is an authority for what it actually decides in the particular facts of a case. The question of delay shall therefore always depend on the facts of a case and the consequences that may ensue in a case of belated interference. In the case of Ashok Kumar (Supra) relied upon by the appellant, we do not find from the discussion that it related to a service matter or whether the review mentioned was statutory in nature or not. If 7 it was statutory that may make a fundamental difference. Orders made by a Court in exercise of its discretionary jurisdiction ought not to be lightly interfered merely because another discretionary view may be possible on the facts and circumstances. The appellate Court should be circumspect that only if one conclusion was possible on the facts or the exercise of discretion was arbitrary, illogical or perverse should interference be made with a discretionary order in appellate jurisdiction. In AIR 1953 SC 228 (Namdeo Lokman Lodhi Vs. Narmada Bai & ors.) it has been held at paragraph 29 that the exercise of discretion in each case must be judged by itself keeping in mind the delay, the conduct of parties and the difficulties to which one is put to at the expense of the other to deny relief in equity. This Court in its appellate jurisdiction on 31.7.2009 had directed the learned State counsel to keep the original records present during hearing. They have been produced and we have perused the same. It stands well settled that a mere recommendation and empanelment does not tantamount to appointment, yet the denial cannot be fanciful 8 but for cogent reasons explained in (1991) 3 SCC 47 (Shankarsan Dash vs. Union of India). On the facts of the present case we are satisfied from the submissions made on behalf of the parties and the materials on record that at the fulcrum of the controversy is a pure question of fact whether the appellant participated in the interview on 19.7.1994 or not. Being a question of fact, it can also assume the nature of a disputed fact with documents justifying that he did not participate in the interview. The documents relied upon by the petitioner for such participation may themselves be suspect based on all connected materials, that the appellant did not participate in the interview. The entire thrust of the argument of the petitioner was based on file noting obtained under the Right to Information Act recorded by an office Assistant that the petitioner had participated in the interview on 19.7.1994. It was emphasized that he had signed the attendance sheet also and a draft appointment letter awaiting issuance was available in the records. The law with regard to file noting discussed in (2009) 1 SCC 180 (Sethi Auto Service Station & anr Vs. Delhi Development Authority & anr.) at paragraph 14 observes as follows:- 9 “14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department; gets his approval and the final order is communicated to the person concerned.” As distinct from the file notings by an Assistant the counter affidavit is that of a senior officer of the rank of Director-in-Chief of the Health Services. At page 363 of the original official file is a one sheet attendance page on which the appellant relies. The heading of the page starts with the date 19.7.1994 written in English. Below that in vernacular are the words “attendance”. At serial 1 is the appellant and at Serial 2 is one Bharat Prasad. After the words “attendance” there is some writing which has been 10 scored out. After the name of the appellant at column 1, a semi column is there followed by the words “father” which has again been scored out and no parentage of the candidate is written. The word father is not written after the name of the second candidate Bharat Prasad. In front of the name of the petitioner is his initial dated 19.7.1994. At page 362 of the brief is another one page sheet which contains the heading “Interview”. Below that are the details of the serial no., name and address of the candidate, home district, code, and remarks. The name of Bharat Prasad is at Serial No.1 with all necessary information in the columns including the parentage of the candidate. Similarly at serial No. 2 is the name of the appellant with all columns filled. It is the specific case of the State that not only the appellant, even Bharat Prasad did not participate in the interview. This sheet is not signed by any of the candidates. We have no hesitation in concluding that the latter document at page 362 of the file is the correct attendance sheet for the interview. We have no hesitation in holding that the document at page 363 of the file, the sheet anchor of the case of the appellant is an insertion. That this is an 11 insertion coupled with suspect file notings prepared to corroborate the same by the Assistant designed to help the Appellant is a finding we conclusively arrive at. This view is further fortified by representation of the appellant dated 24.8.1994 at page 369 of the file. This representation has not been brought on record by the appellant as confirmed by the learned counsel during proceedings. The representation states that the appellant participated in the interview on 17.7.1994 yet the appointment letter was not forthcoming. A document written in haste, creating evidence resulting in an error when the truth is revealed inadvertently, crucifies the entire claim of the Appellant. No interview of the appellant was scheduled on 17.1.1974. The so called draft letter of appointment in the records as claimed by the petitioner does not create any right in him but was only a cog in the wheel being spun by the office Assistant and the Appellant to create evidentiary circumstances. In the entirety of the discussion, whether it be the question of delay or merits of the matter, we find no reason to interfere with the judgment under appeal. 12 The appeal is dismissed. Let the original records be returned to the learned State counsel. Patna High Court/ Dated 16th July, 2010/ Bibhash/N.A.F.R. ( Navin Sinha, J.) (Jyoti Saran, J.)