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2024:CGHC:48262

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Reserved on 10.09.2024

Pronounced on 09.12.2024

WPS No. 8363 of 2022

1 - Vijay Kumar Jolhe (Scheduled Caste) S/o Late Murit Ram Jolhe

Aged About 52 Years Ex-Member Of C.G. Higher Judicial Service, R/o

Vatsalya Near Balaji Temple, Anand Nagar, Raipur District Raipur

Chhattisgarh

... Petitioner

versus

1 - High Court Of Chhattisgarh Through Registrar General High Court,

Bodri, District Bilaspur Chhattisgarh

2 - State Of Chhattisgarh Through Principal Secretary, Law, Mahanadi

Bhavan, Mantralaya, New Raipur District Raipur Chhattisgarh

... Respondents

________________________________________________________

For Petitioner :Mr. Bidya Nand Mishra, Advocate

For Respondent No.1 : Mr. Sumesh Bajaj, Advocate

For State : Mr. Jitendra Shrivastava, Government Advocate

________________________________________________________

Hon'ble Shri Narendra Kumar Vyas, J.

CAV ORDER

1.The petitioner has filed this writ petition assailing the order dated

24.10.2018 whereby on the recommendation of respondent No. 1,

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respondent No. 2 has terminated the service of the petitioner.

2.The brief facts as reflected from the record are as under :-

A. The petitioner, belongs to Scheduled Caste category. On being

qualified in the competitive examination at par with the General

Candidates, the petitioner was directly appointed on probation as District

Judge (Entry level) under the provisions of clause (c) of Sub-Rule (1) of

Rule 5 of Chhattisgarh Higher Judicial Service (Recruitment & Conditions

of Service) Rules 2006 and was posted as VIII Additional District &

Sessions Judge, Raipur vide Order

No.1123/Confdl./2014/II-2-1/2014/Bilaspur, Dated 30.10.2014.

Accordingly, the petitioner reported on duty on 31.10.2014 at Raipur in

pursuant to the said appointment letter dated 30.10.2014. The services of

the Petitioner on appointment as Additional District & Sessions Judge

(Entry Level) in context to this writ petition were inter alia governed in

terms with Rule 9 Sub-Rule (1), (2), (3)&(4) of the Notification vide

F.No.2985/943/21-B/C.G. dated 7th April 2006 under the said Rules which

inter alia provides the period of probation as 02 years.

B. On completion of the 1st year of service the Annual Confidential Report

(ACR) of service was generated wherein apart from the general

assessment the overall grading was allotted as Grade "C" to the petitioner

as communicated vide respected Registrar General, C.G. High Court D.O.

No. 873/Confdl./2014-15/2015 dated 30.09.2015. It was inter alia directed

in the said letter of the respected Registrar General, "not to submit any

representation against the advisory remarks." However, considering the

direction by the Hon'ble Registrar General, not to make any

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representation, the petitioner took it as not a harmful situation but at the

same time became more cautious to meet the challenges in overall

improvements.

C. Thereafter, the petitioner on completion of his succeeding year of

service in F.Y. 2015-16, was again communicated the overall Grade-"C"

by the Registrar General of this Court vide D.O. No.235/C.R.2015-2016/

Confdl./2017 dated 21.02.2017. In the said DO letter the remarks of the

Hon'ble District judge were also captioned as "Integrity- Rumour heard but

no confirmation....."

D. The petitioner, further received an Advisory remarks excerpted from the

Annual Confidential Report for the period from 1st April 2016 to 31st

March 2017 vide DO No.754/C.R.2016-2017/Confdl./2018 dated

25/06/2018 by the Registrar General C.G. High Court. It was directed

therein to submit representation, if any, against the same within 15 days

from the date of receipt of the communication as the representation

received beyond the said date will not be entertained. The advisory

remarks contained in the said DO letter dated 25/06/2018 of the Registrar

General, High Court vis-à- vis the factual position against the same are

stated subsequently below in chronology of the facts of the case below.

E. The facts were elaborately submitted by the petitioner through his

representation dated 10.07.2018 to the Registrar General Hon'ble High

Court, Bilaspur through the District & Sessions Judge, Surguja at

Ambikapur which was not accepted and he was terminated vide order

dated 24.10.2018.

3.The respondent No. 1 has filed return raising preliminary objection about

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maintainability of the writ petition mainly contending that the present

petition has been filed on 22.11.2022 whereas the services of the

petitioner were terminated on 24.10.2018, as such the petition has been

filed after lapse of 4 years, therefore, petition is liable to be dismissed on

account of delay and latches and without explanation for such inordinate

delay of 4 years. On the contrary in paragraph 7 he has stated that there

is no delay in filing of the petition. Respondent No. 1 denied the

contention raised by the petitioner as the reporting authority duly takes

into consideration multiple factors including quantitative work / disposal,

performance in Legal-Aid / Lok-Adalat, level of knowledge as also various

attributes like management qualities, relation with the bar and staff which

cover all the judicial as well as administrative aspects of a Judicial Officer.

Further, the reliance of the petitioner on the Circular Annexure P-9 is

misplaced as this Circular itself makes it clear that the concession of

criteria being 1 unit less is available only to newly appointed Judicial

Officer for 2 years from the date of their joining. The petitioner joined the

services on 31.10.2014. Regulation 5 (1) of the Chhattisgarh Judicial

Officers (Confidential Rolls) Regulations, 2015 stipulates that the A.C.R.

of a Judicial Officer is to be written on financial year basis i.e. from April to

March. Thus, the petitioner could get the benefit contained in Annexure P-

9 only from 31.10.2014 to 31.03.2015 (1 financial year) and 01.04.2015 to

31.03.2016 (2nd financial year) and not beyond that. The A.C.R.

contained in Annexure P-6 and P-7 relate to the period 01.04.2016 to

31.03.2017 and therefore the reliance of the petitioner on Annexure P-9 is

misconceived. It is pertinent to mention here that none of the A.C.R.s prior

to this wes ever agitated by the petitioner. Even in this period for the F.Y.

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2016-17 the petitioner was duly and correctly awarded the category as

average units came to be 5.65 per day. Lastly, it is respectfully contended

that the representation of the petitioner was duly considered and rejected

by the Standing Committee after due consideration of the same.

Therefore, he would pray for rejection of the present writ petition.

4.Respondent No. 2 has filed reply contending that the contesting party in

the present case would be the respondent No. 1. They have acted on the

recommendation of the respondent No. 1 which is in their jurisdiction,

therefore, there is no illegality or irregularity committed by them in

terminating the petitioner.

5.The petitioner has filed rejoinder mainly contending that the petition has

been filed after judgment passed by the Single Bench in WPS No.

825/2022 on 13.05.2022 and disposal of writ appeal on 16.06.2022 as the

case of the petitioner is similar to the case of Ganesh Ram Berman as

both the judicial officers are similarly situated persons, therefore, he is

also claiming similar relief. As such, the petition cannot be held to be

barred by limitation. It has also been contended that the issue of limitation

has already been considered by the Hon’ble Division Bench of this Court

in case of Krishna Kumar Kosariya vs. State of Chhattisgarh and

Others in Writ Appeal No. 450/2021 decided on 12.06.2023. The

petitioner in the rejoinder reiterated the same facts and has contended

that the order dated 13.10.2018 was passed without sending the matter to

the full Court in terms of the proviso to Rule 4(C) and also against the

Rule 4 (O) of the Chhattisgarh High Court Judicial Service Rule, 2007,

thus would pray for allowing the writ petition and reinstatement with full

backwages.

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6.Learned counsel for the petitioner would submit that it is necessary to go

behind the order of termination to find out the real cause of action in the

matter. There are allegations of misconduct and a preliminary enquiry, not

as a 'Departmental Enquiry Proceeding, was held to find out the truth in

the alleged misconduct. But, an order impugned, terminating the service

of petitioner was passed on the basis of the said preliminary enquiry. The

impugned termination order dated 24.10.2018 is found on non-substantive

grounds, prejudiced assessment of performance in the Annual Reports. It

is also ground on the basis of an anonymous complaint which did not

contain any direct allegation against the petitioner and lacked any material

substance in the Inspection Report of the Registrar Vigilance, High Court,

Bilaspur (C.G). The impugned order of termination is punitive in nature

and in absence of any proper enquiry it amounts to in violation of Article

311(2) of the Constitution of India. The termination order dated

24.10.2018 is, therefore stigmatic and punitive and requires to be

quashed by this Court in the interest of justice. To substantiate his

submission he would refer to the judgment of Hon’ble Supreme Court in

case of High Court of Rajasthan vs. Ramesh Chand Paliwal {1998 (3)

SCC 72 }, Rajasthan High Court vs. Ved Priya and Another {(2020)

SCC Online SC 337}, Dr. Vijayakumaran C.P.V. Vs. Central University

of Kerala and Ors {(2020) 12 SCC 426}, Ratnesh Kumar Choudhary

Vs. INdira Gandhi Institute of Medical Sciences { 2015 (15) SCC 151},

State of Bihar vs. Gopi Kishore Prasad {AIR (SC) 1960 – 0- 689},

State of U.P. Vs. Raj Bahadur Singh And Another { 1998 (8) SCC 685},

Maharastra State Road Transport Corporation Vs. Balwant Regular

Motor Services {AIR (SC) 1969 329}, judgment of Hon’ble High Court of

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Bihar in case of Sunil Kumar Verma vs. State of Bihar {Civil Writ

Jurisdiction Case No. 8306/2020} and judgments of this Court in case

of Ganesh Ram Berman vs. High Court of C.G. and Anr {WPS No.

825/2017}, High Court of Chhattisgarh vs. Ganesh Ram Berman {W.A.

No. 281/2022}, Akanksha Bharadwaj vs. State of C.G. {WP(S)

2206/2017} and Krishna Kumar Kosariya vs. State of Chhattisgarh

{W.A. No. 450/2021}.

7.Learned counsel for respondent No. 1 would submit that the

petitioner’s probation period has not been extended, as such,

non-extension of probation will not fall within the ambit of

termination in view of explanation of Rule 10 Sub Rule 8(a)

therefore, it will not be classified as penalty as per Rule 10 of

Chhattisgarh Civil Services (Classification, Control and Appeal)

Rules, 1966, therefore no regular departmental inquiry is

required. He would further submit that the petitioner has claimed

parity on the basis of judgment passed by the Hon’ble Division

Bench of this Court in case of Ganesh Ram Berman (supra)

but he has not placed true facts or subsequent events taken

place in the matter as the full Court has already recommended

the High Court to take action for termination from service. He

would further submit that the petition suffers from delay and

latches as his services were terminated on 10.07.2018 and he

has filed this petition on November, 2022 after four years from

the termination. As such, he would pray for dismissal of this writ

petition on this count alone.

8.From the discussion above the points emerged for determination

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by Court are as under :-

1.Whether the writ petition deserves to be dismissed on the

count of delay and latches as delay defeats equity and

disentitle the similarly situated person to be granted benefits

similarly?

2.Whether the order of termination dated 10.07.2018,

24.10.2018 deserves to be quashed by this Court and the

petitioner is entitled to be reinstated with consequential

benefits ?

Point No. 1

9.The facts regarding termination of service on 10.07.2018,

24.10.2018 and filing of the petition in November, 2022 are

undisputed facts. The petitioner initially has taken stand that

there is no delay in filing of the petition but subsequently he has

filed rejoinder to claim parity on the count of application of

principle of similarly situated persons should be treated similarly.

For elaborating the point it is expedient for this Court to first

address the effect of delay in equitable relief as this Court in writ

jurisdiction under Article 226 of the Constitution of India cannot

grant extraordinary relief to the person who belatedly

approaches the court. The effect of delay in filing of the petition

has come up for consideration before the Hon’ble Supreme

Court right from 1975 (1) SCC 152 in case of P.S.

Sadasivaswamy vs. State of Tamil Nadu wherein the Hon’ble

Supreme Court has held as under :-

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“A person aggrieved by an order of promoting a ju-

nior over his bead should approach the Court at least

within six months or at the most a year of such promotion.

It is not that 'here is any period of limitation for the Courts

to exercise their powers under Article 226 nor is it that

there can never be a case where the Courts cannot inter-

fere in a matter after the passage of a certain length of

time. But it would be a sound and wise exercise of discre-

tion for the Courts to refuse to exercise their extra-ordinary

powers under Article 226 in the case of persons who do

not approach it expeditiously for relief and who stand by

and allow things to happen and then approach the Court to

put forward stale claims and try to unsettle settled matters-

The petitioner's petition should, therefore have been dis-

missed in limine. Entertaining such petitions is a waste of

time of the court. It clogs the work of the Court and im-

pedes the work of the court in considering legitimate griev-

ances as also its normal work. We consider that the High

court was right in dismissing the appellant's petition as well

as the appeal.”

10.Again Hon’ble Supreme Court in case of Tridip Kumar Dingal

and Others vs. State of West Bengal and Others {(2009) 1 SCC

768} has held in paragraph 56 and 57 as under :-

56.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 the petitioner is guilty of

delay and laches.

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 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 already been disposed of or settled or

where the rights of third parties have accrued in the meantime

[vide State of M.P. & Anr. V. Bhailal Bhai, (1964) 6 SCR 261;

Moon Mills v. Industrial Court, Bombay, AIR 1967 SC 1450;

Bhoop Singh v. Union of India & Ors., (1992) 2 SCR 969]. This

principle applies even in case of an infringement of fundamental

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right [vide Trilokchand Motichand v. H.B. Munshi, (1969) 1 SCC

110; Durga Prasad v. Chief Controller, (1969) 1 SCC 185;

Rabindranath Bose v. Union of India, (1970) 1 SCC 84].

11.Again, Hon’ble Supreme Court in case of State of Uttaranchal

And Another vs. Shiv Charan Singh Bhandari and Others {(2013)

12 SCC 179} in paragraph 23, 24,25, 26 and 28 has held as under :-

23.In State of T.N. v. Seshachalam[2007 10 SCC

137], this Court, testing the equality clause on the

bedrock of delay and laches pertaining to grant of

service benefit, has ruled thus: -

12. “....filing of representations alone

would not save the period of limitation. Delay

or laches is a relevant factor for a court of law

to determine the question as to whether the

claim made by an applicant deserves

consideration. Delay and/or laches on the part

of a government servant may deprive him of

the benefit which had been given to others.

Article 14 of the Constitution of India would

not, in a situation of that nature, be attracted

as it is well known that law leans in favour of

those who are alert and vigilant.”

24. There can be no cavil over the fact that the claim

of promotion is based on the concept of equality and

equitability, but the said relief has to be claimed

within a reasonable time. The said principle has

been stated in Ghulam Rasool Lone v. State of

Jammu and Kashmir and another[2009 15 SCC

321].

25 In New Delhi Municipal Council v. Pan Singh and

others[2007 9 SCC 278], the Court has opined that

though there is no period of limitation provided for fil-

ing a writ petition under Article 226 of the Constitu-

tion of India, yet ordinarily a writ petition should be

filed within a reasonable time. In the said case the

respondents had filed the writ petition after seven-

teen years and the court, as stated earlier, took note

of the delay and laches as relevant factors and set

aside the order passed by the High Court which had

exercised the discretionary jurisdiction.

26.. Presently, sitting in a time machine, we may re-

fer to a two-Judge Bench decision in P.S.

Sadasivasway v. State of Tamil Nadu[1975 1 SCC

152], wherein it has been laid down that a person

aggrieved by an order of promoting a junior over his

head should approach the Court at least within six

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months or at the most a year of such promotion. It is

not that there is any period of limitation for the

Courts to exercise their powers under Article 226 nor

is it that there can never be a case where the Courts

cannot interfere in a matter after the passage of a

certain length of time, but it would be a sound and

wise exercise of discretion for the Courts to refuse to

exercise their extraordinary powers under Article

226 in the case of persons who do not approach it

expeditiously for relief and who stand by and allow

things to happen and then approach the Court to put

forward stale claims and try to unsettle settled mat-

ters.

28.Remaining oblivious to the factum of delay and laches

and granting relief is contrary to all settled principles and

even would not remotely attract the concept of discretion.

We may hasten to add that the same may not be applicable

in all circumstances where certain categories of fundamental

rights are infringed. But, a stale claim of getting promotional

benefits definitely should not have been entertained by the

tribunal and accepted by the High Court.

13.The Hon’ble Supreme Court again in case of Rushibhai

Jagdishchandra Pathak vs. Bhavnagar Municipal

Corporation { } in paragraphs has held as under :-

10. At the same time, the law recognises a

‘continuing’ cause of action which may give rise to a

‘recurring’ cause of action as in the case of salary or

pension. This Court in M.R. Gupta v. Union of India

and Others,10 has held that so long as the

employee is in service, a fresh cause of action would

arise every month when they are paid their salary on

the basis of a wrong computation made contrary to

the rules. If the employee’s claim is found to be

correct on merits, they would be entitled to be paid

according to the properly fixed pay-scale in future

and the question of limitation would arise for

recovery of the arrears for the past period. The 10

(1995) 5 SCC 628 Court held that the arrears

should be calculated and paid as long as they have

not become time-barred. The entire claim for the

past period should not be rejected. 11. Relying

upon the aforesaid ratio, this Court in the case of

Union of India and Others v. Tarsem Singh,11 while

referring to the decision in Shiv Dass v. Union of

India and Others,12 quoted the following passages

from the latter decision: “8...The High Court does

not ordinarily permit a belated resort to the

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extraordinary remedy because it is likely to cause

confusion and public inconvenience and bring in its

train new injustices, and 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. It

was pointed out that 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.

xx xx xx

10. In the case of pension the cause of action

actually continues from month to month. That,

however, cannot be a ground to overlook delay in

filing the petition. … If petition is filed beyond a

reasonable period say three years normally the

Court would reject the same or restrict the relief

which could be granted to a reasonable period of

about three years.

14.The Hon’ble Supreme Court again in case of Mrinmoy Maity

vs. Chhanda Koley and Others { 2024 (4) SCR 506} in

paragraphs 9, 10, 11, and 13 has held as under :-

9. Having heard rival contentions raised and on perusal of

the facts obtained in the present case, we are of the

considered view that writ petitioner ought to have been

non-suited or in other words writ petition ought to have

been dismissed on the ground of delay and laches itself.

An applicant who approaches the court belatedly or in

other words sleeps over his rights for a considerable

period of time, wakes up from his deep slumber ought not

to be granted the extraordinary relief by the writ courts.

This Court time and again has held that delay defeats

equity. Delay or laches is one of the factors which should

be born in mind by the High Court while exercising

discretionary powers under Article 226 of the Constitution

of India. In a given case, the High Court may refuse to

invoke its extraordinary powers if laxity on the part of the

applicant to assert his right has allowed the cause of

action to drift away and attempts are made subsequently

to rekindle the lapsed cause of action.

10. The discretion to be exercised would be with care and

caution. If the delay which has occasioned in approaching

the writ court is explained which would appeal to the

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conscience of the court, in such circumstances it cannot be

gainsaid by the contesting party that for all times to come

the delay is not to be condoned. There may be myriad

circumstances which gives rise to the invoking of the

extraordinary jurisdiction and it all depends on facts and

circumstances of each case, same cannot be described in

a straight jacket formula with mathematical precision. The

ultimate discretion to be exercised by the writ court

depends upon the facts that it has to travel or the terrain in

which the facts have travelled.

11. For filing of a writ petition, there is no doubt that no

fixed period of limitation is prescribed. However, when the

extraordinary jurisdiction of the writ court is invoked, it has

to be seen as to whether within a reasonable time same

has been invoked and even submitting of memorials would

not revive the dead cause of action or resurrect the cause

of action which has had a natural death. In such

circumstances on the ground of delay and laches alone,

the appeal ought to be dismissed or the applicant ought to

be non-suited. If it is found that the writ petitioner is guilty

of delay and laches, the High Court ought to dismiss the

petition on that sole ground itself, in as much as the writ

courts are not to indulge in permitting such indolent litigant

to take advantage of his own wrong. It is true that there

cannot be any waiver of fundamental right but while

exercising discretionary jurisdiction under Article 226, the

High Court will have to necessarily take into consideration

the delay and laches on the part of the applicant in

approaching a writ court.

13. Reiterating the aspect of delay and laches would

disentitle the discretionary relief being granted, this Court

in the case of Chennai Metropolitan Water Supply &

Sewerage Board and others v. T.Τ. Murali Babu, (2014) 4

SCC 108 has held:

"16. Thus, the doctrine of delay and laches should

not be lightly brushed aside. A writ court is required

to weigh the explanation offered and the acceptability

of the same. The court should bear in mind that it is

exercising an extraordinary and equitable

jurisdiction. As a constitutional court it has a duty to

protect the rights of the citizens but simultaneously it

is to keep itself alive to the primary principle that

when an aggrieved person, without adequate

reason, approaches the court at his own leisure or

pleasure, the court would be under legal obligation to

scrutinise whether the lis at a belated stage should

be entertained or not. Be it noted, delay comes in the

way of equity. In certain circumstances delay and

laches may not be fatal but in most circumstances

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inordinate delay would only invite disaster for the

litigant who knocks at the doors of the court. Delay

reflects inactivity and inaction on the part of a litigant

a litigant who has forgotten the basic norms, namely,

"procrastination is the greatest thief of time" and

second, law does not permit one to sleep and rise

like a phoenix. Delay does bring in hazard and

causes injury to the lis."

15.From the above discussion it is quite vivid that the petitioner

who was a judicial officer has approached the High Court

after 4 years of his termination from service without any

explanation for filing the petition at belated stage but claiming

similar relief on the strength of judicial Officer Mr. Ganesh

Ram Berman who has approached the High Court without

any delay from order of termination passed by the State on

the recommendation of the High Court as his WPS No. is

825/2017 and he was removed from the service on

06.02.2017. Thus, the petitioner cannot claim that he is

similar to Mr. Berman and entitled to get same relief as he

has been granted by the learned Single Bench and Hon’ble

Division Bench of this Court. Though subsequently, Mr.

Ganesh Ram Berman has again been terminated by the High

Court therefore, the writ petition deserves to be dismissed on

account of delay and latches. Thus, the point No. 1 is

answered against the petitioner, consequently the petition is

dismissed on the count of delay and latches.

Point No. 2

16.Since this Court has dismissed the petition on the count of

delay and latches, Point No. 2 is not required to be answered

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by this Court and this issue is left open.

17.Consequently, the writ petition is dismissed.

Sd/-

(Narendra Kumar Vyas)

Judge

Deshmukh