[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR Narian Singh vs. State & Anr. (S.B. CIVIL WRIT PETITION NO.265/2000) Date of Order:22/08/2008 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. Rajdeepak Rastogi, for the petitioner(s). Ms. Parnitoo Jain Dy. G.A., for the respondent(s). This writ petition has been filed by the petitioner with the prayer that the respondents be directed to give the same consequential monetary benefits to the petitioner as were given to his junior Shri Roshan Lal Agarwal, vide order dated 08/09/1994. Further, it is prayed that interest be also paid thereupon. 2. The case of the petitioner is that he was appointed in the year 1961 as Probation Officer in Social Welfare Department, State of Rajasthan. He was confirmed as Probation Officer in October, 1980 and thereafter promoted as Assistant Director. In the month of April, 1989 the petitioner was promoted as Deputy Director and later in the month of January 1992 he was promoted as Joint Director. According to counsel for the petitioner, Shri Roshan Lal Agarwal was junior to the petitioner. The respondent had not raised any dispute in respect of interse seniority between him and Roshan Lal Agarwal. 3. The Roshan Lal Agarwal had filed a writ petition before the High Court which was decided on 22/03/1988 and the [2] Court directed that the screening of Shri Agrawal should be done in accordance with the Rule 6(4) of the State Service Rules and the seniority list dated 05/03/1977, which was impugned in that writ petition, was also quashed. The principles for fixation of seniority as laid down in the sub-Rule (2) of Rule 27 of the Rajasthan Social Welfare Service Rules, 1963 were also quashed. Subsequently, a fresh seniority list of Probation Officer and Social Welfare Officer, as on 01/07/1967 was prepared on 03/05/1989 and the name of the petitioner in the said list was at serial no.3 and that of Roshan Lal Agarwal at no.4. After seniority list dated 03/05/1989, as all the consequential benefits having not been given by a Division Bench of this Court while allowing the writ petition filed by Roshan Lal Agarwal, an order was passed on 17/07/1990 in a Review Petition that the petitioner be entitled to all consequential benefits. 4. But even then Roshan Lal Agrawal was not given all consequential benefits and as such he filed another writ petition (2436/92) and the same was allowed on 14/09/1993 (Annexure- 3), wherein the respondents were to give all consequential benefits within a period of two months. Pursuant to the order of the High Court, the department issued a letter on 06/01/1994 to the Director Social Welfare Department conveying the sanction of the Governor for creation of a Super numerary post with a view to restore the seniority and promotion of Roshan Lal Agarwal in the Department, for the post of Assistant Director from 23/10/1971to 31/12/1977 and for the post of Deputy [3] Director from 01/01/1978 to 31/03/1986 and for the post of Joint Director from 01/04/1986 to 31/03/1990. Thereafter, the Director Social Welfare Department, respondent no.2. issued an order on 08/09/1994, in compliance of the High Court judgment dated 14/03/1993, and all consequential benefits were to be given in cash to Shri Roshan Lal Agarwal. 5. The case of the petitioner is that when Roshan Lal Agarwal, who was junior to the petitioner on the post of Probation Officer and all other higher posts, then the monetary benefits should have been given to him also. Therefore, the primary grievance of the petitioner arose after the issuance of the order dated 08/09/1994. According to the petitioner, subsequently he had been giving representations to the respondents for redressing his grievance, (Annexure-7 to 22 on record). Ultimately, this writ petition had been filed in the month of August, 1999. 6. The respondents have contested the writ petition by raising two fold preliminary objections namely, that the petitioner has approached this court after a long delay since the passing of order dated 08/09/1994, when the benefits given to Roshan Lal Agarwal. Secondly, that the petitioner had alternative remedy by way of filing appeal before the Civil Service Appellate Tribunal, Jaipur and as such the writ petition is liable to be dismissed. [4] 7. The petitioner has tried to explain the delay in the rejoinder by filing the orders of Additional Director Social Welfare Department, Rajasthan dated 10/04/2000, as also dated 26/04/2000, and the order dated 13/01/2000 issued by Deputy Director Social Welfare Department. All these orders had been issued after filing of the writ petition. Today also, counsel for the petitioner has made an oral request that the petitioner is desirous of filing an additional affidavit to show the persuation made in the intervening period. Learned counsel for the petitioner, has submitted that the delay in the instant case is not fatal and in support of his case, he relied upon the judgments in the case of Ramchandra Shankar Deodhar versus State of Maharashtra & Ors., reported in A.I.R. 1974 SC 259 and Yashwant Gauri Shanker Trivedi versus State of Raj, 1985 RLR 951. 8. Having considered the rival submissions made by the parties, this court is of the view that in the facts and circumstances of the present case preliminary objections raised by the respondents has merits. Undisputedly, benefits given to Shri Roshan Lal Agarwal was in the year September, 1994. It is not the case of the petitioner that he did not come to know about the said benefits for a long time. But on the contrary, he has come with the case that soon thereafter, he gave representations to the respondents for granting him the same monetary benefits. It is also the case of the petitioner that he has been given representations in the intervening period and thereafter he has filed the writ petition. When the petitioner did [5] not get relief or that his grievance was not redressed by the respondents within a reasonable time from the year 1994, then in my view the petitioner ought to have approached the court for seeking redress of his grievance. Merely, filing of the representations for years together cannot be said to explain or justify delay in filing the writ petition, in the case of Rabindra Nath Bose versus Union of India, AIR 1970 SC 470, a Constitutional Bench of the Supreme Court held thus:- “Learned counsel for the petitioners, however, says that there has been no undue delay. He says that the representations were being received by the Government all the time. But there is a limit to the time which can be considered reasonable for making representations. If the Government has turned down one representation, the making of another representation on similar lines would not enable the petitioners to explain the delay. Learned counsel for the petitioners says that the petitioners were under the impression that the Departmental Promotion Committee had held a meeting in 1948 and not on April 29, 1949, and the real true facts came to be known in 1961, when the Government mentioned these facts in their letter dated December 28, 1961. We are unable to accept this explanation. This fact has been mentioned in the minutes of the meeting of the Committee which met in February 1952 and we are unable to believe that the petitioners did not come to know all these facts till 1961. But even assuming that the petitioners came to know all these facts only in December 1961, even then there has been inordinate delay in presenting the present petition. The fact that Jaisingani's case, 1967-2 SCR 703=(AIR 1967 SC 1427) was pending before the High Court and later in this Court is also no excuse for the delay in presenting the present petition. In the result, the petition fails and is dismissed. There will be no order as to costs.” 9. Similarly, in the case of State of Orissa versus Sri [6] Pyarimohan Samantaray & Ors., A.I.R. 1976 SC 2617, a larger Bench of the Hon'ble Supreme Court held thus:- “It would thus appear that there is justification for the argument of the Solicitor General that even though a cause of action arose tot he petitioner as far back as 1962, on the rejection of his representation on November 9, 1962, he allowed some eleven years to go by before filing the writ petition. There is no satisfactory explanation of the Inordinate delay for, as has been held by this Court in Rabindra Nath Bose v. Union of India, (1970) 2 SCR 697 = (AIR 1970 SC 470) the making of repeated representations, after the rejection of one representation, could not be held to be a satisfactory explanation of the delay. The fact therefore remains that the petitioner allowed some 11 years to go by before making a petition for the redress of his grievances. In the meantime a number of other appointments were also made to the Indian Administrative Service by promotion from the State Civil Service, some of the officers received promotions to higher posts in that service and may even have retired. Those who continued to serve could justifiably think that as there was no challenge to their appointments within the period prescribed for a suit, they could look forward to further promotion and higher terminal benefits on retirement. The High Court therefore erred in rejecting the argument that the writ petition should be dismissed because of the inordinate and unexplained delay even though it was 'strenuously' urged for its consideration on behalf of the Government of India.” 10. Likewise, Hon'ble Supreme Court has laid down in the case of Rajalakshmiah versus State of Mysore, AIR 1967 SC 993, that merely writing letters to the authorities to do something cannot be a just cause for explaining the delay. It was held as under:- [7] “13. There is also a good deal of force behind the contention that the appellants are guilty of laches. After the passing of the order of May 17, 1950, they should have made an application within a reasonable time thereafter. Merely because the Chief Engineer had espoused their cause and was writing letters from time to time to the State Government to do something for them did not mean that they could rest upon their oars if they were really being discriminated against. As we cannot hold that the appellants were entitled to any particular indulgence or concession, the only way of meting out equality to all surveyors who had been promoted to the cadre of Assistant Engineers would be to say that promotions should in all cases be effective from the date of the notification. This is obviously beyond our powers.” 11. It is also noteworthy that the petitioner had not approached, by way of appeal, before the Civil Service Appellate Tribunal, Jaipur. Obviously, the petitioner could not have gone before the Appellate Tribunal after such a long time as the limitation for filing an appeal had expired long back. Thereafter, when the petitioner had approached this Court, directly by invoking extra jurisdiction of this Court, then he is liable for delay and latches in filing a writ petition under Article 226 of the Constitution. Though no limitation is prescribed for filing writ petition before this Court, it is well settled that it has to be within reasonable time for which the aggrieved person has to be vigilant in approaching the Court. Under the extra ordinary jurisdiction, a citizen while seeking relief under Article 226 of the Constitution of India has to seek [8] redress within a reasonable time, which can be upto the one prescribed for civil action under the Limitation Act i.e. 3 years. In the case of State of Madhya Pradesh versus Bhailal Bhai, reported in AIR 1964 SC 1006, a constitutional Bench held as under:- “It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. Andley seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained.” 12. Similarly, in the case of M.K. Krishnaswamy versus Union of India, AIR 1973 SC 1168, a constitutional Bench of the Hon'ble Supreme Court held thus:- “Even for a suit, the cause of action, if any, would have arisen in 1950 and the suit would have been hopelessly time barred in 1963 when the petitions were filed. The plea that they came to know about certain facts in 1962 would [9] have been of no avail in such a suit. We do not, therefore, think that these are fit cases for interference by this court nearly 22 years after the alleged cause of action had arisen.” 13. So far as the judgment relied upon by the counsel for the petitioner in the case of Ramchandra Shankar Deodhar (supra) is concerned, that was a case where the Apex Court had considered matter while exercising the powers under Article 32 of the Constitution of India and in the peculiar facts and circumstances of that case. The other judgment Yashwant Gauri Shanker Trivedi (supra) was considered and was passed by the High Court, in the fact situation of that case. 14. Apart from it, the petitioner had not availed the alternative remedy by way of filing an appeal before Rajasthan Civil Appellate Tribunal. It may be noted that the Roshan Lal Agarwal had approached the High Court directly before the Division Bench which was decided in the year 1988 because the question therein was in respect of validity of Rule 27 of the Subordinate Service Rules. It was in consequence of the judgment of the Division Bench dated 22/03/88 that seniority list of 1977 was quashed and by the order in Review Petition dated 17/07/90, consequential benefits were ordered to be given to him. When benefits in consequence to the said judgment and order were not given to Roshan Lal Agarwal, he filed the writ petition (2436/92) which came to be decided on 14/09/1993. [10] 15. In view of the above, this court is of the considered opinion that in the facts and circumstances of the present case the objections raised by the respondents are sustainable. This writ petition is therefore dismissed with no order as to cost. (RAGHUVENDRA S. RATHORE),J. RameshJr.P.A. Item no.S-3. [11]