BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION N0. 559/2003 PETITIONER D.P. SAHU SON OF SHRI K.R. SAHO AGED ABOUT 42 YEARS, RESIDENT OF BALCO NAGAR KORBA, DISTT. KORBA (C.G.) AND RESPONDENTS 1. STATE OF CHHATTISGARH THROOGH - SECRETARY -«.::' EDUCATION DEPARTMENT D.K.S. BUILDING RAIPUR. 2. PRINCIPAL, ADARSH HIGHER SECONDARY SCHOOL KORBA, DISTT. KORBA (CG) JiJ^ilJBjgJB ! . ''s'^^SsS^gs''^ 3. PRESIDENT BALCO SHIKSHAN SAMITI BALCO NAGAR, KORBA DISTT. KORBA (C.G.) 4. SECRETARY, BAI.CO SHIKSHAN SAMITI BALCO NAGAR, KORBA DISTT. KORBA (C.G.) 5. ADARSH HIGHER SECONDARY SCHOOL KORBA DIST. KORBA (C.G.) IPETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA 1 '<!> f S yf /•3. ^ ^^g^y PETITIONER RESPONDENTS HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION N0.559 OF 2003 D.P.Sahu Versus State of Chhattisgarh & others !l|i°::n'is's:siMH 'iS (Writ Petition underArticle 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Ms Renu Kochar, Advocate for the petitioner. Shri P.K. Bhaduri, Panel Lawyerforthe State. None for the respondents No.2 to 5. ORDER(ORAU ' (Passed on this 1 st day of March, 2011) 1. Heard learned counsel for the parties. 2. Learned counsel appearing for the petitioner submits that the petitioner was appointed as Teacher (Geography) in the respondent No.2 school on the basis of call letter (Annexure - P/1). Thereafter, the petitioner joined the duties and began performing his duties with great sincerity and honestly. The salary of the petitioner was released through Bank. However, on account of change of Board members, by an oral order the petitioner was removed from the service. The impugned action has been taken only to appoint other persons at the whims and fancies of the new Board members. Thus, this petition. 3. From the return filed by the respondents No.2 to 5, it appears that the petitioner himself left the job in the year 1995 without prior intimation to the authorities of the school. The respondents have never removed the petitioner from the service. In spite of several notices to the petitioner for joining the services, the petitioner has not paid any attention. The petitioner has begun running his own school in village Lakhmaisatti, Raipur, where he is working as Head Master. The said fact is evident from Annexure - R/4. In the return, it has also been stated that the cause of action arose in the year 1995 whereas the instant petition has been filed in the year 2003 without explaining the delay and laches by giving sufficient and cogent reasons. Thus, the petitioner is not entitled to any relief and the petition deserves to be dismissed. "°%.>. ..y^. ^ "^'^/ -.^.-Sa^ ^•^^|s%li 8. Having considered the rival contentions advanced by the learned counsel for the petitioner, the State of Chhattisgarh and onperusal of the return filed by other respondents, who did not appear in the matter,, it is found that thepetitioner had never attempted to join the school, as no removal order according to the petitioner has been passed, but on oral instruction the petitioner was removed. The petitioner has not produced any document to that effect, despite clear order of this Court. In contradiction, this is a clear case of the respondents that the petitioner left the school on his own with the purpose to start his own school K.B.S. Middle School in village Lakhmaisatti, Raipur. The petitioner was also served with the notices dated 13-7-1995 (Annexure - R/1), 25-7-1995 (Annexure - R/2) and 9-8-1995 (Annexure - R/3). The petitioner declined to receive notices. The petitioner has not produced any document to indicate that the petitioner has thereafter attempted to join the school, as he lad not left the school on his own. It was categorical stand of the learned counsel for the petitioner that though no effort was made on the part of the petitioner to join the school, however a legal notice (Annexure - P/5) was issued. The said legal notice was unsigned and it does not even indicate the date whenit was sent. Thus, on the basis of above materials, no relief can be granted when it appears that the petitioner has deliberately declined to accept the notice though it is the case of the petitioner that notice was never issued. Even looking from other angle, if the alleged removal was done in the year 1995, the petitioner has not approached this Court immediately. After a period of about 8 years, the instant petition was filed and that too belatedly without explaining the inordinate delay. On that ground also the petition deserves to be dismissed. The law on the principle of waiver and acquiescence is well settled that, if the person sleeps over his rights and is not vigilant of his rights and acquiesces with the situation, he may not be entitled to the same relief -as was granted to other vigllant persons. !lt'!'lai*iai Sl:!;-!!! S!ffi 'SJ^^S 9. 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 benefit of the judgment....." 10. 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." 11. On laches and delay in agitating the grievances before the Court, the Supreme Court in State of Punjab and another vs. Balkaran Slngh 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 relief which 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-year-old and a nine-year-old seniority list could not have been granted by the courts below." 12. The Supreme Court in U.P. Jal Nigam and another vs. Jashwant Singh and another , observed as under: •^ ^ (\ s 1 (2009) 2 SCC 479 2 (2009)153cc 321 3 (2006)123cc 709 4 (2006) 11 SCC 464 J "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 of the discretionary relief underArticle 226 ofthe Constitution." 13. The Supreme Court in Tridip Kumar Dingal and others Vs. State of West Bengal and othere where the appellantstook 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 or 136 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 thepetitioner is guilty of delay and laches." 14. In Tridip Kumar Dingal and others (supra), the Supreme Court also observed as under: "57. If the 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 wil] 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 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). 15. 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 court. 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 tf? ^\ g (2009) 1 SCC 768) ^ right and the remedy claimed are and when and how the delay arose". 16. In Yunus (Baboobhai) A Hamid Padvekar v. State of Maharashtra the Supreme Court observedas 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." 17. 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. 18. 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 of the petitioner and such delay is not satisfactory explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was also observed that ifwrit 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 exercise such jurisdiction. 19. Applying well settled principle of law to the facts ofthe case, the petition . deserves to be and is accordingly dismissed. No order asto costs. • ^ (\ § Gowri Sd/- SatishIC.Agnihotri Judge 6 (JT 2009 (3) SC 487) 7(AIR1970SC470 <i(AIR1987SC251)