P. Ramachandra Kurup v. Secretary, Local Self Government Department, Thiruvananthapuram & Director of Panchayath, Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 24TH DAY OF JULY 2013/2ND SRAVANA, 1935 ## **W.A.No.1444 of 2010** --------------------------------------- AGAINST THE JUDGMENT IN W.P.(C).No.30412/2009 DATED 10.11.2009 OF HIGH COURT OF KERALA. --------------------- **APPELLANT/** PETITIONER:- ---------------------------------------- P.RAMACHANDRA KURUP, S/O.KUNHAMBU, RETIRED TALUK PANCHAYATH OFFICER, 'SRUTHI', P.O.PUTHUR, VIA.PANOOR, THALASSERY, KANNUR DISTRICT. BY ADVS.SRI.GRASHIOUS KURIAKOSE (SENIOR ADVOCATE) SRI.M.M.ANTO ## **RESPONDENTS/** RESPONDENTS:- --------------------------------------------------- 1. THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PANCHAYATH, THIRUVANANTHAPURAM. R1 & R2 BY SPECIAL GOVERNMENT PLEADER SMT.GIRIJA GOPAL. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- Manjula Chellur, C.J. & K.Vinod Chandran, J. -------------------------------W.A.No.1444 of 2010 -------------------------------Dated this, the 24[th] day of July, 2013 ## JUDGMENT ## K.Vinod Chandran,J. The appellant is aggrieved by the judgment of the learned Single Judge, declining jurisdiction under Article 226 for reason of inordinate delay in approaching the Court. 2. The admitted fact is that the appellant, who retired on 30.06.1996; by writ petition in the year 2009 seeks to set right a down-grading of the appellant, occurred while in service. The appellant, who was appointed as Second Grade Executive Officer (Panchayat) was down-graded to Third Grade by virtue of a Government Order, which stipulated that on absorption from the former Malabar area to the State service those who were not suitable to be continued should be accommodated in the Third Grade. Though the exact date of such down-grading is not evident from the pleadings, definitely the same occurred at the time when the appellant was continuing in service. The appellant's contention is that his claim is similar to that of the employees covered under Exhibits P2 and P4 and they having been granted the benefit in the year 2008 by the Government, the appellant ought to be considered _dehors_ the delay. W.A.No.1444 of 2010 - 2 - 3. The learned Senior Counsel Sri.Grashious Kuriakose appearing for the appellant would contend before us that the appellant had, while in service in the year 1995 and 1996, made representations similar to that made by the employees covered under Exhibits P2 and P4. While the representation of the employees covered under Exhibit P2 and P4 was considered favourably by the Government; nothing was done on Exhibits P5 and P6 representations filed by the appellant who had raised similar issue. The entire reliefs with respect to the employees covered under Exhibits P2 and P4 having finally crystallized in the year 2008 by the order of the Government, it is only just and proper that the appellant too be given the said relief. The learned counsel would also urge before us that no third party claims would be affected and hence, following the dictum laid down by the Supreme Court in _**Basanti Prasad v. Bihar School Examination Board**_ **[(2009) 6 SCC 791],** the appellant is entitled to the relief prayed for in the writ petition and the delay is of absolutely no consequence. 4. We have first looked at _**Basanti Prasad's case**_ ( _supra_ ), wherein a widow of a former employee of the respondent-Board challenged the termination of her husband. The husband, while working as an Assistant in the respondent-Board, - 3 - W.A.No.1444 of 2010 was kept under suspension on account of initiation of criminal proceedings and subsequently removed from service on being convicted by the trial Court. While Criminal Appeals filed by the appellant's husband and other accused were pending before the Sessions Court, the husband of the appellant died. The appellant, hence, continued the criminal proceedings with permission of the Court, which ultimately ended in acquittal. On the appellant's husband being acquitted, the appellant was before the respondent-Board seeking benefits deeming the appellant's husband's service to be continued in the Board. A writ petition was filed against the rejection of the Board and while the matter was pending, the original order terminating the services of the appellant's husband was sought to be incorporated and challenged in the writ petition through an interlocutory application. Finding that the original order was of the year 1992 and the interlocutory application was filed in the year 2007, the High Court rejected the writ petition. The Supreme Court reversed the order, finding that the delay is of no consequence looking at the facts of the case. While reiterating the traditional view that discretion would not ordinarily assist the tardy and indolent persons, it was also held that there is no inviolable rule that whenever there is delay, the - 4 - W.A.No.1444 of 2010 Court must refuse jurisdiction; quoting decisions of the Supreme Court wherein it had been stated unequivocally that delay if satisfactorily explained could be condoned, if situation warrants so and justice demands it. 5. We cannot, on a reading of the judgment, understand the judgment as having laid down a principle that if third party rights are not affected then delay, in all situations, should be condoned. Even going by the decisions taken note of by the Supreme Court in _**Lindsay Petroleum Co. v. Prosper Armstrong Hurd**_ **[(1874) 5 PC 221],** _**State of M.P. v. Nandlal Jaiswal**_ **[(1986) 4 SCC 566]** and _**Vallabh Glass Works Ltd. v. Union of India**_ **[(1984) 3 SCC 362],** it was only held that the validity of a defence urged on the ground of delay must be tried upon principles substantially equitable and when justice demands that the High Court should interfere in spite of delay or creation of third party rights, ultimately the same would be a matter within the discretion of the Court. It was also found in _**Vallabh Glass case**_ ( _supra_ ) that there can be no rigid formula in applying the principles of limitation and on facts at times even a shorter period of delay would be sufficient ground to refuse jurisdiction and each case has to be adjudged “on its own facts and circumstances touching the conduct of the parties, the change in - 5 - W.A.No.1444 of 2010 situation, the prejudice which is likely to be caused to the opposite party or to **the general public** , etc.”. 6. Looking at the similar orders said to have been passed in favour of the three employees who allegedly are similarly situated, they approached the Government at the proper time and Exhibit P2 order was issued as early as on 28.06.1994. Even looking at Exhibit P4 dated 11.12.2008, it is seen that the employees therein had challenged the decision of the Director of Panchayats before Court. So far as the appellant is concerned, but for the filing of two unrepresented memorials, produced as Exhibits P5 and P6, the appellant has done absolutely nothing to prosecute his grievance before the appropriate authority or on non-consideration by the appropriate authority, approach a competent Court. 7. At this stage, we have only the appellant's word as far as the filing of Exhibits P5 and P6, respectively, in the years 1995 and 1996. The appellant also retired from service on 30.06.1996 and again did not at all agitate his grievance before the employer or before the competent Court. In the year 2009, the appellant wakes up to realization and approaches this Court, without any explanation for the delay caused for more than 13 - 6 - W.A.No.1444 of 2010 years at least from the date of his retirement. After 13 years of his retirement, the appellant seeks to overturn a down-grading made on absorption made to State service. We are of the definite opinion that no parallels can be drawn to the above cited Supreme Court judgment, on facts or on the principles laid down therein. 8. The appellant's ground that no third party rights will be affected is on the premise that if the appellant's down-grading is set at naught, then he would only be entitled to monetary benefits, that too notionally so as to increase his pension computable. Hence, obviously the efforts made by the appellant boils down to his claim for enhanced pension from the date of his retirement, i.e., retrospectively for 13 years. We specifically notice the above extracted portion in _**Vallabh Glass case**_ ( _supra_ ). The prejudice to the general public also is a compelling circumstance to be considered while exercising discretion to condone delay. The appellant having slept over his rights, seeks for enhancement of pension after 13 years of his retirement on the ground of alleged illegality in a down-grading while in service. The tax payers' money should not be put at stake in such matters and in addition to the fact that there is absolutely no satisfactory explanation to condone the delay, we are also of the opinion that the public good will not be - 7 - W.A.No.1444 of 2010 subserved in permitting such indolent persons to revive stale claims. We are of the opinion that the judgment of the learned Single Judge requires no interference and we dismiss the same, however with no costs. Sd/Manjula Chellur, Chief Justice Sd/K.Vinod Chandran, Judge. vku/- ( true copy )