THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No.13248 of 1995 Dated 29-01-2008 Between: Sri T.Hanmanth Rao. ..... PETITIONER AND A.P.S.E.B. rep. By its Member Secretary, Vidyut Soudha, Khairathabad, Hyderabad & others. .....RESPONDENTS THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No.13248 of 1995 O R D E R: In this writ petition, the petitioner seeks a direction to declare the action of the respondents, in not considering the leave and reposting period from 13-11-1967 to 01-09-1974 as on duty, as arbitrary and illegal. He seeks a consequential direction to the respondents to fix his seniority on the basis of his initial appointment i.e. 30-04-1962, to treat his service from 13-11-1967 to 01-09-1974 as on duty, to promote him on par with the persons, who were appointed in the year 1972, to pay him all consequential benefits pursuant to fixation of seniority on the basis of his initial appointment i.e. 30-04-1972 and to pay 50% salary from 13-11-1967 till 01-09- 1974. Heard Smt K. Sarala Mahender Reddy, learned counsel for the petitioner. Neither the learned standing counsel for the respondent-Board is present nor has any counter affidavit been filed on behalf of the respondents. Facts, in brief, are that the petitioner was appointed as L.D.C., by the second respondent on 30-04-1962 and was posted at Nizamabad. Petitioner claims to have applied for leave from 13-11- 1967 to 12-12-1967 and to have extended his leave upto 20-08-1968 on medical grounds as he was suffering from peptic ulcer. Petitioner states that he had requested the second respondent to give reposting orders and that he was relieved from duty, at the time of leave, vide memo dated 15-04-1968. Petitioner sought extension of leave from time to time till 20-08-1968, which he claims was sanctioned. Petitioner, thereafter, submitted representations that he be re-posted. Eventually the second respondent, vide memo dated 31- 08-1974, reappointed the petitioner and he joined duty on 02-04- 1974. Petitioner requested that the leave period from 13-11-1967 to 20-08-1968 and the delay in reposting i.e. till 01-02-1974 be treated as on duty claiming that he was not responsible for such delay and, therefore, the entire period from 13-11-1967 to 31-08-1974 should be treated as on duty for the purpose of fixation of seniority, increments and pension etc. Petitioner would contend that the question of break in service did not arise and that the entire period from the date of his initial appointment had to be treated as on duty. Petitioner states that his services were once again terminated without notice from 01- 07-1976 to 19-07-1977, that he was reinstated into service by the first respondent, vide memo dated 16-11-1977, that the break in his service was treated as on duty without affecting his seniority and that he was also paid 50% salary during that period. Petitioner contends that the respondents had denied him the benefit of treating the leave period from 13-11-1967 to 31-08-1974, including the period he was awaiting reposting orders, as on duty. Petitioner would contend that, in a similar case, one Sri B.Sudershan Reddy (L.D.C) was given the benefit of condonation of break in service and exempted from passing the qualifying test vide B.P.Ms.No.651, dated 22-06-1977 and that denying him similar relief was discriminatory. Petitioner would also contend that the second respondent had recommended his case to the higher authorities vide letters dated 09-09-1981 and 30-06-1994, and that the petitioner was admitted into the employees provident fund scheme, 1952, vide memo dated 17-02-1968, which clearly showed that he was in continuous service without any break. Petitioner would also rely on the seniority list of L.D.C./typist, fixed as on 31-03-1986, which was communicated to the staff by May, 1987, and contend that, as he had continuously worked without his services being terminated, he had raised objection to his seniority being fixed at Sl.No.87 treating his appointment as 02-09-1974 instead of 30-04-1962. Petitioner would further contend that most of his juniors had become seniors because of wrong fixation of his seniority and that treating his service to have commenced from 02- 09-1974, instead of 30-04-1962 i.e. from the date of his initial appointment, had resulted in an anomaly which was liable to be rectified. The petitioner was promoted as U.D.C., vide proceedings dated 29-09-1993, treating his service to have commenced afresh from 02-09-1974 instead of 30-04-1962. Petitioner contends that he had submitted a representation to the respondent-Board on 24-05- 1994 for fixation of his seniority from 30-04-1962 instead of 02-09- 1974. According to the petitioner, the respondent-Board also called for information from the second respondent, vide memo dated 03-09- 1991 and that the Superintending Engineer gave his reply on 06-12- 1991. It is necessary to note that both the proceedings dated 03-09- 1991 and 06-12-1991 are internal correspondence of the respondent- Board and that the said proceedings were not communicated to the petitioner. While the petitioner claims inclusion of his past service from 30-04-1962 to 02-09-1974 for reckoning seniority, the fact remains that he has invoked the jurisdiction of this Court only in the year 1995. On a query from the Court as to why such a belated request should be entertained, Smt K.Sarala Mahender Reddy, learned counsel for the petitioner, would rely on Hindustan Petroleum Corporation Ltd. v. Dolly Das[1], K. Thimmappa v. Chairman Central Board of Directors., SBI[2], Scholars and Teachers Action Committee (STAC) v. Andhra University[3], Govt. of A.P. v. N.Rami Reddy[4], A.P.Scheduled Tribe Employees Association v. Aditya Pratap Bhanj Dev[5], K.G.V.Krishnaiah v. C.V.Venkata Reddy[6], Amrit Lal Berry, K. N. Kapur v. Collector of Central Excise Central Revenue[7], to contend that since no third party rights are effected, this Court should not deny the petitioner the relief sought for merely on the ground of delay and laches. Learned counsel would contend that since the writ petition has already been admitted in the year 1995, this Court would not now examine the plea of laches when the writ petition is being finally heard. Now the judgments relied on by the learned counsel for the petitioner. In N.Rami Reddy4, the Division Bench of this Court observed thus:- “…….It is true that the Court in exercise of its jurisdiction under Article 226 of the Constitution need not set aside an order only because it would be lawful to do so. But the Court, in our considered opinion, would make all endeavours to uphold the right of the person similarly situated by invoking the doctrine of equality. By reason of the provisions of the said Act, a citizen is deprived of his right of property which is beyond any castle of doubt that such legislation must be strictly considered. Further more, the Court normally would grant the same relief to one person, which has been granted to the persons similarly situated. The scheme of granting similar compensation, also finds reflection from Section 28-A, which was inserted by Amending Act 68 of 1984. In any event, the very purpose of insertion of the second Proviso appended to Article 31-A, which is also a part of the agrarian reform, will be set at naught if the petitioners are to be deprived of their due compensation despite the fact that they fulfil all the conditions therefor. For the reasons aforementioned, we are of the opinion that the decisions of the apex Court in State of Rajasthan v. D.R.Laxmi (1996 (6) SCC 445) and State of Rajasthan v. Dinesh Kumar Bharti (AIR 1997 SC 633), are not applicable to the fact situation in the present case……” In the aforesaid case the Division bench noted that relief had been granted to certain individuals pursuant to an earlier judgment of this Court in K.Rangaiah v. State (AIR 1980 AP 165) and it is in such circumstances that this Court held that the endeavour should be to uphold the right of persons similarly situated by invoking the doctrine of equality. In Ramchandra Shankar Deodhar v. State of Maharashtra9, the Supreme Court observed that when third party rights intervened it would not, ordinarily, grant relief where such a relief was sought for belatedly and that however, did not mean that in a case where no third party rights were affected, this Court should exercise its discretion, under Article 226 of the Constitution of India, where the jurisdiction had been invoked two decades after the cause of action arose, more so, when such inordinate delay had not even been explained. In Aditya Pratap Bhanj Dev5, a Full Bench of this Court noted that the allegations of fraud and misrepresentation had been made against the first respondent and held that, in such an event, the decision which had been obtained by fraud could not be enjoyed and a belated challenge, in such circumstances, could be entertained. The said judgment has no application to the facts of the present case. In Dolly Das1, the Supreme Court observed thus:- “………So far as the contention regarding laches of the respondent in filing the writ petition is concerned, delay, by itself, may not defeat the claim for relief unless the position of the appellant had been so altered which cannot be retracted on account of lapses of time or inaction of the other party. This aspect being dependent upon the examination of the facts of the case and such a contention not having been raised before the High Court, it would not be appropriate to allow the appellants to raise such a contention for the first time before us. Besides, we may notice that the period for which the option of renewal has been exercised has not come to an end. During the subsistence of such a period certainly the respondent could make a complaint that such exercise of option was not available to the appellants and, therefore, the jurisdiction of the High Court could be invoked even at a later stage. Further, the appellants are not put to undue hardship in any manner by reason of this delay in approaching the High Court for a relief………...” In K. Thimmappa2, the Supreme Court observed thus:- “……On consideration of the aforesaid legal position, though, we are inclined to agree with Mr. P.P. Rao that these cases should not be thrown out on the ground of latches alone, inasmuch as the placement made on 1-10-1979 was assailed in the year 1988 at the earliest and 1998 at the latest, yet the same may not be brushed aside, particularly, when we have not been able to find out any infraction of any fundamental right of these petitioners, guaranteed under the Constitution……..” I n Scholars and Teachers Action Committee (STAC)3, a Division Bench of this Court observed thus:- “…….We are also of the opinion that there is no warrant for the sweeping observation made by the learned Single Judge that “It is a well accepted principle of constitutional law that a writ petition filed beyond six months from the date of cause of action is liable to be dismissed on the ground laches and sheer delay”. The learned Judge has not cited any authority in support of this proposition. On the contrary, it is well established by a catena decisions of the Supreme Court that the question of delay is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts, there is no upper or lower limit for the delay and no period of limitation is prescribed in any for filing a writ petition (See R.S.Deodhar v. State of Maharashtra (AIR 1974 SC 259), State of M.P. v. Nandlal Jaiswal (AIR 1987 SC 251) M/s. Dehri Rohtas Light Railway Company Ltd. v. District Board Bhojpur (1992(2) SCC 598) etc.,) In Jagannath Mishra v. State (AIR 1990 Patna 11), a Full Bench of the Patna High Court of which one of us (Prabha Shankar Mishra, J. as he then was) was a member, held that delay in filing the writ petition may be over looked where the writ petition is admitted and the petitioner has a positively good case on merits……..” One of the test for interference, even in cases where the Court’s jurisdiction has been belatedly invoked, is that the petitioner has a positively good case on merits. In the present case, admittedly, the petitioner was reappointed in the year 1974. As there is no rule which entitles the petitioner to claim the benefit of service from the date of his initial appointment from 1962, more so, when there was a break in service for six years i.e. from 1967 to 1972, it cannot be said that the petitioner has a positively good case on merits. In K.G.V.Krishnaiah6, the Division Bench observed thus:- “……….The next question is whether the impugned GO could be quashed on the ground that the appellant slept over his rights for nearly 9 years without any satisfactory explanation or justification. The facts narrated supra, which are not in serious dispute, clearly go to show that the appellant, without any loss of time, immediately after the promotion of Mr S.Venkata Reddy to the post of UDC on 01-04-1979, made his grievance by filing appeal before the Commissioner on 03-05-1979 and from that day onwards, he has been continuously pursuing the Commissioner, Board of Trustees of the Temple and the Government for fixation of his seniority in the cadre of UDCs. It is true that the appellant did not separately challenge the seniority list as confirmed by the Executive Officer on 07-06-1981 in any legal proceeding. But that circumstance cannot be put against the appellant to deny him justice. It needs to be emphasized that even before the preparation of seniority list on 07-06-1981, the appellant lodged his grievance with the appropriate authorities like the Commissioner, Board of Trustees of the temple and the Government. The appeal filed by the appellant before the Board of Trustees of the temple, as directed by the Commissioner of Endowments, was pending and, therefore, the appellant perhaps thought it not necessary to assail the seniority list dated 07-06-1981 in a separate proceeding……” On facts, the Division Bench of this Court was of the view that the appellant therein had preferred an appeal to the Commissioner without loss of time and that there was no delay in availing his remedies. The only justification given for the inordinate and unexplained delay in invoking the jurisdiction of this Court, nearly two decades after the petitioner was re-appointed in the year 1974, is that the petitioner was submitting representations. In Amrit Lal Berry7, the Supreme Court observed thus:- “……..It may be mentioned here that an attempt was made by Amrit Lal Berry to account for delay in filing his petition. He said that he had made two departmental representations, one dated 6-3-1965 and another dated 13-8- 1971, of which he filed copies, to which no replies had been received so far by him. It was denied by the Excise Department that he ever sent the first representation. It is evident that he had waited for a considerable period before making his representation in 1965 even if we were to assume that he did make such a representation then. Further more, the copy of the alleged representation of 1965 shows that it was directed only against the imposition of a test by examination before confirmation. We do not think that, merely by filing repeated or delayed representations, a petitioner can get over the obstacles which delay in approaching the Court creates because equitable rights of others have arisen. We may, however, observe that when a citizen aggrieved by the action of a Government Department has approached the Court and obtained a declaration of law in his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the Department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievances to Court……..” (emphasis supplied) Similarly in State of M.P. v. Nandlal Jaiswal8, the Supreme Court observed thus:- “…….Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the 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 in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal………”(emphasis supplied) In the present case, the petitioner has slept over his rights, if any, for more than two decades and had invoked the jurisdiction of this Court in the year 1995 seeking the benefit of his past service from 1962 onwards. His case is that the break in service from 13-11- 1967 to 01-09-1974 should be treated as on duty. As noted above no statutory rule which entitles the petitioner to claim such right has been brought to the notice of this Court. Even on merits, the petitioner cannot be said to have made out a case for interference under Article 226 of the Constitution of India. The writ petition fails and is accordingly dismissed. However, in the circumstances, without costs. _____________ 29-01-2008 usd [1] 1999(4) SCC 450 [2] AIR 2001 SC 467 [3] 1996(2) ALD 1220 (DB) [4] 2001(1) ALD 443 (DB) [5] 2001(6) ALD 582 (FB) [6] 2002(3) ALD 47 (DB) [7] AIR 1975 SC 538 9 AIR 1974 SC 259 8 AIR 1987 SC 251