IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10918 of 2010 1. Jitendra Kumar, S/O Late Awadh Bihari Singh, R/O Village Ibrahimpur, P.S. & P.O. - Piro, District- Bhojpur. Versus 1. The State Of Bihar Through District Magistrate, Patna. 2. District Magistrate, Patna. 3. District Magistrate, Begusarai. 4. District Establishment Deputy Collector, Patna. 5. District Establishment Deputy Collector, Begusarai. ----------- 2. 11.11.2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 12.8.1998 by which the period 6.1.1993 to 5.12.1997 has been directed to be treated as extraordinary leave not to be counted for purposes of pension or seniority and to be entered in his service book. Learned counsel for the petitioner submits that there was no occasion for the petitioner to challenge the order dated 12.8.1998 until the year 2008 when the respondents published the seniority list. It was only then that the petitioner felt the pain and pinch of the impugned order and for which he has been pursuing matters by representation before the authorities. It is submitted that the order dated 12.8.1998 is not in accordance with law and the provisions of Bihar Service Code. It is lastly submitted that the respondents on 29.6.2010 have 2 confirmed his joining from the initial date of appointment i.e., 30.8.1991 protecting his seniority from that date. The petitioner is thus entitled to count his seniority from that date as the order in other words over writes the punishment dated 12.8.1998. Counsel for the State has raised a preliminary objection to the aspect of delayed challenged to the order of punishment dated 12.8.1998 in this writ petition filed on 14.7.2010 with no explanation for the delay. He further submits that the order dated 29.6.2010 is not in supersession of the punishment dated 12.8.1998 and operates subject to the same. A person coming to the Court seeking relief under the discretionary jurisdiction of Article 226 of the Constitution is required to be vigilant for the protection of his rights and to move the Court at the earliest opportunity. If there was delay the delay must be explained satisfactorily. In absence of any explanation for the delay the Court can decline exercise of its discretionary jurisdiction irrespective of the merit. In service matters delay has been considered very important as far back as in (1975) 1 3 SCC 152 (P.S. Sadasivaswamy v. State of T.N) holding at Paragraph-2 as follows:- “2………... It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal.” If a delay of six months at that point of time was sufficient to deny relief, today with the dockets of the Court bursting surely the Court has to reserve its time for such litigants who approach the Court in time and not allow stale litigation of the present nature to unnecessary hold up the time of the Court. The petitioner was a compassionate appointee. He himself admits in Paragraph-7 that he 4 absented himself. A show cause notice was issued to him leading to the order dated 12.8.1998. The order in no uncertain terms does not condone his absence and does not grant him leave. It only recognizes the period of absence, to avoid termination, as a period of unauthorized absence. In (2008) 8 SCC 469 ( State of Punjab v. Dr. P.L. Singla ) it has been held at Paragraph-15 as follows:- “15. In this case, the punishment was imposed by order dated 16-9- 1999/11-10-1999. That order was not cancelled, revoked or withdrawn. The subsequent order dated 25-1-2001 merely accorded extraordinary leave in regard to the period of absence, but did not condone the unauthorised absence nor wipe out the punishment already imposed. The said order was only consequential to the imposition of punishment. Its effect was to maintain continuity of service of the respondent, but deny salary for the period of absence and not to count the period of absence as qualifying service for the purposes of pension. Its effect is certainly not to exonerate the respondent from the charge of unauthorised absence nor to wipe out the punishment. If the intention was to revoke the punishment, the order dated 25-1-2001 would have clearly stated so. But it did not.” The order in no uncertain terms further states that this period shall not be counted for purposes of pension and seniority. The petitioner 5 does not deny that this order was served upon him. If he did not give the seriousness to the language recited in the order that it deserved and accepted the order he cannot be now permitted to turn around and challenge it. The order attained finality years ago in 1998. To allow him to question such an order belatedly in the year 2010 shall be introducing severe turmoil in the service when others shall necessarily get affected if any interference is done by the Court on issue of seniority of the petitioner. Dealing with delay in approaching the Court for relief in service matter the Supreme Court in (1992) 3 SCC 136 ( Bhoop Singh Vs. Union of India & Ors.) as held at Paragraph-7 as follows:- “7. It is expected of a Government servant who has a legitimate claim to approach the Court for the relief he seeks within a reasonable period, assuming no fixed period of limitation applies. This is necessary to avoid dislocating the administrative set-up after it has been functioning on a certain basis for years. During the interregnum those who have been working gain more experience and acquire rights which cannot be defeated casually by lateral entry of a person at a higher point without the benefit of actual experience during the period of his absence when he chose to remain silent for years before making the claim. Apart from the consequential benefits of reinstatement without actually working, the impact on the administrative set-up and on other employees is a strong reason to 6 decline consideration of a stale claim unless the delay is satisfactorily explained and is not attributable to the claimant……….” The submission that the order of confirmation dated 29.6.2010 restores seniority from 30.8.1991 has to be stated to be rejected. It does not deal with and consider the punishment imposed on 12.8.1998. The order dated 29.6.2010 has to be read subject to the same. There can be no implied, recall or cancellation of a punishment which has to be a positive act by a speaking order. The Court finds no merit in this application. It is accordingly dismissed. P. Kumar ( Navin Sinha, J.)