BENGIi ^^ /^ ,s~s '/- IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) N0. n^'l OF 2011 PETITIONER ^^1 RESPONDENTS / ^ ^' ^..<^?>/" ^^'^v ^s; .•..vT'A'T^' .^~'~.;.(y".'N °^~ ^./Y>- ,/•••".^y / Parsadi Gopal Mali S/o Shri Dhaneshwar Prasad, aged about 70 years, R/o Ward No.2 Line Par, Jaithari, Post - Jaithari, Distt.- Anuppur (M.P.). VERSUS /-1. Union of India Through: the Secretary, Department of Post & Telecommunication, Mantralaya, New Delhi. 2. The Chief Post Master General, Chhattisgarh Zone, Raipur, Distt.- Raipur (C.G.). / 3. The Superintendent of Post Offices, Bilaspur Division, Bilaspur, District Bilaspur (C.G.). WRIT PETITION UNDER ARTICLE^26 OF THE CONSTITUTION OF INDIA 1] PARTICULARS OF THE PETITIONER: As given above in the cause title. 2] PARTICULARS OF THE RESPONDENTS: As given above in the cause title. fo HIGH COURT OF CHHATTISGARH : BILASPUR PETITIONER WRIT PETITION (S) N0. 1774 OF 2011 Parsadi Gopal Mali RESPONDENTS Versus Union of India & Others (Writ Petition underArticle 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Rishi Rahul Soni, Advocate for the petitioner. Shri S.S.Rajput, Advocate for the Union of India. ORDER(ORAU (Passedon01stdayofApril, 2011) 1. Challenge in this petition is to the order dated 30.04.2010 (Annexure P-1), whereby the application of the petitioner dated 09.10.2009 was rejected holding that since the petitioner was dismissed from his service, as a matter of major penalty, he is not entitled to salary, promotion and pension etc. Thereafter, challenge in this petition isto the order dated 30.09.1992 (Annexure P-2), whereunder, the petitioner was removed from service. The petitioner has not challenged the order dated 30.09.1992 till date, except when he made an application for payment of salary, promotion and pension and the same has been rejected; thereafter, he had challenged the order alongwith the application for grant ofsalary, promotion and pension. 2. The impugned order dated 30.09.1992 (Annexure P-2) has attained finality, as the petitioner has accepted the same and did not challenge within the reasonable time. The challenge against the order dated 30.09.1992 suffers from latches and delay, which are inordinate and unexplained. Thus, at this stage, the challenge to the order dated 30.09.1992 cannot be entertained. r' ^^ ^ ^ .^?s®5. }/ ^v.fy",/' ..;^ •";•>.„-,-<!?'" 5. 2 The Supreme Court in S.S. Balu and Another v. State of Kerala and Others , observed as under : "17. It is also well-settled principle of law that "delay defeats equity". The Government Order was issued on 15.1.2002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for .may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefitofthejudgment....." The decision rendered in S.S. Balu (supra) was referred with approval in Ghulam Rasool Lone v. State of Jammu and Kashmir and Another and it was further, observed as under : "19. It is beyond any cavil of doubt that the remedy under Article 226 of the Constitution of India is a discretionary one. For sufficient or cogent reasons a court may in a given case refuse to exercise its jurisdiction; delay and laches being one of them. While considering the question of delay and laches on the part of the petitioner, the court must also consider the effect thereof." On laches and delay in agitating the grievances before the Court, the Supreme Court in State of Punjab and another vs. Balkaran Singh observed as under: "22. According to us, the suit is also barred by acquiescence and estoppel. No one in a service can sleep over the question of seniority for more than 12 years and then come to court seeking a reliefwhich will upset the seniority of a number of persons who had been shown as seniors in the respective seniority lists. Therefore, on the face of it, a declaratory relief that will have the effect of altering a twelve- ' (2009) 2 SCe 479 2 (2009)153cc 321 3 (20ff6)12SCC709 'f f 1 3 ^' year-old and a nine-year-old seniority list could not have been granted by the courts below." 6. The Supreme Court in U.P. Jal Nigam and another vs. Jashwant Singh and another, observed as under: "The question of delay and laches has been examined by this Court in a series of decisions and laches has been considered to be an important factor in exercise ofthe discretionary relief under Article 226 of the Constitution." 7. The Supreme Court in Tridip Kumar Dingal and others Vs. State of West Bengal and others where the appellants took 559 days in approaching the Court, causing unexplained and inordinate delay, observed as under: "We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches." 8. In Tridip Kumar Dingal and others (supra), the Supreme Court also observed as under: "57. Ifthe petitioner wants to invoke jurisdiction of a writ court, he should come to the court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai, Moon Mills Ltd. v. Industrial Court and Bhoop Singh v. Union of 4 (2006) 11 SCC 464 5 (20~09) 1 SCC 768) India). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi, Durga Prasad v. Chief Controller of Imports & Exports and Rabindranath Bose v. Union of India). 9. In Tridip Kumar Dingal and others (supra) it was further observed as under: "There is no upper limit and there is no lower limit as to when a person can approach a couri:. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose". 10. In Yunus (Baboobhai) A Hamid Padvekar v. State of hflaharashtra the Supreme Court observed as under: "Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party." 11. In R.N. Bose vs. Union of India relied on in Yunus (supra) it was observed that no relief can be given to the petitioner who without any reasonable explanation approaches the Court after inordinate delay. 12. In State of IVI.P. vs. Nandlal relied on in Yunus (supra), it was observed that that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part ofthe petitionerand such delay is not satisfactory explained, 6 (JT 2009 (3) SC 487) 7(AIR1970SC470 (AIRT987SC251) 13. 14. 5 o the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was also observed that if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor, which also weighs with the High Court in deciding whether or not to exereise such jurisdiction. Challenge to the order dated,t30.04.2010 is without any merit as the consequential relief, which the petitioner has sought through his application dated 09.10.2009 could not have been granted to the petitioner, as the petitioner was removed from services. The petitioner was not retired in normal course on attaining the age of superannuation. Thus, the petition is dismissed. Applying well settled principle of law to the facts of the case, the petition deserves to be and is accordingly dismissed. No order asto costs. r /- SatishK. Agiiihotn Judge Ashok