IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11100 of 2010 =================================================== 1. Birendra Prasad Singh@ Thakur Birendra Nath 'Blesh' S/O Late Anirudh Prasad Singh R/O Vill +P.O.Panchgachiya, P.S.Bihra, Distt-Saharsa .... .... Petitioner/s Versus 1. The State Of Bihar Through Its Commissioner-Cum- Secretary, P.H.E.D. Bisheshwariaya Bhawan, Bailey Road, Patna 2. The Engineer-In-Chief Cum Special Secretary, P.H.E.D. Bisheshwariaya Bhawan, Bailey Road, Patna 3. The Chief Engineer (Mechanical), P.H.E.D. Bisheshwariaya Bhawan, Bailey Road, Patna 4. The Regional Chief Engineer , P.H.E.D. Bhagalpur 5. The Superintending Engineer, P.H.E. Circle Null Purnea 6. The Executive Engineer, P.H.E.Division Purnea 7. The State Of Jharkhand Through Its Secretary Department Of Pay Jal And Cleaning Ranchi, Jharkhand .... .... Respondent/s =================================================== Appearance : For the Petitioner/s : Mr. Lalan Kumar Singh For the Respondent/s : Mr. (Ga1) Mr. Dhruba Mukherjee =================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 2 15-11-2011 Heard learned counsel for the petitioner and the State. The relief essentially sought is one for appointment euphemistically described as reinstatement seeking posting. Learned counsel for the petitioner submits that the petitioner was initially appointed regularly against a vacant sanctioned post on 7.12.1988, but wrongly terminated on Patna High Court CWJC No.11100 of 2010 (2) dt.15-11-2011 2 19.4.1989. On challenge in C.W.J.C. No.5998/89 the termination was set aside on 17.1.1990, with a direction that the petitioner shall be deemed to continue in service on the same terms and conditions as initially appointed. The petitioner submitted joining before the authorities on 27.3.1990. The matter was kept pending by the respondents wrongly, leading to non-allocation of duties and denial of salary. Emphasis is laid on the communications dated 23.7.1990, 16.8.1990, 22.8.1990 and 14.12.1999 to contend that the fault lay with the respondents in raising frivolous queries, not germane, only to deprive him of the benefits of the Court order. The petitioner kept pursuing matters including having it raised on the floor of the Bihar Legislative Council when ultimately on 11.11.2008 the respondents have wrongly sought to contend that the petitioner had been appointed in Daltonganj which now fell in the State of Jharkhand consequent to the reorganization of the State of Bihar and therefore his case was required to be considered by the successor State. The petitioner being an employee of the erstwhile State of Bihar, the question of relegating him to the State of Jharkhand based on events subsequent to the order of this Court does not arise. Compliance is the responsibility of the State of Bihar. Similarly situated persons, five in number, covered Patna High Court CWJC No.11100 of 2010 (2) dt.15-11-2011 3 by the order in C.W.J.C. No.5998/89 have been taken back and are continuing in service. Relying on a Bench Decision reported in 2000 (2) P.L.J.R. 187 (Mohan Prasad Singh vs. State of Bihar) it is submitted that the delay, if any, in the institution of the present writ application is not relevant as the petitioner does not claim or affect the interests of any third party and that there can be no straight jacket formula for condonation of delay which shall depend on the facts of each case. If the petitioner was actively pursuing matters, as has been explained, delay attributable to the respondents cannot visit him with the consequences. Reliance has further been placed on 2009(4) P.L.J.R. 633 (Uma Shankar Prasad vs. State of Bihar) and C.W.J.C. No.1102/09 (Sheo Charan Paswan vs. State of Bihar) that in case of a continuing wrong, delay is not relevant. Learned counsel for the State from the counter affidavit has opposed the writ application to submit that the order dated 11.11.2008 adequately states that he could not be appointed in absence of vacancies and the ban on appointment on the post that he was holding. Additional objection has been taken that the remedy appropriately lies for the petitioner before the State of Jharkhand. The writ application was highly highly belated. The Court on consideration of the submissions Patna High Court CWJC No.11100 of 2010 (2) dt.15-11-2011 4 made on behalf of the parties is satisfied that the writ petition merits no consideration on grounds of gross unexplained delay alone. The Court however refrains from a final order on that aspect alone. The letter of appointment dated 7.12.1988 in no uncertain terms states that the petitioner who was an “outsider” and was being appointed as a Tracer in an “ad hoc capacity”, as a “working arrangement”, on a pay scale. The appointment was “terminable at any time.” The recitals manifest that it was not an appointment in accordance with law fulfilling the requirements of Article-14 of the Constitution of India. The use of the words „an outsider‟ and that the appointment was being made in an „ad hoc capacity‟ as a „working arrangement‟ leaves nothing to the imagination. If he was being appointed in an „ad hoc capacity‟ as a „working arrangement‟, the question of granting him a pay-scale did not arise. There is no assertion in the pleadings that the petitioner was appointed by an open advertisement and a competitive merit selection. The fact that the petitioner may claim to have been appointed by the competent authority is of no avail. A competent authority cannot usurp powers given to him to be exercised in accordance with law by making appointments contrary to law without open advertisement and merit selection. To quote the words of the Supreme Patna High Court CWJC No.11100 of 2010 (2) dt.15-11-2011 5 Court, “ those who come in through the backdoor must go out through the same door.” The conclusion of the Court of his status is further fortified from the discussion contained in C.W.J.C. No.5998/89 :- “the petitioners shall be deemed to continue in service on the same terms and conditions as they were initially appointed.” The Court therefore reinstated the petitioner in ad hoc capacity/daily wage capacityonly on technical considerations. If the petitioner was of the opinion that his was a substantive appointment, as is presently urged, he ought to have questioned the order of this Court. The petitioner contends that he gave his joining on 27.3.1990 which the respondents were not complying with on frivolous grounds. Legal remedies were available to the petitioner. There is no semblance of an explanation why they were not resorted to. An order of a Court, if not complied, the remedy is available to a citizen either by filing a contempt application or, if circumstances so warrant, a fresh writ application. A person cannot sit back after an order of a Court claiming that the order was in his favour and the responsibility lay with the respondents to implement it, and that nothing further was required to be done by him. He is answerable for issues of not having Patna High Court CWJC No.11100 of 2010 (2) dt.15-11-2011 6 pursued matters further. The right to be reinstated in service was not a fundamental right. It was a right accruing in his favour by reason of an order of the Court. The right therefore was capable of being waived. If he did not pursue any legal remedies after 27.3.1990, serious questions arise with regard to waiver by conduct on his part which cannot be easily brushed aside in the facts of the case. The mere filing of representations or having questions raised on the floor of the House cannot be sufficient explanation for claiming relief under orders passed nearly 20 years ago. In fact, the latter recourse shall invoke the doctrine of election. If instead of pursuing legal remedies he opted for other remedies, he cannot justify the delay. The petitioner by his own conduct consciously allowed subsequent developments to intervene by way of re-organization of the State of Bihar in the year-2000. This is an important development which the petitioner cannot ask to be ignored and that he must be given advantage for his own lapses on the issue. A litigant who invokes the discretionary jurisdiction of the Court under Article-226 of the Constitution has first to demonstrate not only that he has a good case, but also that he has been vigilant for the protection of his own rights and Patna High Court CWJC No.11100 of 2010 (2) dt.15-11-2011 7 has approached the Court with utmost promptness at the first opportunity itself. Delay as an aspect for denial of relief is a discretionary question to be exercised by the Court in accordance with law which shall necessarily vary from the facts of a case to another. There can be no standardized yardstick. Delay in service matters with regard to seniority and termination has always been considered vital as it necessarily affects third parties. In Mohan Prasad‟s case (supra) the petitioner had filed the writ application ten years later for similar relief contending that his colleagues had been granted that relief by Courts. The substantive reason for the grant of relief is to be found at paragraph-38 of the judgement. It holds that the petitioner had no plausible explanation for the delay. But, because his colleagues had been granted the relief, the petitioner was entitled to parity in relief under Article-14 of the Constitution of India. The waiver by conduct of the order in his favour and the inapplicability of the benefit on a claim for parity under Article 14 indulging in fence sitting or a unable to explain reason for the delay in seeking relief are sufficient to deny relief as held in (2006) 11 SCC 464 (U.P. Jal Nigam v. Jaswant Singh) : “6. The question of delay and laches has been examined by this Court in a series of decisions and laches and delay has been considered to be an important factor in exercise of the discretionary relief under Patna High Court CWJC No.11100 of 2010 (2) dt.15-11-2011 8 Article 226 of the Constitution. When a person who is not vigilant of his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that same relief should be granted to him as was granted to person similarly situated who was vigilant about his right 13…… In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?” The question for consideration in C.W.J.C. No.1102/09 was entirely different. It related to a matter for grant of pay- scale. The law stands well settled that grant of a wrong pay- Patna High Court CWJC No.11100 of 2010 (2) dt.15-11-2011 9 scale is a continuing cause of action. The judgement relied upon therefore has no application to the facts of the present case. In Uma Shankar Prasad(supra) the issue related to allocation of service consequent to the re-organization of the State of Bihar and has no relevance to the present controversy which arises in a totally different context. In any event, the Court does not find that any ratio with regard to condonation of delay has been laid down therein. There is no merit in this application. It is accordingly dismissed. Krishna Chandra Jha/- (Navin Sinha, J)